                                     NO. 07-11-00476-CV

                                  IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                        MAY 21, 2012


                 IN THE INTEREST OF A.P.S., J.D.R., J.C.H., CHILDREN


             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2010-551,681; HONORABLE KEVIN C. HART, JUDGE


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


                                   MEMORANDUM OPINION


       Appellant, John, appeals the trial court’s order terminating his parental rights to

son, J.C.H.1 He contends on appeal that the evidence was insufficient to establish a

predicate act or omission supporting termination and to support the trial court’s finding

that termination of the parent-child relationship was in the child’s best interest. We will

affirm the trial court’s order.




       1
        Throughout this opinion, J.C.H.’s parents will be referred to by the pseudonyms
“John” and “Barbara,” and the children will be identified by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2011); TEX. R. APP. P. 9.8(b).
                              Factual and Procedural History


       The Department of Family and Protective Services received a call in March 2010

reporting that children, A.P.S., J.D.R., and J.C.H., were being physically neglected and

that their mother, Barbara, had been hospitalized following a suicide attempt in the

presence of the children. Living in the house at the time were the three children and

Barbara. A.P.S.’s and J.D.R.’s fathers were apparently not involved in their children’s

lives, and J.CH.’s father, John, was in the Lubbock County Jail at the time of the report.


       John was incarcerated as a result of an aggravated assault conviction stemming

from a 2007 incident in which he attempted to hit Barbara with a car during an

argument.     Originally, he had been placed on four years’ deferred adjudication

community supervision in connection with those charges but had violated several of the

terms of his community supervision by, inter alia, absconding from a required

rehabilitation program and possessing marijuana.        Based on the several violations

alleged in the State’s application, the trial court had adjudicated John guilty of

aggravated assault and sentenced him to serve three years in prison. At the time of the

final hearing, he was still serving that sentence.


       John and Barbara’s relationship was a troubled, tumultuous one, marred by

instances of domestic violence, drug and alcohol abuse, and involvement with the law.

Among them is the incident in which John attempted to hit Barbara with the car. As a

condition of his original community supervision stemming from that incident, John was

required to attend a six-month rehabilitation program. He began that program but left it.

John tested positive for marijuana a number of times and admitted that he used



                                             2
marijuana during his community supervision period. On Christmas Eve 2008, both John

and Barbara were arrested for possession of marijuana. On Thanksgiving 2009, a

neighbor called law enforcement when he heard an argument between John and

Barbara.    Officers responded and discovered an active warrant for John based on

violations of his community supervision. He was arrested that night.


      The psychologist who evaluated Barbara testified that she admitted to using

crack cocaine four times a week when she could get it. She also reported her abuse of

alcohol, marijuana, cocaine, methamphetamine, and prescription painkillers.           She

revealed to the psychologist that she had cut herself on three different occasions and

had attempted suicide four times. She recounted two incidents of domestic violence.


      At the final hearing, the trial court confirmed that Barbara voluntarily relinquished

her rights to all three children.     In her own medical history included with her

relinquishment, she acknowledged depression, suicide attempts, and alcohol and drug

abuse. Barbara reported that she was under the influence of alcohol and cocaine the

time she last attempted suicide.


      John appeared at the final hearing by telephone. He described his efforts to

comply with the Department’s service plan and his efforts to further his education while

in prison. He also recounted two instances of domestic violence in the relationship,

describing one as an instance in which he pushed Barbara away by her throat.

Throughout his testimony on that topic, he seemed to minimize the gravity of the

instances and maintained that the children were not present and did not witness the

violence.   The record suggests the contrary.     John also indicated that he knew of



                                            3
Barbara’s drug and alcohol abuse. He explained that he and Barbara would consume a

good amount of alcohol on various weekends. He testified that he had no idea of

Barbara’s use of methamphetamine. He admitted to having used cocaine with her on,

at least, ten occasions but claimed that he did not know of her regular use of cocaine

until he received the CPS report while incarcerated. He claimed that, any time the

couple drank or did drugs, the children were at a babysitter’s house, but admitted that

he smoked marijuana on a daily basis during the relationship and acknowledged that

the children were present when the couple was arrested on Christmas Eve 2008.


