                                       NO. 07-12-0228-CV
                                       NO. 07-12-0231-CV

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL D

                                       NOVEMBER 2, 2012

                             ______________________________


                      IN THE INTEREST OF K.J. AND T.J., CHILDREN

                           _________________________________

               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

          NOS. 75,086-D & 79,622-D; HONORABLE DON EMERSON, JUDGE

                            _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       This is a consolidated appeal of two separate orders terminating the parental

rights of Appellant, Debbie, 1 to her children, K.J. (Cause Number 75,086-D, Appellate

Cause No. 07-12-0228-CV), and T.J. (Cause Number 79,622-D, Appellate Cause No.

07-12-0331-CV), pursuant to chapter 161 of the Texas Family Code. 2 By a single issue,



1
 To protect the children’s privacy, we refer to Appellant simply by her first name and other interested
parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (W EST SUPP. 2012). See also TEX. R.
APP. P. 9.8(b).
2
 Although the Order of Termination in each case also terminated the parental rights of the respective
fathers, they did not appeal.
Debbie asserts the evidence was legally and factually insufficient to terminate her

parental rights. We affirm.


                                      BACKGROUND


      The two children the subject of this proceeding are K.J., a male born in April

2007, and T.J., a male born in March 2010. At the time of their removal, Debbie and

her children were residing in a dwelling owned by her mother, M.J., who herself owned

the house next door, and the children were ages three years, five months and six

months, respectively.


      INVESTIGATION/REMOVAL


        Prior to June 2010, the Texas Department of Family and Protective Services

had investigated Debbie for reports of physical neglect and neglectful supervision;

however, none of those investigations resulted in removal of her children. In June 2010,

the Department received a new report alleging that Debbie, T.J.’s father, M.P., and

Debbie’s sixteen year old son, C.J., had all been smoking marijuana and

methamphetamine.        Although it was not reported that this conduct occurred in the

presence of the children, the Department became concerned that K.J. and T.J. were

being exposed to the illicit smoke on a regular basis. The report stated that Debbie and

M.P. were “high for days at a time” and they would then “sleep for a very long time.” It

was further reported that during these periods, M.J. would watch the children, but that

she was not physically capable of keeping up with them. In fact, during an investigatory

visit, one caseworker described M.J. as inadequately supervising K.J., by allowing him

to remain outside, without any direct supervision, adult or otherwise. The report also

                                            2
alleged “the children [were] dirty and smell of urine and that the home is in very poor

condition, with the roof caving in parts of the home.”              When questioned by the

Department, Debbie denied using any drugs, but she did concede that C.J., who also

lived in the home, had used marijuana in the past and might still be doing so.


       Due to allegations of drug use, the Department asked Debbie to submit to a drug

test. Initially she refused, noting that she would probably test positive for marijuana, but

later consented to the test. In August 2010, she did test positive for marijuana. Due to

the perceived neglectful supervision of the children and concern about drug use in the

home, the children were removed on September 3, 2010. After the boys were removed

from the home, Debbie “had a breakdown,” overdosed on her medications, and was

admitted to the Pavilion, a psychiatric facility, for evaluation.


       Upon her release from the Pavilion, the Department set up a Family Service

Plan, setting forth certain goals for Debbie to achieve and delineating the circumstances

under which the children would be returned to her. The plan included random drug

testing, participation in and completion of parenting classes, individual counseling and

psychological evaluation, drug and alcohol assessment, completion of drug screens as

requested, obtaining and maintaining a “legal source of income” sufficient to support

herself and her children, maintenance of a stable household free of hazards, providing

appropriate “protection, food and shelter for her family,” and demonstration of a

“willingness and ability to protect [K.J. and T.J.].”


