                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-126-CV


IN THE INTEREST OF C.L., A CHILD




                                     ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                         MEMORANDUM OPINION 1

                                     ------------

      Appellant James L. appeals the trial court’s termination of his parental

rights to C.L., his daughter. We affirm.

                                I.      Background

      C.L. is the daughter of appellant James L. and Mary M. C.L. was born

on October 24, 2000. She was eight years old at the time of trial. James and

Mary are married, but they have been separated since March 2003. C.L. had



      1
          … See Tex. R. App. P. 47.4.
been living with Mary since James began a five-year prison sentence in March

2003 for aggravated sexual assault of a child, who was his niece.

      The Department of Family and Protective Services (the Department) filed

this suit seeking termination of Mary’s and James’s parental rights to C.L.

Before trial, Mary voluntarily relinquished her parental rights.

      The Department introduced evidence of James’s knowledge that Mary

had been intoxicated while attempting to care for C.L. and that C.L. had lived

with a half-brother who was an alleged sex offender. James testified that, after

his release from prison in January 2008, he did not attempt reunification with

C.L. until after this suit was filed.

      Following a bench trial, the trial court terminated James’s parental rights

under Texas Family Code section 161.001, based on the following findings:

      •       James had knowingly placed or knowingly allowed C.L. to remain
              in conditions or surroundings that endangered her physical or
              emotional well-being;

      •       James had engaged in conduct or knowingly placed C.L. with
              persons who engaged in conduct that endangered her physical or
              emotional well-being; and

      •       termination was in C.L.’s best interest. 2

This appeal followed.




      2
          … See Tex. Fam. Code Ann. § 161.001(1)(D),(E), (2) (Vernon 2008).

                                         2
            II.   Sufficiency of the Evidence Supporting Termination of
                              James’s Parental Rights

      James challenges the legal and factual sufficiency of the evidence to

support the trial court’s findings that he had knowingly placed, or knowingly

allowed C.L. to remain, in conditions or surroundings that endangered her

physical or emotional well-being,3 and that he had engaged in conduct, or

knowingly placed C.L. with persons who engaged in conduct, that endangered

her physical or emotional well-being.4

      In proceedings to terminate the parent-child relationship brought under

Texas Family Code section 161.001, the petitioner must establish by clear and

convincing evidence one ground listed under section 161.001(1) and must

prove that termination is in the best interest of the child.5

A.    Standards of Review

      Because of the elevated status of parental rights, the quantum of proof

in a termination proceeding is elevated from the preponderance of the evidence




      3
          … See id. § 161.001(1)(D).
      4
          … See id. § 161.001(1)(E).
      5
        … Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). James
does not challenge the trial court’s finding that termination of his parental rights
is in C.L.’s best interest.

                                         3
to clear and convincing evidence. 6 “Clear and convincing evidence” means the

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.7 This higher burden of proof alters the appellate standard for both

legal and factual sufficiency reviews.8 In termination cases, therefore, both

standards must take into consideration whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of

the matter on which the petitioner bears the burden of proof.9

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must review all of the evidence in the light most favorable to the

finding to determine whether a trier of fact reasonably could have formed a firm

belief or conviction that the grounds for termination were established.10 This

means that we must assume that the factfinder resolved any disputed facts in




      6
     … Santosky v. Kramer, 455 U.S. 745, 758–69, 102 S. Ct. 1388,
1397–1403 (1982); see also Tex. Fam. Code Ann. § 161.001.
      7
          … Tex. Fam. Code Ann. § 101.007 (Vernon 2008).
      8
      … In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002); In re C.H., 89 S.W.3d
17, 25 (Tex. 2002); In re J.T.G., 121 S.W.3d 117, 124 (Tex. App.—Fort
Worth 2003, no pet.).
      9
     … J.F.C., 96 S.W.3d at 265–66; C.H., 89 S.W.3d at 25; J.T.G., 121
S.W.3d at 124.
      10
           … In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

