Court of Appeals of Texas, Fourth District, San Antonio
IN THE INTEREST OF L.J.G., S.A.M., and A.C.F., Children
the 73rd Judicial District Court, Bexar County, Texas Trial
Court No. 2018-PA-00420 Honorable Charles E. Montemayor,
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice
Liza A. Rodriguez, Justice
Patricia O. Alvarez, Justice
parental rights termination case, the trial court terminated
B.G.'s parental rights to L.J.G. and A.F.'s parental
rights to S.A.M. and A.C.F. i Each father appeals
the trial court's order. B.G. challenges the trial
court's statutory grounds and
best-interest-of-the-children findings. A.F. challenges the
trial court's paternity and subsection (N) findings. We
affirm the trial court's order.
October 11, 2017, the Department of Family and Protective
Services received a report alleging illegal drug abuse by Mom
and neglectful supervision and physical abuse of the
children. ii The Department received three
subsequent referrals for Mom's abuse of the children and
continued i To protect the minors' identities,
we use aliases for appellants and the children. See
Tex. R. App. P. 9.8. ii Mom did not appeal. We
limit our recitation of the facts to those pertaining to
B.G., A.F., and the children. illegal drug use. The
Department investigated and found that Mom had untreated
mental illness, used illegal drugs, and physically abused and
threatened violence against the children.
March 1, 2018, the day before the Department petitioned for
conservatorship of the children, Mom placed the children with
her father. Later, the Department created service plans for
Mom, B.G., and A.F. Both B.G. and A.F. were incarcerated for
the entire period of the case; neither completed their
service plans. After several status hearings the case
proceeded to trial.
a two-day bench trial, the trial court found by clear and
convincing evidence that B.G.'s course of conduct met the
grounds in Family Code section 161.001(b)(1)'s
subsections (D), (E), and (N), A.F.'s course of conduct
met the grounds in subsection (N), and terminating B.G.'s
and A.F.'s parental rights were in the children's
best interests. B.G. and A.F. appeal.
Required, Standards of Review
evidentiary standards the Department must meet and the statutory
grounds the trial court must find to terminate a
parent's rights to a child are well known, as are the
legal and factualsufficiency standards of review.
We apply them here.
regard to the testifying witnesses, the trial court was the
"sole judge of the credibility of the witnesses and
the weight to give their testimony." See City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005);
cf. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
for Terminating B.G.'s Parental Rights
Statutory Grounds Findings
trial court found B.G.'s course of conduct met the
grounds in subsections (D), (E), and (N). B.G. asserts that
the evidence was legally and factually insufficient to
support the trial court's statutory grounds findings.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
single statutory ground finding, when accompanied by a best
interest of the child finding, is sufficient to support a
parental rights termination order. In re A.V., 113
S.W.3d 355, 362 (Tex. 2003); In re R.S.-T., 522
S.W.3d 92, 111 (Tex. App.-San Antonio 2017, no pet.). But
"due process requires an appellate court to review and
detail its analysis as to termination of parental rights
under section 161.001(b)(1)(D) or (E) of the Family Code when
challenged on appeal." In re Z.M.M., 577 S.W.3d
541, 543 (Tex. 2019).
(D) allows for termination of a parent's rights if,
before the child was removed, see In re R.S.-T., 522
S.W.3d 92, 109 (Tex. App.-San Antonio 2017, no pet.)
(relevant period), the parent "knowingly placed or
knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional
well-being of the child," Tex. Fam. Code Ann. §
161.001(b)(1)(D). In the context of the statute,
"'endanger' means to expose to loss or injury;
to jeopardize." Tex. Dep't of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
child is endangered when the environment creates a potential
for danger that the parent is aware of but consciously
disregards." In re S.R., 452 S.W.3d 351, 360
(Tex. App.-Houston [14th Dist.] 2014, pet. denied). "[A]
parent need not know for certain that the child is in an
endangering environment; awareness of such a potential is
sufficient." In re R.S.-T., 522 S.W.3d at 109
(alteration in original) (quoting In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no
pet.)). "[A] single act or omission" may support
terminating a parent's rights under subsection (D).
Id. (citing In re R.D., 955 S.W.2d 364, 367
(Tex. App.-San Antonio 1997, pet. denied)). "Further, a
fact-finder may infer from past conduct endangering the
well-being of a child that similar conduct will recur if the
child is returned to the parent." In re D.J.H.,
381 S.W.3d 606, 613 (Tex. App.-San Antonio 2012, no pet.).
(E) allows for termination of a parent's rights if,
before or after the child was removed, see In re
R.S.-T., 522 S.W.3d at 109 (relevant period); In re
S.R., 452 S.W.3d at 360, the 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 Ann. §
161.001(b)(1)(E). "Under subsection E, the evidence must
show the endangerment was the result of the parent's
conduct, including acts, omissions, or failure to act."
