                                    NO. 07-06-0452-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                        JULY 6, 2007

                           ______________________________


             IN THE INTEREST OF T.G., S.L.G., J.A., AND I.A., CHILDREN

                        _________________________________

              FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                 NO. 17,410; HONORABLE KELLY G. MOORE, JUDGE

                          _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Presenting four issues, Appellant, Lisa Marie Garza, brings this appeal to challenge

the trial court’s order terminating her parental rights to her children T.G., S.L.G., J.A., and

I.A. By issues one and two, she contends the evidence is legally and factually insufficient

to support the trial court’s findings of fact and conclusions of law that she (1) knowingly

placed or knowingly allowed the children to remain in conditions or surroundings that

endangered their physical or emotional well-being as specified in § 161.001(1)(D) of the

Texas Family Code, and (2) knowingly placed the children with a person, her mother,
Carmen Garza, who engaged in conduct that endangered their physical and emotional

well-being as specified in § 161.001(1)(E) of the Texas Family Code. By issue three, she

asserts the evidence is factually insufficient to support the trial court’s findings of fact and

conclusions of law that she engaged in conduct, namely committing criminal acts that

resulted in her incarceration, that endangered her children’s physical and emotional well-

being as specified in § 161.001(1)(E) of the Texas Family Code. By her final issue, she

maintains the evidence is factually insufficient to support the trial court’s findings of fact

and conclusions of law that termination of her parental rights is in the best interest of her

children as specified in § 161.001(2) of the Texas Family Code.1 Concluding that the

evidence is sufficient to support the trial court’s finding that Lisa engaged in conduct which

endangered the physical or emotional well-being of her children, we affirm.


                                     Background Facts


       When Lisa was fifteen, she had her first child, and by age twenty-three, she had five

children with three different fathers. Her parental rights to four of her children, T.G., S.L.G.,

J.A., and I.A., were terminated by this proceeding. Lisa’s fifth child, who is not involved in

this case, resides with her father, Juan, in Houston. Lisa’s mother, Carmen Garza, has ten

children with Lisa’s father and three other children. She did not raise her children after she

and Lisa’s father were divorced. According to Carmen, Lisa was a young school-age child



       1
       All references herein are to the Texas Family Code Annotated (Vernon 2002 and
Supp. 2006) unless otherwise specified.

                                               2
at that time and went to live with her father and paternal grandmother until she had her first

child. After that, she and Carmen lived together so Carmen could help take care of the

child while Lisa was at work. Lisa resided in Dallas at the time.


       On June 10, 2004, while Lisa was pregnant with her youngest child, she was

arrested in Dallas for burglary of a vehicle and served approximately eight days in the

county jail. Lisa received community supervision in exchange for a plea of guilty to that

charge. Although chronologically unclear from the record, Lisa moved to Houston with one

of the children’s fathers, Juan, shortly after being granted community supervision. Her

youngest daughter, I.A., was born there. Lisa and Juan worked for awhile, but when Juan

was no longer able to find work, they returned to Dallas. They couldn’t make it in Dallas

and decided to move to Virginia to live with one of Juan’s cousins and find work. Her

children were picked up in Dallas by Carmen and taken to live in her home in Brownfield

on a temporary basis until Lisa and Juan could provide a home. The daughter to which her

parental rights were not terminated moved to Virginia with Lisa and Juan because she was

not doing well at Carmen’s house. Lisa and Juan both found employment, but in May

2005, Lisa returned to Brownfield to pick up her other children. She visited approximately

one week, and on May 5, 2005, was arrested in Brownfield for violating the conditions of

community supervision for her conviction in Dallas and was transferred there to serve her

sentence. She was released on May 23rd and returned to Virginia to find a new job without

picking up her children. According to Lisa, she did not want to relocate her children to

Virginia at that time as she could not provide for them.

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       On August 12, 2005, Lisa learned that her children had been removed from

Carmen’s care by the Department due to neglectful supervision. Lisa’s son, S.L.G., had

been locked out of Carmen’s house, and the incident had been reported to the police by

a neighbor. S.L.G. was taken to the police department where Carmen later picked him up.

Upon receiving the news, Lisa began her trip from Virginia to Brownfield. Along the way,

she was arrested in Knoxville for speeding and not having a driver’s license and served

several days in jail before being released. She made it as far as Dallas before her car

broke down. While in Dallas she once again found herself in a predicament with the law.

