Opinion filed August 15, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-19-00084-CV
                                    __________

                  IN THE INTEREST OF L.E., A CHILD


                     On Appeal from the 220th District Court
                           Comanche County, Texas
                        Trial Court Cause No. FM15517


                      MEMORANDUM O PI NI O N
      This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of L.E. Both parents appeal. On appeal, the mother
presents three issues in which she challenges the sufficiency of the evidence as to
the termination of her parental rights and two issues in which she challenges the trial
court’s order insofar as it relates to the payment of child support. The father presents
five issues challenging the portion of the trial court’s order that relates to the
payment of child support. We reverse and render in part, and we affirm in part.
                        Termination Findings and Standards
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To determine if
the evidence is legally sufficient in a parental termination case, we review all of the
evidence in the light most favorable to the finding and determine whether a rational
trier of fact could have formed a firm belief or conviction that its finding was true.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is
factually sufficient, we give due deference to the finding and determine whether, on
the entire record, a factfinder could reasonably form a firm belief or conviction about
the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002). To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has           committed     one of the acts         listed   in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b).
      In this case, the trial court found that both parents had committed three of the
acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O).
Specifically, the trial court found that the parents had knowingly placed or
knowingly allowed the child to remain in conditions or surroundings that endangered
the child’s physical or emotional well-being; that the parents had engaged in conduct
or knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being; and that the parents had failed to
comply with the provisions of a court order that specifically established the actions
necessary for them to obtain the return of the child, who had been in the managing
conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of the child’s removal from the parents for abuse or
neglect.   The trial court also found, pursuant to Section 161.001(b)(2), that
termination of each parent’s parental rights would be in the best interest of the child.
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On appeal, neither parent challenges the best interest finding, but the mother
challenges the findings made by the trial court pursuant to subsections (D), (E), and
(O).
                                 Background Facts
       The record shows that the Department first became involved with the family
in 2015 or early 2016 when L.E. was four years old. At that time, there were
allegations of sexual abuse involving L.E. and physical abuse involving L.E. and her
brothers, H.G. and N.G.
       In early 2016, the mother took L.E. to Head Start with lots of bruises and red
marks on L.E.’s face. L.E. said that “mommy had hit her.” According to L.E.’s
teacher, L.E. often had bruises on her legs and arms. L.E.’s brothers, H.G. and N.G.,
“always” had bruises everywhere. At Head Start, the mother was observed jerking
N.G.’s “leash” and pulling H.G. by the arm “really hard.”
       Additionally, both the father and a friend of the mother testified about the
mother’s physical abuse of her children. At the termination hearing, the father
testified that the mother was abusive to their three children—L.E., H.G., and N.G.
The father testified about specific instances of physical abuse committed by the
mother. The mother admitted to striking L.E. in the face in 2016 and to accidentally
hitting H.G. with a shoe, but otherwise denied any physical abuse of her children.
       The mother, however, did admit that she knew about the father’s sexual abuse
of L.E. at the time that he was committing those crimes against their daughter. The
mother testified that the father began sexually assaulting L.E. when L.E. was three
and one-half or four years old. According to the mother, she had walked in on the
father and L.E. when L.E. was between the father’s legs and the father’s shorts were
“part way down on his legs.” The mother testified that she asked the father what
was going on and that he told her “[L.E.] was just sucking his finger.” Another
instance of sexual abuse occurred when L.E. was in the shower with the father and
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the mother was in the same bathroom bathing H.G. in his little bathtub. Prior to
getting in the shower, the father told the mother that, since the mother would not
perform oral sex on him, he would just have L.E. do it instead. While L.E. and the
father were in the shower together, L.E. started making noises; the mother heard L.E.
“coughing and choking.” The mother did nothing—except go to the other room with
H.G. The mother also testified that L.E. would tell the mother about the things that
the father did to L.E. After the shower incident, L.E. told her mother that “Daddy
stuck his thing in my mouth.” The mother still did nothing to protect L.E.
      The mother testified that the father sexually assaulted the mother anally while
L.E. and H.G. were in the room. The mother also testified that, one time when she
refused to have “anal sex” with the father, he told her that “he would get it from
[L.E.].” The father then “got the Vaseline out,” and the mother, who said she thought
the father was joking, went to go take a shower. According to the mother, the father
sexually abused L.E. during a period of more than one year. The mother admitted
that she was not protective of L.E.
      The mother also testified that the father had grabbed H.G. by the neck and
choked him when he was about one year old and would not stop crying. The mother
did not report any of the father’s conduct to the police or to CPS, did not ask the
father to leave (they lived at the mother’s grandmother’s house at the time), and did
nothing to keep the father away from L.E.
      The mother eventually took L.E. to counseling because of L.E.’s “anger
problems.” During counseling, L.E. disclosed the sexual abuse. L.E. said that her
father had hurt her, and with the help of dolls, L.E. indicated that she and the father
had engaged in male-to-female oral sex, female-to-male oral sex, vaginal sex, and
anal sex. The mother initially denied having any knowledge of the father’s sexual
abuse of L.E. However, the mother eventually admitted to L.E.’s counselor that the
mother knew about and witnessed some of the sexual abuse.                 The mother
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subsequently testified against the father at his trial. A Head Start employee
overheard a conversation about the trial between the mother and one of the mother’s
friends. In that conversation, the mother admitted that she had watched the father
“do whatever he was doing in the shower” and that the mother then “cleaned [L.E.]
off after he was done.”
      In 2017, the father was convicted of the offense of aggravated sexual assault
of a child (L.E.) under the age of six years old. The father was sentenced to serve a
term of life in prison for that offense.
      At the time of the parental termination hearing, L.E. was seven years old.
Evidence was introduced regarding the Department’s plans for L.E.; the
improvement in her behavior and her disposition while in the home of the relatives
with whom she had been placed; the placement relatives’ bond with, love for, and
desire to adopt L.E.; and L.E.’s best interest.
                                           Analysis
      In her second issue on appeal, the mother challenges the sufficiency of the
evidence to support the finding made by the trial court pursuant to subsection (E) of
Section 161.001(b)(1).     Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s well-being was the direct result
of the parent’s conduct, including acts, omissions, or failures to act. In re D.O., 338
S.W.3d 29, 34 (Tex. App.—Eastland 2011, no pet.). Additionally, termination under
subsection (E) must be based on more than a single act or omission; a voluntary,
deliberate, and conscious course of conduct by the parent is required. In re D.T., 34
S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993
S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). The offending conduct does
not need to be directed at the child, nor does the child actually have to suffer an
injury. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).