       As a part of her counseling, Debbie reported that prior to September 2010, she

had actually been using methamphetamine twice a week and smoking marijuana daily,


                                               3
but she denied any use after that date. She admitted that her drug use included the

time when she was pregnant with both children. In 2011, she was placed on probation

for felony possession of methamphetamine and misdemeanor theft, and in October of

2011, she was in a substance abuse outpatient treatment program. She subsequently

graduated from that program.


      On October 4, 2011, as a part of the Department’s reunification plan on a

“monitored return” basis, T.J. was returned to Debbie. K.J. was returned ten days later.

Two months later, on December 8, 2011, T.J. received emergency medical care for

injuries he received while being supervised by Debbie. Those injuries included bite

marks on his back from Debbie’s grandson, multiple bruises on his buttocks in different

stages of healing, and bruises to both sides of his face. Debbie’s explanation of the

injuries was that he fell into a fireplace while she was briefly outside. Due to these

injuries, on December 9, 2011, the children were again removed from the home.

Following this removal, Debbie again overdosed on her medication and was readmitted

to the Pavilion on a suicide watch. Based upon these incidents, the Department’s plan

for the children changed from reunification to termination. Since the second removal,

the children have remained in foster care.


      DEBBIE’S PLAN COMPLIANCE


      Following implementation of the Family Service Plan in September 2010, Debbie

participated in and completed court ordered and recommended services.               She

successfully completed the “Families in Crisis Program,” the “Specialized Females

Program,” and the substance abuse program conducted by the Amarillo Council on


                                             4
Alcoholism and Drug Abuse. According to her counselor she had zero “no shows” and

she maintained a “good” overall attitude. She “took responsibility” for the situation, met

behavioral expectations, and acknowledged her continued need for treatment and

participation in a recovery program. She had an AA/NA sponsor and she attended a

group session on “almost a daily basis.” She eventually obtained gainful employment

and at the time of the final hearing had been employed for over eleven months. At the

final hearing, Debbie offered witnesses who confirmed her sobriety and her willingness

to take steps to provide a safe environment for her children.


      Debbie’s compliance was not, however, without incident. While the children were

in foster care she was convicted of the two criminal offenses previously mentioned.

Furthermore, after the children were returned to her in October 2011, Debbie was told

that her older son, C.J. could have no access to the children. Despite acknowledging

this requirement, Debbie continued to allow C.J. into her home on occasion. She also

continued to make poor choices concerning her male companions and, as previously

mentioned, she suffered from psychological issues, including two suicide attempts.


      THE CHILDREN


      After K.J. and T.J. were removed from the home for the second time, they were

placed together in a foster home. At trial, the Department caseworker testified the

children were comfortable, happy, healthy, doing well, and interacting favorably with

their foster parents. The caseworker further described the children as thriving with all

their physical, psychological, and medical needs being met. T.J. was participating in

speech therapy, occupational therapy and physical therapy for delayed development.


                                            5
Due to their ages, neither child expressed an opinion as to their preferences, although it

was reported that they do refer to their foster parents as “mom” and “dad.” Additionally,

the foster parents want to adopt when the termination becomes final.


        FINAL ORDERS


        On May 17, 2012, a hearing was held and on July 6, 2012, the trial court issued

its Order of Termination in each case. By the respective orders, the trial court found

Debbie had knowingly placed or knowingly allowed her children to remain in conditions

or surroundings which endangered their physical or emotion well-being and she

engaged in conduct or knowingly placed her children with persons who engaged in

conduct which endangered their physical or emotional well-being.                               See §§

161.001(1)(D), (E). 3 The trial court also determined that it was in the children’s best

interest that the parent-child relationship be terminated. § 161.001(2).


        THE ISSUE


        Debbie concedes the evidence is legally sufficient to support the statutory

grounds for termination the Department sought to establish under subsections (D) and

(E) of section 161.001(1). Where Debbie disagrees with the order of termination is the

trial court’s best interest determination. She contends there were options less drastic

than termination that would have protected her rights as a parent, while at the same

time met the needs of the children. Specifically, she contends the trial court should




3
 Throughout the remainder of this opinion, provisions of the Texas Family Code will be cited as “section
___” and “§ ___,” section 161.001(1)(D) will be referred to as “subsection (D),” and section 161.001(1)(E)
will be referred to as “subsection (E).”