According to Lisa, she was in the “wrong place at the wrong time,” and was arrested for

burglary of a habitation. She spent some time in jail and then, pursuant to a plea bargain,

received ten years community supervision and a $2,500 fine.                Without making

arrangements with her community supervision officer, she returned to Virginia. Eventually,

she and Juan had a falling out, and she left him and returned to Dallas. Lisa’s daughter

who had lived in Virginia with her and Juan moved to Houston with Juan.


       During this stay in Dallas, Lisa lived with either an uncle or a friend. A warrant was

issued for her arrest for violating the terms of community supervision stemming from the

burglary of a habitation conviction. Additionally, she was arrested for theft and unlawfully

carrying a weapon. She claimed she had received a ride with a friend and was unaware

the friend was in possession of stolen property and that there was a weapon underneath

her seat. On June 30, 2006, her community supervision was revoked, and she also

pleaded guilty to the new charges. She was sentenced to five years confinement on the

                                             4
revocation, one year on the theft conviction, and received time served for unlawfully

carrying a weapon.


       The Texas Department of Protective and Family Services filed a Petition for

Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-

Child Relationship. The Department alleged that termination of Lisa’s parental rights to

four of her children was in their best interest and further alleged that she:


       (1) knowingly placed or knowingly allowed the children to remain in
       conditions or surroundings which endangered the physical or emotional well-
       being of the children;
       (2) engaged in conduct or knowingly placed the children with persons who
       engaged in conduct which endangered the physical or emotional well-being
       of the children; and
       (3) executed an unrevoked or irrevocable affidavit of relinquishment of
       parental rights as provided by chapter 161 of the Code.


       Following a hearing on the Department’s petition, the trial court found by clear and

convincing evidence that termination of Lisa’s parental rights was in the best interest of her

children. The court also found that Lisa (1) knowingly placed or knowingly allowed her

children to remain in conditions or surroundings which endangered their physical or

emotional well-being and (2) engaged in conduct or knowingly placed her children with

persons who engaged in conduct which endangered their physical or emotional well-being.




                                              5
                             Termination of Parental Rights


       The natural right existing between parents and their children is of constitutional

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination

proceedings must be strictly scrutinized. In the Interest of G.M., 596 S.W.2d 846, 846

(Tex. 1980). A termination decree is complete, final, irrevocable, and divests for all time

that natural right as well as all legal rights, privileges, duties, and powers existing between

a parent and a child, except for the child’s right to inherit. Holick, 685 S.W.2d at 20. Thus,

due process requires application of the clear and convincing standard of proof in cases

involving involuntary termination of parental rights. In the Interest of J.F.C., A.B.C., and

M.B.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is that measure

or degree of proof which 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. § 101.007. See also

In the Interest of G.M., 596 S.W.2d at 847; In the Interest of Z.J., 153 S.W.3d 535, 539

(Tex.App.–Amarillo 2004, no pet.). Parental rights, however, are not absolute, and it is

essential that the emotional and physical interests of the child not be sacrificed merely to

preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).


       Section 161.001 of the Code permits a court to order termination of parental rights

if the petitioner establishes one or more acts or omissions enumerated under subsection

(1) of the statute and also proves that termination of the parent-child relationship is in the

best interest of the children. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Though


                                              6
the same evidence may be probative of both issues, both elements must be established

and proof of one element does not relieve the petitioner of the burden of proving the other.

See id.; In re C.H., 89 S.W.3d at 28.


                                   Standard of Review


       The standard for reviewing the factual sufficiency of termination findings is whether

the evidence is such that a reasonable factfinder could form a firm belief or conviction

about the truth of the Department's allegations. In re C.H., 89 S.W.3d at 25. Under that

standard, we consider whether the disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a factfinder

could not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient. Id.


       Only one statutory ground is required to terminate parental rights under § 161.001.

See In re S.F., 32 S.W.3d 318, 320 (Tex.App.–San Antonio 2000, no pet.). Therefore, we

will affirm the termination order if the evidence is sufficient on any statutory ground upon

which the trial court relied in terminating the parent/child relationship. See id.




                                              7
                                      § 161.001(1)(E)


       We first address Lisa’s third issue by which she contends the evidence is factually

insufficient to support the trial court’s finding that she engaged in conduct, namely

committing criminal acts, which endangered the children’s physical or emotional well-being.

