Opinion filed November 3, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00331-CV
                                        __________

                  IN THE INTEREST OF A.M.M., A.N.M., E.J.M.,
                         A.E.E., AND B.T., CHILDREN


                           On Appeal from the 90th District Court

                                    Stephens County, Texas

                                 Trial Court Cause No. 29,910


                            MEMORANDUM OPINION
       John appeals from the trial court’s order terminating his parental rights to A.M.M.,
A.N.M., and E.J.M. On appeal, John challenges the legal and factual sufficiency of the evidence
supporting the termination of his parental rights. We affirm.
                                           Background
       Cynthia and John are the parents of A.M.M., A.N.M., and E.J.M. At the time of trial,
A.M.M. was ten years old, A.N.M. was nine years old, and E.J.M. was seven years old. Cynthia
and Johann are the parents of A.E.E., who was four years old at the time of trial. Cynthia and
Ben are the parents of B.T., who was one year old at the time of trial. In this case, the Texas
Department of Family and Protective Services sought termination of (1) Cynthia’s parental rights
to all five children; (2) John’s parental rights to A.M.M., A.N.M., and E.J.M.; (3) Johann’s
parental rights to A.E.E.; and (4) Ben’s parental rights to B.T. Following a bench trial, the trial
court entered an order terminating John’s parental rights to A.M.M., A.N.M., and E.J.M. In the
order, the trial court found by clear and convincing evidence that termination of John’s parental
rights was in the best interest of the children and that John had:
            [1] knowingly placed or knowingly allowed the children to remain in
        conditions or surroundings which endanger the physical or emotional well-being
        of the children; [and]

           [2] engaged in conduct or knowingly placed the children with persons who
        engaged in conduct which endangers the physical or emotional well-being of the
        children.

In the order, the trial court also terminated Johann’s parental rights to A.E.E. The trial court
concluded that termination of Cynthia’s parental rights to the children was not in the children’s
best interest and that termination of Ben’s parental rights to B.T. was not in B.T.’s best interest.
Therefore, the trial court did not terminate Cynthia’s parental rights to her children or Ben’s
parental rights to B.T.
        In the order, the trial court appointed the Department as the permanent managing
conservator of all five children. The trial court appointed Cynthia as a permanent possessory
conservator of the children and Ben as a permanent possessory conservator of B.T. The trial
court’s order allows Cynthia and Ben to have access to the children through visits supervised by
the Department.
        John has filed this appeal from the trial court’s order terminating his parental rights. No
other party has appealed from the trial court’s order.
                                          Issues on Appeal
        John presents three issues for review. In his issues, he challenges the legal and factual
sufficiency of the evidence supporting the trial court’s findings (1) that he knowingly placed or
knowingly allowed the children to remain in conditions that endangered the physical or
emotional well-being of the children, (2) that he 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, and (3) that termination of his parental rights was in the children’s best
interest.




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                                    Sufficiency of the Evidence
       Due process requires that the grounds for termination be established by clear and
convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This requires a measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to
the truth of the allegations sought to be established. TEX. FAM. CODE ANN. § 101.007 (West
2008); In re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland 2011, no pet.). When conducting a
legal sufficiency review, we review all 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. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96
S.W.3d at 266; In re J.P.H., 196 S.W.3d 289, 292 (Tex. App.—Eastland 2006, no pet.). We
must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. In re J.F.C., 96 S.W.3d at 266.
       When conducting a factual sufficiency review, we review the record as a whole,
including evidence in support of and contrary to the judgment, and give due consideration to
evidence that the trier of fact could have found to be clear and convincing. In re C.H., 89
S.W.3d 17, 25 (Tex. 2002); In re J.P.H., 196 S.W.3d at 292–93. We then determine whether the
evidence is such that the factfinder could reasonably form a firm belief or conviction about the
truth of the State’s allegations. In re C.H., 89 S.W.3d at 25; In re J.P.H., 196 S.W.3d at 293.
We also consider whether any disputed evidence is such that a reasonable factfinder could not
have resolved that evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266; In re J.P.H.,
196 S.W.3d at 293.
       To terminate parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts or omissions listed in Section 161.001(1)(A–T) and that
termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West Supp.
2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In this case, the trial court found that John violated Section 161.001(1)(D) and (E). Specifically,
the trial court found (1) that John knowingly placed or knowingly allowed the children to remain
in conditions or surroundings that endangered the physical or emotional well-being of the
children (Section 161.001(1)(D)) and (2) that John 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 (Section 161.001(1)(E)).