                                                    6
have continued the children’s placement with their foster parents, while naming her as a

possessory conservator.


                                        DISCUSSION


       INVOLUNTARY TERMINATION – STANDARD OF REVIEW


       The natural right existing between parents and their children is a right “far more

precious than any property right” and is, therefore, one of constitutional dimension.

Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);

accord In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).            Consequently, termination

proceedings are strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985).

Parental rights, however, are not absolute and it is essential that the emotional and

physical interests of a child not be sacrificed merely to preserve those rights. In re C.H.,

89 S.W.3d 17, 26 (Tex. 2002).


       In proceedings to terminate the parent-child relationship brought under section

161.001, the petitioner must establish one or more of the acts or omissions enumerated

under subsection (1) of the statute and, also prove that termination is in the best interest

of the child. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Though the same

evidence may be probative of both issues, both elements must be established and proof

of one element does not relieve the petitioner of the burden of proving the other. See In

re C.H., 89 S.W.3d at 28; Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

Furthermore, due to the elevated status of parental rights, due process requires that the

quantum of proof necessary in a parental-termination proceeding be elevated from

preponderance of the evidence to clear and convincing evidence. See In re E.N.C., No.

                                             7
11-0713, 2012 Tex. LEXIS 866, at *13, 56 Tex. Sup. J. 19 (Tex. Oct. 12, 2012) (citing In

re J.F.C., 96 S.W.3d 256, 253 (Tex. 2002)). See also § 161.001.


       Clear and convincing evidence is that “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

allegation sought to be established.” § 101.007 (W EST 2008); In re E.N.C., 2012 Tex.

LEXIS 866, at *13-14. Involuntary termination proceedings are strictly construed in

favor of the parent. Id. at *14.


       In a legal sufficiency review of the evidence to support an order terminating

parental rights, we look at all the evidence in the light most favorable to the finding to

determine whether a trier of fact could have reasonably formed a firm belief or

conviction as to the truth of the allegations sought to be established. § 101.007; In re

J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder’s conclusions

and the role of an appellate court conducting a legal sufficiency review, looking at the

evidence in the light most favorable to the judgment means that a reviewing court must

assume the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so. Id. A corollary to this rule is that we also disregard all evidence

that a reasonable factfinder could have disbelieved or found to have been incredible.

Id. This does not, however, mean that we disregard all evidence that does not support

the finding, id., or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d

714, 716 (Tex.App.—Amarillo 1995, no writ).


       If, after conducting its legal sufficiency review of the record evidence, a court

determines that no reasonable factfinder could form a firm belief or conviction that the


                                            8
matter that must be proven is true, then the court must conclude the evidence is legally

insufficient. Where the evidence is legally insufficient, rendition of judgment in favor of

the parent is generally required. Id. See also In re J.O.A., 283 S.W.3d 336, 344-45

(Tex. 2009).


       When we conduct a factual sufficiency review of the evidence under a clear and

convincing burden of proof, the analysis is somewhat different in that we must consider

all the evidence equally, both disputed and undisputed, giving due consideration to any

evidence the factfinder could reasonably have found to be clear and convincing. In re

J.F.C.., 96 S.W.3d at 266. “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, then the

evidence is factually insufficient.” Id.


