                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-14-00365-CV

                              In the INTEREST of A.L., D.R.L., and N.S.L.

                     From the 218th Judicial District Court, Wilson County, Texas
                                 Trial Court No. 12-10-0594-CVW
                             Honorable Thomas F. Lee, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: October 15, 2014

AFFIRMED

           The trial court terminated Joseph L.’s parent-child relationship with the children A.L.,

D.R.L., and N.S.L. 1 after a bench trial. Joseph appeals, arguing the evidence is insufficient to

support the trial court’s findings of statutory grounds for the termination. We affirm the trial

court’s order.

           A trial court may terminate the parent-child relationship only if it finds by clear and

convincing evidence one of the statutory grounds for termination and that termination is in the

child’s best interest. TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014). Here, the trial court

found the following statutory grounds for terminating Joseph’s rights:



1
 To protect the identity of the minor children, we refer to them by their initials and to appellant and the children’s
mother by their first names only. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8.
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   •   Joseph knowingly placed or knowingly allowed the children to remain in conditions or
       surroundings that endangered their physical or emotional well-being, see id.
       § 161.001(1)(D);

   •   Joseph engaged in conduct or knowingly placed the children with persons who engaged in
       conduct that endangered their physical or emotional well-being, see id. § 161.001(1)(E);
       and

   •   Joseph failed to comply with the provisions of a court order that specifically established
       the actions necessary for him to obtain the return of the children who had been in the
       temporary managing conservatorship of the Department of Family and Protective Services
       for not less than nine months as a result of the children’s removal from the parent for the
       abuse or neglect of the children, see id. § 161.001(1)(O).

       Joseph challenges the legal and factual sufficiency of the evidence to support each of these

findings, but he does not challenge the trial court’s finding that termination of his parental rights

is in the best interest of the children. We will affirm the trial court’s order if the evidence

sufficiently supports any one of the statutory grounds found by the trial court. See In re A.V., 113

S.W.3d 355, 362 (Tex. 2003); In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no

pet.). The evidence is sufficient if, in light of all the evidence, a reasonable factfinder could have

formed a firm belief or conviction that its findings were true. See In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

       The Department contends the trial court’s findings of endangerment under sections

161.001(1)(D) and (E) are supported by evidence of Joseph’s failure to take steps to protect the

children, lack of parental involvement, domestic violence, and drug use. As used in sections

161.001(1)(D) and (E), “‘endanger’ means to expose to loss or injury or 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 not necessary that the conduct be directed at the child or that the child actually

suffers injury.” Id. Endangering conduct may include omissions or failures to act as well as



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affirmative acts. In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied).

Generally, conduct that subjects a child to a life of uncertainty and instability, endangers the child’s

physical and emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio

1998, pet. denied). Also, evidence that the parent is aware the child’s surroundings or the parent’s

conduct pose a potential for danger and disregards the risk can support a finding of endangerment.

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

        A.L., D.R.L., and their mother, Sophie, lived with Joseph and his mother for about one

year, until August 2012, when Sophie and the children moved out after an argument with Joseph’s

mother. At that time, A.L. was two years old, D.R.L. was nine months old, and Sophie was

approximately six months pregnant. Sophie and the children moved into Sophie’s grandmother’s

house. Joseph testified he believed Sophie had mental health problems that caused her to have

severe mood swings, “pick fights,” and “throw things,” all of which he had seen her do in front of

the children. Joseph attempted to visit the children one time after Sophie moved out of his house.

Both he and Sophie testified that she would not allow him to enter her grandmother’s house and

he did not see the children.

        In October 2012, two months after Sophie moved into her grandmother’s house, police

were called by a neighbor who was concerned about a child’s safety. The neighbor told the police

that the eleven-month-old child had wandered into her yard and remained there for about twenty

minutes without any parental supervision. The officer testified he spoke with Sophie and checked

on the children. He testified the children were very dirty and he could see trash all over the floor

inside the home. He notified the Department of Family and Protective Services, which sent an

investigator to the home. The investigator testified the conditions of the home were “deplorable.”

The floor was littered with trash and dirty clothes and the house smelled like rotten eggs. She saw

A.L. putting a screwdriver in her mouth, and saw D.R.L. playing with a metal clothes hanger and
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putting it in his mouth. The children were also playing with a can of wasp spray. The investigator

testified the children were dirty, wearing dirty diapers, and had skin rashes. The Department filed

for and was granted temporary custody, and the children were placed in foster care. The

Department was granted custody of N.L. when he was born a month later.

       Joseph did not have any contact with the children from August 2012 until after he was

served in April 2013. Although he testified he “was concerned” about where the children were

living, who they were living with, and about the effect Sophie’s mental health problems could be

having on the children, Joseph only tried to see the children one time. He did not see inside the

house, find out who was living there, or take any steps to make sure the children were in safe

surroundings. He testified that he did not have further contact because he lost Sophie’s telephone

number and could not reach her relatives on the telephone. He did not do anything further to try

to find his children or provide them support. As of the date of trial, Joseph had not paid any child

support.

       Although Joseph was served with citation in this case in April 2013, the record contains no

evidence that Joseph had any visits with the children before December 2013, more than a year

after they moved out of his home. A licensed professional counselor testified she was asked by

the Department to observe Joseph’s interactions with the children during weekly one-hour visits

for three months beginning in December 2013. Joseph had three visits with the children. He

appeared for visits on two other occasions when the children’s caregiver did not bring them.

