                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00263-CV


IN THE INTEREST OF M.H., II, A
CHILD




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          FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
                    TRIAL COURT NO. CIV-14-0611

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   CONCURRING AND DISSENTING MEMORANDUM OPINION1

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      I agree that the evidence was legally and factually sufficient to support the

trial court’s judgment terminating Father’s parental rights and, therefore, concur

in that portion of the opinion. But I must dissent from the majority’s conclusion

that the evidence was factually insufficient to support the termination of Mother’s

parental rights on endangerment grounds.


      1
       See Tex. R. App. P. 47.4.
      This is not a case where the evidence shows a long history of neglect,

abuse, or violence clearly directed at a child from the parent whose rights were

terminated.   But the absence of such direct evidence does not foreclose

termination of parental rights. See In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.

App.—Fort Worth 2009, no pet.) (op. on reh’g) (recognizing parent’s conduct

does not necessarily have to be directed at child, nor is child required to suffer

injury, to support termination based on endangerment).               Under section

161.001(b)(1)(D) and (b)(2), a parent’s rights may be terminated if that 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”

and if termination is in the child’s best interest.       Tex. Family Code Ann.

§ 161.001(b)(1)(D), (2) (West Supp. 2015).2 Although section 161.001(b)(1)(D) is

not grounds for termination if a parent is entirely unaware of the endangering

environment, it is enough if the parent was aware of the potential for danger to

the child in the environment, yet disregarded that risk. See In re S.M.L., 171

S.W.3d 472, 477–78 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (collecting

cases); see also M.R.J.M., 280 S.W.3d at 502–05 (concluding evidence was

factually sufficient to support termination of Father’s rights under subsection D

when Father allowed child to remain with Mother because Father disregarded the


      2
      Because the 2015 amendments to section 161.001 did not operate to
amend the substance of the grounds upon which a termination of parental rights
may be based, I will cite to the current version of the statute as does the majority.

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potential for an endangering environment with Mother based on Father’s

knowledge of Mother’s past drug abuse). Domestic violence, lack of self-control,

and a propensity for violence may be considered as evidence of an endangering

environment. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.]

2003, no pet.). A child’s environment includes the parents’ conduct in the home.

In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ).            It

follows, therefore, that inappropriate or abusive conduct by a person living in the

home with the child or with whom the child is compelled to associate on a regular

basis is considered to be part of the child’s environment. See In re J.L.W., No.

02-08-179-CV, 2008 WL 4937970, at *6 (Tex. App.—Fort Worth Nov. 20, 2008,

no pet.) (mem. op.).

      In this case, Amanda Rodriguez, Mother and Father’s conservatorship

worker, testified that although Mother was concerned with how Father treated

M.H., she was not willing to protect him from Father. Rodriguez warned Mother

and Father that their explanation for M.H.’s broken rib was improbable, that the

perpetrator had to be either Mother or Father, and that their parental rights were

in danger of being terminated. Even so, Mother continued to stay with Father,

which as Rodriguez recognized, meant Mother was not willing to leave Father

even if she knew Father had broken M.H.’s rib. Rodriguez testified that based on

her work on the case, Mother knowingly allowed M.H. to remain in conditions or

surroundings that endangered M.H.’s physical or emotional well-being.



                                        3
      Mother and Father’s family therapist, Jill Bounds, testified that at their joint

sessions, Father was listening to music on his headphones, had his eyes closed,

and was “not really engaged.” Mother told Bounds that she was not “a hundred

percent sure her husband [broke M.H.’s rib], or didn’t do it,” but that she would

believe Father. Bounds stated that based on Mother’s actions, she concluded

that Mother would “stand by her man” even though Mother had concerns about

Father’s potential danger to M.H. Bounds affirmed that Father’s behavior created

an environment of fear and had a detrimental effect on Mother and M.H. She

was concerned for M.H.’s safety based on Father’s behavior.