In re S.R., 452 S.W.3d at 360 (requiring a course of
conduct rather than a single act). Although incarceration
alone does not necessarily constitute engaging in conduct to
endanger the child, a parent's "imprisonment is
certainly a factor to be considered by the trial court on the
issue of endangerment." Boyd, 727 S.W.2d at
533; accord In re S.R., 452 S.W.3d at 360; In re
S.F., 32 S.W.3d 318, 322 (Tex. App.- San Antonio 2000,
B.G.'s Actions, Course of Conduct
Other Witnesses' Testimony
appeared at trial by telephone. He heard the maternal
grandfather's, Mom's, and the case worker's
testimony about how Mom has untreated mental health issues
including bipolar disorder and depression that have affected
her "on and off" since she was a teenager. Her
depression has been so severe that she has cut herself on
several occasions and has attempted suicide "a few
times," with the most recent attempt occurring when
L.J.G. was about two years old. Mom acknowledged she has
repeatedly refused her ordered services because she does not
want or need them. Mom said she and B.G. had a ten-year
relationship, and although B.G. was not L.J.G.'s
biological father, he put his name on L.J.G.'s birth
certificate. Mom was physically and verbally abusive to
L.J.G., she used illegal drugs regularly, and L.J.G. has
begun using drugs and following a similar path to Mom.
B.G. was called, he testified that he has been incarcerated
for twenty months on a possession of a controlled substance
conviction, he expects to have a parole hearing in about four
months, and he has another fifteen months remaining on his
sentence. He testified he was L.J.G.'s father and he had
had a relationship with her since her birth. He knew L.J.G.
had been "acting out." He did not approve of L.J.G.
being placed with her maternal grandfather because of the way
the grandfather "treats his daughter [Mom]." He
observed, "I've never seen somebody so cold to just,
you know, turn his back on his daughter-[a]nd I've never
seen somebody just name calling and belittling somebody that
is your daughter." He added "I think my daughter
[L.J.G.] would go and is going through the same thing while
she's over there [at the maternal grandfather's
home], because I could just tell."
Termination under Subsection (D)
the testimony, the trial court could have reasonably formed a
firm belief or conviction that B.G. allowed L.J.G. to remain
in an environment that endangered L.J.G.'s physical or
emotional well-being. Mom testified she had a ten-year
relationship with B.G., and B.G. testified he had maintained
a relationship with L.J.G. since she was born. Mom and her
father testified that Mom had untreated bipolar disorder and
depression. Mom's father testified that Mom attempted
suicide when L.J.G. was about two years old, which was during
Mom's relationship with B.G.
having heard this testimony about Mom, her mental illness,
and her attempted suicide, B.G. did not express any surprise
or shock or testify that he was unaware of Mom's
untreated bipolar disorder, her untreated depression, or her
attempted suicide. Further, B.G. testified that he has known
Mom's father "for a long time" and had observed
their father-daughter relationship. He had "seen the way
he [Mom's father] treats [Mom]," he disapproved of
it, and he thought L.J.G. was "going through the same
thing while she's over there." B.G. also knew L.J.G.
was now "acting out."
this undisputed evidence, the trial court could have made a
reasonable inference that over the ten-year relationship with
Mom and the then thirteen-year relationship with L.J.G., B.G.
interacted regularly with Mom, observed her behaviors, and
had to have known that Mom had serious untreated mental
health issues that put L.J.G. at risk. See In re
A.C., 560 S.W.3d 624, 632 (Tex. 2018) (allowing
inferences arising from evidence to support the trial
court's finding); In re D.G., No.
02-17-00355-CV, 2018 WL 1414726, at *6 (Tex. App.-Fort Worth
Mar. 22, 2018, no pet.) (mem. op.) (concluding that the trial
court's reasonable inferences supported its finding).
trial court could have reasonably concluded that B.G. did not
act to protect L.J.G. from injury by seeking to remove L.J.G.
from Mom's home or ensure L.J.G. was living in a safe
environment. Cf. In re M.C., 352 S.W.3d 563, 568
(Tex. App.-Dallas 2011, no pet.); In re Z.C.J.L.,
No. 14-13-00115-CV, 2013 WL 3477569, at *13 (Tex.
App.-Houston [14th Dist.] July 9, 2013, no pet.). B.G.'s
failure to act to protect L.J.G. was sufficient evidence to
support termination under subsection (D). See In re
R.S.-T., 522 S.W.3d at 109; In re Z.C.J.L.,
2013 WL 3477569, at *13; In re M.C., 352 S.W.3d at