                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-408-CV


IN THE INTEREST OF M.C.
AND D.K., CHILDREN


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

     Appellant Gaylene C. appeals the termination of her parental rights to her

children, M.C. and D.K.      Appellant Kent M. appeals the termination of his

parental rights to his daughter, M.C. Both Gaylene and Kent challenge the

sufficiency of the evidence to support the trial court’s family code section

161.001(1) and 161.001(2) findings in the termination order. We will affirm.



     1
         … See T EX. R. A PP. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Gaylene is the mother of five-year-old M.C., three-year-old D.K., and three

older children. Gaylene left M.C. and D.K. with their grandmother at some

point. The grandmother moved to California a few months later and left the

children with Janelle S., the children’s aunt.    Janelle had previously been

awarded permanent managing conservatorship of Gaylene’s three older children.

      On July 10, 2006, Janelle requested that CPS take custody of M.C. and

D.K. because she was no longer able or willing to care for them.            CPS

investigator Cathy Lee did not locate Gaylene until sometime around August 10,

2006. Gaylene initially told Lee that she did not know where M.C. and D.K.

were, but she later said that she knew they were with her sister. CPS removed

the children from Janelle’s care on August 21, 2006.

      Lee had concerns about illegal drug use by Gaylene. When Lee located

Gaylene on August 10, 2006, Gaylene said that she had used crack cocaine the

previous day.   Gaylene took a drug test at the request of Appellee Texas

Department of Family and Protective Services (“TDFPS”) on or about May 21,

2007, and admitted to TDFPS that she had used cocaine. At trial, Gaylene

agreed that although she testified at a previous hearing that she had not used

drugs for three months, she took a drug test and was “nowhere near clean.”

Gaylene testified that she never used drugs “around [her] kids or in front of

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[her] kids,” but that she “might have” been under the influence of illegal drugs

while she kept her children. When asked when she last used drugs, Gaylene

answered, “It’s been a month for sure.” Gaylene did not complete before trial

the service plan that TDFPS prepared for her.

      Kent is the alleged biological father of M.C. He was incarcerated when

Janelle called CPS in July 2006. CPS did not consider placing the children with

Kent after the children’s removal because he had just been released from jail

and was waiting to return, possibly for a parole violation.

      According to Kent, Gaylene does not do drugs around her children, but

“she probably has a drug problem” and she “needs help for drugs.” Kent used

illegal drugs in the past, but he testified that he had not used any since his

release from jail. He lived with Gaylene before his incarceration, and he intends

to live with her in the future. Kent has multiple convictions for delivery of a

controlled substance, one conviction for possession of a controlled substance

(for which he is currently on parole), and a misdemeanor conviction for

unlawfully carrying a weapon.     The controlled substance involved in these

convictions was cocaine. Kent did not complete before trial the service plan

that TDFPS prepared for him.

      The trial court granted TDFPS’s petition to terminate the parental rights

of Gaylene and Kent. The termination order reflects that the trial court found

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by clear and convincing evidence that Gaylene knowingly placed or knowingly

allowed M.C. and D.K. to remain in conditions or surroundings which

endangered their physical or emotional well-being; engaged in conduct or

knowingly placed M.C. and D.K. with persons who engaged in conduct which

endangered    their physical or emotional well-being; and constructively

abandoned M.C. and D.K. See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E), & (N)

(Vernon Supp. 2007). The trial court found that Kent knowingly placed or

knowingly allowed M.C. to remain in conditions or surroundings which

endangered her physical or emotional well-being; engaged in conduct or

knowingly placed M.C. with persons who engaged in conduct which

endangered her physical or emotional well-being; and constructively abandoned

M.C. See id. The trial court further found that termination of Gaylene’s and

Kent’s parental rights was in M.C.’s and D.K.’s best interest. 2

                          III. E VIDENTIARY S UFFICIENCY

      Both Gaylene and Kent argue that the evidence is legally and factually

insufficient to support the trial court’s family code section 161.001(1) findings,

and Kent challenges the legal and factual sufficiency of the evidence supporting




      2
       … The trial court also terminated the parental rights of Darin Keith, the
adjudicated biological father of D.K., and Jimmy Whitehead, the presumed
father of M.C. and D.K.

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the trial court’s best interest finding as to M.C.; Gaylene challenges only the

factual sufficiency of the trial court’s best interest finding.3

      A.     Standards of Review

      A    parent’s   rights   to   “the   companionship,   care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”         Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

State seeks not just to limit parental rights but to end them permanently—to

divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. T EX.

F AM. C ODE A NN . § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.




      3
       … TDFPS initially argues that we should overrule Gaylene’s first issue
because it is multifarious. Gaylene’s first issue is organized in such a way that
her specific contentions challenging the termination order are clear and
unambiguous. We thus decline to overrule her first issue for allegedly being
multifarious.

