




No. 04-99-00751-CV

IN THE INTEREST OF S.F., a Child

From the 131st District Court, Bexar County, Texas
Trial Court No. 98-PA-00562
The Honorable Andy Mireles, Judge Presiding

Opinion by:	Karen Angelini, Justice
Concurring opinion by: Catherine Stone, Justice
Concurring opinion by:  Sarah B. Duncan, Justice

Sitting:	Catherine Stone, Justice
		Sarah B. Duncan, Justice
		Karen Angelini, Justice

Delivered and Filed:	September 29, 2000

AFFIRMED

	Brian Hanes appeals the termination of his parental rights to S.F. In three issues, he complains
the evidence was factually insufficient to support the termination. We disagree with his assertions and
affirm the trial court's judgment. 
Factual and Procedural Background
	The Department of Protective and Regulatory Services first began its investigation into the
well-being of Diana Fabela in April, 1998. During this investigation, Maria Fabela, Diana's  mother,
gave birth to S.F. After initially naming another man as S.F.'s father, Maria identified Brian Hanes
as the child's father. It is undisputed that Hanes and Maria conceived S.F. while Hanes was in prison.
Hanes signed an affidavit of paternity. 
	The Department eventually brought suit to terminate Maria's parental rights to Diana. In its
third amended petition, the Department added S.F. to the suit, seeking to terminate the parents' rights
to both children. In its petition, the Department alleged that Hanes engaged in conduct or knowingly
placed S.F. with persons who engaged in conduct that endangered the physical or emotional well-being of the child, and that termination was in the child's best interest. See Tex. Fam. Code Ann. §§
161.001(1)(D), 161.001(1)(E), 161.001(2) (Vernon Supp. 2000). Maria voluntarily relinquished her
rights to the children, and the trial court terminated Hanes's parental rights to S.F. on the grounds
alleged. The court signed the termination decree and filed findings of fact and conclusions of law
upon Hanes's request.  
	In three issues, Hanes asserts that the evidence is factually insufficient to support the trial
court's findings supporting the termination of his parental rights. We find, however, there is factually
sufficient evidence to support the trial court's subsection (1)(E) finding. Accordingly, we need not
address the sufficiency of the evidence under section 161.001(1)(D) because only one finding alleged
under section 161.001(1) is necessary to a judgment of termination. See In the Interest of R.D., 955
S.W.2d 364, 367 (Tex. App.-San Antonio 1997, writ denied). Hanes does not challenge the trial
court's finding that termination is in the best interest of the child.
Standard of Review	The Texas Family Code, in order to protect the relationship between a parent and child,
requires a showing by clear and convincing evidence that the parent in question behaved in some
manner that was detrimental to the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2000).
This intermediate standard colors our review of the factual sufficiency of the evidence in a termination
case.  See In the Interest of B.T., 954 S.W.2d 44, 46 (Tex. App.-San Antonio 1997, writ denied).
Applying this standard to our review of a trial judge's findings, we ask whether sufficient evidence
was presented to produce in the mind of a rational fact finder a "firm belief or conviction as to the
truth of the allegations sought to be established." See Tex. Fam Code Ann. §101.007 (Vernon Supp.
2000); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980). 
Termination of Parental Rights Under Subsection (1)(E)
	To terminate the parental relationship under section 161.001(1)(E), the State must prove by
clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-being of the child."
See Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2000). Subsection (E) allows for
termination upon a showing that the parental conduct itself caused the endangerment to the child. See
In the Interest of R.D., 955 S.W.2d at 367.  This endangering act need not be directed at the child,
or have caused an actual injury or threat of injury to the child, but may instead be satisfied by showing
the parent in question engaged in a course of conduct that endangered the child's physical or
emotional well-being. See id. at 368. 
	In order to terminate the relationship between Hanes and S.F., the Department had to prove
that Hanes engaged in conduct which endangered S.F.'s physical or emotional well-being. See Tex.
Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2000). The Department presented the testimony
of two witnesses in order to satisfy its burden. The first witness to testify was Gloria Ybanez, the
family worker assigned to the Fabela family. Ms. Ybanez  initially testified about Hanes's criminal
history. She explained that at the time of the termination hearing, Hanes was incarcerated in
Oklahoma for one of the fifteen crimes Hanes has been convicted of. Hanes's convictions are for
offenses involving drugs, forgery, and burglary.  She further testified that there was a possibility that
upon his release, Hanes faced parole and probation revocations in other places, such as Tarrant
County, Texas and Sherman, Texas. 
	Ms. Ybanez additionally discussed Hanes's discipline problems while he has been incarcerated.
First, she explained that Hanes and Maria engaged in sexual intercourse on the prison grounds during
a visitation, which resulted in the conception of S.F. She also testified that Hanes had been punished
for being outside of the designated visitation area during visitation hours, that he was disciplined for
drug possession, and that after administering a drug test,  traces of marijuana were found in Hanes's
system. 