       SECTION 161.001(1)(D), (E)


       The trial court found that Debbie knowingly placed or knowingly allowed her

children to remain in conditions or surroundings which endangered their physical or

emotional well-being and also engaged in conduct or knowingly placed the children with

persons who engaged in conduct which endangered the children’s physical and

emotional well-being. See §§ 161.001(1)(D), (E). “Endanger” means to expose to loss

or injury--to jeopardize. See In re J.T.G., 121 S.W.3d 117, 125 (Tex.App.—Fort Worth

2003, no pet.). Although “endanger” means “more than a threat of metaphysical injury

or the possible ill effects of a less-than-ideal family environment”; Walker v. Tex. Dep’t

of Family and Protective Servs., 312 S.W.3d 608, 616 (Tex.App.—Houston [1st Dist.]


                                             9
2009, pet. denied), danger to a child need not be established as an independent

proposition but may be inferred from parental misconduct even if the conduct is not

directed at the child and the child suffers no actual injury. See Tex. Dep’t of Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Moreover, the conduct does not

have to occur in the child’s presence; Director of Dallas Cty. Child Protective Servs. v.

Bowling, 833 S.W.2d 730, 733 (Tex.App.—Dallas 1992, no writ), and may occur before

the child’s birth and both before and after the child has been removed by the

Department. See In re S.M.L.D., 150 S.W.3d 754, 757-58 (Tex.App.—Amarillo 2004,

no pet.); In re D.M., 58 S.W.3d 801, 812 (Tex.App.—Fort Worth 2001, no pet.).


      Under subsection (D), it is necessary to examine the evidence related to the

environment of the child to determine if the environment was a source of endangerment

to the child’s physical or emotional well-being.     In re D.T., 34 S.W.3d 625, 632

(Tex.App.—Fort Worth 2000, pet. denied). A child is endangered when the environment

creates a potential for danger that the parent is aware of but consciously disregards.

See In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.—Houston [14th Dist.] 2005, no pet.).

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 his home is a part of

the “conditions or surroundings” of the child’s home under subsection (D). See In re

J.T.G., 121 S.W.3d at 125 (abuse or violent conduct by a parent or other resident of

home may produce an endangering environment). See also In re W.S., 899 S.W.2d

772, 776 (Tex.App.—Fort Worth 1995, no writ) (“environment” refers not only to the

acceptability of living conditions, but also to a parent’s conduct in the home).

Subsection (D) permits termination based upon a single act or omission. Id.


                                           10
       Under subsection (E), the relevant inquiry is whether evidence exists that the

endangerment of the child’s physical or emotional well-being was the direct result of the

parent’s conduct, including acts, omissions, and failures to act.       In re J.T.G., 121

S.W.3d at 125. Termination under subsection (E) must be based on more than a single

act or omission; a voluntary, deliberate, and conscious course of conduct by a parent is

required. Id.; In re D.T., 34 S.W.3d at 634. Thus, while both subsections (D) and (E)

focus on endangerment, they differ regarding the source and proof of endangerment. In

re S.M.L., 171 S.W.3d at 477. Subsection (D) concerns the child’s living environment,

rather than the conduct of the parent, though parental conduct is certainly relevant to

the child’s environment, and subsection (E) requires a course of conduct rather than a

single act or omission. Id. (citing In re J.T.G., 121 S.W.3d at 125). See In re R.D., 955

S.W.2d 364, 367 (Tex.App.—San Antonio 1997, pet. denied).


       To determine whether termination is necessary, the factfinder may infer from past

conduct endangering the child’s well-being that similar conduct will recur if the child is

returned to the parent. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.—Fort Worth

2009, no pet.). Conduct that subjects a child to a life of uncertainty and instability also

endangers the child’s physical and emotional well-being. Id.; In re S.D., 980 S.W.2d

758, 763 (Tex.App.—San Antonio 1998, pet. denied).


       Based upon a review of the record, we agree with Debbie that a reasonable

factfinder could have formed a firm belief or conviction as to the truth of the statutory

grounds for termination the Department sought to establish under subsections (D) and

(E) of section 161.001(1). Accordingly, we proceed to the trial court’s best interest

finding.

