









Affirmed and Opinion filed July 26, 2005








Affirmed and Opinion filed July 26, 2005.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-04-01199-CV
____________
 
IN THE INTEREST OF
S.M.L.
 

 
On Appeal from the 314th
District Court
Harris County, Texas
Trial Court Cause No. 03-06985J
 

 
O P I N I O N
Appellant Charles W. Adams a/k/a Michael
Elliott appeals from the trial court=s order
terminating his parental rights to his daughter, S.M.L.  In four issues, he challenges the legal and
factual sufficiency of the evidence underlying the findings in the termination
order.  We affirm the judgment of the
trial court.
                                Factual and Legal Background




On August 29, 2003, appellee, the Texas
Department of Family & Protective Services (ADFPS@), was notified
that a mother was seen pushing her eighteen-month-old girl in a stroller
against traffic on the feeder road of a busy highway.  The baby, S.M.L., was drinking water from a
dirty bottle, and her mother, Mei-Hwei Liu, had no milk or diapers for the baby
and apparently did not understand that pushing a baby in a stroller on a feeder
road might be dangerous.
DFPS initiated an investigation and went
to S.M.L.=s home. 
The conditions there were unfit for a small child. The home was filthy,
and a strong odor of feces and urine permeated the house.  Feces were on the floor and smeared on the
wall.  The toilet was crusted with filth,
and a mattress had fresh urine stains. 
Trash and dirty dishes were piled everywhere.  The little food that was in the house was
spoiled, and the child=s high chair was covered in old food and
stacked with cans of paint.  Many items
unsafe for a toddler to handle were within easy reach, including an empty
whiskey bottle and fiberglass building materials.  S.M.L. appeared malnourished and thin and was
extremely dirty and smelly.
DFPS removed S.M.L. from the home. She was
placed in foster care where she exhibited unusual behavior, including crying
hysterically when being bathed and aggressively searching the trash can for
food.   The foster mother also reported
that S.M.L. was extremely withdrawn and afraid of men; however, these behaviors
have subsided over time.  The foster
mother testified that S.M.L. has bonded with her foster family and that they
love her and want to adopt her.




During the investigation, DFPS discovered
that Liu, the child=s mother, is mentally ill.  She has been diagnosed with mental problems,
including bipolar disorder and paranoid schizophrenia, and has been on
medication at various times, including when S.M.L. was born.  In fact, DFPS had received a call about this
family when the baby was born.  Liu, who
had given birth to S.M.L. at home before going to hospital, said she did not
know she was pregnant and thus had no prenatal care.  Even after giving birth, Liu denied that she
had a baby or that she could have had a baby. 
Liu did not respond to S.M.L. when she was in the room, and Liu would
not feed the baby, even when hospital staff directed her to do so.  Appellant, who at that time was known as
Michael Elliott,[1]
was present at the hospital, and he denied knowing Liu was pregnant and gave
conflicting information about his paternity. 
Appellant and Liu had made no arrangements for the baby, and so DFPS
helped them obtain a crib, car seat, baby formula, diapers, and clothing.  The conditions at the home, though not as bad
as when S.M.L. was later removed, were described as Adeplorable.@  Thus, the home had to be cleaned and repaired
before S.M.L. could be brought home, and under DFPS=s direction,
appellant was able to get the house Alivable.@
Appellant and Liu agreed to accept family
services from DFPS, and DFPS allowed them to take S.M.L. home.  DFPS visited a few more times and found
everything generally acceptable, though Liu=s sister visited
at other times when DFPS was not present and found problems in the home.  Liu=s sister testified
that the house was dirty, stacked with trash, and in need of repair.  She did not think the house was fit for a
young child to live in.  Liu=s sister pointed
these things out to appellant and even brought him a tool to help with the
repairs, but appellant merely said Aokay@ and did nothing
further.  She also testified that
appellant often appeared drunk during her visits and that he did not have any
interaction with the baby.
In June 2002, appellant began telling DFPS
that he did not know why they kept coming for visits because Liu had taken
S.M.L. to Taiwan.  Liu later told a
therapist that appellant had sent her and the baby to Taiwan because he did not
want to raise S.M.L. and wanted Liu=s relatives to
care for her.  DFPS closed the case, although
apparently Liu and S.M.L. returned from Taiwan shortly thereafter and resumed
living with appellant. 
Appellant was not present when DFPS
removed S.M.L. and placed her in foster care. 
Liu told DFPS that appellant had left her two months prior to this
incident and that she did not know where he was.  Actually, appellant, who was known at this
time as Charles W. Adams, had been incarcerated seventy-three days before for
assaulting a police officer and was serving a two-year term.  This was the second time appellant had been
incarcerated for such an offense, having served time in the 1990s, also for
assaulting a police officer.  Appellant
also admitted to having been arrested for trespass when S.M.L. was about two months
old and to driving while intoxicated. 




