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In re L.J.G.

Court of Appeals of Texas, Fourth District, San Antonio

November 18, 2019

IN THE INTEREST OF L.J.G., S.A.M., and A.C.F., Children

          From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-00420 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         In this 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.

         Background

         On 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.

         On 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.

         Following 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.

         Evidence Required, Standards of Review

         The evidentiary standards[1] the Department must meet and the statutory grounds[2] the trial court must find to terminate a parent's rights to a child are well known, as are the legal[3] and factual[4]sufficiency standards of review. We apply them here.

         With 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) (per curiam).

         Bases for Terminating B.G.'s Parental Rights

         A. Statutory Grounds Findings

         The 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), (E), (N).

         A 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).

         B. Section 161.001(b)(1)(D)

         Subsection (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).

         "A 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.).

         C. Section 161.001(b)(1)(E)

         Subsection (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, no pet.).

         D. B.G.'s Actions, Course of Conduct

         1. Other Witnesses' Testimony

         B.G. 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.

         2. B.G.'s Testimony

         When 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."

         3. Termination under Subsection (D)

         From 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.

         Despite 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."

         Given 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).

         The 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 568.

         4. Termination ...


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