                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-18-00429-CV
                            ____________________

                     IN THE INTEREST OF T.S. AND A.S.

_______________________________________________________             ______________

                     On Appeal from the 418th District Court
                          Montgomery County, Texas
                        Trial Cause No. 17-09-10731-CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      In three appellate issues, Father challenges the trial court’s judgment

terminating his parental rights to his children, “Anne” and “Tim.” 1 Following a

bench trial, which occurred in August 2018, the trial court terminated Father’s

parental rights to his two children after finding that terminating his rights to them

would be in their best interest. 2 In three issues, Father complains there was not


      1
      To protect the identity of the minor children that are discussed in the opinion,
we have used pseudonyms for their names, as well as their parents and other
members of their family. See Tex. R. App. P. 9.8(a), (b).
      2
          See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018).
                                          1
enough evidence admitted in the trial to support the trial court’s conclusion (1) that

he endangered Anne or Tim, (2) that he failed to comply with the provisions of a

court-ordered, parenting plan,3 or (3) that terminating his parental rights to his two

children would be in each child’s best interest. 4 Because the testimony and other

evidence admitted in the trial are sufficient to support the findings that Father

challenges in his appeal, we affirm.

                                       Background

      In the spring of 2017, Mother, with her children, left Father. Several months

later, she and her children began living with her boyfriend. In September 2017, when

Anne was three and Tim was two, the Texas Department of Family and Protective

Services opened an investigation to determine who had abused the children while

they were living in the boyfriend’s home. The Department opened its investigation

upon learning that Mother had taken Anne and Tim to the hospital, where they were

treated for serious injuries like fractured bones and bruises over their bodies. Given

the injuries, the hospital that initially treated the children then transferred them to a

hospital where they received a higher level of care. The second hospital placed the

children into intensive care.


      3
          See id. § 161.001(b)(1)(E), (O).
      4
          See id. § 161.001(b)(2).
                                             2
      Two of the Department’s investigators who worked on Anne’s and Tim’s case

testified during the trial. The first investigator involved in the case explained that

she saw the children on the same day they were treated in the emergency room. The

next day, the first investigator contacted Father and informed him that Anne and Tim

had been hospitalized because they had suffered serious injuries while living at

Mother’s boyfriend’s home. According to the first investigator, Father became “irate

[after] hear[ing] the news.” The investigator also testified that during her telephone

call with Father, he threatened to harm Mother. The investigator stated that she

immediately contacted the police to let them know that Father was coming to the

hospital and that he had verbally threatened to harm Mother.

      The first investigator explained that over the course of the Department’s

investigation, Mother told her that when she and Father had lived together, Father

shook Anne and Tim to make them stop crying. Mother also told the investigator

that Father beat her while the children were present.

      On September 6, 2017, the Department sued Mother and Father. In its petition

the Department requested that the trial court terminate Mother’s and Father’s

parental rights to Anne and Tim. The day the suit was filed, the trial court signed an

emergency temporary order, naming the Department as Anne’s and Tim’s sole

managing conservator. Following a full adversarial hearing in mid-September 2017,

                                          3
the trial court signed a temporary order that sets out the requirements Mother and

Father had to meet to have the children returned to their care. The temporary orders

required that Mother and Father comply with a parenting plan.

      In late August 2018, five days before a trial to the bench occurred, Mother

signed an affidavit voluntarily relinquishing her parental rights over Anne and Tim.

Six witnesses, including Mother, testified during the trial. While Father appeared

through counsel at the trial, he was not there in person and he did not testify in the

trial by deposition or by other means, such as a teleconference. There was no

evidence in the trial showing that Father caused the injuries that resulted in the

hospitalizations that led the Department to sue. When the trial ended, the trial court

found that Father engaged in the conduct described in subsections E and O of the

Texas Family Code. 5 The court also found that terminating Father’s and Mother’s

parental rights would be in each child’s best interest,6 and it appointed the

Department to be each child’s managing conservator.