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       We begin our analysis by considering the trial court’s finding that John violated
Section 161.001(1)(E). To terminate a parent-child relationship based on Section 161.001(1)(E),
the trial court must find 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 Section 161.001(1)(E). ―Endanger‖ means to expose
a child to loss or injury or to jeopardize a child’s emotional or physical health. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.O., 338 S.W.3d at 34;
Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.—
Eastland 2004, no pet.). The conduct must be more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment. However, it is not necessary that the
conduct be directed at the child or that the child actually suffers an injury. In re D.O., 338
S.W.3d at 34; Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex.
App.—El Paso 2000, pet denied). The relevant inquiry is whether evidence exists that a parental
course of conduct endangered the child’s physical or emotional well-being. Walker v. Tex. Dep’t
of Family & Protective Servs., 312 S.W.3d 608, 616-17 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied); In re R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied).
       The cause of danger to the child must be the parent’s conduct alone, as evidenced not
only by the parent’s actions but also by the parent’s omissions and failures to act. Doyle, 16
S.W.3d at 395; In re S.H.A., 728 S.W.2d 73, 85 (Tex. App.—Dallas 1987, writ ref’d n.r.e.).
Termination under Section 161.001(1)(E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is required. In re D.O., 338
S.W.3d at 34; In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied). The
conduct need not occur in the presence of the child. Walker, 312 S.W.3d at 617. The conduct
may occur before the child’s birth and both before and after the child is removed by the
Department. Id.
       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. In re R.W., 129 S.W.3d 732, 739
(Tex. App.—Fort Worth 2004, pet. denied); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—
San Antonio 1998, pet. denied). Imprisonment of the parent is a factor to consider on the issue
of endangerment.     Boyd, 727 S.W.2d at 533; In re D.O., 338 S.W.3d at 34.              However,
imprisonment by itself is not enough to constitute engaging in conduct that endangers the
emotional or physical well-being of the child. Boyd, 727 S.W.2d at 533-34; In re D.O., 338
S.W.3d at 34. On the other hand, if the evidence, which includes imprisonment, shows a course
                                                4
of conduct that has the effect of endangering the physical or emotional well-being of the child, a
finding of endangerment is supportable. Boyd, 727 S.W.2d 533-34; In re D.O., 338 S.W.3d at
34. Conduct that routinely subjects a child to the probability that the child will be left alone
because a parent is jailed endangers both the physical and emotional well-being of the child.
Walker, 312 S.W.3d at 617. Also, evidence of narcotics use and its effect on a parent’s life and
ability to parent may establish that the parent has engaged in an endangering course of conduct.
Id. at 618. Because the use of illegal drugs by a parent exposes the child to the possibility that
the parent may be impaired or imprisoned, illegal drug use may support termination under
Section 161.001(1)(E). Id. at 617; In re R.W., 129 S.W.3d at 739. Additionally, abusive or
violent conduct by a parent may produce an environment that endangers the physical or
emotional well-being of the child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth
2003, no pet.). Thus, a parent’s abuse of the other parent or children can support a finding of
endangerment under Section 161.001(1)(E). In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009);
In re D.O., 338 S.W.3d at 34.
       Cynthia met John when she was twelve years old. They began a relationship, and
Cynthia gave birth to A.M.M. when she was fourteen years old. At that time, John was sixteen
years old. Cynthia and John lived with her parents at times, and they lived with John’s parents at
other times. Cynthia gave birth to A.N.M. when she was fifteen years old and to E.J.M when she
was seventeen years old. Cynthia and John both dropped out of school.
       Cynthia and John were in a relationship from 1999 until 2005. Cynthia testified that,
during their relationship, John verbally and physically abused her. She said that John hit her
with his fist. She said that, in 2003, John stabbed her with a knife. Cynthia testified that the
stabbing left her with a permanent scar. She described John’s physical abuse of her as ongoing
conduct that happened repeatedly over a period of years. Cynthia said that John abused her
because he was ―insanely jealous.‖ Cynthia testified that John never hit her in front of the
children. Cynthia’s sister, Dominga Baggett, testified that she was aware that John physically
abused Cynthia. Dominga saw physical altercations between Cynthia and John. Dominga said
that Cynthia and John engaged in fistfights and that the children were present when some of the
fights began. Dominga said that she took the children out of the house on occasions when John
and Cynthia were fighting. A.M.M. told Brandi Sattarphai, the Department’s caseworker, that
―[John] used to hurt [Cynthia].‖ John testified that he verbally abused Cynthia but that he never
physically abused her.


