A. S. v. Tex. Dep't of Family & Protective Servs.

1

A. S., Appellant v. Texas Department of Family and Protective Services, Appellee

No. 03-23-00658-CV

Court of Appeals of Texas, Third District, Austin

April 12, 2024

FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY NO. 21-FL-237 THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING

Before Justices Baker, Triana, and Kelly

MEMORANDUM OPINION

Chari L. Kelly, Justice

A.S (Father) appeals the trial court's order of termination which terminated his parental rights to Y.R (Child).^[1] In four appellate issues, Father maintains that the findings made against him under statutory predicate grounds for termination Paragraphs (E), (N), and (O) and under the best-interest ground were not supported by legally and factually sufficient evidence. We reject Father's arguments, concluding that the evidence was sufficient under Paragraph (E) and best interest, and affirm the order of termination.

BACKGROUND

The Department's involvement with Child here began in 2021 when Child was one year old and Child's mother was alleged to be abusing drugs and prostituting. Father was not then involved in Child's life-he did not even know about Child's existence, according to his testimony-and the suit continued for some time before Father became involved.

Back in 2018, Father finished a state prison sentence of about four years for the enhanced offense of unlawful possession of a firearm, and he moved to Amarillo, where he took up using and dealing methamphetamine and cultivated a relationship with Child's mother. The next year, Father was again incarcerated-on a new, federal charge of felon in possession of a firearm. He served about 36 months in prison, after which he had to serve a term of probation.

Child was born in 2020 while Father was still incarcerated for the federal felon-in-possession charge. The Department took temporary managing conservatorship of Child in 2021 and placed her in foster care.^[2] Child's mother named Father as potentially being Child's father to the Department. In 2022, the Department first pleaded for termination of Father's parental rights, and Father answered the suit. Later that year, in quick succession, Father was released on probation from his federal incarceration, paternity-test results confirmed his parentage of Child, and the trial date in the parental-rights-termination suit approached. Because the trial so quickly followed the confirmation of Father's parentage, the parties agreed that the Department would take permanent managing conservatorship of Child and Father would be given a Family Service Plan and the chance to complete the Plan to obtain conservatorship of Child. Father's Plan was made an order of the court, but he ended up not fulfilling all that his Plan required.

During his probation for the federal felon-in-possession charge and during this suit, Father resumed his methamphetamine habit, later admitting as much to his probation officer. This resulted in the government's seeking to revoke his probation and charging him in a superseding indictment with possession with intent to distribute and his reincarceration pending the new charge. All the while, Father's sister reached out to Department personnel to offer to be a placement for Child. Yet when Department personnel sought to have her home cleared as a potential placement, the sister dropped out of contact with the Department for months. Not until around summer 2023 was the sister's home study fully approved.

In August 2023, the parties tried the Department's request that Father's parental rights be terminated before an associate judge. Father's federal charge for possession with intent to distribute was still pending, so he was incarcerated during the trial. He testified that he would plead guilty to simple possession, which would likely result in his incarceration for another three or so years. The associate judge rendered judgment terminating Father's rights, and Father requested a de novo hearing before the district court. Child was almost four years old at the time of the trial before the district court. At that trial, the court admitted into evidence the transcript and exhibits from the trial before the associate judge and took further testimony from Father and a Department caseworker. Afterward, the district court signed its order of termination of Father's parental rights, which Father now appeals.

DISCUSSION

Father challenges the legal and factual sufficiency of the evidence supporting the two elements of termination of parental rights-the statutory predicate ground and the best-interest ground. To terminate parental rights, the Department must prove both one of the statutory predicate grounds and that termination is in the best interest of the child. See Tex. Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department must prove both elements by clear and convincing evidence. See Tex. Fam. Code § 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (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; accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

Legal-sufficiency review of the evidence to support termination requires reviewing all the evidence in the light most favorable to the finding under attack and considering undisputed contrary evidence to decide whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). "Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding." Id. at 631. "Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id. When reviewing the evidence, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).

I. The evidence was sufficient to support the finding against Father under statutory predicate ground Paragraph (E).

In his first appellate issue, Father maintains that the evidence was legally and factually insufficient to support the finding against him under statutory predicate ground Paragraph (E). Paragraph (E) applies when a parent has "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). For these purposes, "'[e]ndanger' means 'to expose to loss or injury; to jeopardize.'" In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Texas Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). "Although '"endanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury,'" id. (quoting Boyd, 727 S.W.2d at 533), or even that the conduct happen in the child's presence, Pruitt v. Texas Dep't of Fam. &Protective Servs., No. 03-10-00089-CV, 2010 WL 5463861, at *4 (Tex. App.-Austin Dec. 23, 2010, no pet.) (mem. op.). "Endangerment does not have to be established as an independent proposition, but can be inferred from parental misconduct alone," and courts may look to conduct "before the child's birth and both before and after the child has been removed by the Department." Id. "A factfinder may infer endangerment from 'a course of conduct' that presents substantial risks to the child's physical or emotional well-being," and "[t]hose risks can be developed by circumstances arising from and surrounding a parent's behavior." In re R.R.A., S.W.3d, 2024 WL 1221674, at *6 (Tex. Mar. 22, 2024). "Conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being." Pruitt, 2010 WL 5463861, at *4.

Important under Paragraph (E) is whether the endangerment of the child's well-being was the direct result of a person's conduct, including acts, omissions, or failures to act. See T.M. v. Texas Dep't of Fam. &Protective Servs., No. 03-21-00174-CV, 2021 WL 4692471, at *6 (Tex. App.-Austin Oct. 8, 2021, pet. denied) (mem. op.); In re J.F.-G., 612 S.W.3d 373, 382 (Tex. App.-Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021). "Termination under subsection (E) requires more than a single act or omission, and the Department must show a voluntary, deliberate, and conscious course of conduct by the parent, considering a parent's actions both before and after the child was removed from the home." T.M., 2021 WL 4692471, at *6.

The evidence here showed three sets of circumstances supporting a Paragraph (E) finding. First was evidence of illegal-drug use by Father. "[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as" endangering conduct. In re J.O.A., 283 S.W.3d 336 346 (Tex. 2009). Drug use "exposes the child to the possibility that the parent may be impaired or imprisoned." J.M. v. Texas Dep't of Fam. &Protective Servs., No. 03-21-00274-CV, 2021 WL 5225432, at *5 (Tex. App.-Austin Nov. 10, 2021, pet. denied) (mem. op.) (quoting M.D. v. Texas Dep't of Fam. &Protective Servs., No. 03-20-00531-CV, 2021 WL 1704258, at *8 (Tex. App.-Austin Apr. 30, 2021, no pet.) (mem. op.)). "[A] pattern of drug use...