      5
          See id. § 161.001(b)(1)(E), (O).
      6
          See id. §§ 161.001(b)(2), 161.001(b)(1)(K).

                                             4
                                        Analysis

      A. Standard of Review

      In his appeal, Father challenges the legal and factual sufficiency of the

evidence on which the trial court relied to terminate his parental rights to Anne and

to Tim. 7 To involuntarily terminate a parent’s rights, the factfinder must conclude,

by clear and convincing evidence, that (1) the parent committed one or more of the

prohibited acts or omissions listed in section 161.001(b)(1) of the Family Code, and

that (2) terminating the parent’s rights to his child is in the child’s best interest.8

Section 161.001(b)(1) currently lists twenty-one grounds authorizing trial courts to

terminate a parent-child relationship.9 When terminating the parent-child

relationship is in the child’s best interest, the Department need only prove that one

of the statutory grounds exist to justify terminating the relationship. 10

      Father raises legal and factual sufficiency claims in the arguments he

presented in his brief. In reviewing a legal sufficiency challenge to a trial court’s



      7
          Mother did not appeal from the judgment terminating her rights.
      8
          See id. § 161.001(b)(1), (b)(2).
      9
          See id. § 161.001(b)(1).
      10
           See In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014).

                                             5
decision terminating the parent-child relationship, appellate courts must consider the

evidence “‘in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding

was true.’” 11 In doing so, we must assume that the factfinder resolved disputed facts

in a manner that favors its finding, if a reasonable factfinder could have done so, and

we must also disregard all evidence that a reasonable factfinder could have, by

inference, disbelieved or found incredible. 12 Should the appellate court determine

that a reasonable factfinder could reasonably form a firm belief or conviction that

the matter that must be proven is true, it must conclude that legally sufficient

evidence supports the finding that the parent has complained about in the appeal. 13

      In reviewing Father’s factual sufficiency arguments, we consider and weigh

all the evidence in the record, including disputed and conflicting evidence.14 “‘If, in

light of the entire record, the disputed evidence that a reasonable factfinder could

not have credited in favor of the finding is so significant that a factfinder could not


      11
         In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)).
      12
           In re J.F.C., 96 S.W.3d at 266.
      13
           See In re J.L., 163 S.W.3d at 85.
      14
           In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

                                             6
reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient.’” 15 When conducting a factual sufficiency review, the appellate court

must give due deference to the factfinder’s findings, and it must avoid substituting

its own judgment for that of the factfinder.16

      B. Analysis—Arguments about whether Father’s conduct endangered Anne’s

and Tim’s physical or emotional well-being

      In his first issue, Father argues the Department failed to prove that he engaged

in conduct or knowingly placed Anne and Tim with persons who engaged in conduct

that endangered their physical or emotional well-being. 17 Section 161.001(b)(1)(E)

authorizes factfinders to consider both a parent’s direct and indirect conduct in

deciding whether a father knowingly exposed his child to loss, to injury, or to

circumstances that jeopardized the child’s emotional or physical health. 18

      Under both the legal and factual sufficiency standards of review, we focus on

whether the record from the trial included evidence establishing that the child’s well-


      15
           Id. (quoting In re J.F.C., 96 S.W.3d at 267).
      16
           See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
      17
           Tex. Fam. Code Ann. § 161.001(b)(1)(E).
      18
        In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

                                            7
being was endangered as a “direct result of the parent’s conduct, including acts,

omissions, or failures to act.” 19 Generally, the evidence must show that a parent’s

acts or conduct that affected his child’s well-being were done voluntarily or

knowingly, as opposed to accidentally. 20 In deciding if a parent acted knowingly as

opposed to accidentally, the factfinder may consider actions and inactions by the

parent that affected the child’s well-being both before and after the child was born.21

Under Texas law, “[w]hile endangerment often involves physical endangerment, the

statute does not require that conduct be directed at a child or that the child actually

suffer injury; rather, the specific danger to the child’s well-being may be inferred

from the parent’s misconduct alone.”22 Generally, evidence showing that a parent

engaged in conduct that created a life of uncertainty and instability for the child is




      19
           In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
      20
           See Tex. Fam. Code. Ann. § 161.001(b)(1)(E).
      21
           In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.).
      22
         In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018,
no pet.) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex.
1987)).

                                          8
the type of conduct from which a factfinder can reasonably infer a parent’s conduct

endangered the child’s physical and emotional well-being.23

      The first of the two investigators who worked on Anne’s and Tim’s case

testified in the trial that she thought that Father was a “very violent person” based

on her investigation in the case. She explained that during her investigation, she

learned that Father had a criminal history that involved assaults against people who

were members of his family and against people who were not. In deciding whether

a parent-child relationship should be terminated, the factfinder may consider

evidence of “[d]omestic violence, want of self control, and propensity for violence”

“as evidence of endangerment.” 24 During the trial, Mother also addressed Father’s

tendency toward violence. She testified that Father, when she was living with him,

“was very abusive to me.” For example, she stated that Father assaulted her after

Anne and Tim were born and before she left him in the spring of 2017. According

to Mother, Father punched her, pushed her, hit her, choked her, and threw her into

walls, and this type of conduct occurred while Anne and Tim were present. Mother



      23
            In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet.
denied).
      24
            In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003,
no pet.).

