Opinion filed October 31, 2013




                                        In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00153-CV
                                     __________

          IN THE INTEREST OF I.R. AND J.B., CHILDREN


                     On Appeal from the 318th District Court
                                 Midland County, Texas
                         Trial Court Cause No. FM 54,119


                      MEMORANDUM OPINION
      The trial court entered an order terminating the parental rights of the mother
and father of I.R. and J.B. The mother appeals. We affirm.
      In her sole issue on appeal, the mother asserts that the evidence is legally
and factually insufficient to support the findings that she knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being and that she engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being. The mother does not
challenge the best interest finding.
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine on appeal if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). To determine if the evidence is factually sufficient, we give due deference
to the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations
against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(1)(A)–(T) and that
termination is in the best interest of the child. FAM. § 161.001. In this case, the
trial court found that the mother committed two of the acts listed in
Section 161.001(1): that the mother knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered the physical or
emotional well-being of the children and that she engaged in conduct or knowingly
placed the children with persons who engaged in conduct that endangered the
physical or emotional well-being of the children. See FAM. § 161.001(1)(D), (E).
The trial court also found that termination was in the children’s best interest. See
FAM. § 161.001(2).
      The children were removed from their father’s home in March 2012 after the
Department of Family and Protective Services received a priority one call, an
immediate emergency, regarding the children. At the time of removal, I.R. was
one year old and J.B. was five days old. J.B. had jaundice, and his circumcision
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needed cleaning. The mother was incarcerated when I.R. was three months old.
She was pregnant at the time she was sent to prison and remained incarcerated
when J.B. was born and when the children were removed from the father’s home.
      The Department’s investigator found the father’s home to be unsanitary and
unsafe for the children. The home had trash and boxes piled up inside; animal
feces on the floor; mice feces on the kitchen counter; sharp objects that were
accessible to a child; screws and nails lying on the floor; pill bottles lying around;
and lots of sharp rusted items outside in the yard, which looked like a junkyard.
The father admitted that he was a “hoarder” and had been one all his life. There
was ample evidence that the conditions of the home, both inside and outside,
endangered the children’s physical well-being. There was also testimony that the
“mess” at the house looked “like it’s been sitting there longer than she’s been in
prison.” Numerous pictures of the inside and outside of the house were admitted
into evidence and support the testimony of the Department’s employees.
      The record shows that the mother was aware that the father had a prior
conviction for indecency with a child and could not pass a background check. The
father’s hair follicle test indicated “constant and heavy use” of cocaine. The father
said that he had found the cocaine when he was cleaning his house and that the
cocaine belonged to the children’s mother.
      At the time the children were removed, the mother was incarcerated and,
thus, unable to care for her children. At trial, she participated by phone and
testified that “this is all news to me, like, everything y’all just stated” about the
father. The mother admitted, however, that the father’s house had previously had
boxes full of stuff that she made him get rid of before she went to prison. The
mother asserted, “Over the little period of time I was gone, it just -- he just started
bringing stuff back in. I don’t know, you know.” According to the mother, when
she left, the house “wasn’t as bad as how y’all are saying it.” The mother testified
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that she had lived with the father at times and that I.R. had lived with the father
since I.R. was a newborn. The mother also testified that she was surprised by the
father’s recent drug use.
      The mother had a conviction for unauthorized use of a motor vehicle and a
conviction for possession of a controlled substance in a correctional facility. The
mother knowingly committed a criminal act that caused her incarceration, and she
left I.R. in the father’s care at his house while she was “on the run” from the
police. The mother acknowledged that she knew the father “was going through
some things” and testified that, after J.B. was born, she intended for the father’s
mother, who had both health and hoarding issues, to take care of the children.
      The mother cites In re C.D.E., 391 S.W.3d 287 (Tex. App.—Fort Worth
2012, no pet.), and Walker v. Department of Family & Protective Services, 251
S.W.3d 563 (Tex. App.—Houston [1st Dist.] 2006, no pet.), in support of her
contention. While we agree that incarceration standing alone does not constitute
endangering conduct, we find the cases relied on by the mother to be
distinguishable because the evidence here shows more than mere incarceration.
See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987)
(termination may be upheld if the evidence, including imprisonment, shows
a course of endangering conduct).
      The evidence here showed a course of conduct committed by the mother that
endangered her children. The mother took a controlled substance with her when
she went to the county jail to visit someone. She later went “on the run” because
she knew the police were looking for her. There was also evidence that the mother
was involved with marihuana and cocaine.
      The evidence also supports a finding that the mother knowingly placed the
children in conditions or surroundings that endangered their physical or emotional
well-being. The mother had lived in the father’s house, and the record shows that
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the conditions of that house were deplorable and unsafe for children. The father
had been a hoarder all his life. Although the mother testified that, prior to her
incarceration, she made the father clean some of the junk out of his house, other
evidence indicated that the unsafe condition of the father’s house predated the
mother’s incarceration.
      We hold that the evidence is legally and factually sufficient to support the
trial court’s findings under Section 161.001(D) and (E) because the trial court
could reasonably have formed a firm belief or conviction that the mother
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings that endangered their physical or emotional well-being and that the
mother had engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered their physical or emotional well-being. The
mother’s sole issue on appeal is overruled.
      We affirm the trial court’s order of termination.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


October 31, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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