       John explained that, when he and Barbara were not drunk or high, they tried to

do family things together. He testified that he no longer does–but, at one point, did–

plan to continue a relationship with Barbara; he explained that he could not be in a

relationship with a woman who relinquished her rights to her children. He testified to

having known of, at least, one suicide attempt by Barbara sometime between February

and July of 2009, prior to his incarceration and during a time period he says the two

were not seeing one another. He explained that his sister told him about the attempt

and indicated that Barbara told him as well.


       After hearing the evidence, the trial court found that the evidence supported a

finding of three predicate grounds for termination and a finding that termination of the

parent-child relationship was in J.C.H.’s best interest. John perfected appeal and, now,

brings to this Court one issue challenging the legal and factual sufficiency of the

evidence to support each of the predicate grounds for termination and the finding that

termination was in J.C.H.’s best interest.



                                               4
                         Applicable Law and Standards of Review


       The natural right existing between parents and their children is of constitutional

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

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


       The Texas Family Code permits a court to terminate the parent-child relationship

if the petitioner establishes (1) one or more acts or omissions enumerated under section

161.001 and (2) that termination of the parent-child relationship is in the best interest of

the child. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011); Holley v. Adams, 544

S.W.2d 367, 370 (Tex. 1976). Though evidence may be relevant to both elements,

each element must be proven, and proof of one does not relieve the burden of proving

the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best

interest of the child must be proven, only one statutory ground is required to terminate

parental rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Therefore, we will affirm the trial court’s order of termination if legally and factually

sufficient evidence supports any one of the grounds found in the termination order,



                                              5
provided the record shows that it was also in the best interest of the child for the

parent’s rights to be terminated. See id.


       Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights.     In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see TEX. FAM. CODE ANN. § 161.206(a) (West 2009).

“‘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.” TEX. FAM. CODE ANN. § 101.007 (West 2009).

This standard, which focuses on whether a reasonable jury could form a firm belief or

conviction, retains the deference a reviewing court must have for the factfinder’s role. In

re C.H., 89 S.W.3d at 26.


       In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, we look at 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 as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. “To give appropriate deference to the factfinder’s conclusions and

the role of a 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 that the

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

do so.” Id. In other words, we will disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible. Id.




                                            6
       When reviewing the factual sufficiency of the evidence supporting a termination

order, we determine “whether the evidence is such that a factfinder could reasonably

form a firm belief or conviction about the truth of the [Department]’s allegations.” In re

C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. 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.


                                           Analysis


Predicate Act or Omission


       Among the three grounds the trial court found as supporting termination of John’s

parental rights to J.C.H. were subsection (D)’s environmental endangerment and

subsection (E)’s course of conduct endangerment of the physical or emotional well-

being of the children. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E).2 “[E]ndanger”

means “to expose to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987). Although “‘endanger’ means more than a threat of

metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is


       2
        Especially with respect to the facts in the case at bar, the evidence concerning
these two statutory grounds for termination found in subsections (D) and (E) is closely
related. Because the connection between parental conduct and the children’s
conditions and surroundings is so strong here, we have included evidence relevant to
both grounds in our review of the sufficiency of the evidence. See In re J.T.G., 121
S.W.3d 117, 126 (Tex.App.—Fort Worth 2003, no pet.); In re B.R., 822 S.W.2d 103, 106
(Tex.App.—Tyler 1991, writ denied).

                                               7
not necessary that the conduct be directed at the child or that the child actually suffers

injury.” Id.; see In re P.E.W., 105 S.W.3d 771, 777 (Tex.App.—Amarillo 2003, no pet.)

(observing that child “need not develop or succumb to a malady” in order to prove

endangering conditions). Subsection (D) focuses on the suitability of the children’s

living conditions. In re R.D., 955 S.W.2d 364, 367–68 (Tex.App.—San Antonio 1997,

pet. denied). However, although the focus of subsection (D) is on the children’s living

environment and not on the parents’ conduct, parental conduct may produce an

endangering “environment.” See In re D.T., 34 S.W.3d 625, 633 (Tex.App.—Fort Worth

2000, pet. denied).


