                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00058-CV


IN THE INTEREST OF J.L., A
CHILD




                                    ----------

          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      K.L. (Mother) appeals the termination of her parental rights to her child,

J.L. We affirm.

                              Background Facts

      In February 2012, The Department of Family and Protective Services

(DFPS or the Department) received a referral stating that Mother had given birth


      1
      See Tex. R. App. P. 47.4.
to J.L. and that both Mother and the baby tested positive for marijuana. The

referral also alleged that Mother had a black eye. DFPS investigator Lishawa

Jackson interviewed Mother at the hospital and testified that she saw Mother’s

black eye.    Jackson stated in Mother’s service plan that Mother “appeared

dishonest” and “failed to understand the severity of the . . . referral.”       The

Department removed J.L. and placed him with his maternal aunt.

      At the adversary hearing in February 2012, Mother and J.L.’s father

(Father) were court-ordered to complete their service plans. The Department

changed the goal of Mother’s case from reunification to termination in August

2012 because Mother and Father were not making progress on their services.

      A bench trial was held on February 4, 2013. 2 Mother did not appear at

trial. The trial court found that Mother had engaged in conduct or knowingly

placed J.L. with persons who had engaged in conduct that had endangered J.L.’s

physical or emotional well-being, that Mother had failed to comply with the

provisions of a court order that specifically established the actions necessary for

Mother to obtain J.L.’s return, and that termination of the parent-child relationship

was in J.L.’s best interest.

      Mother filed a motion to declare the judgment void on the grounds that she

was not appointed counsel until almost eleven months after the Department filed



      2
        Father signed a relinquishment of his parental rights immediately prior to
trial. He is not a party to this appeal.

                                         2
its original petition, and she filed a motion for new trial. The trial court denied

both motions, and Mother filed this appeal.

                               Standard of Review

      In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92

(1982)).   We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. Id.; Holick, 685 S.W.2d at

20–21.

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a)

(West 2008).    Due process demands this heightened standard because “[a]

parental rights termination proceeding encumbers a value ‘far more precious

than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.

at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for

termination and conservatorship).     Evidence is clear and convincing if it “will

                                         3
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

2008).

                                     Discussion

I. Court-appointed attorney

      In her first issue, Mother argues that the trial court erred by delaying the

appointment of an attorney for almost nine months after she requested counsel.

Mother complains that this delay violated her rights to equal protection and due

process of law under the United States constitution, due course of law under the

Texas constitution, and effective assistance of counsel. 3

      Section 107.013(a)(1) of the Texas Family Code guarantees indigent

parents a right to counsel in a government-initiated parental rights termination

case. See Tex. Fam. Code Ann. § 107.013 (West Supp. 2012); In re B.L.D., 113

S.W.3d 340, 346 (Tex. 2003), cert. denied, 541 U.S. 945 (2004). “[I]n Texas the

timing of appointment of counsel to indigent parents appearing in opposition to

termination is a matter within the trial court’s discretion. Therefore, in our due

process review, we look to the facts and circumstances of this case to determine

whether the trial court’s action was arbitrary and a violation of [the parent’s] due

process rights.” In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio

2000, pet. denied).

      3
        Mother does not complain that, once appointed, her attorney provided
ineffective assistance; she complains only of the delay in the appointment.

                                          4
      Mother had been admonished of her right to an attorney throughout the

pre-termination proceedings.      In February 2012, Mother was asked at a

temporary orders hearing if she wanted to apply for an attorney and she said no.

At the end of a permanency hearing on April 5, 2012, Mother requested court-

appointed counsel. The trial court told her that she would be given paperwork to

complete, and once she returned the papers, the trial court would make a

determination regarding an appointment.

      At a hearing in July 2012 at which Mother was not present, the trial court

asked whether Mother had representation. Jessica Davis, a DFPS caseworker,

stated that Mother had completed the application but that she was “not sure what

happened with that.” The trial court stated that it had looked through the case file

and did not find Mother’s application. The next hearing was held on October 18,

2012; Mother was not present.

      In January 2013, another permanency hearing was held. Both Mother and

Father attended. At the end of the hearing, the trial court stated,

            In this particular case, you guys have requested [an
      application for a court-appointed attorney], and I'm going to swear
      you in, have you swear to your applications here in just a minute.
      And then from everything I’ve heard, I most likely will be appointing
      you somebody here in just—just moments.

Although what transpired at that point was not on the record, the trial court found

Mother indigent and appointed counsel for her.

