                                    NO. 07-00-0367-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                FEBRUARY 26, 2002
                          ______________________________

                                In re H. R. S., a Child
                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

                   NO. 55,100-2; HON. DELWIN McGEE, PRESIDING
                        _______________________________

Before Boyd, C.J., Quinn, and Johnson, JJ.

       Appellants James Edward Swanson (James) and Orville James Swanson (Orville)

appeal from an order entitled “Order of Termination.” Therein, the trial court terminated

the parent / child relationship between James and H.R.S. and the possessory

conservatorship of Orville over the same child. The four issues presented to us concern

the legal and factual sufficiency of the evidence underlying the decisions. We affirm.

          Issues One and Three — Engaged in Conduct Endangering and
                          the Best Interests of the Child

       The trial court found, among other things, that James “engaged in conduct . . .

which endanger[ed] the physical or emotional well-being of” H.R.S. and “failed to support

the child in accordance with the parent’s ability during a period of one year ending within

six months of the date of the filing of the petition.” So too did it conclude that terminating

the parent / child relationship between James and H.R.S. would be in the best interests
of the child. For these reasons, the relationship was terminated. James contends that

none of the aforementioned findings enjoyed sufficient evidentiary basis. We disagree.

       Standard of Review

       The applicable standards of review were discussed in In re M.D.S., 1 S.W.3d 190

(Tex. App.--Amarillo 1999, no pet.) and In re R.D.S., 902 S.W.2d 714 (Tex. App.--Amarillo

1995, no writ). We refer the litigants to them for an explanation of those standards.

       Application of Standard

       1.     Endangerment

       A trial court may terminate the parent / child relationship upon receipt of evidence

which clearly and convincingly illustrates that the parent “engaged in conduct . . . which

endangers the physical or emotional well-being of the child” and that termination furthers

the best interests of the child. TEX . FAM . CODE ANN . §161.001(1)(E) & (2) (Vernon Supp.

2002). Proof of the commission of violent or negligent conduct directed at another parent

or another child, even though not committed in the child’s presence, demonstrates such

conduct. In re B.R., 950 S.W.2d 113, 119-20 (Tex. App.--El Paso 1997, no writ) (wherein

the father murdered the mother).

       Here, the trial court had before it evidence that: 1) James was on probation for

burglary when he committed several acts of arson, to which acts he admitted; 2) the acts

consisted of setting fire to his house and that of his neighbor on separate occasions; 3) at

the time the acts were committed, he knew that one or more occupants of the house were

present therein; 4) the person occupying his house at the time was his stepdaughter; 5)




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he realized he could have killed his stepdaughter; 6) he did not know why he set the fires;

7)




he has not received counseling with regard to his acts of arson; and, 8) he could not say

that had H.R.S. been in the house at the time he contemplated the arson he would have

acted differently. Intentionally setting fire to several homes while 1) knowing that one

holds your stepdaughter and the other your neighbors, 2) not knowing why you did so, and

3) failing to seek counseling thereafter, is clear and convincing evidence of a course of

conduct endangering H.R.S.’ well-being.

       That H.R.S. was not present when the arson occurred matters not for several

reasons. First, James was unable to say that had she been within the home he would

have acted differently. Not knowing whether her presence would have affected his

conduct hardly suggests that she was somehow insulated from it. Second, one need not

prove that the misconduct creating the danger was directed at the child or that the child

actually suffered injury to succeed in terminating parental rights. Texas Dep’t of Human

Serv. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It is enough that the evidence illustrated

a course of conduct endangering the physical or emotional well-being of the child. Id.

And, committing several acts of arson knowing that the homes were occupied at the time

by neighbors and one’s own stepchild has such an effect.

       2.     Best Interests




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        As to the best interests of H.R.S., we again refer to the evidence of arson, James’

apparent disregard for the life of those in the houses, and his inability to suggest that

H.R.S.’ presence would have affected his conduct in any way. To this we had evidence

of James’ historic inability or failure to financially support the child as ordered by the court,



his failure to regularly visit the girl (who resided in San Antonio at the time of trial), his

failure to maintain medical insurance covering the child, and H.R.S.’ stability at her current

home. Combined, that evidence provides ample basis upon which a trial court could have

found, clearly and convincingly, that termination of the parent / child relationship was in

the best interests of H.R.S.            See Holley v. Adams, 544 S.W.2d 367, 372 (Tex.