      Mother was aware Father twice tested positive for drugs and also knew

that Father refused to take further drug tests.3 Mother knew it was possible that

Father broke M.H.’s rib but never showed that she would or was willing to protect

M.H. from Father. During one argument between Mother and Father, Mother

testified that she had to ask Father to touch M.H. “a little bit more gently.” Mother

consistently made excuses for Father’s behavior. Mother sustained a head injury

as a passenger in a car Father “flipped” three times while speeding based on a

dare by Father’s friend who was also in the car. Mother jokingly acknowledged


      3
        The fact that “whether [Father] was still using anything stronger [than
marijuana] was speculation” does not detract from the fact that Mother was
aware Father was using illegal drugs, that she stated she would leave Father if
he used illegal drugs, and that she continued to stay with Father regardless. I
disagree with the majority’s implicit holding that marijuana use alone cannot rise
to the level of endangerment but that perhaps use of another, “stronger” illegal
drug would.

                                          4
that Father probably would have acted the same way even if M.H. had been in

the car with them, but was not otherwise concerned about the incident. Father

had anger-management problems and would punch holes in the walls of the

home he shared with Mother and M.H. Father dented a steel door during one

incident. Mother’s only response to these incidents was thankfulness that he

repaired the damages. Mother recognized that her insistence that M.H.’s rib was

broken while out of their care—even though the medical evidence established

that the injury could not have occurred at a time M.H. was in the care of others—

was because she did not want to believe that Father did it. As the majority states

regarding the sufficiency of the evidence to terminate Father’s parental rights,

Mother’s “response to the injury of [M.H.] was one of avoidance of responsibility.”

      When Mother was asked why she stayed with Father, Mother said she

could not “see him physically harming his kid” and that “they have no evidence

against him.” Mother knew how to separate herself and M.H. from endangering

circumstances. For example, Mother would not allow Father’s friend to live with

them any longer after she discovered he was using drugs in their home. But

Mother never asked Father to leave the home even though she was aware of his

drug use. Mother further stated that even though Father acted before thinking, it

would “depend[ ] on the situation” whether that behavior would endanger M.H.

Early in the termination proceedings, M.H.’s attorney ad litem told Mother that

M.H. could be returned to her care if she left Father. Mother replied that she



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could not do that. Mother admitted that she “felt like [she] failed [M.H.] by not

protecting him.”

      Even though Mother testified that she would leave Father to keep M.H.,

Mother never did so. Even though Mother continually asserted that Father could

not have harmed M.H. and that a toddler broke M.H.’s rib while out of their care,

the medical evidence rendered this theory implausible.      Even though Mother

could not “see [Father] hurting his kid,” she knew Father had anger issues, could

not control his impulses, was not gentle with M.H., and used drugs. Mother

admitted she informed M.H.’s attorney ad litem that she could not leave Father

even if it meant she could not keep M.H. This is the very definition of factually

sufficient evidence: the disputed evidence allowed a reasonable fact-finder to

form a firm belief or conviction that Mother was aware that placing M.H. in an

environment with Father had at least the potential of endangering M.H.’s physical

or emotional well-being, but disregarded this risk. See, e.g., In re M.C., No. 04-

14-00893-CV, 2015 WL 3616108, at *4–5 (Tex. App.—San Antonio June 10,

2015, pet. denied) (mem. op.); In re E.M., No. 10-14-00313-CV, 2015 WL

3485317, at *6–9 (Tex. App.—Waco May 28, 2015, pets. denied); In re A.D.C.,

No. 02-13-00149-CV, 2013 WL 5517904, at *12–13 (Tex. App.—Fort Worth Oct.

3, 2013, no pet.) (mem. op.); Jordan v. Dossey, 325 S.W.3d 700, 721–22 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). See generally In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006) (discussing factual-sufficiency review).          Our

deferential review of the evidence and section 161.001(b)(1)(D) require nothing

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more. Although “the termination of Mother’s parental rights to [M.H.] is tragic,”

which appears to have informed the majority’s conclusion, I “cannot conclude it is

erroneous.” In re K.T., No. 02-14-00392-CV, 2015 WL 3460979, at *18 (Tex.

App.—Fort Worth May 28, 2015, no pet.) (mem. op.).

      Because the majority concludes otherwise, I respectfully dissent.




                                                  /S/ Lee Gabriel
                                                  LEE GABRIEL
                                                  JUSTICE

DELIVERED: February 5, 2016




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