DFPS filed suit to terminate the
parent-child relationship between S.M.L. and both her mother and father in
September 2003.  Appellant was not
originally served because DFPS did not know appellant was in jail under a
different name.  However, appellant
corresponded with Liu from jail, and he admitted he knew that S.M.L. was in
DFPS custody by at least December 2003. 
Nevertheless, he did not make any effort to contact DFPS or to check on
S.M.L. until about eight months later in August 2004, after he was officially
served with the termination suit.  DFPS
sent appellant a family services plan, directing him to do various things such
as take parenting classes. Appellant wrote the caseworker and questioned
whether he should be required to do these things.  At trial, appellant testified that he would
complete the family services plan only if ordered to do so by the court.
The termination hearing was held in
October 2004.  Both parents were present
and represented by counsel, and both waived their right to a jury trial.  After hearing their testimony as well as
testimony from DFPS employees, Liu=s sister, and the
foster mother, the court ordered that both parents= parental rights
be terminated.  This appeal by the father
only followed.
                                           Standard of Review
Parental rights can be terminated
involuntarily only by a showing of clear and convincing evidence.  Tex.
Fam. Code Ann. ' 161.001 (Vernon 2002); In re J.F.C.,
96 S.W.3d 256, 263 (Tex. 2002).  AClear and
convincing evidence@ means Athe 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 (Vernon
2002); In re J.F.C., 96 S.W.3d at 264. 





When reviewing factual findings required to be made by clear
and convincing evidence, we apply a standard of review that reflects this
burden of proof.  In evaluating the legal
sufficiency of the evidence, we review all the evidence in the light most
favorable to the finding to determine whether a reasonable factfinder could
have formed a firm belief or conviction that the finding was true.  In re J.F.C., 96 S.W.3d at 266.  In doing so, we assume the factfinder
resolved disputed facts in favor of the 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.  Id. 
In a factual sufficiency review, we must also determine whether a
factfinder could reasonably form a firm belief or conviction about the truth of
the allegations.  Id.  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 have reasonably
formed a firm belief or conviction, then the evidence is factually
insufficient.  Id.
                                                      Analysis
In Texas, to terminate the parent-child
relationship, the factfinder must find by clear and convincing evidence both
that (1) the parent committed one or more acts specifically named in the Texas
Family Code as grounds for termination and (2) termination is in the best
interest of the child.  Tex. Fam. Code Ann. ' 161.001; In re
U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  The trial court found that termination was
warranted under two separate statutory grounds and also found that termination
would be in S.M.L.=s best interest.  In his first two issues, appellant challenges
the legal and factual sufficiency of the evidence of the statutory grounds for
termination, and in his third and fourth issues, he challenges the legal and
factual sufficiency of the evidence that termination is in S.M.L.=s best interest.




                                    Statutory
Grounds for Termination
DFPS sought to
terminate appellant=s parental rights under subsections D and
E[2]
of section 161.001 of the Family Code, which provide for termination if the
trial court finds by clear and convincing evidence that the parent has 
(D) knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child; [or]
(E) 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.   
Tex. Fam. Code Ann. ' 161.001(D), (E). 




