                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00739-CV

                               IN THE INTEREST OF T.S.C., a Child

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018-PA-00266
                             Honorable Richard Garcia, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Beth Watkins, Justice

Delivered and Filed: March 6, 2019

AFFIRMED

           Appellant Jose files this accelerated appeal from the trial court’s order terminating his

parental rights to T.S.C. We affirm the trial court’s judgment.

                                             Background

           Jose is the presumed father of T.S.C., who was twenty-two months old at the time of trial.

Stephanie is T.S.C.’s mother. Based on reports of drug use and neglectful supervision of T.S.C.

by Stephanie, the Texas Department of Family and Protective Services (“the Department”)

removed T.S.C. from Stephanie’s custody and filed a petition to terminate Stephanie’s and Jose’s

parental rights. At the time the petition was filed, Jose was serving a four-year sentence of

incarceration for family violence committed against Stephanie. Jose’s projected release date is in

November 2020.
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        The trial court held a final termination hearing on September 21, 2018. Jose appeared at

trial by telephone and testified T.S.C. is his daughter and he wants to have a relationship with her.

Jose testified he is not seeking custody of T.S.C. but wants the opportunity to be a part of her life

once he is released from incarceration. Jose admitted he has an extensive history of arrests and

convictions for domestic violence but expressed a desire and willingness to engage in services and

pay child support. Stephanie did not appear at trial.

        The Department investigator testified she went to Stephanie’s home prior to the removal

to investigate reports that Stephanie was using heroin, marijuana, Xanax, and crack cocaine and

that T.S.C. was digging through the trash for food to eat. The investigator testified Stephanie’s

home was cluttered and T.S.C.’s crib had cigarette butts in it. Stephanie admitted using

methamphetamines daily and appeared under the influence of methamphetamines when she met

with the investigator. Stephanie also admitted she had used heroin “for several years” but had used

methamphetamines since “relapsing” two or three months prior to her meeting with the

investigator.

        A Department caseworker testified that Stephanie enrolled in a drug detox program but left

after three days, tested positive for methamphetamines, and otherwise failed to complete services

or engage with the Department. The caseworker sent five letters to Jose and received three replies.

Jose provided the caseworker with the names of his two sisters and his mother “as potential

placements” for T.S.C., but the caseworker did not follow up with Jose’s relatives because T.S.C.

already had been placed with her maternal grandmother in a licensed foster home. The caseworker

testified T.S.C. is very attached to and very connected with her grandmother, and Jose testified he

had no problem with T.S.C. continuing to live with her grandmother.

        The trial court entered a final order of termination terminating Stephanie’s and Jose’s

parental rights. With respect to Jose, the trial court found: (1) Jose’s parental rights were terminated


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pursuant to Texas Family Code section 161.002 because he failed to file an admission of paternity

or a counterclaim for paternity; (2) termination of Jose’s parental rights was supported by Texas

Family Code section 161.001(b)(1)(D), (N), (O), and (Q); and (3) termination of Jose’s parental

rights was in T.S.C.’s best interest.

                                        Standard of Review

       To terminate parental rights, the Department has the burden to prove by clear and

convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2)

termination is in the best interest of the child. TEX. FAM. CODE ANN. §§ 161.001(b); 161.206(a);

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We review the legal and factual sufficiency of the

evidence using well-established standards of review. See TEX. FAM. CODE ANN. §§ 101.007,

161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency); In re J.P.B., 180

S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).

                                             Discussion

       In five issues, Jose challenges the trial court’s section 161.002 finding, as well as the trial

court’s predicate statutory findings. Jose does not challenge the trial court’s best interest finding.

A.     Section 161.002 finding

       In his first issue, Jose argues the evidence presented at trial was insufficient to support

termination of his parental rights under section 161.002 because his appearance at trial and

opposition to termination of his parental rights constitute an admission of paternity.

       Section 161.002 provides that an alleged father’s parental rights may be terminated if, after

being served with citation, he does not respond by timely filing an admission of paternity or a

counterclaim for paternity. TEX. FAM. CODE ANN. § 161.002(b)(1). “There are no formalities that

must be observed when filing an admission of paternity or for such an admission to be effective.”