                                                5
       Cynthia said that John used methamphetamine, cocaine, and marihuana during their
relationship. She said that he did not use drugs at home but that he used them when he was ―out
running the streets.‖ John testified that he used cocaine and methamphetamine intravenously
during his relationship with Cynthia. He said that he used these drugs when he went off on
weekend drug binges that lasted two or three days. John said that he participated in these
weekend drug binges ―[o]nce or twice every three to six months.‖
       Cynthia testified that she left John in 2005 ―because he was abusive and he wouldn’t
change his lifestyle.‖ John testified that his methamphetamine abuse got really bad in 2006 after
his mother died. He said that, at that time, his drug binging increased to every other weekend.
John said that he had not used drugs since June 2007.
       The Department presented evidence that John continued to engage in a pattern of abuse
of women after his relationship with Cynthia ended. Two of John’s subsequent girlfriends,
Jennifer Perez and Pricilla Moreno, obtained protective orders against him. John said that Perez
obtained the order to prevent him from harassing her and committing acts of violence against
her. Moreno obtained the protective order based on allegations that John had threatened to hit
her. On two occasions in 2007, John violated the protective order that Perez had obtained. John
pleaded guilty to violating Perez’s protective order in both cases. In each case, the court
convicted John of the offense and sentenced him to forty-five days confinement in the county
jail. On April 12, 2010, John pleaded guilty to the third degree felony offense of stalking. The
victim in the stalking case was Moreno. The judgment of conviction identifies the date of the
offense as May 30, 2009, through June 27, 2009. John was sentenced to confinement for four
years for the stalking offense. During his testimony, John said that he and Moreno were back
together.
       John has a number of convictions in addition to those described above. In 2006, he
pleaded guilty to driving while intoxicated in Eastland County. The court convicted him. He
was placed on community supervision for one year, and his community supervision was later
extended by six months. John moved to Amarillo in 2006. His community supervision was
transferred to Potter County.   Later, the State filed a motion to revoke John’s community
supervision in the Eastland County case, and ultimately, the court revoked his community
supervision.   In 2008, John pleaded guilty to a tampering-with-evidence offense in Potter
County. The court deferred adjudication of guilt and placed John on community supervision for
three years. On January 10, 2010, John was convicted of a failure-to-identify offense and
sentenced to confinement for sixty days in the county jail. On February 9, 2010, John was
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convicted of a theft offense and sentenced to confinement for sixty days in the county jail. On
April 12, 2010, which was the date that John was convicted in the stalking case, the court
adjudicated John’s guilt on the tampering-with-evidence offense. The court sentenced John to
confinement for four years and ordered that John’s sentences for the stalking offense and the
tampering-with-evidence offense run concurrently.
         At the time of trial, John was serving his four-year sentences on his convictions for the
stalking and tampering-with-evidence offenses. He testified that he had two years and eight
months remaining on the sentences. He said that he had a mandatory release date for parole in
June 2011. John testified that his incarceration for the stalking and tampering-with-evidence
offenses was the only time that he had been in prison. He said that he had been in jail about ten
times.
         John had limited contact with his children after his relationship with Cynthia ended.
Cynthia testified that John saw A.M.M., A.N.M., and E.J.M. for ―a couple of hours‖ once every
three or four months. John testified that he saw his children ―[o]nce or twice every three months,
maybe more.‖ Cynthia has a history of methamphetamine abuse and an extensive criminal
history. Cynthia testified that, at her request, John kept the children from February 2009 to
March 2009 when ―[she] was trying to get [herself] together.‖ On that occasion, John kept the
children for about a month. John testified that he returned the children to Cynthia because
―[they] wanted to go back, and I had caught a warrant anyways.‖ John testified that he had not
seen his children since March 2009, which was about eighteen months before trial.
         The Department removed A.M.M., A.N.M., and E.J.M. from Cynthia’s care on April 1,
2009. All five children were placed with the same foster parents, and they remained in the care
of the same foster parents at the time of trial. The Department presented detailed evidence that
the children had a good relationship with their foster parents, that their foster parents were