Relying on In re K.W., 138 S.W.3d 420, 432 (Tex.App.–Fort Worth 2004, pet. denied), and

similar authorities, Lisa argues that incarceration, standing alone, is insufficient to justify

termination of her parental rights. While we agree with the general rule, incarceration is

a fact properly considered on the issue of endangerment. See Tex. Dep’t of Human

Services v. Boyd, 727 S.W.2d, 531, 533 (Tex. 1987). Termination under subsection (1)(E)

is supportable if imprisonment shows a course of conduct which has the effect of

endangering the physical or emotional well-being of a child. Id. at 533-34. See also

Mayfield v. Smith, 608 S.W.2d 767, 769 (Tex.Civ.App.–Tyler 1980, no writ). Termination

under subsection (1)(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).


       “Endanger” means more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal family environment. In re M.C., 917 S.W.2d 268, 269 (Tex.

1996), citing Boyd, 727 S.W.2d at 533. See also In re T.N., 180 S.W.3d 376, 383

(Tex.App.–Amarillo 2003, no pet.). When reviewing involuntary termination of parental




                                              8
rights under § 161.001(1)(E), the court looks at the parent’s conduct alone. In re B.S.T.,

977 S.W.2d 481, 484 (Tex.App.–Houston [14th Dist.] 1998, no pet.).


       The record before us shows that Lisa’s first arrest for burglary of a habitation

occurred in Dallas in 2004, while she was pregnant with her youngest child. After a brief

stay in jail, she was placed on community supervision. Cognizant of the conditions of

community supervision, she nevertheless moved to Virginia without following procedure.

Her conduct resulted in a violation of the conditions of community supervision for which she

was arrested in May 2005. She served her sentence in Dallas away from her children.

After her release she again returned to Virginia without her children.


       In August 2005, upon learning that her children had been removed from her

mother’s care, she began her trip back to Brownfield. However, this time she was arrested

in Knoxville for speeding and not having a driver’s license. She served a short sentence

there and then unfortunate circumstances found her back in Dallas instead of Brownfield.

Her car had broken down and she was without transportation or a place to live. She found

lodging with an uncle and sometimes with a friend. Her lack of transportation caused her

to get a ride with a friend, who was stopped while she was a passenger. She testified that

unbeknownst to her, her friend was in possession of stolen property and a weapon was

found underneath her seat. This incident lead to yet another arrest of a more serious

nature. Additionally, she again violated the conditions of community supervision by not

reporting to her community supervision officer. Her excuse for not reporting was that she


                                             9
had no place to stay in Dallas. As a result of these events, her community supervision was

revoked and she pleaded guilty to the new offenses, resulting in confinement of five years

for burglary of a habitation, one year for theft, and time served for unlawfully carrying a

weapon.


       During the termination hearing, evidence was presented that other relatives were

unsuitable caregivers for Lisa’s children. Additionally, Juan did not want to come forward

and care for all of Lisa’s children because he was not a citizen and feared deportation.

Lisa’s release date from prison was estimated to be March 2007; however, Lisa’s past

criminal conduct, including her repeated violations of the conditions of community

supervision left her children in the Department’s care for at least one year. A Department

therapist who had counseled Lisa’s children after their removal testified that during a brief

visit with Lisa, the younger children did not know her well and the youngest one cried. The

oldest child was the only one who seemed comfortable with Lisa. Between 2004 and the

time of the hearing, Lisa spent very little time with her children.        She was either

incarcerated or living away from them in Dallas, Houston, or Virginia.


       Conduct that subjects a child to a life of uncertainty and instability endangers the

physical and emotional well-being of a child. In re R.W., 129 S.W.3d 732, 738-39

(Tex.App.–Fort Worth 2004, pet. denied). Additionally, knowing that one’s parental rights

are at stake and continuing criminal behavior that results in incarceration is conduct that

constitutes endangerment. See In re J.N.R., 982 S.W.2d 137, 142 (Tex.App.–Houston [1st


                                             10
Dist.] 1998), disapproved on other grounds, 89 S.W.3d 17 (Tex. 2002). Lisa was given

several opportunities after her initial arrest in 2004 to avoid further incarceration. She did

not take advantage of the chances and instead, engaged in continuous criminal conduct

that kept her apart from her children. See Allred v. Harris County Child Welfare Unit, 615

S.W.2d 803, 806 (Tex.Civ.App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.) (concluding that

father endangered his children when he realized that repeated criminal conduct would

revoke parole but nevertheless committed eight robberies). Based upon this evidence, we

conclude that a reasonable factfinder could have formed a firm belief or conviction that

Lisa’s conduct endangered the physical or emotional well-being of her children. Issue

three is overruled.


