                                          NO. 12-18-00212-CV

                                IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

 IN THE INTEREST OF J.S.,                                   §        APPEAL FROM THE

 M.S., M.S., M.S., AND J.S.,                                §        COUNTY COURT AT LAW

 CHILDREN                                                   §        ANDERSON COUNTY, TEXAS

                                          MEMORANDUM OPINION
         S.S. and D.S. appeal the termination of their parental rights. In four issues, they challenge
the sufficiency of the evidence to support the termination order. We affirm.


                                                   BACKGROUND
         S.S. is the mother of J.S., M.S., M.S.1, M.S.2, and J.S.1.1 D.S. is the father of M.S., M.S.1,
M.S.2, and J.S.1. On July 18, 2018, the Department of Family and Protective Services (the
Department) filed a first amended original petition for protection of children, for conservatorship,
and for termination of S.S.’s and D.S.’s parental rights. The Department was appointed temporary
managing conservator of the children, and D.S. and S.S. were granted limited access to the
children.
         At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that the parent-child relationship between S.S., J.S., M.S., M.S.1, M.S.2, and J.S.1
should be terminated and that the parent-child relationship between D.S., M.S., M.S.1, M.S.2, and
J.S.1 should be terminated. Thus, the trial court found, by clear and convincing evidence, that S.S.
engaged in one or more of the acts or omissions necessary to support termination of her parental
rights under subsections (D), (E), (O), and (P) of Texas Family Code Section 161.001(b)(1). The


         1
             Because the children have the same initials, we will reference the younger children as M.S.1, M.S.2, and
J.S.1.
trial court also found that termination of the parent-child relationship between S.S., J.S., M.S.,
M.S.1, M.S.2, and J.S.1 is in the children’s best interest. Based on these findings, the trial court
ordered that the parent-child relationship between S.S., J.S., M.S., M.S.1, M.S.2, and J.S.1 be
terminated.
          Further, the trial court found, by clear and convincing evidence, that D.S. engaged in one
or more of the acts or omissions necessary to support termination of his parental rights under
subsections (D), (E), (O), and (P) of Texas Family Code Section 161.001(b)(1). The trial court
also found that termination of the parent-child relationship between D.S., M.S., M.S.1, M.S.2, and
J.S.1 is in the children’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between D.S., M.S., M.S.1, M.S.2, and J.S.1 be terminated. This appeal
followed.


                                TERMINATION OF PARENTAL RIGHTS
          Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action “permanently sunders” the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
          Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2018); In re J.M.T.,
39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any
one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE
ANN. § 161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep’t of Protective & Regulatory Servs.,
25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second,
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West
Supp. 2018); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not alleviate the petitioner’s burden of proving
the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d
at 237.




                                                  2
        The clear and convincing standard for termination of parental rights is both constitutionally
and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. 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 2014). The burden of proof is upon the party seeking the
deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.


                                        STANDARD OF REVIEW
        When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must 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 that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We
must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact
finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved
or found incredible. Id.
        The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
In determining whether the fact finder met this standard, an appellate court considers all the
evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27–
29. Further, an appellate court should consider whether disputed evidence is such that a reasonable
fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and
the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex.
App.–Houston [1st Dist.] 1997, pet. denied).




                                                    3
                         TERMINATION UNDER SECTION 161.001(b)(1)
       In their four issues, S.S. and D.S. argue the evidence is legally and factually insufficient to
terminate their parental rights pursuant to Texas Family Code Section 161.001(b)(1)(D), (E), (O),
and (P).
Applicable Law
       The court may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being of the
child. TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West Supp. 2018). Subsection (D) addresses
the child’s surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.—
Texarkana 2003, no pet). The child’s “environment” refers to the suitability of the child’s living
conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine
whether there is clear and convincing evidence of endangerment is before the child was removed.
Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993,
no pet.). Further, subsection (D) permits termination based upon only a single act or omission. In
re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
       When seeking termination under subsection (D), the Department must show that the child’s
living conditions pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869
S.W.2d at 577. Further, there must be a connection between the conditions and the resulting danger
to the child’s emotional or physical well-being. Ybarra, 869 S.W.2d at 577-78. It is sufficient
that the parent was aware of the potential for danger to the child in such environment and
disregarded the risk. In re N.R., 101, S.W.3d at 776. In other words, conduct that demonstrates
awareness of an endangering environment is sufficient to show endangerment. In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We have previously concluded
it is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons
who live in the home of a child, or with whom a child is compelled to associate on a regular basis
in his home, is not inherently part of the “conditions and surroundings” of that place or home. In
re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Subsection (D) is designed
to protect a child from precisely such an environment. Id.