      Section 107.013(d) requires that a parent claiming indigence under the

statute must file “an affidavit of indigence in accordance with Rule 145(b) of the

                                         5
Texas Rules of Civil Procedure before the court can conduct a hearing to

determine the parent’s indigence under this section.”       Tex. Fam. Code Ann.

§ 107.013. Mother’s affidavit of indigence is not in the record before us, but the

trial court stated that Mother had not filed her application as of the July 2012

hearing. 4 The record does not show if Mother ever filed an affidavit with the trial

court so that it could have proceeded with appointing counsel any sooner than it

did. The record does reflect that the first time Mother presented any evidence

concerning her financial ability to hire counsel was during the January 2013

hearing. Based on the record before us, we cannot say that the trial court erred

by not appointing counsel before January 2013. See In re J.J., No. 13-04-00202-

CV, 2006 WL 949952, at *3 (Tex. App.—Corpus Christi Apr. 13, 2006, no pet.)

(mem. op.) (holding that appointment of counsel eleven months after the petition

for termination was filed, but four and one-half months before trial, did not violate

section 107.013).

      This delay in providing the affidavit of indigency is what distinguishes this

case from In re C.D.S., 172 S.W.3d 179 (Tex. App.—Fort Worth 2005, no pet.),

on which Mother relies. In C.D.S., the mother had completed and filed with the

      4
       In her reply brief, Mother argues that the delay in appointing counsel for
her was because “one or more of the trial court’s personnel dropped the ball” and
because “[s]tandard operating procedure was not completed.” We find nothing in
the record to support these assumptions. In fact, the record shows that the trial
court followed the statutorily mandated procedure. It provided Mother with an
application. It could do nothing until Mother filed the completed forms. That she
did not complete or file the application for some months after receiving them is
not something for which we will hold the trial court responsible.

                                         6
court an application for appointment of counsel with an attached declaration of

financial inability to employ counsel on the same day that the Department filed its

original petition. Id. at 182. The trial court found that the mother was not indigent

and did not appoint counsel for her throughout the eight months the case was

pending. Id. The mother in C.D.S. was representing herself when her parental

rights were terminated pursuant to an affidavit of voluntary relinquishment of

parental rights. This court determined that under those circumstances and the

facts of mother’s financial ability, the trial court erred in failing to find the mother

indigent. Id. at 185. In the case at bar, the trial court appointed counsel on the

first day that the record supports a finding of indigency.

      Further, we cannot say that any error by the trial court was harmful.

Mother does not complain of the quality of her attorney’s representation once

appointed, she only complains that the delay meant her counsel “[could not] be

truly effective if appointed on the eve of trial.” Mother complains that she only

had one telephone meeting with her attorney prior to trial. However, her attorney

stated at trial that he spoke to her two weeks before trial and that he tried calling

her every day the week before trial but was unable to get in touch with her. He

explained that because Mother and Father had not set up their shared

cellphone’s voicemail, he could not leave messages for them. The attorney also

stated that to his knowledge, Mother made no attempts to call his office. Mother




                                           7
had the opportunity to work with her appointed counsel, but chose not to

communicate with him. 5

      The record shows that it was Mother’s own acts, by delaying in filing her

affidavit of indigence and by failing to return her attorney’s calls, that impaired the

effectiveness of her representation, not any acts by the trial court. 6 Mother has

failed to show harm. See Manning v. Tex. Dep’t of Family & Protective Servs.,

No. 03-04-00451-CV, 2005 WL 1116389, at *4 (Tex. App.—Austin May 12, 2005,

pet. denied) (mem. op.) (holding that any error in a year-long delay in the

appointment of counsel was harmless because counsel effectively represented

the father for five months). These facts do not show that the trial court acted

arbitrarily in delaying appointment of counsel nor do they show that Mother was

deprived of her constitutional rights. We overrule Mother’s first issue.




      5
       We also note that at the July 2012 hearing, the ad litem attorney
appointed for the child told the court that five months earlier he had given Mother
his card and told her, “I don’t represent you, but at least let me give you a hand.
Let me give you some advice.” According to the ad litem, Mother never took
advantage of the offer of free legal advice.
      6
         Mother also complains that the late appointment prevented her from
requesting a jury trial because her counsel was appointed less than thirty days
from trial. See Tex. R. Civ. P. 216 (requiring a party to file a written request for a
jury trial no less than thirty days before the trial setting). Courts have held,
however, than when counsel is appointed less than thirty days before trial,
thereby making compliance with Rule 216 impossible, a request for jury trial that
is filed at the first opportunity is considered timely. See In re J.C., 108 S.W.3d
914, 916–17 (Tex. App.—Texarkana 2003, no pet.).