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      Here, the record contains clear and convincing evidence that the mother
engaged in conduct that endangered the child. The trial court could reasonably have
formed a firm belief or conviction that the mother’s actions had endangered the
child; the mother engaged in a continued course of conduct that included not only
the mother’s failure to protect L.E. from the father’s sexual abuse and the mother’s
complicity in that abuse, but also the mother’s own physical abuse of L.E. and L.E.’s
brothers. Thus, the evidence supports the trial court’s finding that the mother (1) had
engaged in conduct that endangered L.E.’s physical or emotional well-being or
(2) had knowingly placed L.E. with the father who engaged in conduct that
endangered L.E.’s physical or emotional well-being. Consequently, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding as to
the mother under Section 161.001(b)(1)(E). We overrule the mother’s second issue
on appeal.
      Because a finding that a parent committed one of the acts listed in
Section 161.001(b)(1)(A)–(U) is all that is required and because we have held that
the evidence is sufficient to support the trial court’s finding under subsection (E), we
need not address the mother’s first and third issues in which she challenges the
findings made pursuant to subsections (D) and (O). See TEX. R. APP. P. 47.1.
      In the mother’s fourth and fifth issues and in all five of the father’s issues, the
parents challenge the portion of the trial court’s order that relates to child support.
The record shows that continued child support was not addressed at trial and that the
trial court did not mention child support when it pronounced its findings in open
court at the end of the trial. The order of termination, however, contains the
following provisions regarding child support:
      14.1     Pursuant to § 154.001, Texas Family Code, IT IS ORDERED
               that the parents shall pay child support for the child as set forth
               in Attachment A to this Order, which is incorporated herein as
               if set out verbatim in this paragraph.
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      14.[2] Child support arrearage owed to the Department for child
             support not paid by [the mother] during the pendency of this
             suit IS/IS NOT waived.
      14.[3] Child support arrearage owed to the Department for child
             support not paid by [the father] during the pendency of this
             suit IS/IS NOT waived.
We note that the record does not contain an “Attachment A” as mentioned in
paragraph 14.1 and that the trial court did not circle or strike through any portion of
the wording “IS/IS NOT” in the paragraphs 14.[2] and 14.[3].
      The Texas Family Code provides in relevant part that a court “may order each
person who is financially able and whose parental rights have been terminated with
respect to . . . a child in substitute care for whom the department has been appointed
managing conservator . . . to support the child in the manner specified by the order.”
FAM. § 154.001(a-1) (emphasis added). The Department “concedes that the record
does not support the trial court’s order of child support” and requests that this court
reverse the portion of the trial court’s order that relates to child support. Based upon
our review of the entire record, we agree with the parties that the record does not
contain legally sufficient evidence that either parent “is financially able.”
Consequently, we reverse the order of the trial court to the extent that it orders the
parents to pay child support. Because we also agree that the record does not show
that either parent was ordered to pay child support during the pendency of this case,
we reverse the trial court’s order to the extent that it orders the parents to pay such
arrearages. We sustain the legal sufficiency challenges in the mother’s fourth issue
and the father’s first and second issues. Accordingly, we need not address the
mother’s fifth issue or the father’s remaining issues, which all relate to child support.
See TEX. R. APP. P. 47.1.




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                                         This Court’s Ruling
        We reverse the order of the trial court only insofar as it ordered the mother
and the father to pay child support, and we render judgment striking paragraphs 14.1,
14.[2], and 14.[3] from the trial court’s order. In all other respects, we affirm the
trial court’s order of termination.




                                                                   KEITH STRETCHER
                                                                   JUSTICE


August 15, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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