1976)(holding as informative when assessing the child’s best interest such factors as the

emotional and physical needs of the child now and in the future, the parental abilities of

the individuals seeking custody, the plans for the child by those seeking custody, the

stability of the home environment both past, present and future, the acts or omissions of

the parent, and any excuse for the acts or omissions of the parent).

        Conclusion

        Thus, in perusing the record only for evidence supporting the trial court’s decision,

we find ample evidence. And, when that evidence is compared to the remaining portions

of the record, we cannot say that the decision to end the parent / child relationship was

wrong. So, we reject the contentions regarding the legal and factual sufficiency of the

evidence.1

        1
         Holding as we do relieves us from having to address issue two, i.e. that the evidence was both
legally and factually insufficient to uphold the finding that James failed to support his daughter. This is so
because either ground, if supported by the evidence, permitted termination. And, having already held that

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                  Issue Four — Modification of Possessory Conservator

        Next, Orville contends that the trial court abused its discretion in nullifying his status

as a possessory conservator. This is allegedly so because the evidence fails to support

the finding that continuation of the appointment would endanger the physical or emotional

welfare of the child.2 We overrule the issue.

        Standard of Review

        One’s status as possessory conservator can be altered for various reasons. They

include, among other things, a material and substantial change in circumstances of the

child or conservator since initial appointment or 2) the existence of circumstances which

render the conservatorship unworkable or inappropriate.                           TEX . FAM . CODE ANN .

§156.301(1) & (2). Furthermore, the decision to so alter that status is reviewed under the

standard of abused discretion. In re Chandler, 914 S.W.2d 252, 253 (Tex. App.--Amarillo

1996, no writ). And, whether discretion is abused depends upon whether the court acted

without reference to any guiding rules and principles. Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990). So, as long as the decision enjoys support in law and fact, it cannot

be considered an abuse of discretion. Finally, because the standard is one of abused

discretion, our review is not limited to determining whether the reasons proffered by the

court to justify its decision were accurate. Rather, we may affirm the decision if other




one did, we need not consider the other.
        2
         In its findings of fact and conclusions of law, the trial court stated that the “appointment” of Orville
as possessory conservator would not be in the best interests of the child. He had already been appointed
and held that status at time of trial. Thus, reference to his “appointment” was inaccurate. Nevertheless, we
view the error to be nothing more than typographical in nature given that Orville was a possessory
conservator and the state sought the termination of that custodial status.

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grounds illustrate it to be correct.     Buls v. Fuselier, 55 S.W.3d 204, 208 (Tex.

App.–Texarkana 2001, no pet.).

       Application

       Appearing of record is evidence that since the rendition of the initial possession

order 1) William Corder (Orville’s stepson with whom Orville regularly visits) confessed to

murdering H.R.S.’s mother, 2) Orville’s wife, Kathy, committed and admitted to shoplifting,

3) Orville and Kathy either underwent or are undergoing psychological treatment, 4) Orville

and Kathy were prescribed medication to alleviate mental or emotional problems, and 5)

the parental rights of James have been terminated. So too did the trial court hear and

receive evidence indicating that during the exercise of Orville’s visitation, H.R.S. 1)

appeared frightened when she saw him, 2) was reluctant to start visiting with him, 3)

seemed confused, and 4) cried after the visits. Finally, testimony imparted by Kathy could

lead one to reasonably infer that she and Orville desired custody to enhance James’

opportunity to see H.R.S. These are indicia upon which the trial court could have

concluded that the termination of Orville’s status as a possessory conservator was in the

best interests of H.R.S. Thus, the trial court’s decision was not an example of abused

discretion.

       Accordingly, we affirm the Order of Termination.



                                                               Brian Quinn
                                                                  Justice



Do Not Publish.


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