                                          8
II. Endangerment

      In her second issue, Mother challenges the legal and factual sufficiency of

the evidence to support the trial court’s finding under subsection (E) of section

161.001(1) of the family code. See Tex. Fam. Code Ann. § 161.001(1)(E) (West

Supp. 2012).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). Both elements must be established; termination may not be based solely

on the best interest of the child as determined by the trier of fact. Tex. Dep’t of

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d

625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We

review all the evidence in the light most favorable to the finding and judgment.

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder

could have done so. Id. We disregard all evidence that a reasonable factfinder

could have disbelieved.     Id.    We consider undisputed evidence even if it is

contrary to the finding.     Id.    That is, we consider evidence favorable to

                                          9
termination if a reasonable factfinder could, and we disregard contrary evidence

unless a reasonable factfinder could not. Id.

      We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. And

even when credibility issues appear in the appellate record, we defer to the

factfinder’s determinations as long as they are not unreasonable. Id.

      In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent violated subsection (E) of section 161.001(1).       Tex. Fam. Code Ann.

§ 161.001(1)(E); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

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

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

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

121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also Tex. Fam.

Code Ann. § 161.001(1)(E). Additionally, termination under (E) must be based

on more than a single act or omission; the statute requires a voluntary,

                                         10
deliberate, and conscious course of conduct by the parent. J.T.G., 121 S.W.3d

at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It is not necessary, however,

that the parent’s conduct be directed at the children or that the children actually

suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific

danger to the children’s well-being may be inferred from parental misconduct

standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738

(Tex. App.—Fort Worth 2004, pet. denied). To determine whether termination is

necessary, courts may look to parental conduct occurring both before and after

the children’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth

2001, no pet.).

The evidence

        Jessica Davis, a caseworker for DFPS, testified that Mother engaged in

conduct or knowingly placed the child with persons who engaged in conduct

which endangered the physical or emotional well-being of the child through “[her]

ongoing drug usage, knowingly using while pregnant, the domestic violence in

the relationship . . . , as well as the inability to provide a stable and safe

environment for [J.L.].”

        Mother tested positive for marijuana twice during her pregnancy with J.L.,

when she went to the hospital in January and February 2012 thinking that she

was in labor. J.L. tested positive for marijuana at birth. Mother first denied that

she had smoked marijuana during her pregnancy, but later admitted that she had

used.    Mother claimed that she did not have an appetite and that smoking

                                        11
marijuana helped her eat. Mother also admitted that she continued to smoke

marijuana after learning that she was pregnant. Mother acknowledged that she

received no prenatal care during her pregnancy with J.L.

        Mother also had a previous referral for neglectful supervision of another

one of her children in December 2008. 7 During that investigation, Mother “was

taking the child to her paramour’s home to smoke marijuana.” She was advised

at that time of the Department’s concerns regarding her marijuana use and the

drug’s effects on her ability to parent.

        Jackson, the DFPS investigator, testified that DFPS considered Mother’s

use of marijuana during her pregnancy as abusive.           Not only was Jackson

concerned about Mother’s personal use of marijuana, but she was also

concerned about the drug activity surrounding Mother and Father.          Jackson

testified that during Mother’s pregnancy, Father had been shot during a drug

deal.

        Jackson testified that Mother initially denied that domestic violence

occurred in the home she shared with Father but later stated that “he [had not] hit

[her] in a while.” Jackson testified that Mother had a black eye when she gave

birth to J.L., although Davis admitted that she did not have a doctor or nurse

confirm that it was a black eye. Mother told Jackson that she only had “bags


        7
        Mother has two other children, neither of which is in her care.




                                           12
under her eyes.” Mother later said that she did have a black eye but it was

because Father had elbowed her in his sleep.         Jackson said that domestic

violence was an ongoing matter because Mother had not completed the

necessary services to alleviate the Department’s concern.

      Jackson also testified that prior to removing J.L., she tried several times to

meet with Mother so that she could see and approve Mother’s home, but that she

was not able to do so because Mother did not show up for scheduled meetings.

Jackson testified that she was unable to verify whether Mother and Father “even

had a residence to bring this child to.” Jackson testified that not having a stable

residence was a concern to the Department and a danger to J.L. Throughout the

case, Mother and Father “kept giving [the Department] different addresses of

people they never even knew,” and the Department had difficulty getting in

contact with Mother. Davis testified that she could not consistently reach Mother

to request random drug testing. Davis also expressed concern over Mother’s

ability to provide for J.L. because, although Mother claimed to be employed at

two points during the pendency of the case, Mother supplied no documentation

of employment.