While both subsections D and E focus on
endangerment, they differ regarding the source and proof of endangerment.  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.  See In re J.T.G.,
121 S.W.3d 117, 125 (Tex.
App.CFort Worth 2003, no pet.); In
re B.S.T., 977 S.W.2d 481, 484 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  Under Subsection E, the cause of the
endangerment must be the parent=s conduct and must
be the result of a conscious course of conduct rather than a single act or
omission.  See In re J.T.G., 121
S.W.3d at 125; In re B.S.T., 977 S.W.2d at 484.  Endangerment can be exhibited by both actions
and failures to act.  In re U.P.,
105 S.W.3d at 233.  It is not necessary
that the parent=s conduct be directed at the child or that
the child actually be injured; rather, a child is endangered when the
environment or the parent=s course of conduct creates a potential
for danger which the parent is aware of but disregards.  See In re U.P., 105 S.W.3d at 233; In
re N.R., 101 S.W.3d 771, 776 (Tex. App.CTexarkana 2003, no pet.).
                                                    Subsection
D
Appellant argues the evidence is legally
and factually insufficient to terminate his parental rights under subsection D
because, although he agrees that the child=s living
conditions were intolerable, he had been in jail for seventy-three days at the
time she was removed and he had no knowledge of the conditions.  Appellant claims that he always kept the
house clean and that he had no idea Liu was mentally ill or that she would let
the house so deteriorate.
Appellant is correct that subsection D is
not a basis for terminating parental rights if the parent was unaware of the
endangering environment.  See In re
T.H., 131 S.W.3d 598, 603 (Tex. App.CTexarkana 2004, pet. denied) (A[E]ven if clear
and convincing evidence supported the trial court=s finding that the
environment posed a danger to T.H.=s well-being, the
Department failed to show that [the father] knowingly placed or allowed T.H. to
remain in such an environment.@); In re B.S.T.,
977 S.W.2d at 485 (finding insufficient evidence to support termination under
subsection D because there was no evidence that the father knew his children
were in an endangering environment). 
However, a parent need not know for certain that the child is in an
endangering environment; awareness of a such a potential is sufficient.  See In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.CTyler 2003, no pet.) (AIt is sufficient
that the parent was aware of the potential for danger to the child in such
environment and disregarded that risk.@); In re
Tidwell, 35 S.W.3d 115, 119B20 (Tex. App.CTexarkana 2000, no pet.) (A[I]t is not
necessary for [the mother] to have had certain knowledge that one of the
[sexual molestation] offenses actually occurred; it is sufficient that she was
aware of the potential for danger to the children and disregarded that risk by
breaking her agreement with the court and placing and leaving the children in
that environment.@).




Appellant claims the home was always clean
when he was there, but evidence in the record suggests otherwise.  When S.M.L. was born, the home was Adeplorable,@ and DFPS would
not release S.M.L. to Liu and appellant until he cleaned and repaired the
home.  Liu=s sister testified
that the home environment again deteriorated in the weeks after S.M.L.=s birth,
describing the home as unfit for a child. 
Liu=s sister further testified that she told
appellant the home needed to be cleaned and repaired and even brought him a
tool to help, but he did nothing but say Aokay.@
Appellant denies any knowledge of Liu=s mental illness,
but again, evidence in the record shows the contrary.  Liu=s sister said that
when appellant and Liu first got together, she told appellant he needed to take
care of Liu because she was mentally ill, and appellant responded that he
already knew that.  Appellant also knew
that Liu claimed not to have known that she was pregnant,[3]
and even after S.M.L. was born, Liu denied that she gave birth, did not respond
to the baby=s presence, and refused to feed her.  This is consistent with a finding that
appellant knew Liu had mental problems. 
Additionally, the trial court could have disbelieved appellant=s testimony[4]
that he was unaware of Liu=s illness, given
that she had been diagnosed with mental illness and had been taking medication,
even at the time of S.M.L.=s birth.[5]




Further, the trial court was entitled to
infer that appellant had at least some knowledge of S.M.L.=s physical and
mental condition and her living environment based on the severity of the
situation.  When S.M.L. was placed in
foster care, she was malnourished and underweight, aggressively searched for
food in the trash can, cried hysterically when being bathed, and was extremely
withdrawn and scared of men.  Such
behaviors and conditions take time to develop. 
Whether he played an active role in S.M.L.=s neglect or
merely observed it, the trial court could have reasonably inferred that
appellant had knowledge of an endangering environment when he left the
household for jail a short seventy-three days before.
Finally, while imprisonment alone is not a
basis to terminate parental rights, it is an appropriate factor to
consider.  See Tex. Dep=t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533B34 (Tex.
1987).  When parents are incarcerated,
they are absent from the child=s daily life and
are unable to provide support, and when parents like appellant repeatedly
commit criminal acts that subject them to the possibility of incarceration,
that can negatively impact a child=s living
environment and emotional well-being.  See
In re C.L.C., 119 S.W.3d at 393; In re S.D., 980 S.W.2d 758, 763 (Tex. App.CSan Antonio 1998, pet.
denied).
After reviewing the evidence in the light
most favorable to the findings and disregarding all evidence a reasonable
factfinder could have disbelieved and also reviewing the disputed evidence in
light of the entire record, we conclude that a reasonable factfinder could have
formed a firm belief or conviction that appellant knowingly allowed S.M.L. to
remain in conditions or surroundings that endangered her physical or emotional well‑being.  He went to jail and did nothing to prevent
S.M.L. from remaining alone in an unfit home environment with a mentally
unstable mother who was unable to care for her, thus supporting termination
under subsection D.  
                                                    Subsection
E