      A parent’s use of narcotics and its effect on his or her ability to parent may qualify

as an endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

The Texas Supreme Court found that a pattern of the parents’ continued drug use and

“two or three incidents of domestic violence” in addition to the father’s consequent

incarceration were sufficient to support termination of parental rights under subsection

(E). Id. at 346. As further support, the court noted that the father permitted the mother

to leave with the daughter despite the father’s knowledge of the mother’s drug use. Id.

Similarly, here, the record contains evidence suggesting that the drug and alcohol

abuse in the household was more than simply “remote and isolated incidents.” See In

re R.W., 129 S.W.3d 732, 741 (Tex.App.—Fort Worth 2004, pet. denied).              Though

John’s testimony indicated that he was committed to making an earnest effort to behave

more responsibly, the trial court, as finder of fact, was “not required to ignore a long

history of dependency and destructive behavior merely because it allegedly abated




                                            8
before trial.” Id. (citing In re M.G.D., 108 S.W.3d 508, 513 (Tex.App.—Houston [14th

Dist.] 2003, pet. denied); see In re J.O.A., 283 S.W.3d at 346.


      Turning, next, to evidence of domestic violence in the household, we note that

abuse does not need to be directed at the child or children in question to support a

finding of endangerment.    See In re W.J.H., 111 S.W.3d 707, 716 (Tex.App.—Fort

Worth 2003, pet. denied).     Abusive and violent criminal conduct by a parent can

produce an environment that endangers a child’s well-being. Jordan v. Dossey, 325

S.W.3d 700, 724 (Tex.App.—Houston [1st Dist.] 2010, pet. denied) (citing In re B.R.,

822 S.W.2d at 106).


      Here, John admitted that there had been instances of domestic violence between

him and Barbara but maintains that those instances occurred outside the children’s

presence or in a manner that could not have negatively affected the children.3 The

record, however, shows that A.P.S. and J.D.H., the two older children in the household,

reported having witnessed domestic violence between John and Barbara, and J.C.H.

has referred to the incidents of domestic violence, suggesting that he was aware of it

regardless of whether he witnessed the actual incidents.


      Evidence that a person has engaged in abusive conduct in the past permits an

inference that the person will continue violent behavior in the future. Id.; In re M.G.M.,

163 S.W.3d 191, 202 (Tex.App.—Beaumont 2005, no pet.). Authority suggests that

domestic violence, standing alone, may suffice to support termination of parental rights.


      3
        To the extent John advances this position, we note that a child’s presence when
the violence occurs is not necessary to uphold a finding of endangerment. See In re
W.J.H., 111 S.W.3d at 716.

                                            9
See Lucas v. Tex. Dep’t of Protective & Regulatory Servs., 949 S.W.2d 500, 503

(Tex.App.—Waco 1997, writ denied). On these facts, however, there is more evidence

supporting the termination of John’s parental rights.


         Ultimately, the argument during which John attempted to hit Barbara with the car

led to John’s incarceration. Between the incident and incarceration, however, John had

opportunities to avoid or minimize the time he would spend incarcerated. He did not

take advantage of those opportunities. His continued disinclination to act in accordance

with the law and abide by the terms of his community supervision subjected J.C.H. to a

life of uncertainty and instability which endangered his physical and emotional well-

being.    See In re S.D., 980 S.W.2d 758, 763 (Tex.App.—San Antonio 1998, pet.

denied); see also In re I.G.H., No. 07-10-00458-CV, 2012 Tex. App. LEXIS 1755, at

*17–18 (Tex.App.—Amarillo Mar. 6, 2012, no pet.) (mem. op.). Mere imprisonment will

not, standing alone, constitute engaging in conduct that endangers the physical or

emotional well-being of the child. Boyd, 727 S.W.2d at 533. However, an environment

which routinely subjects a child to the probability that he will be left alone because his

parent is once again incarcerated endangers both the physical and emotional well-being

of the child.    In re S.D., 980 S.W.2d at 763; In re C.L.C., 119 S.W.3d 382, 393

(Tex.App.—Tyler 2003, no pet.); Robinson v. Tex. Dep’t of Protective & Regulatory

Servs., 89 S.W.3d 679, 687 (Tex.App.—Houston [1st Dist.] 2002, no pet.) (observing

that “appellant knew her parental rights were in jeopardy when she continued her illegal

drug use”).