	Ms. Ybanez additionally opined that Hanes could not properly parent the child and that
termination would be in S.F.'s best interests. Her conclusions were based in part on the fact that
Hanes had not participated with the agency in developing a plan of service, had not responded to the
plan of service sent to him, or corresponded with her in any way, and had no viable plan for caring
for the child. Later, Ybanez stated that Hanes had signed and returned the service plan. The only
requirement, however, was that Hanes sign the affidavit of paternity, which he did. She also explained
that the fact that Hanes had taken no interest in S.F., had not provided any financial support for the
child, or sent any birthday cards or gifts for S.F. led her to formulate her opinions.  Ms. Ybanez
testified that, other than suggesting his mother as a possible placement, he has done nothing for the
benefit of his child.
	The State's second witness was Tina Lanpher-Pelletier, S.F.'s foster mother. Mrs. Lanpher-Pelletier's testimony related to S.F.'s half sister, Diana's account of what occurred on prison grounds
between her mother and Hanes. Diana told Mrs. Lanpher-Pelletier that she went to a prison facility
with her mother, who carried drugs in her own vagina into the prison, and then had sex with Hanes
while the other prisoners stood guard around the couple. Diana would also carry drugs in her pockets
into the prison. Previously, in referencing this conduct, Ms. Ybanez stated that she believed S.F.
would be endangered by witnessing such inappropriate behavior at a prison facility. Mrs. Lanpher-Pelletier further testified that Diana had described to her the conditions of Hanes's mother's home
in which she lived at one time. Diana told her that Hanes's mother had hit her on several occasions
and that Hanes's mother engaged in inappropriate sexual activity with her own son. According to Ms.
Ybanez, Hanes had suggested that S.F. be placed with his mother. And, the Department had
conducted a home study and determined that Hanes's mother's home was not a suitable home for S.F.
	Hanes asserts that this evidence was insufficient to support  the "endangerment" requirement
of section 161.001(1)(E). He specifically alleges that the Department must have shown "that the
conditions, or conduct, posed a real threat of injury or harm not just a speculative one." We disagree.
Although imprisonment, standing alone, does not constitute "engag[ing] 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 Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex.
1997); In the Interest of B.S.T., 977 S.W.2d 481, 485 (Tex. App.-Houston [14th Dist.] 1998, no
pet.). If the evidence, including imprisonment, proves a course of conduct that has the effect of
endangering the child, the requirement of 161.001(1)(E) is met. Id. The State need not show
incarceration was a result of a course of conduct endangering the child; it need only show
incarceration was part of a course of conduct endangering the child. Id. It is inconsequential that the
parental conduct considered in a termination proceeding occurred before the child's birth. Rather,
courts look to what the parent did both before and after the child's birth to determine whether
termination is necessary. See In the Interest of Stevenson, No. 04-98-00893-CV, slip op. at 11 (Tex.
App.-San Antonio Aug. 16, 2000, no pet. h.);  Avery v. State, 963 S.W.2d 550, 553 (Tex. App.-
Houston [1st Dist.] 1997, no writ).
	At the time of the termination hearing, Hanes was incarcerated in Oklahoma for one of the
fifteen crimes he has been convicted of. The evidence showed that there is a possibility that upon his
release, Hanes faces parole and probation revocations upon his release from prison and has faced
multiple disciplinary actions during his incarceration. Hanes's criminal behavior before his
imprisonment and S.F.'s birth, along with his continued misbehavior during his prison stay shows
Hanes has engaged in a course of conduct that would be detrimental to S.F.
	We find this evidence was factually sufficient to produce in the mind of the trial judge a firm
belief that by his course of conduct, Hanes's behavior endangered S.F.'s physical or emotional well
being. The evidence was accordingly sufficient to support the trial court's termination of Hanes's
parental rights to S.F.Findings of Fact	Hanes challenges several of the trial court's findings of fact, asserting that they are
unsupported by facts in evidence. We may review findings made by a trial judge to determine whether
they are supported by factually sufficient evidence. See Lucas v. Texas Dept. of Protective and
Regulatory Serv's, 949 S.W.2d 500, 502 (Tex. App.-Waco 1997, writ denied) (citing Roberson v.
Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). However, where we have a complete transcript of the
proceedings before us, we do not view the trial court's written findings as conclusive. See id. Instead,
we review the entire record and will not reverse an otherwise correct judgment simply because of an
erroneous finding. See id. We must therefore affirm the judgment even if the court's findings lack
sufficient evidentiary support, if the record contains sufficient evidence to do so. See id.  Although
Hanes's assertions are partially correct, the entire record supports the trial court's judgment of
termination. We therefore cannot reverse on this ground and overrule his issue. See Lucas, 949
S.W.2d at 502.
Conclusion
	We find there is sufficient evidence supporting the trial court's finding under Texas Family
Code section 161.001(1)(E). We therefore overrule Hanes's three issues and affirm the trial court's
judgment of termination. 

							Karen Angelini, Justice
PUBLISH
