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In re A.D.G.

Court of Appeals of Texas, Fourth District, San Antonio

December 4, 2019

IN THE INTEREST OF A.D.G., a Child

          From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2018PA00632 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          PATRICIA O. ALVAREZ, JUSTICE

         In this parental rights termination case, the trial court terminated Mom's parental rights to her child A.D.G.[i] Mom challenges the trial court's statutory grounds findings (under subsections (D), (N), and (O)), but not the best-interest-of-the-child finding. We affirm the trial court's order.

         Background

         In late March 2018, the Department of Family and Protective Services received a report alleging neglect by Mom of her child A.D.G.[ii] Because Mom was hospitalized after a seizure and there was no one to care for A.D.G., the Department petitioned to remove A.D.G. from the home, and the trial court granted the petition. In a three-day bench trial, the Department alleged that Mom knowingly placed or allowed A.D.G. to remain in endangering circumstances, she constructively abandoned A.D.G., and she failed to complete her service plan. The trial court found by clear and convincing evidence that Mom's course of conduct met the grounds in Family Code section 161.001(b)(1)'s subsections (D), (N), and (O), and terminating Mom's parental rights was in A.D.G.'s best interest. Mom appeals.

         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 Mom's Parental Rights

         A. Statutory Grounds Findings

         Mom 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), (N), (O).

         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 at 108 (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).

         "[E]ndangerment can be exhibited by both actions and failures to act." Lumpkin v. Dep't of Family & Protective Servs., 260 S.W.3d 524, 528 (Tex. App.-Houston [1st Dist.] 2008, no pet.). "[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. Mom's History, Course of Conduct

         The trial court heard testimony from Mom, two Department case workers, two of Mom's counselors, and the foster mother. We summarize the evidence pertaining to whether Mom knowingly placed or knowingly allowed A.D.G. to remain in conditions or surroundings which endanger[ed A.D.G.'s] physical or emotional well-being." See Tex. Fam. Code Ann. § 161.001(b)(1)(D).

         1. Mom's Medical History

         a. Seizure Disorder

         Mom is in her early twenties, she has epilepsy, and she has been having seizures since she was about three years old. Mom knows that she has tonic-clonic (grand mal) seizures, and she will be hospitalized if her seizure lasts more than thirty minutes. She knows she will be incoherent for 15-30 minutes after a seizure. In the roughly five months between A.D.G.'s birth and her removal from the home, Mom suffered ...


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