         The record shows that despite the risk that John’s continued pattern of behavior

involving violence and drug abuse would ultimately lead to his incarceration for a

                                            10
substantial period of time, John persisted in such behavior and was, in fact,

incarcerated for a substantial period of time, leaving J.C.H. in Barbara’s care.        His

persistence in such a pattern created an endangering environment and constituted

endangering conduct not only in its own right, but also by the consequences his

persistence carried with it: leaving the children in the mentally unstable Barbara’s care.


       The record shows that Barbara attempted suicide by slitting her wrists while the

children were in her care. So, while her actions as a parent are not directly at issue in

the case before us, we do consider her actions as the person with whom John left the

children.   Without question, her attempted suicide is conduct that endangered the

physical and emotional well-being of the children. A parent’s mental instability and

attempt to commit suicide may contribute to a finding that the parent engaged in a

course of conduct that endangered a child’s well-being. See In re J.T.G., 121 S.W.3d at

126; In re A.M.C., 2 S.W.3d 707, 716 (Tex.App.—Waco 1999, no pet.) (upholding jury’s

determination of endangerment where evidence showed mother’s suicidal thoughts,

suicide attempts, and neglect); In re C.D., 664 S.W.2d 851, 853 (Tex.App.—Fort Worth

1984, no writ) (concluding that parent’s mental condition and suicide attempts were

relevant to endangering course of conduct inquiry).


       The record suggests that John knew of, at least, one prior suicide attempt by

Barbara and that he also knew of her drug and alcohol abuse (although his testimony

suggests that he did not know the breadth and severity of her drug use) and, yet,

engaged in a course of conduct that ultimately led to him being incarcerated and the

children being left in Barbara’s care. That said, John knowingly placed J.C.H. in the

care of someone who engaged in conduct which endangered his physical or emotional

                                            11
well-being. See TEX. FAM. CODE ANN. § 161.001(1)(E); In re S.I.H., No. 02-11-00489-

CV, 2012 Tex. App. LEXIS 2081, at *14 (Tex.App.—Fort Worth Mar. 15, 2012) (mem.

op.) (noting that, despite knowing about caretaker’s history of drug abuse, attempted

suicides, and “psychotic issues,” mother did not return to care for the child or ensure

that someone else could); In re D.R.J., No. 07-08-00410-CV, 2009 Tex. App. LEXIS

5231, at *20–21 (Tex.App.—Amarillo July 8, 2009, pet. denied) (mem. op.) (concluding

that, because mother knew of caretaker’s abusive conduct and involvement in dealing

drugs, she knowingly placed her children in the care of someone who engaged in

conduct which endangered their physical or emotional well-being). Further, we note

that John, knowing of Barbara’s substance abuse and mental instability, made no effort

prior to the Department’s intervention, to make alternative childcare arrangements or to

make any effort to safeguard the welfare of the children, who were, in his absence, left

solely in Barbara’s care. Only when the Department intervened did John make any

attempt to find any other caretaker.


      Considering the patterns of drug and alcohol abuse, domestic violence,

Barbara’s suicidal tendencies, John’s extended incarceration, and the unstable

environment the convergence of all these factors created, the evidence is sufficient to

support the trial court’s findings on the grounds for termination set forth in both

subsections (D) and (E) of Section 161.001(1). See In re J.T.G., 121 S.W.3d at 128

(holding evidence sufficient to support findings under subsections (D) and (E) given

evidence of continued drug use, domestic violence, and suicide attempt).




                                          12
Best Interest


       The Texas Supreme Court has recognized a non-exhaustive list of factors that

are pertinent to the inquiry whether termination of parental rights is in the best interest of

the child: (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

which 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. See Holley, 544 S.W.2d at 371–72;

see also TEX. FAM. CODE ANN. § 263.307 (West 2009) (providing extensive list of factors

that may be considered in determining child’s best interest). In examining the best

interest of the child, we may consider evidence that was also probative of the predicate

act or omission. See In re C.H., 89 S.W.3d at 28. The best interest determination may

rely on direct or circumstantial evidence, subjective facts, and the totality of the

evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex.App.—Amarillo 2011, no. pet).