                                           9
testified that after she separated from Father, Father told her stepmother that he was

going to kill or hurt Mother. Mother explained that she obtained a protective order

against Father because of Father’s threats. She also stated that Father never took care

of the children while she was living with him, and she felt that her children did not

need to be around someone with Father’s violent traits.

       The court-appointed special advocate testified in the trial. She explained that

she met with Father during the Department’s investigation into Anne’s and Tim’s

case. She addressed Father’s behavior during her testimony, explaining that she was

concerned about the children based on her perception of Father’s “erratic and

aggressive behavior.” A Department caseworker, who worked with Mother and

Father on their parenting plans, testified that Father sent her threatening text

messages. The caseworker also testified that Father cursed her during phone calls,

but that he never threatened her personally with harm. A community-supervision

officer from Brazos County testified that Father had been under her supervision since

2014. According to the officer, on more than one occasion, Father told her that he

was an FBI agent. The officer also stated that Father “sent [her] an e-mail [ ] saying

that I’m going to take down the President of this country.” During her testimony,

she explained that she was concerned about Father’s mental health and that “[Father]

is a threat to society.”

                                          10
      There was also evidence admitted during the trial showing that Father had a

long-term history of abusing drugs. A parent’s use of drugs and its effect on the

parent’s ability to raise a child in an environment that threatens the child’s well-

being “may qualify as an endangering course of conduct.” 25 “Because [drug use]

exposes the child to the possibility that the parent may be impaired or imprisoned,

illegal drug use may support termination under [subsection E].” 26

      According to the testimony given by the second of the Department’s

investigators who worked on Anne’s and Tim’s case, Father admitted to having a

history of substance abuse involving the use of marijuana, methamphetamine, and

prescription medications. Father told her that he began using illegal substances when

he was about sixteen years old. Mother also testified about Father’s drug use. Mother

testified that when she and Father lived together, she observed Father “under the

influence a lot.” According to Mother, Father was often under the influence of illegal

substances while their children were present. The testimony in the trial reveals that

after the Department sued, Father took only one of fourteen court-ordered drug tests.

In the test the Department obtained, Father tested positive for both marijuana and


      25
        See In re J.O.A., 283 S.W.3d at 345 (citing In re S.N., 272 S.W.3d 45, 52
(Tex. App.—Waco 2008, no pet.)).
      26
        Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617
(Tex. App.—Houston [1st Dist.] 2009, pet. denied).
                                         11
methamphetamine. The Department also established that Father did not complete a

drug assessment class, a requirement based on Father’s court-ordered, parenting

plan.

        The testimony in the trial also addressed Father’s criminal behavior after the

Department filed suit. Under Texas law, “[e]vidence of criminal conduct,

convictions, or imprisonment is relevant to a review of whether a parent engaged in

a course of conduct that endangered the well-being of the child.”27 There is

testimony in the record showing that Father was jailed and charged with assaults that

did not involve family members during a large portion of the time after the

Department filed suit. While a parent’s imprisonment alone does not constitute an

endangering course of conduct, a factfinder may weigh it, along with the other

relevant evidence admitted during trial, when deciding whether the parent

endangered the child’s well-being.28

        The testimony in the trial shows that Father’s history of criminal behavior

dates to 2012. The Department’s investigation revealed that Father was placed on

community supervision following a 2012 felony offense for retaliating against the


        27
         In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017,
pet. denied.) (citing In re S.R., 452 S.W.3d at 360).
        28
             In re S.M., 389 S.W.3d at 492.

                                              12
police officer that arrested him. The testimony of Father’s probation officer shows

that Father violated the conditions of his community supervision by being charged

with two crimes, threatening to harm Anne and Tim’s maternal grandmother and

aggravated assault, an assault that involved two women who are not members of

Father’s family.