                                                 4
       The court may also order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangers the physical or emotional well-being of the child.
TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2018). Scienter is not required for an
appellant’s own acts under Section 161.001(b)(1)(E), although it is required when a parent places
her child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied). Finally, the need for permanence is a paramount
consideration for the child’s present and future physical and emotional needs. In re N.K., 99
S.W.3d 295, 301 n.9 (Tex. App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200.
       Subsection (E) requires us to look at the parent’s conduct alone, including actions,
omissions, or the parent’s failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas
2003, pet. denied); In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.).
Termination under subsection (E) must be based on more than a single act or omission. In re
D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet.
denied). A voluntary, deliberate, and conscious “course of conduct” by the parent that endangers
the child’s physical and emotional well-being is required. In re D.M., 58 S.W.3d at 812; In re
D.T., 34 S.W.3d at 634.
       As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child. In re M.R.J.M., 280 S.W.3d 494, 503
(Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth
2004, pet. denied). Endangering conduct is not limited to actions directed towards the child. Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It necessarily follows that the
endangering conduct may include the parent’s actions before the child’s birth and while the parent
had custody of older children. See id. (stating that 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 parent’s conduct be directed at the child or that the child actually suffers injury);
see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied) (holding
that courts may look to parental conduct both before and after child’s birth to determine
whether termination is appropriate). Further, the conduct may occur both before and after the child
has been removed by the Department. Walker v. Tex. Dep’t of Family & Protective Servs., 312
S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).



                                                   5
        “Endanger” means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533;
In re D.M., 58 S.W.3d at 811. It is not necessary that the conduct be directed at the child or that
the child actually suffers injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. Domestic
violence may be considered evidence of endangerment. In re C.J.O., 325 S.W.3d 261, 265 (Tex.
App.—Eastland 2010, pet. denied). Evidence of illegal drug use or alcohol abuse by a parent is
often cited as conduct which will support an affirmative finding that the parent engaged in a course
of conduct which has the effect of endangering the child. See, e.g., In re C.R., 263 S.W.3d 368,
371 (Tex. App.—Dallas 2008, no pet.); In re M.R., 243 S.W.3d 807, 818–19 (Tex. App.—Fort
Worth 2007, no pet.); Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 98
(Tex. App.—Houston [1st Dist.] 2006, no pet.).
        The court may also order termination if the court finds, by clear and convincing evidence,
that the parents failed to comply with the provisions of a court order that specifically establishes
the actions necessary for them to obtain the return of the child.         TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O) (West Supp. 2018). Subsection (O) does not quantify any particular number
of provisions of the family service plan that a parent must not achieve in order for the parental
rights to be terminated or the degree of a parent’s conduct that will be deemed to be a failure to
achieve a particular requirement of the plan. See id.; In Interest of B.H.R., 535 S.W.3d 114, 122
(Tex. App.—Texarkana 2017, no pet.). Neither the statute nor the order which was entered
prescribes the degree to which the parent must comply with the court order, and neither the order
nor the statute “make[s] a provision for excuses” for the parent’s failure to comply with such an
order. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—
Eastland 2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet.
denied), overruled on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.—Waco 2012,
no pet.)).
Analysis
        At trial, the evidence showed that the Department became involved when it received an
allegation of neglect and abuse regarding the children. An investigator met with D.S. and S.S. at
a Tyler hospital. S.S. had given birth to a child in her home the previous day and was transported
to the hospital. The newborn died shortly after delivery. Brittany Mannes, the investigator,
testified that the Department received allegations that the children were not being watched or cared
for while the family was at the hospital. When Mannes arrived, she found the entire family in the



                                                 6
hospital room. D.S. was asleep in a chair, the children were playing, and M.S. had a bruise under
her eye. The room smelled like dirty diapers and the children were not wearing clean clothing.
        Mannes spoke with both D.S. and S.S. before leaving the hospital. S.S. admitted to Mannes
that she took Norco, without a prescription, and methamphetamine during her pregnancy. 2 D.S.
also told Mannes that he took Norco and methamphetamine. He admitted having a history with
marijuana, but claimed to no longer use marijuana since having the children. He claimed to get
the Norco from his customers at the donut shop. D.S. further admitted to leaving the children at
home and attending a party with S.S. where they snorted cocaine. According to D.S., he previously
obtained drugs from people who lived with them. Following positive drug tests by the parents, the
Department tested the children for drugs.              J.S., M.S., M.S.2, and J.S.1 tested positive for
methamphetamine.
        Mannes testified that the family lived with a couple named Vicki Mau and James Phillips
at the time of removal. During her investigation, Mannes learned that Phillips was a registered sex
offender and that the children were left in the couple’s care on multiple occasions. S.S. admitted
to Mannes that the couple does “illegal things and are always hiding,” but she continued residing
in the home because she had no proof. Mannes further testified that D.S. has a criminal history,
including two convictions for assault causing bodily injury to a family member.
        Mannes further testified that the children were home alone when she arrived to remove
them. At that time, J.S.1 was less than one year old. M.S. also had fingernail claw marks on her
legs. When asked, M.S. told investigators that her mother squeezed her legs and made the claw
marks. Mannes testified that the marks were deeper than a typical scratch and had begun scarring.
The children also indicated that D.S. would sometimes hit them.
        Jessica Walker, a caseworker for the Department, testified regarding D.S.’s and S.S.’s
failure to comply with their court-ordered service plans.                  After their children entered the
Department’s care, D.S. and S.S. were required to, in pertinent part, (1) attend and participate in
random drug screenings, (2) complete a drug and alcohol assessment, (3) attend and participate in
substance abuse counseling, (4) participate in a psychological evaluation, (5) participate in and
complete parenting classes, (6) disclose the names of individuals living in the home, (7) obtain and
maintain stable housing for a period of at least six months, and (8) obtain and maintain employment