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1985). We strictly scrutinize termination proceedings and strictly construe

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

20–21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no

pet.).

         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 subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. T EX. F AM. C ODE A NN. § 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).

         Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

between the preponderance standard of ordinary civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It is defined as the “measure or degree of proof that will

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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.” T EX. F AM. C ODE A NN. § 101.007.

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction that the grounds for termination

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

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

Id. This means that we must assume that the fact-finder resolved any disputed

facts in favor of its finding if a reasonable fact-finder could have done so. Id.

We must also disregard all evidence that a reasonable fact-finder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

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

termination if a reasonable fact-finder could, and disregard contrary evidence

unless a reasonable fact-finder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the fact-finder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

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      In reviewing the evidence for factual sufficiency, we must give due

deference to the fact-finder’s findings and not supplant the verdict with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the parent violated the relevant section 161.001(1)

finding and that the termination of the parent’s parental rights would be in the

best interest of the child. C.H., 89 S.W.3d at 28. If, in light of the entire

record, the disputed evidence that a reasonable fact-finder could not have

credited in favor of the finding is so significant that a fact-finder 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.

      B.    Sufficient Evidence—Section 161.001(1)(D) and (E) Findings

      The trial court may order termination of the parent-child relationship if it

finds by clear and convincing evidence that the parent has knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child. T EX. F AM. C ODE A NN.

§ 161.001(1)(D). Endangerment is defined as exposing to loss or injury, to

jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). Under subsection (D), it is necessary to examine evidence related to

the environment of the child to determine if the environment was the source of

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endangerment to the child’s physical or emotional well-being. In re D.T., 34

S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied). To support a

finding of endangerment, the parent’s conduct does not necessarily have to be

directed at the child, and the child is not required to suffer injury. Boyd, 727

S.W.2d at 533.

      The trial court may order termination of the parent-child relationship if it

finds by clear and convincing evidence that the parent has 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. T EX. F AM. C ODE

A NN. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether

evidence exists that the endangerment of the child’s physical or emotional well-

being was the direct result of the parent’s conduct, including acts, omissions,

and failures to act. J.T.G., 121 S.W.3d at 125. Termination under subsection

(E) must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required. Id.; D.T.,

34 S.W.3d at 634.

      The specific danger to the child’s well-being may be inferred from parental

misconduct alone, including conduct that subjects the child to a life of

uncertainty and instability. Boyd, 727 S.W.2d at 533. A parent’s decision to

engage in illegal drug use during the pendency of a termination suit, when the

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parent is at risk of losing a child, supports a finding that the parent engaged in

conduct that endangered the child’s physical or emotional well-being. In re

J.A., No. 02-05-00454-CV, 2006 WL 3114434, at *5 (Tex. App.—Fort Worth

Nov. 2, 2006, no pet.) (mem. op.). Conduct that subjects a child to a life of

uncertainty and instability also 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).

      Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,

439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126. The

evidence demonstrates that Gaylene has engaged in a deliberate, continuing

course of illegal drug use, that Gaylene has a drug problem, and that Gaylene’s

and Kent’s acts and omissions have subjected M.C. and D.K. to a life of

uncertainty and instability.   Gaylene admitted to using illegal drugs—crack

cocaine—on three specific, different occasions: on or about August 9, 2006,

the day before CPS removed M.C. and D.K. from Janelle’s possession; at some

point near the final hearing before trial; and at least a month before the final

trial, which was in November 2007.4 Her use of illegal drugs has not been


      4
      … The attorney ad-litem for the children even expressed concern that
Gaylene was under the influence of some illegal substance at the time of trial.

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limited to these three instances. According to Gaylene, “there is a lot of things

that I do that I don’t do when I have my [children].” Although Gaylene testified

that she never used drugs in front of M.C. and D.K., she tacitly acknowledged

using illegal drugs while caring for them when she explained that she “might

have” been under the influence of illegal drugs at some point when she had

them. Gaylene left M.C. and D.K. with her mother, who left the children with

Janelle, who was unable to continue caring for them and called CPS. Gaylene

enrolled in an outpatient drug rehabilitation program as part of her court-ordered

services but stopped attending after a few weeks.

      Kent knows that Gaylene uses illegal drugs. He testified, however, that

she does not do drugs in front of her children and, furthermore, that she

“probably has a drug problem” when she “leave[s]” her children with her

mother, which seems to have occurred on more than one occasion. Kent lived

with Gaylene before his incarceration, he allowed M.C. to remain in Gaylene’s

care despite his knowledge of her continued, illegal drug use, and he intends to

live with Gaylene in the future. Kent was incarcerated when Janelle made her

CPS report in July 2006, and at the time of trial, he was on parole for his

possession of a controlled substance conviction.

