Opinion filed March 7, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-18-00237-CV
                                  __________

                IN THE INTEREST OF J.D.S., A CHILD


                    On Appeal from the 446th District Court
                             Ector County, Texas
                     Trial Court Cause No. E-18-0044-AD


                     MEMORANDUM OPINION
      J.D.S.’s father appeals from an order in which the trial court terminated his
parental rights. On appeal, the father presents one issue in which he challenges the
sufficiency of the evidence to support three of the findings made by the trial court.
We 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 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).
        After a bench trial, the trial court found that Appellant had committed three
of the acts listed in Section 161.001(b)(1)—namely, those located in subsections (C),
(E), and (F). Specifically, the trial court found that Appellant had voluntarily left
the child alone or in the possession of another without providing adequate support
of the child and remained away for a period of at least six months, 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 failed to support the child in accordance with his ability during a
period of one year ending within six months of the date of the filing of the petition.
See FAM. § 161.001(b)(1)(C), (E), (F). The trial court also found that termination of
Appellant’s parental rights would be in the child’s best interest.                               See id.
§ 161.001(b)(2). Appellant does not challenge the sufficiency of the evidence in
support of the best interest finding.1


        1
          We note that the child’s amicus attorney informed the trial court that termination of Appellant’s
parental rights would be in the child’s best interest. By all accounts, the child is doing very well in the
home with her mother, her mother’s husband, and their children. We also note that the mother’s husband
filed an application to adopt J.D.S. and that the trial court has already granted the adoption.

                                                    2
                                 Background Facts
      The record reflects that, in April 2010, Appellant was placed on probation for
the offense of manufacture and delivery of a controlled substance. In August 2010,
three months before J.D.S. was born, Appellant was arrested for possessing
marihuana. Appellant went to court for this offense the day after J.D.S. was born,
and he was given another chance. Appellant and J.D.S.’s mother remained together
as a couple for about five months after J.D.S. was born. After they ended their
relationship, Appellant and the mother shared custody of J.D.S. and co-parented
well. In 2013, Appellant committed the felony offense of tampering with evidence.
He falsified a urinalysis “because [he] had failed it” due to his use of marihuana.
Appellant was again placed on probation and given a third chance to be a parent to
J.D.S. Then, in 2014, Appellant was again arrested for the possession of marihuana.
Appellant’s original probation was revoked, and Appellant was sentenced to a term
of confinement for ten years for manufacturing and delivering a controlled
substance. Appellant was incarcerated on November 18, 2014, and was released on
February 9, 2018.
      Appellant testified that he knew—prior to his incarceration—that if he
continued to engage in criminal activity that he would go to prison and leave J.D.S.
without a father. Appellant also knew that, if he went to prison, the mother’s ability
to provide for J.D.S. would be affected. Appellant nonetheless continued his
criminal activity during the time that he and the mother were co-parenting. The
mother testified that, during this time, Appellant put J.D.S. into “a few circumstances
that she should have never been in.” She also testified that J.D.S.’s “heart was
broken” when Appellant left to serve his prison term.
      At the time of trial, Appellant had not seen J.D.S. in almost four years. He
last saw her prior to his incarceration in November 2014. Appellant testified that he
loved J.D.S. and would like to reestablish a relationship with her. To that end,
                                           3
Appellant testified that he had maintained sobriety for almost four years and had
made positive changes to his life while in prison, including obtaining two degrees.
                                                Analysis
        Appellant challenges the sufficiency of the evidence to support all three
findings made by the trial court pursuant to Section 161.001(b)(1). Although we
agree with Appellant that the evidence is insufficient to support the trial court’s
findings under subsections (C)2 and (F),3 we believe that the evidence is sufficient
to uphold termination under subsection (E).
        To support termination under subsection (E), 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). A parent’s use of narcotics and the
effect of such use on his ability to parent may qualify as an endangering course of
conduct. Id. Mere imprisonment, standing alone, does not constitute conduct that
endangers the emotional or physical well-being of a child. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987). However, if the evidence,
including imprisonment, shows a course of conduct that has the effect of
endangering the physical or emotional well-being of the child, a finding under
subsection (E) is supportable. Id. Endangering conduct is not limited to actions
directed toward the child and may include the parent’s use of drugs. J.O.A., 283
S.W.3d at 345.


        2
         The evidence did not show that Appellant “voluntarily” left. Furthermore, the evidence did not
show that Appellant failed to make arrangements for the adequate support of his child (support by others,
such as the mother and her husband). See, e.g., Holick v. Smith, 685 S.W.2d 18, 21 (Tex. 1985).
        3
          Although Appellant agreed at trial that, “[e]very once in a while,” his family would send him
money to put in his prison account and that he could have paid $1 or $20 “here and there” for J.D.S.’s
support, the evidence did not show that Appellant, while incarcerated, had the ability to pay support for the
child during each month of the relevant twelve-month period. See, e.g., In re L.J.N., 329 S.W.3d 667, 672–
74 (Tex. App.—Corpus Christi 2010, no pet.) (holding that there must be proof that the parent had the
ability to support during each month of the twelve-month period and citing several other cases in support
of that proposition).

                                                     4
        In this case, there was evidence that Appellant engaged in a course of conduct
that endangered his child’s well-being. He was involved with illegal drug activity
both before and after J.D.S. was born. He continued to commit crimes and use illegal
drugs even after he was placed on probation—while he was co-parenting and sharing
custody of J.D.S. Appellant placed J.D.S. into “a few circumstances that she should
have never been in.” As a result of his drug-related, criminal course of conduct,
Appellant received a ten-year sentence around the time that J.D.S. turned four years
old. From this evidence, the trial court could reasonably have formed a firm belief
or conviction that Appellant engaged in a course of conduct that endangered J.D.S.’s
well-being. See In re M.D.P., No. 11-18-00146-CV, 2018 WL 6053931, at *3 (Tex.
App.—Eastland Nov. 20, 2018, no pet.) (mem. op.); In re J.A.L., No. 11-13-00191-
CV, 2013 WL 7083191, at *3 (Tex. App.—Eastland Dec. 19, 2013, no pet.) (mem.
op.); see also Boyd, 727 S.W.2d at 533–34. We cannot hold that the finding made
by the trial court pursuant to Section 161.001(b)(1)(E) was not supported by clear
and convincing evidence; the evidence is both legally and factually sufficient to
support the finding. Accordingly, we overrule Appellant’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the order of the trial court insofar as it terminated the parental rights
of J.D.S.’s biological father.




March 7, 2019                                                      JOHN M. BAILEY
Panel consists of: Bailey, C.J.,                                   CHIEF JUSTICE
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.

        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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