                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                     No. 07-12-0542-CV


                IN THE INTEREST OF A.L.R. AND M.R.R., CHILDREN


                       On Appeal from the County Court at Law No. 3
                                   Lubbock County, Texas
              Trial Court No. 2011-559,484, Honorable Judy C. Parker, Presiding

                                      MAY 13, 2013

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Shawn R. (Shawn) appeals the termination of his parental rights to his two

children A.L.R. and M.R.R.        He contends the evidence is legally and factually

insufficient to establish the statutory grounds for termination and that termination is in

the best interest of the children. We affirm the order.

       Background

       A.L.R. was born on September 13, 2006, and appellant signed an

acknowledgment of paternity for her on September 21, 2006. M.R.R. was born on

October 19, 2007, to the same mother, but appellant was not adjudicated as the father

until May 8, 2012, although he testified at trial that he knew he was the father. The
children’s mother worked as a stripper and used drugs and alcohol.                         Appellant

described her drug problem as ten plus on a scale of one to ten. However, he also

testified that they used drugs together. He cared for A.L.R. during the first year of her

life even though he was using drugs. Beyond that, the only support he provided his

children was after he completed SAFEP (a lock-down drug treatment program) and

worked at a restaurant from April 2009 to October 2009.

         From 2006 to 2009, appellant was incarcerated for a total of eighteen months,

which period of incarceration included the day on which his youngest child was born.

Moreover, he is currently in prison, has been so imprisoned since October 2009, has a

release date in December 2014, and has seen M.R.R. only a couple of times since his

birth.

         Appellant’s criminal convictions include one for aggravated assault with a deadly

weapon in 1991 (for which he was placed on probation and had that probation revoked

in 1999), one for driving while intoxicated in 2007, one for theft in 2010, and one for

assault with serious bodily injury against his sister (the crime for which he is currently

imprisoned). And, while imprisoned, he left the children in the care of their mother

despite knowing of her “ten plus” drug problem. 1

         Since the birth of the children, Child Protective Services (CPS) has conducted

four investigations of their caregivers. The first investigation, in 2008, involved their

mother’s drug use and their lack of a stable home. It disclosed that she had left the

children with her step-grandmother, who was deemed to be a suitable caregiver at the

time.


         1
        Shawn testified he had his sister (whom he was convicted twice of assaulting) intervene at one
time and care for the children for several months.

                                                  2
      The second investigation occurred in 2010, at a time when the children were

again living with their mother. It involved her continuing use of drugs and inability to

care for appellant's offspring. At that point, the mother was found to have mental health

issues. So too did she test positive for drug use. CPS also experienced difficulty in

maintaining contact with her since she often could not be located. This event involved

the mother again leaving the children with relatives.

      The third investigation occurred in August 2011 and involved the children's then

caregivers, a step-grandmother and her husband, who allegedly were drinking heavily

and abusive to the children.     A neighbor was told by four-year-old A.L.R. that the

grandmother had pushed her out of a car late at night after the child had walked to the

neighbor’s house for help. The grandmother then left the children with acquaintances

who became the intervenors at bar, that is, William Kirk and Kathryn Lee Carlisle.

      Upon arrival at the home of the Carlisles, the children were found to be bruised.

Later, their mother signed a document allowing the children to remain with the Carlisles.

The CPS investigation resulted in finding that the Carlisle home was suitable and that

the children were doing well there.

      Authority

      We review the trial court’s decision under the standard discussed in In re J.F.C.,

96 S.W.3d 256, 266-67 (Tex. 2002) and In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) to

which we refer the parties. The trial court found that termination was warranted under

§§ 161.001(1)(D) and (E) of the Family Code and that termination was in the children’s

best interest. Evidence of only one statutory ground is needed to support that decision.

In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.–Amarillo 2009, pet. denied), and the



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ground we direct our attention to concerns appellant engaging in conduct or knowingly

placing the children with persons who engaged in conduct that endangered the physical

or emotional well-being of the children. TEX. FAM. CODE ANN. § 161.001(1)(E) (West

Supp. 2012).

        For purposes of addressing this appeal, we also recall several other legal rules.

First, conduct of the parent undertaken before and after a child’s birth is relevant in

assessing whether a particular child has been endangered. 2                        In re S.M.L.D., 150

S.W.3d 754, 757 (Tex. App.–Amarillo 2004, no pet.). Second, the use of drugs is an

indicia of endangerment, see In re J.O.A., 283 S.W.3d 336, 345-46 (Tex. 2009), as is

intentional criminal activity that exposes a parent to incarceration. In re C.A.B., 289

S.W.3d 886, 874 (Tex. App.–Houston [14th Dist.] 2009, no pet.); see also Avery v. State,

963 S.W.2d 550, 553 (Tex. App.–Houston [1st Dist.] 1997, no writ) (finding that a

parent’s past criminal conduct before and after the child’s birth is relevant in a

termination proceeding).