Appellant also
contends the evidence is legally and factually insufficient that he engaged in
a course of conduct that endangered S.M.L. under subsection E.  His primary 
argument is that incarceration alone cannot support termination and that
his crimes leading to incarceration are irrelevant because they were not
domestic violence or witnessed by S.M.L. 
We disagree.
Incarceration alone will not support
termination, but it is an appropriate factor to consider in evaluating a parent=s course of
conduct endangering the child.  See
Boyd, 727 S.W.2d at 533; In re U.P., 105 S.W.3d at 233B34.  Appellant has been incarcerated for
assaulting a police officer on two separate occasions, once before and once
after S.M.L.=s birth. 
See In re U.P., 105 S.W.3d at 234 (AEndangerment may
include what a parent does both before and after birth of a child.@).  Such a propensity for violence is evidence of
endangerment, particularly when considered in light of S.M.L.=s fear of men and
appellant=s angry outbursts during the termination
hearing, including calling S.M.L.=s attorney ad
litem a Ab----@ [expletive].  In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (ADomestic violence,
want of self control, and propensity for violence may be considered as evidence
of endangerment.@). 
Appellant=s most recent assault on a police officer
is particularly significant because he committed the crime knowing that, as
before, it would result in his incarceration, thus leaving his young daughter
without his support and in the care of a mentally-ill mother with questionable
parenting abilities.  See In re C.L.C.,
119 S.W.3d at 398 (finding sufficient evidence to support termination under
subsection E, based in part on father leaving children in the care of a
mentally ill mother who was a danger to the children); see also In re G.V.,
No. 14-02-00604-CV, 2003 WL 21230176, at *4 (Tex. App.CHouston [14th Dist.] May 29, 2003, pet. denied) (mem. op.)
(noting that father=s imprisonment for killing a police
officer was one of many Aactions and circumstances [that] directly
impact [the child]=s physical and emotional well-being@).




In addition to appellant=s violent,
criminal behavior and incarceration, appellant=s lack of
demonstrated concern for his daughter=s well-being is
further evidence of endangerment. 
Appellant failed to maintain contact with S.M.L. during his
incarceration, and even after learning she was in DFPS custody, did not contact
DFPS for eight months.  This is
consistent with Liu=s sister=s testimony that
appellant showed no interest in the child and with testimony that he wanted
S.M.L. to live in Taiwan so that Liu=s parents could
take care of her.  Appellant also failed
to notify DFPS of his location or name change after he was aware DFPS had taken
custody of S.M.L., stating, AI didn=t know that you
needed to locate me.@ 
Such a lack of concern and shirking of parental responsibilities
supports termination under subsection E. 
See In re M.J.M.L., 31 S.W.3d 347, 352 (Tex. App.CSan Antonio 2000, pet.
denied) (considering as evidence of endangerment father=s leaving
drug-using mother while she was pregnant and subsequent lack of cooperation
with the agency, including refusing to provide his address).
After reviewing the evidence, we conclude
that a reasonable factfinder could have formed a firm belief or conviction that
appellant engaged in a course of conduct that endangered S.M.L.=s physical or
emotional well‑being, thus supporting termination under subsection E.
We overrule appellant=s first and second
issues.
                                           Best
Interest of the Child