providing the children with a stable home, and that their foster parents were meeting the
children’s physical and emotional needs.
         In this case, the trial court’s function, as the trier of fact, was to judge the credibility of
the witnesses, assign the weight to be given their testimony, and resolve any conflicts or
inconsistencies in the testimony. In re R.W., 129 S.W.3d at 742. The trial court was entitled to
believe all, part, or none of the testimony of any witness. In re T.N., 180 S.W.3d 376, 382–83
(Tex. App.—Amarillo 2005, no pet.).           Based on the evidence, the trial court could have
reasonably concluded that John engaged in a pattern of domestic violence against Cynthia; that
John had a long history of intravenous cocaine and methamphetamine abuse; that John had an
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extensive criminal history and numerous convictions, including recent convictions; that John had
been incarcerated in county jails on a number of occasions; and that John was incarcerated in
prison at the time of trial. These facts are sufficient to allow a reasonable trier of fact to form a
firm belief or conviction that John engaged in a voluntary, deliberate, and conscious course of
conduct that endangered the physical or emotional well-being of A.M.M., A.N.M., and E.J.M.
Therefore, the evidence is legally and factually sufficient to support termination under Section
161.001(1)(E) of the Texas Family Code.
       John’s second issue on appeal is overruled. Because only one ground is needed to
support a termination order, we need not address John’s first issue challenging the sufficiency of
the evidence to support the trial court’s finding under Section 161.001(1)(D) of the Family Code.
       The next question we must address is whether the best-interest finding is supported by
legally and factually sufficient evidence. With respect to the best interest of a child, no unique
set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010,
pet. denied). But, courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not limited to,
(1) the desires of the child, (2) the emotional and physical needs of the child 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 these individuals
to promote the best interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent-child relationship is not a
proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally,
evidence that proves one or more statutory grounds for termination may also constitute evidence
illustrating that termination is in the child’s best interest. In re C.J.O., 325 S.W.3d at 266. A
trier of fact may measure a parent’s future conduct by his or her past conduct and determine that
it is in the child’s best interest to terminate parental rights. In re D.S., 333 S.W.3d 379, 384
(Tex. App.—Amarillo 2011, no pet.).
       The evidence showed that A.M.M., A.N.M., and E.J.M. were removed from Cynthia’s
care on April 1, 2009. Since that date, the children had been living in the same foster home.
Their foster parents had provided a stable environment for the children and had met the
children’s needs. The children had a good relationship with their foster parents. John had not
exhibited adequate parenting abilities in the past.      As summarized above, the Department
presented evidence that John had engaged in a pattern of violence against Cynthia and that
                                                 8
John’s pattern of violence against women continued after his relationship with Cynthia ended.
John has a lengthy history of drug abuse and a lengthy criminal history. He has been in and out
of jail. He was incarcerated at the time of trial. The evidence demonstrated that John could not
provide A.M.M., A.N.M., and E.J.M. a stable home environment or meet their physical and
emotional needs. Further, there was no evidence that John would be able to sustain a stable
environment for the children or to meet the children’s needs in the future. Considering the
evidence relating to John’s past conduct, the trial court could have reasonably concluded that he
would not be able to provide the children with a stable environment or to meet their needs in the
future.
          Based on the evidence, the trial court could reasonably have formed a firm belief or
conviction that termination of John’s parental rights would be in the best interest of A.M.M.,
A.N.M., and E.J.M. We cannot hold that this finding is not supported by clear and convincing
evidence. The evidence is legally and factually sufficient to support the finding that termination
of John’s parental rights is in the best interest of A.M.M., A.N.M., and E.J.M. John’s third issue
is overruled.
                                        This Court’s Ruling
          We affirm the trial court’s order terminating John’s parental rights to A.M.M., A.N.M.,
and E.J.M.




                                                              TERRY McCALL
                                                              JUSTICE
November 3, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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