                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-16-00197-CV

       IN THE INTEREST OF O.D.M.S. AND N.S., CHILDREN


                       From the County Court at Law No. 2
                              Johnson County, Texas
                          Trial Court No. CC-D20140312


                           MEMORANDUM OPINION

       Angelica appeals from a judgment that terminated her parental rights to her

children, O.D.M.S. and N.S. TEX. FAM. CODE ANN. § 161.001(b) (West 2014). Because we

find that the evidence was legally and factually sufficient as to at least one

predicate ground and that termination was in the best interest of the children, we affirm

the judgment of the trial court.

       After a bench trial, the trial court found that Angelica had committed the predicate

grounds as set forth in Section 161.001(b)(1)(D), (E), and (R) and that termination was in

the children's best interest. In three issues, Angelica complains that the evidence was

legally and factually insufficient to support the finding that she committed any of the

predicate grounds; and in a fourth issue, she contends the evidence is legally and
factually insufficient to support the finding that termination was in the children's best

interest.

        In order to terminate the parent-child relationship, there must be clear and

convincing evidence that the parent committed one or more of the grounds specifically

set forth in Texas Family Code Section 161.001(b)(1) and that termination is in the child's

best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2); .206(a) (West 2014). Evidence

is clear and convincing if it "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

ANN. § 101.007 (West 2014). We review the legal and factual sufficiency of the evidence

to support a predicate ground pursuant to the well-recognized standards enunciated in

In re J.P.B. and In re J.F.C. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002).

ENDANGERMENT UNDER (E)

        Subsection (E) of Section 161.001(b)(1) requires proof of endangerment, which

means exposing a child to loss or injury or jeopardizing a child's emotional or physical

health. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). With respect

to subsection (E), the endangerment must be the direct result of the parent's conduct and

must be the result of a conscious course of conduct rather than a single act or omission.

In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); In re J.W.,

152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied). Although an endangerment

finding requires 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 parent's conduct be

In the Interest of O.D.M.S. and N.S., Children                                               Page 2
directed at the child or that the child actually suffer injury; rather, it is sufficient if the

conduct endangers the emotional well-being of the child. See In re J.O.A., 283 S.W.3d 336,

345 (Tex. 2009); Boyd, 727 S.W.2d at 533.

        "Because it exposes the child to the possibility that the parent may be impaired or

imprisoned, illegal drug use may support termination under section 161.001(1)(E)."

Walker v. Tex. Dep't Fam. & Prot. Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). Additionally, although imprisonment, standing alone, does not

constitute "engaging in conduct which endangers the emotional or physical well-being of

the child," it is a fact for the trial court to consider on the issue of endangerment. See Boyd,

727 S.W.2d at 533-34; In the Interest of S.F., 32 S.W.3d 318, 322 (Tex. App.—San Antonio

2000, no pet.).

Relevant Facts

        At the time the children were removed from Angelica’s care, O.D.M.S. was just

over one year old and N.S. was just under one month old. Angelica admitted to smoking

marijuana while pregnant with N.S. and while pregnant with O.D.M.S. She also admitted

that O.D.M.S. tested positive for marijuana when he was born. During the time she was

pregnant with N.S., Angelica also admitted to smoking marijuana outside her house

while O.D.M.S. was napping in the house. She did not, however, believe that smoking

marijuana outside while O.D.M.S. was inside endangered O.D.M.S. Angelica admitted

to going to a drug dealer’s house, whose full name she would not reveal, to buy marijuana

while pregnant with N.S. At the time of trial, however, Angelica had not tested positive

for drugs for almost a year.

In the Interest of O.D.M.S. and N.S., Children                                           Page 3
        Further, at the time of trial, Angelica was incarcerated for the offense of possession

of methamphetamine and would not be released from confinement for another nine

months. She denied, however, that the methamphetamine was hers and did not believe

that her conviction was contrary to the children’s welfare and best interest.

Conclusion

        Based on this record and viewing the evidence using the referenced standards for

the legal and factual sufficiency of the evidence, we find that the evidence was sufficient

for the trial court to have found by clear and convincing evidence that Angelica engaged

in conduct that endangered the children's physical or emotional well-being. See TEX. FAM.

CODE ANN. § 161.001(b)(1)(E) (West 2014). Angelica’s second issue is overruled.

        Because only one predicate ground under Section 161.001(1) is necessary to

support a judgment of termination when there is also a finding that termination is in the

child's best interest, we need not discuss Angelica’s first and third issues. See In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003).

BEST INTEREST

        In her fourth issue, Angelica complains that the evidence was legally and factually

insufficient for the trial court to have found that the termination of the parent-child

relationship was in the best interest of O.D.M.S. and N.S. In determining the best interest

of a child, a number of factors have been considered which have been set out in the Texas

Supreme Court’s opinion, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is

not exhaustive, but simply indicates factors that have been or could be pertinent. Id. The

Holley factors focus on the best interest of the child, not the best interest of the parent.

In the Interest of O.D.M.S. and N.S., Children                                          Page 4
Dupree v. Tex. Dep't Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no

writ). The goal of establishing a stable permanent home for a child is a compelling state

interest. Id. at 87. The need for permanence is a paramount consideration for a child's

present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex.

App.—Dallas 1987, writ ref'd n.r.e.) (en banc).

Relevant Facts

        The children were very young when removed from Angelica’s care. At a little over

a year old, O.D.M.S. was non-verbal, socially detached, and cried a lot. Both children

were placed in the same foster home. In foster care, O.D.M.S. has made “tremendous

improvement” and N.S. is a “social butterfly.” Angelica has no family support. At the

time of the trial, she was incarcerated for possession of methamphetamine and had no

place to keep the children for the next nine months. Although she could not complete

some aspects of the service plan provided by the department because she was in jail,

Angelica did not complete any part of the service plan. Further, she would not give the

name of her marijuana dealer, did not think marijuana should be illegal, and did not think

a home where marijuana was smoked could endanger a child.

Conclusion

        Considering the Holley factors applying the above referenced legal standards, we

find that the evidence was legally and factually sufficient for the court to have found that

termination of the parent-child relationship was in the best interest of O.D.M.S. and N.S.

Angelica’s fourth issue is overruled.




In the Interest of O.D.M.S. and N.S., Children                                        Page 5
CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s judgment.



                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 8, 2016
[CV06]




In the Interest of O.D.M.S. and N.S., Children                                     Page 6