       The Department need not prove all nine Holley factors, and the absence of

evidence relevant to some of those factors does not bar a finding that termination is in

the child’s best interest, especially in the face of undisputed evidence that the parental

relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley

factor is controlling, and evidence of one factor may be sufficient to support a finding



                                             13
that termination is in the child’s best interest.     In re A.P., 184 S.W.3d 410, 414

(Tex.App.—Dallas 2006, no pet.)


       The record suggests that, while John was in prison, he completed his G.E.D. and

took classes preparing him for work in the electrical trade.         He explained that he

planned to take advantage of his newly-attained education and skills to try to find a job

in the electrical field. He outlined a fairly detailed strategy relating to his career goals.

He also explained that he had been admitted into a rehabilitation program that would

earn him an earlier release date from prison.


       John, though apparently determined and hopeful regarding his rehabilitation

program and subsequent release from prison, has no means of ensuring that he has

adequate housing or means to care for J.C.H. He expressed a hope that he could live

with his sister but noted that the parole board had yet to approve such a plan. He also

expressed some concerns over the suitability of his sister’s house, admitting that police

were often summoned to her home. If he were unable to find a family member with

whom he could live, he conceded, he would have to live, likely for three to six months, in

a halfway house, where children are not permitted to live. So, although John expressed

a desire to meet J.C.H.’s needs, the simple facts are that, at the time of the final

hearing, he was still incarcerated and had a limited ability to plan for his or J.C.H.’s

future despite the prospect of his release in the upcoming months.4 See In re M.D.S., 1

S.W.3d 190, 200 (Tex.App.—Amarillo 1999, no pet.).               For these reasons, the

       4
        The record indicates that John proposed two homes as possible placements for
J.C.H.: John’s mother’s and his sister’s homes. Based on limited resources and
references and on omissions from criminal history disclosure, the Department denied
placement in John’s mother’s home. John’s sister failed to correspond with the
Department by phone or letter so that the Department could complete a home study.

                                             14
uncertainty of John’s plans for J.C.H. weigh in favor of termination and leave us unable

to evaluate the stability of the hypothetical home he envisions.


       In contrast, the Department plans to seek an adoptive family for J.C.H.

Currently, he is placed in foster care with his older sister, A.P.S. Their brother, J.D.R.,

has been adopted by his father’s family.         While in foster care, J.C.H. is receiving

counseling to address behavioral issues which include ADHD, adjustment disorder, and

aggressiveness. The Department maintains, and John concedes, that foster care is

providing J.C.H. with the most stability and resources that he has ever known.


       John did complete some of the exercises implemented by the Department to

improve his parenting skills and appeared to be receptive to completing more.

However, the trial court was not required to ignore or somehow discount John’s patterns

of drug abuse and incarceration. See In re D.M., 58 S.W.3d 801, 814 (Tex.App.—Fort

Worth 2001, no pet.). We also observe the impact of John’s patterns, leading to the

point where J.C.H. was left in the sole custody of his mentally unstable mother. See

Jordan, 325 S.W.3d at 733 (on best interest determination in relation to unstable,

suicidal caretaker).


       John recalled having shared special memories with all of the children and

described special activities he and J.C.H. shared. While we recognize the special bond

between father and son, we cannot permit that recognition or our own sentiment to

override the best interest of J.C.H. See In re W.S.M., 107 S.W.3d 772, 773 (Tex.

App.—Texarkana 2003, no pet.).




                                            15
       Instead, a child’s need for permanence is of paramount importance in his or her

present and future emotional and physical needs.             See Dupree v. Tex. Dep’t of

Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex.App.—Dallas 1995, no writ).

John, while he earnestly expressed his desire to provide J.C.H. permanence, is not in a

position to do so.    Further, his pattern of behavior and his uncertain position upon

release from prison do not fare well when compared to the Department’s provision of

stability in foster care and its plans for J.C.H.’s adoption into a permanent home. We

remain mindful, as did the trial court in its oral pronouncement, that we are to look, not

at John’s ideals and designs for the parent-child relationship, but whether termination of

that relationship in the best interest of J.C.H. And the record before us supports the

finding that it is. We overrule John’s challenge to the evidence supporting the trial

court’s finding regarding J.C.H.’s best interest.


                                        Conclusion


       Having overruled the issue John has presented to this Court, we affirm the trial

court’s order terminating John’s parental rights to J.C.H.




                                                        Mackey K. Hancock
                                                             Justice




                                             16