      In August 2012, Mother appeared at a neighbor’s apartment asking for

refuge because Father had beaten her. 8            Two different police officers

encountered her that night, and in one encounter, she identified herself by a fake

      8
       She later represented to a police officer that she made up the story that
she told the neighbor.

                                        13
name. After discovering her real identity, Denton police charged Mother with

failure to identify herself as a fugitive. Mother admitted that she had given a fake

name because she had an open DFPS case. Mother also stated that she was

aware that she had warrants for her arrest and had given a fake name to avoid

arrest. 9

Analysis

       Drug use and its effect on a parent’s life and her ability to parent may

establish an endangering course of conduct. R.W., 129 S.W.3d at 739. Despite

repeated warnings from the Department regarding the danger to her children,

both in a previous referral and in this case, Mother continued to use drugs

through her pregnancy and during the pendency of her case. See J.T.G., 121

S.W.3d at 125 (noting that parental drug use supports the conclusion that the

children’s surroundings endanger their physical or emotional well-being); see

also In re K.W., No. 02-09-00041-CV, 2010 WL 144394, at *7–8 (Tex. App.—Fort

Worth Jan. 14, 2010, no pet.) (mem. op.) (holding that mother’s drug use

supported endangerment finding); In re Z.D., No. 02-07-00386-CV, 2008 WL

4354936, at *7 (Tex. App.—Fort Worth Sept. 25, 2008, no pet.) (mem. op.) (“A

parent’s engaging in illegal drug activity after agreeing not to do so in a service

plan for reunification with her children is sufficient to establish clear and




       9
        Mother was later convicted for failure to identify as a fugitive.

                                          14
convincing proof of voluntary, deliberate, and conscious conduct that endangered

the well-being of her children.”).

         Although Mother denied domestic violence, there was evidence that

Mother continued to be in a violent relationship with Father. There was also

evidence that Father engaged in dangerous and criminal activity. Mother did not

maintain stable housing or provide evidence of her employment. See In re T.S.,

No. 02-10-00089-CV, 2010 WL 4486332, at *8 (Tex. App.—Fort Worth Nov. 10,

2010, no pet.) (mem. op.) (upholding finding of endangerment when father was,

among other things, unable to provide stable housing and financially unable to

care for his children). During the pendency of her case, Mother lied to a police

officer about her name and was arrested.           Evidence of criminal conduct,

convictions, and imprisonment will support a finding that a parent engaged in a

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

133. Engaging in criminal conduct subjects a child to a life of uncertainty and

instability because of the probability that his parent will be jailed thereby leaving

the child alone. In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no

pet.).

         Mother argues that there is no evidence to support the trial court’s

subsection (E) finding because J.L. was removed only days after his birth. Yet

Mother continued to engage in endangering activity during the year her case was

pending. Further, a factfinder may infer that past conduct endangering the well-

being of a child may recur in the future if the child is returned to the parent. See

                                         15
In re J.D.B., No. 02-06-00451-CV, 2007 WL 2216612, at *3 (Tex. App.—Fort

Worth Aug. 2, 2007, no pet.) (mem. op.); In re C.S.C., No. 02-06-00254-CV,

2006 WL 3438185, at *7 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem.

op.). Mother also claims that “the child does not appear to have suffered any

ongoing harm from any prenatal cause.” We note that there was evidence that

J.L. suffered from jaundice and required “numerous doctors’ appointments”

during the first few months of his life.       We also note that a finding of

endangerment does not require actual injury to the child. Boyd, 727 S.W.2d at

533.

         We conclude that a reasonable factfinder could have formed a firm belief

or conviction that Mother engaged in conduct or knowingly placed J.L. with

persons who engaged in conduct that endangered J.L.’s physical or emotional

well-being. We overrule Mother’s second issue. Because, along with a best

interest finding, a finding of only one ground alleged under section 161.001(1) is

necessary to support a judgment of termination, we need not address Mother’s

third issue, which challenges the termination under subsection (O). See Tex. R.

App. P. 47.1; see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth

2007, no pet.); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no

pet.).




                                        16
                                Conclusion

     Having overruled Mother’s dispositive issues, we affirm the trial court’s

judgment.




                                          LEE GABRIEL
                                          JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: July 18, 2013




                                     17