                                       4
favor of its finding if a reasonable factfinder could have done so. 11 We must

also disregard all evidence that a reasonable factfinder could have disbelieved. 12

We must consider, however, undisputed evidence even if it is contrary to the

finding.13 That is, we must consider evidence favorable to termination if a

reasonable factfinder could, and disregard contrary evidence unless a

reasonable factfinder could not.14

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our

own.15 We must determine whether, on the entire record, a factfinder could

reasonably form a firm conviction or belief that the grounds for termination

were established.16 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 reasonably have formed a firm belief or

conviction in the truth of its finding, then the evidence is factually insufficient.17


      11
           … Id.
      12
           … Id.
      13
           … Id.
      14
           … Id.
      15
           … In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
      16
           … C.H., 89 S.W.3d at 28.
      17
           … H.R.M., 209 S.W.3d at 108.

                                          5
B.    Evidence Supporting Terminating James’s Parental Rights Based on
      Family Code Section 161.001(1)(D)

      Under subsection D of section 161.001(1), we examine the evidence to

determine whether the parent “knowingly placed or knowingly allowed the child

to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child.” 18 Endangerment is defined as exposing to

loss or injury, or to jeopardize.19 Under subsection D, it is necessary to examine

evidence related to the environment of the child to determine if the environment

was the source of endangerment to the child’s physical or emotional

well-being.20

      To support a finding of endangerment, the parent’s conduct does not

necessarily have to be directed at the child, nor is the child required to suffer

injury.21 Rather, a child is endangered when the environment or the course of

conduct of one of the parents creates a potential for danger that the parent is




      18
       … Tex. Fam. Code Ann. § 161.001(1)(D); see J.T.G., 121 S.W.3d at
125; In re D.T., 34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet.
denied).
      19
           … J.T.G., 121 S.W.3d at 125.
      20
           … D.T., 34 S.W.3d at 632.
      21
           … Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987).

                                        6
aware of but disregards.22     Inappropriate, abusive, or unlawful conduct by

persons who live in the child’s home or with whom the child is compelled to

associate on a regular basis in the home is a part of the “conditions or

surroundings” of the child’s home under section 161.001(1)(D).23 For example,

a parent’s drug use may support an endangerment finding.24 Additionally, a

parent need not know for certain that the child is in an endangering

environment; awareness of such a potential is sufficient.25

      The record shows that various evidence was presented on the issue of

whether James knowingly placed or allowed C.L. to remain in conditions or

surroundings that endangered her physical or emotional well-being.           James

testified at trial that, after C.L. was born, he and Mary each often drank alcohol

to the point of intoxication, including drinking in their home while caring for C.L.

James conceded that these episodes of parental intoxication endangered C.L.’s




      22
       … In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.]
2005, no pet.); see In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth
1995, no writ).
      23
         … In re J.L.W., No. 02-08-00179-CV, 2008 WL 4937970, at *6 (Tex.
App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.); see also In re W.S., 899
S.W.2d at 776 (stating that “environment” refers not only to the acceptability
of living conditions, but also to the parent’s conduct in the home).
      24
           … J.T.G., 121 S.W.3d at 125.
      25
           … See S.M.L., 171 S.W.3d at 477.

                                         7
well-being, and he admitted that his personal decision to become intoxicated

while C.L. was in his care was a “bad choice.”

      In 1995, James was placed on seven years’ deferred adjudication

probation for aggravated sexual assault of a child. The victim was his then

twelve-year-old niece.    While on probation, James attended but failed to

complete a sex offender treatment course. Because he failed to comply with

the terms of his probation, in March 2003, the trial court adjudicated his guilt,

revoked his community supervision, and sentenced him to five years’

imprisonment.