In re J.L.A., No. 04-13-00857-CV, 2014 WL 1831097, at *2 (Tex. App.—San Antonio May 7,


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2014, no pet.) (mem. op.). “In fact, by appearing at trial and admitting that he is the child’s father,

an alleged father triggers his right to require the Department to prove one of the grounds for

termination under section 161.001(1) and that termination is in the best interest of the child.” Id.

       Here, Jose appeared at trial and opposed termination of his parental rights. In its brief, the

Department concedes Jose’s participation at trial and judicial admission of paternity satisfies

section 161.002(b)(1). Therefore, the Department was required to prove at least one of the grounds

for termination under section 161.001(1) and that termination is in T.S.C.’s best interest. See TEX.

FAM. CODE ANN. § 161.002(a); In re J.L.A., 2014 WL 1831097, at *2.

B.     Predicate statutory findings

       In his second through fifth issues, Jose argues the evidence presented at trial is legally and

factually insufficient to support the trial court’s predicate statutory findings. The trial court found

by clear and convincing evidence that Jose: (1) knowingly placed T.S.C., or allowed her to remain

in, conditions or surroundings that endanger her physical or emotional wellbeing; (2)

constructively abandoned T.S.C.; (3) failed to comply with a family service plan; and (4)

knowingly engaged in criminal conduct that has resulted in conviction and imprisonment and

inability to care for T.S.C. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (N), (O), and (Q).

Where, as here, the trial court terminates a parent’s rights on multiple grounds, we may affirm on

any one ground. In re A.V., 113 S.W.3d at 362.

       In his second issue, Jose argues the evidence presented at trial is legally and factually

insufficient to support the trial court’s predicate finding under subsection (D). To terminate

parental rights under subsection (D), the Department must demonstrate Jose “knowingly placed or

knowingly allowed [T.S.C.] to remain in conditions or surroundings which endanger [her] physical

or emotional well-being.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). T.S.C.’s “environment”

includes the suitability of her living conditions and the conduct of parents or others in her home.


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In re R.S.-T., 522 S.W.3d 92, 108–09 (Tex. App.—San Antonio 2017, no pet.). “‘Inappropriate,

abusive, or unlawful conduct by a parent or other persons who live in [T.S.C.’s] home can create

an environment that endangers [her] physical and emotional well-being . . . as required for

termination under subsection D.’” Id. at 109 (quoting In re S.R., 452 S.W.3d 351, 360 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied)). Even if Jose did not know for certain that T.S.C. was in

a dangerous environment, his awareness of potential endangerment is sufficient. Id.

       Jose argues there is no evidence in the record demonstrating he was aware of any risk of

endangerment to T.S.C. while she was in Stephanie’s care. At the time of trial, Jose was serving a

four-year sentence for an incident of domestic violence against Stephanie that took place in

October 2015. Jose ended his relationship with Stephanie in October 2016 and T.S.C. was born in

November 2016. Jose turned himself in to the police one week after T.S.C. was born, leaving her

in Stephanie’s care during his incarceration. Fifteen months after T.S.C. was born, Stephanie

admitted to the Department caseworker that she had used heroin for “several years” and had begun

using methamphetamines daily during the several months prior to the Department investigation

and while T.S.C. was in her custody. Because there was evidence in the record that Stephanie had

been using heroin “for years,” the trial court could infer that Stephanie’s drug use overlapped with

her relationship with Jose and Jose was aware of the potential for Stephanie to continue using

drugs while caring for T.S.C. A parent’s use of illegal drugs supports a finding that the child’s

surroundings endanger her physical or emotional well-being. In re T.N.S., 230 S.W.3d 434, 438

(Tex. App.—San Antonio 2007, no pet.).

       Therefore, based on our review of the entire record, we conclude the evidence presented at

trial is legally and factually sufficient to support the trial court’s finding that Jose placed or

knowingly allowed [T.S.C.] to remain in conditions or surroundings which endanger [her] physical




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or emotional well-being.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Jose’s second issue is

overruled.

                                           Conclusion

       Although we conclude termination of Jose’s parental rights under Texas Family Code

section 161.002(b)(1) was inappropriate because Jose admitted paternity, we affirm the trial

court’s judgment because: (1) we conclude the evidence supports the trial court’s section

161.001(b)(1)(D) finding, and (2) Jose does not challenge the trial court’s best interest finding.

Because we overrule Jose’s second issue, we need not address his third through fifth issues.

                                                 Sandee Bryan Marion, Chief Justice




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