In his third and fourth issues, appellant
challenges the legal and factual sufficiency of the evidence that termination
is in S.M.L.=s best interest.  There is a strong presumption that the best
interest of the child is served by keeping the child with its natural parent,
and the burden is on DFPS to rebut that presumption.  In re U.P., 105 S.W.3d at 230.  The Texas Supreme Court has examined several
factors in evaluating the child=s best interest,
including (1) the desires of the child, (2) the present and future physical and
emotional needs of the child, (3) the present and future emotional and physical
danger to the child, (4) the parental abilities of the person seeking custody,
(5) the programs available to assist those persons seeking custody in promoting
the best interest of the child, (6) plans for the child by the individuals or
agency seeking custody, (7) the stability of the home or proposed placement,
(8) acts or omissions of the parent that indicate the existing parent-child
relationship is not appropriate, and (9) any excuse for the parent=s acts or
omissions.  Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976); In re U.P., 105 S.W.3d at 230.  This list is not exhaustive, nor is evidence
required on all nine factors to support a finding terminating a parent=s rights.  Holley, 544 S.W.2d at 372; In re
U.P., 105 S.W.3d at 230.
With these factors in mind, we review the
evidence regarding S.M.L.=s best interest.  S.M.L. is a toddler and unable to express her
desires, but she has bonded with her foster parents, calls them Amamma@ and Adaddy,@ and knows their
children as her brothers.  See In re
U.P., 105 S.W.3d at 230.  They can
provide a stable home, love her, and want to adopt her.  See In re G.V., 2003 WL 21230176, at
*5.  There is no evidence that S.M.L. is
bonded with appellant.  At the time of
the termination hearing, appellant was incarcerated and had a pattern of
criminal and violent conduct, which makes it likely that appellant will face
incarceration again in the future.  See
id.; In re U.P., 105 S.W.3d at 231. 
Appellant has shown little interest in S.M.L.=s life.  He was often drunk and unengaged during
S.M.L.=s first few
months, and then sent the child and her mother to Taiwan so that Liu=s family could
care for her.  He did nothing to maintain
any relationship with S.M.L. during his incarceration and did not even contact
DFPS for eight months after learning DFPS had removed her from the home.   Appellant had no definite plans for caring
for S.M.L. upon his release.  He planned
to work Aif I absolutely
have to@ and to return to
living with Liu, who is obviously unfit to care for S.M.L. and who has
indicated that she does not want to live with appellant.  See In re G.V., 2003 WL 21230176, at
*5; In re J.I.T.P., 99 S.W.3d at 847; In re A.N., No.
14-02-00157-CV, 2002 WL 31250731, at *3 (Tex. App.CHouston [14th Dist.] Oct. 3, 2002, no pet.) (not designated
for publication).  Appellant has taken no
responsibility for S.M.L.=s living conditions or physical and
emotional state at the time she was removed, and he refused to even inquire
about taking parenting classes available in jail.  In fact, appellant testified that he would
not complete any portion of DFPS=s family services
plan unless it was court ordered.  See
In re J.I.T.P., 99 S.W.3d at 847.
After reviewing this evidence, we conclude
that the trial court=s determination that terminating appellant=s parental rights
is in S.M.L.=s best interest is supported by clear and
convincing evidence that is legally and factually sufficient.  We overrule appellant=s third and fourth
issues.




Having overruled all of appellant=s issues, we
affirm the trial court=s judgment.
 
 
 
 
 
/s/      Leslie Brock Yates
Justice
 
 
 
 
Judgment
rendered and Opinion filed July 26, 2005.
Panel
consists of Justices Yates and Hudson, and Senior Justice Mirabal.*
 
 
 
*  Senior Justice Margaret Garner Mirabal
sitting by assignment.




[1]  According to
his testimony at the termination hearing, appellant has gone by at least two
names, possibly more, ABecause it=s my
choice.  It=s a free
world.@


[2]  In its
petition, DFPS listed every possible ground for termination in section 161.001
of the Family Code.  At the end of the
termination hearing, the trial court asked DFPS which grounds it was moving
under to terminate appellant=s parental rights, and DFPS said subsections D and
E.  In the termination order, the trial
court specified it was terminating based on subsections D and E.  DFPS argues on appeal that we can affirm
under subsection N, which allows for termination based on constructive
abandonment of a child, because the record contains conclusive evidence to
support that finding.  Because we
conclude the evidence is legally and factually sufficient to support the trial
court=s judgment under subsections D and E, we need not
decide whether we can properly consider subsection N as a ground for
termination.  See In re U.P., 105
S.W.3d at 236.


[3]  Appellant
testified at the termination hearing that he suspected Liu was pregnant and
believed Liu knew she was pregnant.  If
so, their failure to obtain prenatal care or make any preparations for S.M.L=s arrival cast further doubt on Liu=s mental status and both parents= ability to care for a baby.


[4]  The trial
court obviously had concerns about appellant=s
truthfulness when, on the second day of the hearing, the trial court admonished
appellant, saying AAny answer that you give in this court is under oath
and you could be committing perjury if you gave a false answer under oath.@  Appellant said
he understood that but added, AI haven=t been
sworn in.@  Appellant=s attorney reminded him that his oath from the
previous day still applied, and appellant responded, AI wasn=t aware of that.@


[5]   Appellant
completely disregards this evidence regarding the earlier living conditions and
Liu=s behavior, arguing that a DFPS worker eventually
noted that the house was Aclean@ and that she had no concerns about Liu=s ability to care for S.M.L.  However, the issue here is not DFPS=s knowledge but rather appellant=s knowledge of the child=s living
environment and Liu=s parenting abilities, and this evidence bears on
appellant=s knowledge.