Joseph missed four visits because of transportation problems and work conflicts. The counselor

testified she did not observe any abusive or neglectful behavior, but that Joseph did not know how

to interact with the children. She testified that Joseph did not appear to have any bond with the

two younger children.



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       A parent’s lack of contact with a child without any excuse and failure to take steps to ensure

the child’s safety are evidence of endangerment. See In re V.V., 349 S.W.3d 548, 553-54 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied) (en banc); see also S.M.L., 31 S.W.3d at 350

(endangerment occurs when parent is aware that child’s condition or surroundings pose a potential

for danger but disregards the risk). A parent’s lack of significant contact with or support of a child

can also subject the child to a life of uncertainty and instability that endangers the child’s physical

and emotional well-being. See In re A.J.D., No. 02-13-00183-CV, 2013 WL 5781478, at *4 (Tex.

App.—Fort Worth Oct. 24, 2013, no pet.) (mem. op.); In re B.A., No. 14-00-00047-CV, 2001 WL

578314, at *2 (Tex. App.—Houston [14th Dist.] May 31, 2001, no pet.) (Not designated for

publication). Joseph failed to take steps to protect his children when he knew they were at risk in

their mother’s care. He did nothing to provide them any physical, monetary, or emotional support

after they left his home. He had no significant contact with them for over a year and attended only

three therapeutic visits while the case was pending, during which his lack of bonding with the two

younger children was apparent to the counselor.           This evidence supports the trial court’s

endangerment findings.

       When Sophie was first interviewed, she told the Department investigator that there had

been domestic violence in her relationship with Joseph. At trial, she testified that Joseph hit her

one time when she was six or seven months pregnant. Joseph did not dispute the testimony.

Violence in a home is part of the “conditions or surroundings” of a child living in that home. In

re C.L.C., 119 S.W.3d 382, 392-93 (Tex. App.—Tyler 2003, no pet.). Abusive or violent conduct

by a parent or other resident of a child’s home can constitute a condition that endangers the child’s

physical or emotional well-being within the meaning of section 161.001(1)(D). Id.; In re I.G., 383

S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.). Violent conduct directed at the other parent

is evidence of endangerment under section 161.001(1)(E), even if not committed in the child’s
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presence. Dir. of Dallas Cnty. Child Protective Servs. Unit v. Bowling, 833 S.W.2d 733-34 (Tex.

App.—Dallas 1992, no writ).

       Sophie also testified she had seen Joseph use methamphetamines, “weed,” and crack while

they lived together; however, she had not seen him use drugs in front of the children. Joseph

admitted he used drugs in the past, but claimed he had not used drugs for ten years and had never

done so in Sophie’s or the children’s presence. It was for the trial court, as the sole judge of the

credibility of the witnesses, to resolve this disputed testimony. In re H.R.M., 209 S.W.3d 105, 108

(Tex. 2006) (per curiam). Joseph was required to submit to random drug tests as part of his family

service plan. The Department caseworker testified that Joseph tested positive for amphetamines

and methamphetamines in a random “instant drug test” she administered. She testified she sent

Joseph to the Texas Med Clinic for a confirming test, but that he did not follow through. Joseph

testified that he believed the instant test had been “botched.” He also testified that he went to the

Texas Med Clinic when told to, but the Clinic would not perform the test because it had not

received any paperwork from the Department. He testified he waited for four or five hours and

then left because a family emergency arose. It is undisputed that Joseph did not return to have the

test performed.

       On appeal, Joseph complains about the reliability of the random test and the lack of

evidence regarding the kind of test performed, the qualifications of the caseworker to collect the

specimen, whether the results were confirmed, and the qualifications of the witness to give an

opinion about the results. However, Joseph did not object on any of these grounds at trial. His

only objection at trial was that the testimony about the results was hearsay because the witness

“was not the caseworker at the time.” After the State adduced testimony that the witness was the

caseworker who administered the test, the trial court overruled the objection. Joseph did not



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preserve his complaints about the reliability of the evidence or the qualifications of the witness for

appellate review. See TEX. R. APP. P. 33.1(a)(1); In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003).

       The trial court was free to believe Sophie’s testimony about Joseph’s drug use while she

and the children lived with him and to disbelieve Joseph’s. The court also reasonably could have

inferred from Joseph’s failure to submit to a test at the Texas Med Clinic that he was using drugs.

See In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.—Amarillo 2009, pet. denied). Thus, even if

we were to discount the result of the instant drug test, there is evidence a reasonable trial court

could have credited that Joseph engaged in drug use both while the children lived in his home and

while this case was pending. Illegal drug use by a parent endangers a child’s physical and

emotional well-being and supports termination of the parent’s rights under sections 161.001(1)(D)

and (E). See In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied); In re

C.L.C., 119 S.W.3d at 398; In re S.D., 980 S.W.2d at 763.

       The record contains evidence that Joseph failed to take steps to ensure the children’s safety,

did not have any involvement or significant contact with the children for an extended period of

time, failed to support the children, used illegal drugs, and engaged in domestic violence. Having

reviewed all the evidence, we conclude that a reasonable factfinder could have formed a firm belief

or conviction that Joseph endangered the children and that its findings under sections

161.001(1)(D) and (E) were true. The evidence is therefore legally and factually sufficient to

support the grounds for termination. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at

25. We affirm the trial court’s order terminating Joseph’s parental rights.


                                                  Luz Elena D. Chapa, Justice




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