      Viewing the evidence in the light most favorable to the finding and

judgment, we hold that a fact-finder could reasonably form a firm belief or

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conviction that Gaylene’s and Kent’s acts, omissions, or failures to act

endangered M.C.’s and D.K.’s physical or emotional well-being. See J.P.B.,

180 S.W.3d at 573.          Moreover, on the entire record, a fact-finder could

reasonably form a firm conviction or belief that Gaylene and Kent’s acts or

omissions violated by clear and convincing evidence the trial court’s section

161.001(1)(D) or (E) findings; the disputed evidence that the trial court could

not   have      credited   in   favor   of    its   section   161.001(1)(D)   or   (E)

findings—consisting primarily of Gaylene’s and Kent’s testimony that they

completed parts of the service plan and that Gaylene does not do illegal drugs

in the presence of M.C. and D.K.—is not so significant that the trial court could

not reasonably have formed a firm belief or conviction in the truth of its

findings.      See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28.               The

evidence is thus legally and factually sufficient to support the trial court’s family

code section 161.001(1)(D) or (E) findings. Because we have held that the

evidence is legally and factually sufficient to support the trial court’s section

161.001(1)(D) or (E) findings, we need not determine whether the evidence is

sufficient to support the trial court’s section 161.001(1)(N) finding. See J.L.,

163 S.W.3d at 84 (stating that Petitioner must establish only one ground listed

under subsection 161.001(1)). W e overrule Gaylene’s first issue and Kent’s

first issue.

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      C.    Sufficient Evidence—Best Interest Finding

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a).

There is also a strong presumption that keeping a child with a parent is in the

child’s best interest.    In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

Nonexclusive factors that the trier of fact in a termination case may use in

determining the best interest of the child include:

      (1)   the desires of the child;

      (2)   the emotional and physical needs of the child now and
            in the future;

      (3)   the emotional and physical danger to the child now and
            in the future;

      (4)   the parental abilities of the individuals seeking custody;

      (5)   the programs available to assist these individuals to
            promote the best interest of the child;

      (6)   the plans for the child by these individuals or by the
            agency seeking custody;

      (7)   the stability of the home or proposed placement;

      (8)   the acts or omissions of the parent which may indicate
            that the existing parent-child relationship is not a
            proper one; and

      (9)   any excuse for the acts or omissions of the parent.




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Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are

not exhaustive; some listed factors may be inapplicable to some cases; other

factors not on the list may also be considered when appropriate. C.H., 89

S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be

sufficient in a particular case to support a finding that termination is in the best

interest of the child. Id. On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding. Id.

      Here, CPS caseworker Scott Flanigan testified that M.C. and D.K. were

together in a “very good” foster home and that termination of Gaylene’s and

Kent’s parental rights was in the children’s best interest.       Considering the

evidence that Gaylene uses illegal drugs, that she used illegal drugs while caring

for M.C. and D.K., that she has not resolved her drug problem since CPS

removed M.C. and D.K., that she leaves the children with her mother or some

other person to care for them when she uses illegal drugs, and that she failed

to complete her service plan and demonstrate an ability to provide a stable

home for the children, factors including the emotional or physical danger to the

children, the emotional and physical needs of the children, and Gaylene’s acts

or omissions as a parent support the trial court’s finding that termination of

Gaylene’s parental rights to M.C. and D.K. is in their best interest.




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      As for Kent, Flanigan testified that he had concerns about returning M.C.

to Kent because Kent does not have his own place of residence, he did not

complete his service plan, and he will be on parole for another year. Kent

testified that he intended to live with Gaylene in the future, which raises the

possibility that the children would be passed off again to Gaylene’s mother or

some other individual due to Gaylene’s continued drug use. Kent also lived

with Gaylene before his incarceration, yet he allowed M.C. to remain in

Gaylene’s care knowing that she used illegal drugs.       He also has multiple

convictions involving controlled substances. Factors including the stability of

Kent’s home, his acts or omissions as a parent, and the emotional and physical

danger to the children now and in the future support the trial court’s finding

that termination of Kent’s parental rights to M.C. is in M.C.’s best interest.

      Utilizing the appropriate standards of review, we hold that the evidence

is legally and factually sufficient to support the trial court’s finding that

termination of Gaylene’s and Kent’s parental rights to M.C. and D.K. is in the

children’s best interest. See H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d

at 573; C.H., 89 S.W.3d at 28.      We overrule Gaylene’s second issue and

Kent’s second issue.




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                               IV. C ONCLUSION

      Having overruled each of Gaylene’s and Kent’s issues, we affirm the trial

court’s judgment terminating Gaylene’s parental rights to M.C. and D.K. and

terminating Kent’s parental rights to M.C.




                                             DIXON W. HOLMAN
                                             JUSTICE


PANEL A: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.

DELIVERED: June 12, 2008




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