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In re of A.L.J.

Court of Appeals of Texas, First District

September 24, 2019

IN THE INTEREST OF A.L.J., A.L.J., G.A.G.

          On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2017-04601J

          Panel consists of Kelly, Hightower, and Countiss, Justices.

          MEMORANDUM OPINION

          Peter Kelly Justice.

         In this appeal, the mother of three minor children challenges the trial court's final decree terminating her parental rights based on findings that (a) she endangered the children, (b) she failed to comply with a provision of a court order specifying the actions necessary to obtain return of her children, and (c) termination of her parental rights was in the best interest of the children. Tex. Fam. Code § 161.001(b)(1)(E), (O); id. § 161.001(b)(2). She challenges the sufficiency of the evidence to support the predicate act and best interest findings. She also challenges the sufficiency of the evidence to support the court's subsequent decision to appoint the Department of Family & Protective Services ("Department") as managing conservator of the children.

         We affirm.

         Background

         This case concerns A.G. ("Mother") and her three children: A.L.J. ("Alicia") and A.L.J. ("Amelia"), twin girls born June 28, 2012, and G.A.G. ("George"), a boy born February 7, 2017.[1] On September 25, 2017, when the twins were almost five years old and George was eight months old, the Department received a report alleging that Mother subjected her children to neglectful supervision. According to the report, George's father and Mother were found unconscious in a car. George was in the back. The police responded and were able to wake Mother, who said she was tired from arguing with George's father. She stated that she had been staying in a hotel for a few days, and she admitted using synthetic marijuana. George was taken to the hospital as a safety precaution.

         Two days later, the Department filed suit for protection of Alicia, Amelia, and George, and the children were placed in the Department's temporary managing conservatorship. In November 2017, the trial court entered an order establishing the actions necessary for Mother to obtain the return of her children. The plan referenced an additional child protection case involving Mother and the twins in which Mother had been "under the influence" and the twins were placed with their grandmother. The plan noted that Mother was on probation for driving under the influence, posing a significant risk to the family due to her continued substance abuse.

         The Department's plan listed as its goal that Mother demonstrate the ability to maintain a safe, stable, and sober lifestyle, and refrain from engaging in criminal activity. The plan required her to complete the following tasks: (1) maintain stable and safe housing for a minimum of six months; (2) provide the Department's caseworker with verification of any and all sources of income; (3) complete a parenting education course; (4) participate in a drug/alcohol assessment and follow all recommendations; (5) participate in random drug testing; (6) participate in a psychosocial assessment and follow recommendations; and (7) attempt to complete some services while incarcerated.

         Trial began in February 2019. The Department called one witness, caseworker Jasmin Green. In her testimony, Green described the series of events giving rise to the Department's case, Mother's involvement with the criminal justice system, Mother's progress on the service plan, and why termination was in the children's best interest.

         Green testified that Mother had texted her at some point before trial to say that she was not able to leave work to attend the trial. Through her attorney, Mother did not call any witnesses and did not object to the admission of any of the Department's exhibits. After Green's testimony, the Department asked the trial court to terminate Mother's parental rights pursuant to sections 161.001(b)(1)(E) and (O) of the Texas Family Code. The children's attorney ad litem opined that the Department had met its burden to terminate Mother's parental rights. Following argument, the court terminated Mother's parental rights under sections (E) and (O) and named the Department as the children's sole managing conservator.[2] On March 7, 2019, the court signed a decree for termination reflecting those findings and that termination was in the children's best interest.

         Standards of Review

         The interests of parents in the care, custody, and control of their children is a fundamental liberty interest protected by the United States Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745, 758–59 (1982). But the rights of natural parents are not absolute. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Protection of the child is paramount, and when the State institutes proceedings to terminate parental rights, the courts focus on protecting the best interests of the child. See id.

         We strictly scrutinize termination proceedings on appeal because the "evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky, 455 U.S. at 747-48); see In re J.F.C., 96 S.W.3d 256, 263-64 (Tex. 2002). '"Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007.

         In conducting a legal sufficiency review, we view "the evidence in the light most favorable to the judgment, " which means that we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. A reviewing court may not disregard undisputed facts that do not support the finding, but it "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. Evidence is legally sufficient when it enables a factfinder to "reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof." Id. at 265-66; see Tex. Fam. Code § 101.007.

          In a factual sufficiency review, the reviewing court again determines "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). But rather than disregarding disputed evidence that the factfinder could have disbelieved, we consider whether "a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.

         Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there also is a finding that termination is in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Due process requires, however, that when a parent has raised the issue of insufficiency of the evidence to support the trial court's findings under section 161.001(b)(1)(D) or (E) of the Family Code, an appellate court must address at those endangerment findings to ensure a meaningful appeal. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam). Due process and due course of law requirements also mandate that an appellate court detail its analysis when a parent appeals termination under section 161.001(b)(1)(D) or (E) of the Family Code. Id. at 237.

         Predicate Acts

         On appeal, Mother contends that the evidence was not legally or factually sufficient to support a finding that she endangered her children under section 161.001(b)(1)(E) or that she failed to comply with a provision of a court order establishing necessary actions to obtain the return of the children under section 161.001(b)(1)(O).

         A. The evidence was legally and factually sufficient to show that Mother endangered the children under section 161.001(b)(1)(E).

         A court may order termination of the parent-child relationship if it finds by clear and convincing evidence that a parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(E). The relevant inquiry is whether evidence exists that the endangerment of the child's physical and emotional well-being was the direct result of the parent's conduct, including acts, omissions, or failure to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex.App.-Fort Worth 2003, no pet); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.-Houston [14th Dist] 2005, no pet.).

         The word "endanger" as used in section 161.001 "means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In this context, endanger means to expose to loss or injury, or to jeopardize. Id. (internal citations omitted); see Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex.App.-Houston [1st Dist] 2010, pet. denied) (endangerment includes jeopardizing a child's emotional or physical health); accord In re A.J.H., No. 01-18-00245-CV, 2019 WL 190050, at *7-8 (Tex.App.-Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem. op.). Danger to the child's well-being can be inferred from parental misconduct alone, and courts may consider parental conduct both before and after the child's birth. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) ("[T]he endangering conduct may include the parent's actions before the child's birth, while the parent had custody of older children, including evidence of drug usage."). The conduct need not occur in the child's presence, and it may occur "both before and after the child has been removed by the Department." Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex.App.- Houston [1st Dist.] 2009, pet. denied); In re A.A.M., 464 S.W.3d 421, 426 (Tex.App.-Houston [1st Dist.] 2015, no pet.). Termination under section (E) must be based on more than a single act or omission-the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the parent. In re C.A.B., 289 S.W.3d 874, 883 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

          The undisputed evidence supports the court's finding under section (E). Mother's criminal history, including her ten-month period of incarceration, her use of illegal drugs, and her history of instability support a finding of endangerment. "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." N.A.B. v. Tex. Dep't of Family & Protective Servs., No. 03-14-00377-CV, 2014 WL 6845179, at *2 (Tex.App.-Austin Nov. 26, 2014, no pet.) (mem. op.). Although incarceration alone will not support termination, evidence of criminal conduct, convictions, and imprisonment may support a finding of endangerment under section (E). See C.A.B., 289 S.W.3d at 886. Likewise, "a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." J.O.A., 283 S.W.3d at 345. Illegal drug use may support termination under section (E) because "it exposes the child to the possibility that the parent may be impaired or imprisoned." Walker, 312 S.W.3d at 617. In addition, "a parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent ...


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