      When James was released from prison in January 2008, C.L. was in

Mary’s care. C.L. also lived with a half-brother whom James knew to be an

alleged sex offender. James also testified that he knew that Mary had a history

of drinking alcohol while C.L. was in her care, to the point where James

conceded that Mary’s actions “placed [C.L.’s] emotional or physical well-being

in danger,” and that he knew that Mary allegedly had been driving while

intoxicated with her children in the vehicle. James also testified that he did not

seek reunification with C.L. until after being served with the original petition for

termination in this lawsuit.

      In June 2008, the Department initiated an investigation when Mary

indicated that she did not wish to have C.L.’s older brother released from



                                         8
juvenile detention.    One week before this case was filed, Mary attended a

supervised visit of her grandchild. During the visit, the individual with whom

the grandchild was placed, Bobbie Jones, witnessed Mary drinking two cans of

beer while holding the grandchild. One week later, but still before this case

was filed, Jones and two others reported that Mary arrived at another visitation

of the same grandchild while intoxicated. When Mary left the visitation, and

despite pleas not to drink and drive, Jones and two other individuals witnessed

Mary driving herself and her children, including C.L., home while intoxicated.

      During the pendency of this litigation, James did not complete the service

plan the Department prepared for his reunification with C.L. The service plan

required James to complete a psychological evaluation, parenting classes, sex

offender group therapy, and individual counseling. James completed only the

psychological counseling and parenting classes at the time of trial. In fact,

James testified at trial that, since 1995, he has not completed any sex offender

therapy   courses     ordered   during   his   probation,   offered   in   prison,   or

recommended during the pendency of this litigation. James testified that he did

not have enough money to pay for the sex offender group therapy program that

was required under his service plan and that the cost for the program was at

least $700.00. The record includes evidence, however, that James purchased




                                          9
approximately $750.00 worth of presents for C.L. after he was released from

prison.

      Because of his imprisonment, his failure to seek reunification with C.L.

after his release from prison in January 2008, and his failure to complete his

reunification service plan following initiation of this lawsuit, James has not been

actively involved with C.L. since at least the beginning of his prison sentence

on March 11, 2003.

      Mary testified at trial that she had never left C.L. unsupervised with

James during the two years of C.L.’s life before he was imprisoned.          Mary

stated that she did not trust James alone with C.L. in light of his criminal

record: “I don’t trust him with any female child, to tell you the truth . . . . I’m

not going to put my child in any risk of that happening to her.”

      Mary’s pattern of alcohol abuse and its effect on her life and ability to

parent established an endangering course of conduct.26 James testified that he

knew of Mary’s alcohol abuse and knew that Mary had a history of attempting

to care for C.L. while intoxicated. James knew that Mary’s behavior presented

more than a theoretical harm to C.L.’s well-being; he testified that he knew that

Mary’s consumption of alcohol while caring for C.L. placed C.L.’s emotional or




      26
        … See In re U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied).

                                        10
physical well-being in danger.         James also knew that C.L.’s conditions or

surroundings included living in a home with a half-brother who was an alleged

juvenile sex offender.

      Upon his release from prison, James knew of C.L.’s endangerment, but

he made no attempt to reunify with C.L. or remove her from her endangering

conditions and surroundings for approximately five months, and even then his

attempts to reunify coincided with the filing of this lawsuit.

      Having carefully considered the evidence, we hold that the evidence is

legally and factually sufficient to support the trial court’s endangerment finding

under subsection D of family code section 161.001(1).

                                III.     Conclusion

      We affirm the judgment of the trial court. 27




                                                      PER CURIAM

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DELIVERED: September 24, 2009




      27
        … See S.M.L., 171 S.W.3d at 477; W.S., 899 S.W.2d at 776. Because
the finding under section 161.001(1)(D) is sufficient to support a judgment of
termination, we need not address James’s issues regarding the trial court’s
findings under section 161.001(1)(E). See Tex. R. App. P. 47.1; In re K.A.S.,
131 S.W.3d 215, 225 (Tex. App.—Fort Worth 2004, pet. denied).

                                          11