        Given the evidence before the trial court, we find that a reasonable factfinder

could have formed a firm belief or conviction that Father engaged in conduct that

endangered Anne’s and Tim’s physical or emotional well-being. Because the

evidence is legally and factually sufficient to support the trial court’s finding that

Father violated the endangerment provision in subsection (E), we overrule Father’s

first issue. 29

        C. Analysis—Anne’s and Tim’s Best Interest

        In his third issue, Father argues the record fails to show that terminating his

parental rights to Anne and Tim is in their best interest. In a parental-rights


        29
         We need not address Father’s second issue, which challenges whether the
evidence supports the trial court’s finding that he violated his parenting plan, to
resolve the appeal. See Tex. R. App. P. 47.1 (requiring the appellate court’s opinion
to address each issue necessary to the resolution of the appeal). Under Texas law,
evidence sufficient to support a finding that a parent violated any one of the twenty-
one statutory grounds authorizing the termination of a parent’s rights, when coupled
with a best-interest finding, authorizes the trial court to render a judgment
terminating a parent-child relationship. See In re S.M.R. 434 S.W.3d at 580.

                                           13
termination case, the Department must establish by clear and convincing evidence

that terminating a parent’s rights to his child is in the child’s best interest. 30 “In

determining whether the evidence is legally sufficient to support a best-interest

finding, we ‘consider the evidence that supports a deemed finding regarding best

interest and the undisputed evidence,’ and ignore evidence a fact-finder could

reasonably disbelieve.” 31 There is a “rebuttable presumption that the appointment of

the parents of a child as joint managing conservators” will serve the child’s best

interest. 32 That said, courts must also presume that a prompt and permanent

placement of a child in a safe environment is in the child’s best interest.33 In

reviewing a best-interest finding, we consider the nine non-exhaustive factors

identified by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72

(Tex. 1976).34


      30
        Tex. Fam. Code Ann. § 161.001(b)(2); see also In re E.N.C., 384 S.W.3d
796, 807 (Tex. 2012).
      31
           In re E.N.C., 384 S.W.3d at 807 (quoting J.F.C., 96 S.W.3d at 268).
      32
        Tex. Fam. Code Ann. § 153.131(b) (West 2014); see also In re R.R., 209
S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring
keeping a child with its parent).
      33
           Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2018).
      34
         In Holley, the Texas Supreme Court applied these factors in reviewing a
best-interest finding:
                                          14
      We have already explained that the evidence in the trial shows that Father had

a history of criminal behavior and a history of substance abuse. During the trial,

Mother testified that Father did little to care for the children when she lived with

him. According to Mother, Father was often under the influence of illegal drugs.

Mother also testified that Father assaulted her while the children were present. The

evidence also shows that Father had little contact with the children after the

Department removed the children because he was in and out of jail. The trial court




            • the child’s desires;

            • the child’s emotional and physical needs, now and in the future;

            • the emotional and physical danger to the child, now and in the
            future;

            • the parenting abilities of the parties seeking custody;

            • the programs available to assist the parties seeking custody;

            • the plans for the child by the parties seeking custody;

            • the stability of the home or the proposed placement;

            • the parent’s acts or omissions, which may indicate that the
            existing parent-child relationship is improper;

            • any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

                                         15
also heard testimony that Anne and Tim have special needs, and that their needs

were being met by their respective foster parents. The court-appointed special

advocate testified that Anne and Tim are in stable foster homes, that she has visited

the homes, and that she thought Anne and Tim were doing “very, very, very well.”

From the evidence relevant to Father’s propensity for violence, his long-term

substance abuse, the fact that he has been in and out of jail, and that he never took

much of a role in parenting his children, the trial court could reasonably conclude

that Father simply does not have the ability or skills required to adequately care for

two children with special needs.

      As discussed earlier, the trial court heard testimony showing that Father has a

propensity for violence, that he has substance abuse issues involving multiple illegal

drugs, and that he has a history of criminal behavior, and that these issues all have

interfered with his ability to act as a full-time parent for either Anne or Tim. There

is also testimony in the record showing that Father cannot currently provide the

children with a stable place to live, and that Father does not have a history of having

a stable job. Given the testimony, we conclude the evidence before the trial court is




                                          16
legally and factually sufficient to support the trial court’s best-interest finding.35 We

overrule Father’s third issue.

                                         Conclusion

      The trial court’s judgment is affirmed.

      AFFIRMED.




                                                      _________________________
                                                           HOLLIS HORTON
                                                                Justice


Submitted on January 28, 2019
Opinion Delivered March 7, 2019

Before Kreger, Horton and Johnson, JJ.




      35
         See In re J.F.C. 96 S.W.3d at 266 (explaining that the appellate court’s
analysis should determine whether the factfinder, under a clear and convincing
standard of proof, could have formed a firm belief or conviction about the
Department’s claims).
                                           17