       Because only one ground is sufficient to support a termination order and we have

concluded the evidence is factually sufficient to support the trial court’s finding that Lisa

engaged in conduct which endangered the physical or emotional well-being of her children,

we need not address Lisa’s first and second issues. However, we must still review Lisa’s

fourth issue by which she challenges the factual sufficiency of the evidence to support the

trial court’s finding that termination of her parental rights was in her children’s best interest.


                                  Best Interest of the Child


       To determine the best interest of the child, we apply a non-exhaustive list of

considerations. See Holley, 544 S.W.2d at 371-72. They include the desires of the child,

the emotional and physical needs of the child now and in the future, the emotional and

                                               11
physical danger to the child now and in the future, the parental abilities of the individuals

involved, the programs available to those individuals to promote the best interest of the

child, the plans for the child by these individuals, the stability of the home, the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not

proper, and any excuse for the acts or omissions of the parent. Id.


       A parent’s criminal history is a factor in determining the best interest of the children.

However, termination of parental rights should not become an additional punishment for

imprisonment. In re C.T.E., 95 S.W.3d 462, 466 (Tex.App.–Houston [1st Dist.] 2002, pet.

denied). Lisa argues that the nature of her crimes does not qualify them as endangerment

and that her children were never present when she committed them. The law, however,

provides that a parent’s conscious “course of conduct” that results in imprisonment is a

factor of endangerment. See Boyd, 727 S.W.2d at 533-34. Moreover, Lisa was pregnant

with her youngest child when she was arrested in Dallas in 2004 and spent eight days in

jail while pregnant. According to the time frame testified to in the record, Lisa was absent

due to incarceration for a significant portion of the time her children spent in the

Department’s care. She also made little effort to avoid further incarceration when placed

on community supervision.


       Kim Shields, the Department therapist and case manager counseled Lisa’s children

following their removal from Carmen’s home. The two older boys, eight and six at the time

of trial, improved with therapy. They had been in a children’s home for a year and


                                              12
according to Ms. Shields, had both expressed an interest in being adopted. The two

youngest daughters had been living in a foster home. According to Ms. Shields, children

need one or two adults in a home in order to bond and form attachments. Considering that

Lisa’s parents and other relatives had all been ruled out as possible caregivers, Ms.

Shields was of the opinion that the children needed closure and permanency and that

termination was the solution.


       At the time of trial, Lisa was twenty-three years old with five children. Testimony

from a case worker indicated that the jail in Dallas had limited services to offer Lisa to

comply with the Department’s service plan. The record is conflicting on whether the

Department did all it could to achieve reunification between Lisa and her children; however,

the case worker testified that it was difficult to communicate with Lisa because she moved

frequently and did not have a permanent address while she was in Dallas.               The

Department served Lisa with a service plan while she was in jail in Dallas. Lisa, however,

denied receiving a service plan while in jail and instead claimed that she did not receive

a plan until one was provided to her by her attorney.


       Even assuming that Lisa was released from prison in March 2007, the Department

case worker doubted she would be able to have her children placed with her. Lisa would

need a home, employment, transportation, child care, and other necessities to provide for

their immediate needs as well as their needs in the future. The children had already spent




                                            13
at least one year in the Department’s care and at the time of trial there was no estimate on

how much longer the children would have to wait before Lisa could provide for them.


       Lisa’s parenting abilities are difficult to assess. According to the time frame testified

to in the record, she was absent for a significant portion of her children’s lives and made

little effort to avoid incarceration even when placed on community supervision. Her life

choices have left her unable to provide for her children. We conclude the trial court’s

finding that termination of Lisa’s parental rights is in the best interest of her children is

supported by factually sufficient evidence. Issue four is overruled.


       Accordingly, the trial court’s order terminating Lisa Garza’s parental rights is

affirmed.




                                                   Patrick A. Pirtle
                                                       Justice




                                              14
