Opinion filed October 24, 2019




                                       In The


          Eleventh Court of Appeals
                                    __________

                                 No. 11-19-00178-CV
                                     __________

               IN THE INTEREST OF A.G., JR., A CHILD


                     On Appeal from the 326th District Court
                               Taylor County, Texas
                         Trial Court Cause No. 9251-CX


                      MEMORANDUM O PI NI O N
      This is an appeal from an order in which the trial court terminated the parental
rights of A.G., Jr.’s mother and father. The father filed an appeal. On appeal, he
presents a single issue challenging the sufficiency of the evidence. We modify and
affirm.
                         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 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. Id.
      In this case, the trial court found that Appellant had committed two of the acts
listed in Section 161.001(b)(1)—those found in subsections (E) and (Q).
Specifically, the trial court found that Appellant 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 Appellant had knowingly
engaged in criminal conduct that resulted in his conviction of an offense and
confinement or imprisonment and inability to care for the child for not less than two
years from the date that the petition was filed. See id. § 161.001(b)(1)(E), (Q). The
trial court also found, pursuant to Section 161.001(b)(2), that termination of
Appellant’s parental rights would be in the best interest of the child. See id.
§ 161.001(b)(2).
      On appeal, Appellant contends that the evidence is legally insufficient to
support the finding made pursuant to subsection (E). 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). We note that we must address Appellant’s
challenge to the finding made pursuant to subsection (E) even though Appellant does
not challenge the trial court’s best interest finding or the finding made pursuant to
subsection (Q). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (concluding that
due process and due course of law require an appellate court to address grounds (D)
and (E) when raised by the parent on appeal and also require the appellate court to
detail its analysis on grounds (D) and (E)); In re M.G., No. 11-18-00351-CV, 2019
WL 2426775, at *4 (Tex. App.—Eastland June 11, 2019, no pet.).


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                                  Background Facts
      The record shows that the child at issue in this case was one year old at the
time of the final hearing. The Department had removed the child from his mother’s
care due to the mother’s drug use, the mother’s physical abuse of the child, and the
child’s having tested positive for methamphetamine and amphetamine while in the
mother’s care. At the time of removal, Appellant was incarcerated; he had been
convicted in 2017 of the offense of burglary of a habitation. Appellant was
apparently unaware at the time of his conviction that the mother was pregnant with
Appellant’s child. When the Department determined that Appellant was the child’s
father, the Department sent forms and information to Appellant. The Department
agreed that Appellant cooperated with the Department and did all of the services that
he could do from prison. Appellant remained incarcerated throughout the entirety
of the case; he was sentenced in 2017 to serve a term of confinement for seven years.
      The Department also presented evidence that termination of Appellant’s
parental rights would be in the child’s best interest.
                                       Analysis
      Appellant argues that the Department presented no evidence to support a
finding under subsection (E) of Section 161.001(b)(1). We agree.
      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, 33 (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


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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).
      Here, the record indicates that the child was born more than four months after
Appellant was incarcerated. The Department presented no evidence that Appellant
was aware that he even had a child until after the Department removed the child from
the child’s mother. The record is devoid of any evidence relating to Appellant’s
knowledge of the mother’s drug use. Although there was some evidence that
Appellant had a criminal history in addition to the conviction for burglary of a
habitation, the extent of that criminal history was not proved at trial. The trial court
sustained Appellant’s objections to hearsay and speculation when the Department
attempted to question the conservatorship caseworker about Appellant’s criminal
history; the trial court also pointed out that the Department’s pleadings were not in
evidence.   The evidence fails to show that Appellant engaged in conduct or
knowingly placed the child with someone that engaged in conduct that endangered
the child’s physical or emotional well-being.
      We hold that the evidence is legally insufficient to uphold the trial court’s
finding as to Appellant under subsection (E). Consequently, we strike the trial
court’s finding made pursuant to subsection (E) as the Department failed to present
clear and convincing evidence under that subsection. We sustain Appellant’s issue
to the extent that Appellant challenges the subsection (E) finding, but we decline
Appellant’s request to reverse the trial court’s order of termination. The trial court
made a finding pursuant to subsection (Q) and a finding that termination would be
in the child’s best interest. Appellant did not challenge these findings on appeal.
Because the termination of Appellant’s parental rights may be upheld on the
unchallenged findings, we do not reverse the trial court’s order. See M.G., 2019 WL
2426775, at *4, *6.


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                                         This Court’s Ruling
        We modify the trial court’s order of termination to delete ground (E) with
respect to the father. As modified, the order of the trial court is affirmed.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


October 24, 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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