












 
 
 
 
 
 
                                COURT OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-06-083-CV
 
 
IN THE
INTEREST OF A.J.H.,
A CHILD                                                                                             
 
 
                                              ------------
 
           FROM THE 323RD
DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
Appellant A.L.H. appeals from the order
terminating the parent-child relationship between him and A.J.H.  In six issues, Appellant contends that the
evidence is factually insufficient to support termination on various grounds
and that his statement of points complies with section 263.405(i) of the Texas
Family Code.[1]  Because we hold that the evidence is
factually sufficient to support termination, we affirm the trial court=s order.




As a preliminary matter, we address the State=s
contention that Appellant=s statement of points does not
comply with section 263.405(i) and his response, found in his sixth issue, that
his statement of points does comply. 
Section 263.405(i) provides,
The appellate court may not
consider any issue that was not specifically presented to the trial court in a
timely filed statement of the points on which the party intends to appeal or in
a statement combined with a motion for new trial.  For purposes of this subsection, a claim that
a judicial decision is contrary to the evidence or that the evidence is
factually or legally insufficient is not sufficiently specific to preserve an
issue for appeal.[2]
Appellant=s statement of points
provides, 
 
[T]he evidence is
factually insufficient on his failure to establish his paternity (paragraphs
8.1 and 8.2 of the judgment), on grounds (D), (E), and (N) of section
161.001(a) of the Texas Family Code (paragraph 8, paragraph 8.3.1, paragraph
8.3.2, and paragraph 8.3.3 of the judgment), and on best interest (paragraph
8.4) of the judgment.
 




We agree with Appellant that his statement of
points does more than merely raise a general claim of factual insufficiency of
the evidence barred by the statute.  His
statement of points was certainly specific enough to allow the trial judge (who
presided over the entire trial and therefore was at least as familiar with the
evidence as the appellate attorney appointed six days after trial) to correct
any erroneous findings on the challenged grounds.[3]  Further, given that termination statutes are
to be construed strictly in favor of the parent,[4]
we are prohibited from construing the statute in a way that liberally expands
its reach and therefore favors the State. 
We consequently reject the State=s
contentions, sustain the relevant portion of Appellant=s sixth
issue, and address Appellant=s
complaints on the merits.
In his fourth issue, Appellant contends that the
evidence is factually insufficient to show that he engaged in conduct or
knowingly placed A.J.H. with others who engaged in conduct that endangered
A.J.H.=s
well-being.[5]      As this court explained in In re W.J.H.,
Endangerment means to
expose to loss or injury, to jeopardize. 
It can occur through both acts and omissions.  Neglect can be just as dangerous to the child=s emotional and physical
health as intentional abuse.
 




. . . .  Subsection E [of the
termination statute] focuses on the parent=s conduct alone, including acts and
omissions.  While the endangerment must
be a direct result of the parent=s course of conduct, the conduct does not have to
be directed toward the child, nor does the child have to suffer actual injury
for the finding to be upheld.  Similarly,
the conduct does not have to cause a concrete threat of injury to the
child.  If the evidence shows that the
parent has engaged in a course of conduct which has the effect of endangering
the child, then the finding under subsection E may be upheld.[6]
 
Similarly, this court has also explained,
As a general rule, conduct that
subjects a child to a life of uncertainty and instability endangers the
physical and emotional well‑being of a child.  Drug use and its effect on a parent's life
and his ability to parent may establish an endangering course of conduct.  Further, a parent's mental state may be considered
in determining whether a child is endangered if that mental state allows the
parent to engage in conduct that jeopardizes the physical or emotional well‑being
of the child.[7]




The evidence shows that Appellant had been
previously convicted for, among other crimes, injuring A.J.H.=s
mother.  While Appellant was in the
penitentiary, A.J.H.=s mother, with whom he lived,
died.  A.J.H. then went to live with
Appellant=s mother.  The State removed A.J.H. from his grandmother=s home
while Appellant was still in prison. 
When Appellant got out of prison, despite the ongoing CPS proceedings,
he smoked marijuana daily, refused anger management classes, refused drug
treatment, refused counseling, and indicated that he intended to continue to
smoke marijuana.  The evidence further
shows that Appellant is low-functioning mentally, is unemployed, and lacks
stable housing.  The evidence also shows
that Appellant and the child are not close and that Appellant had to be coaxed
to interact with the child during their visits. 
Appellant missed about half of his scheduled visits with the boy, and he
usually stayed no longer than thirty minutes for each visit, although each
visit was scheduled to last an hour.




Additionally, the evidence shows that the child
has had behavioral issues, that he has ADHD and depression, for which he must
be medicated, that he has speech problems requiring therapy, and that he has
made several outcries of sexual assault. 
Given the circumstances of both Appellant and the child, and based on
the applicable standard of review,[8]
we hold that the evidence is factually sufficient to support the finding that
Appellant engaged in conduct that endangered A.J.H.=s
well-being.  We overrule the fourth issue
and do not reach the remaining issues.[9]  We note that Appellant has not challenged the
best interest finding.[10]
Having disposed of Appellant=s six
issues, we affirm the trial court=s order
of termination.
 
LEE
ANN DAUPHINOT
JUSTICE
 
PANEL F:    LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED:  September 28, 2006




[1]Tex. Fam. Code Ann. ' 263.405(i) (Vernon Supp. 2006).


[2]Id.; see
also In re D.A.R., No. 2-06-043-CV, 2006 WL 2309587, at *1 (Tex. App.CAug. 10,
2006, no pet. h.) (holding that section 263.405(i) bars this court from
considering issues not appearing in a timely-filed statement of points).


[3]See House Comm. On Juvenile Justice and Family
Issues, Bill Analysis,
Tex. H.B. 409, 79th Leg., R.S. (2005) (providing that if a party points out a
mistake warranting a new trial, the trial court can immediately order a new
trial, accomplishing the legislative policy of decreasing postjudgment delay in
termination cases).


[4]Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985); In re E.S.S., 131 S.W.3d 632, 636 (Tex.
App.CFort Worth 2004, no pet.).


[5]See Tex. Fam. Code Ann. '
161.001(1)(E) (Vernon Supp. 2006).


[6]In re W.J.H.,
111 S.W.3d 707, 715-16 (Tex. App.CFort Worth 2003, pet. denied) (citations omitted).


[7]In re R.W.,
129 S.W.3d 732, 739 (Tex. App.CFort Worth 2004, pet. denied) (citations omitted).


[8]See In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002).


[9]See Tex. R. App. P. 47.1; see also In re
A.V., 113 S.W.3d 355, 362  (Tex.
2003) (AOnly one predicate finding 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.@).


[10]See TEX. FAM. CODE ANN. '
161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005) (providing that
petitioner must establish one or more of the acts or omissions enumerated under
subdivision (1) of the statute and must also prove that termination is in the
best interest of the child).