                                            11
       BEST INTEREST OF THE CHILD


       In addition to a predicate violation, the Department must also establish by clear

and convincing evidence that termination is in the best interest of the child.           §

161.001(2).   Therefore, notwithstanding the sufficiency of the evidence to support

termination under subsections (D) and (E), we must also find clear and convincing

evidence that termination of the parent-child relationship was in the best interest of K.J.

and T.J.   The same evidence of acts or omissions used to establish grounds for

termination under section 161.001(1) may also be probative in determining best interest

under section 161.001(2). In re C.H., 89 S.W.3d at 28.


       While there is a strong presumption that the best interest of the child will be

served by preserving the parent-child relationship; see In re R.R., 209 S.W.3d 112, 116

(Tex. 2006) (per curiam), we must not lose sight of the fact that the best interest of the

child is always the primary consideration of the trial court in determining issues of

conservatorship, possession, and access to a child. § 153.002. In determining best

interest, the focus is on the best interest of the child--not the parent. See Dupree v.

Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App.—Dallas

1995, no writ). An appellate court’s review of the factfinder’s conclusions must not be

so rigorous that the emotional and physical interests of the child are sacrificed, In re

C.H., 89 S.W.3d at 26, and the prompt and permanent placement of the child in a safe

environment is also presumed to be in the child’s best interest. § 263.307(a) (W EST

2008). In making a best interest determination, a factfinder may consider the fact that

termination of parental rights may allow an adoption to occur so that an impermanent



                                            12
foster care arrangement can be replaced by the permanent relationship that an adoption

affords. See In re C.H., 89 S.W.3d at 27.


       In Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), the Texas Supreme Court

provided a nonexclusive list of factors that the trier of fact in a termination case may use

in determining the best interest of the child. Id. at 371-72. These factors include: (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; (9) any excuse for the acts or

omissions of the parent. Id. These factors are not exhaustive, and some of the listed

factors may be inapplicable to some cases, while other factors not listed may also be

considered when appropriate. In re C.H., 89 S.W.3d at 27. Furthermore, there is no

requirement that the Department prove all factors as a condition precedent to a finding

that termination is in the best interest of the child, as undisputed evidence of just one

factor can be sufficient in a given case. Id.


       ANALYSIS


       With these considerations in mind, we review the evidence. Debbie asserts the

evidence pertaining to the best interest of the children was legally and factually

insufficient because the trial court did not consider the less drastic option of continuing


                                                13
placement of the children with their foster parents while appointing her as a possessory

conservator.    She contends the trial court’s decision was error because she had

complied with the directives of the Department, she was drug-free, she made other

positive improvements in her personal life, and her supervised visitation with the

children while in foster care had been satisfactory. While we do not disagree with her

contention that there were less drastic options available to the trial court, given the

evidence, it is not unreasonable for us to conclude the trial court believed that, if left in

Debbie’s care, the children would continue to live in a highly unstable and uncertain

environment. Nor is it unreasonable for us to conclude the trial court believed the

children were then living in a positive, safe and secure foster home with the very real

prospect of adoption.      The children were doing well and were comfortable.           The

children’s caseworker described them as “thriving” in their new home with all their needs

being met. While the fact that Debbie has taken significant and positive steps towards

providing a safe, stable and permanent environment for her children is to be

commended, we cannot evaluate the factfinder’s decision in the vacuum of the

circumstances as they existed at the time of the final hearing and we must give

appropriate deference to the factfinder’s judgment regarding the future best interest of

the children. Considering the entire record, we cannot say that a reasonable factfinder

could not have formed a firm belief or conviction that termination of Debbie’s parental

rights was in the best interest of the children. Accordingly, we hold the evidence is

legally and factually sufficient to support the trial court’s best interest finding.




                                               14
                                     Conclusion


       Debbie’s single issue is overruled and the trial court’s order of termination is

affirmed.



                                               Patrick A. Pirtle
                                                   Justice


Quinn, C.J., concurring in result.




                                          15