        Shawn used drugs while caring for A.L.R. and admitted that he was incapacitated

while doing so. He further engaged in criminal activity that caused him to be unable to

care for his children and left them in the care of their mother who he knew had a serious

drug problem and was unstable. He justified his decision by thinking she would “try and

pull it together.” Moreover, some of Shawn’s criminal activity involved violence by him

toward a family member. He also left his children with others who could or would not

        2
         Shawn argues the court should not consider evidence of his conduct prior to a determination of
his paternity of M.R.R. However, his conduct directed at other children such as A.L.R. may be
considered. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Moreover, Shawn testified at trial that
he knew M.R.R. was his child. We know of no authority allowing a parent to disregard his parental duties
owed those he knew were his children simply because no court adjudicated them to be his children.
More importantly, the mindset implicit in a parent's effort to urge such a position is quite telling. One who
knows a child is his but attempts to avoid his legal obligations to that child simply because the child had
yet to be adjudicated his blood lacks something in the parent quotient.

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care for them and abused them. This is both legally and factually sufficient evidence

supporting the conclusion that Shawn engaged in conduct or knowingly placed the

children with persons who engaged in conduct that endangered the physical or

emotional well-being of the children.

       That Shawn also contends that he was unaware of the location of his children

and was deprived of the opportunity to “protect” them is of no controlling moment. He

placed himself in the position of being incarcerated and therefore removed from their

life, or at least the factfinder could have so legitimately concluded. He also cited us to

nothing of record illustrating the effort, if any, he undertook to remain in contact with,

know of the condition of his children, or discover their location if he truly did not know it.

       Best Interests of the Child

        As for the best interests of the children, we consider the Holley factors. They

include, among other things, 1) the desires of the children, 2) the emotional and

physical needs of the children now and in the future, 3) the emotional and physical

danger to the child now and in the future, 4) the parental abilities of the individuals

seeking custody, 5) the programs available to assist those individuals to promote the

best interest of the child, 6) the plans for the child by those individuals or by the agency

seeking custody, 7) the stability of the home, 8) the acts or omissions of the parent

indicating that the existing parent/child relationship is not a proper one, and 9) any

excuse for the act or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372

(Tex. 1976); In re P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.–Amarillo 2003, no pet.).

It is not necessary that each factor favor termination, In re P.E.W., 105 S.W.3d at 790,

and the list is not exclusive. In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.–Amarillo



                                               5
2003, pet. denied). Moreover, the same evidence illustrating the presence of statutory

grounds for termination may also be probative of the child’s best interest. In re C.H., 89

S.W.3d at 28.

        A rational factfinder had evidence before it from which it could conclude that

Shawn had no viable plan for the caretaking of the children. Again, he requested that

they be left in the temporary custody of his paternal uncle, that is, a person who had

never met the children, did not know that Shawn was twice convicted for assaulting his

sister, had not communicated with Shawn for six years, and sent the children only one

gift card on their birthday. And, though Shawn professed a willngness and desire to

care for the children when he was freed from prison, his representation lacked detail

sufficient to depict that it was founded on thought or practicality. To that, the factfinder

had before it Shawn's own track record. It could look to that record to gauge the viability

of his plans and goals.

       On the other hand, the Carlisles, who want to adopt the children, have been

married for twenty-four years, are well-employed, and have two children of their own.

One of those children lives at home and is bonded with A.L.R. and M.R.R. The latter

also have lived with the Carlisles since August 2011, and their caretakers have received

no monetary support from Shawn or others while effectuating that endeavor.

       When the children first arrived at the Carlisle house, they were insecure, afraid of

being left, and afraid of men. They now are happy and interact with Kathryn’s male

relatives.   They have never inquired about their mother or step-grandmother and

express anxiety about being taken away from the Carlisles. That anxiety manifests




                                             6
itself by A.L.R. hiding under the bed when Kathryn goes to work, and M.R.R. crying and

saying he thought Kathryn would be gone forever.

       The superintendent of the Anton Independent School District also testified that

the Carlisles are involved in school activities and have happy children. The foregoing is

legally and factually sufficient evidence upon which a factfinder could conclude that

termination of the parental relationship was in the best interests of the children.

       Accordingly, the order is affirmed.



                                             Per Curiam




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