        2
           Norco, a combination of hydrocodone and acetaminophen, is a prescription pain reliever and is classified
as an opioid.


                                                        7
for at least six months. Mannes testified that, based on her review of the case file, both D.S. and
S.S. refused to comply with several requested drug tests.         The Department never received
employment verification from either D.S. or S.S. At the time of trial, S.S. had moved to Kansas
and was living with some family. However, the identities of the individuals in the home were
unknown to the Department. The Department was informed that a psychological evaluation was
completed in Kansas; however, Mannes testified that the results have not been received. D.S. was
arrested in June 2017 and remains incarcerated. Mannes testified that the Department attempted
to facilitate D.S.’s compliance with the service plan during his incarceration. However, he has not
completed a psychological evaluation, parenting classes, or substance abuse counseling.
       D.S. did not testify at trial. S.S. testified that she does not use drugs around her children
and that she does not know why they tested positive for drugs. She admitted to using drugs at a
party before Christmas 2016. She testified that she believed the drug was “coke” but she “didn’t
think it was meth.” While she and D.S. were at the party, the children were with Mau and Phillips.
According to S.S., she did not know Phillips was a registered sex offender until after the children
were removed. She also admitted to taking an unprescribed opioid during her pregnancy. S.S.
was drug tested during the trial and the test was positive for opioids. S.S. stated that she suffers
from hip pain and that she takes pain medication as a result. S.S. claimed to have a prescription;
however, she was unable to produce it at trial. She further testified that she is currently
unemployed and living with her parents in Kansas. S.S. testified that the house and bills are listed
in her name but her brother currently pays the bills.
       From this evidence, a reasonable fact finder could have determined that S.S. and D.S. have
a history of drug abuse, from which they failed to protect their children, and S.S. physically abused
M.S. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). A reasonable fact finder could also
conclude that D.S. and S.S. exposed their children to illegal drugs and placed them in a home in
which they were left alone with and compelled to associate with persons engaged in unlawful
activities. See id. Further, the fact finder could have formed a firm belief or conviction that S.S.
and D.S. were unable to adequately care for the children because they were unable to establish a
safe and stable environment. The evidence also shows that D.S. and S.S. failed to comply with the
requirements of their court-ordered service plans. See id. § 161.001(b)(1)(O).
       Therefore, we hold that the evidence, viewed in the light most favorable to the findings,
was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief



                                                 8
or conviction that D.S. and S.S. knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered their physical or emotional well-being, and 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 In re J.F.C., 96 S.W.3d at 266; see also
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Furthermore, we hold that the trial court’s
determination that D.S. and S.S. failed to comply with the requirements of the service plan is
supported by legally and factually sufficient evidence. See Interest of B.H.R., 535 S.W.3d at 122;
see also TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Because the evidence is legally and factually
sufficient to support termination of D.S.’s and S.S.’s parental rights under subsections (D), (E),
and (O) of Texas Family Code Section 161.001(b)(1), we overrule their first, second, and third
issues and need not address their fourth issue regarding subsection (P).3 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.).


                                                       DISPOSITION
         Having overruled S.S. and D.S.’s first, second, and third issues, we affirm the trial court’s
judgment.

                                                                              JAMES T. WORTHEN
                                                                                 Chief Justice

Opinion delivered January 16, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                        (PUBLISH)




         3
             D.S. and S.S. do not challenge the trial court’s finding that termination is in the children’s best interest.


                                                               9
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          JANUARY 16, 2019


                                         NO. 12-18-00212-CV


                                IN THE INTEREST OF J.S., M.S.,
                                M.S., M.S., AND J.S., CHILDREN



                                Appeal from the County Court at Law
                     of Anderson County, Texas (Tr.Ct.No. CCL-17-15370)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
