                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-09-00076-CV

                     IN THE INTEREST OF A.S., A CHILD,



                            From the 52nd District Court
                               Coryell County, Texas
                           Trial Court No. CVPC-07-37926


                            MEMORANDUM OPINION


       Following a bench trial, the court signed an order terminating the parental rights

of Tashawna and Antoine to their daughter A.S. Tashawna and Antoine both appeal.

We will affirm the termination order.

       The natural right that exists between parents and their children is one of

constitutional dimension. In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994). A parent’s

right to “the companionship, care, custody and management” of his or her children is a

constitutional interest “far more precious than any property right.” Santosky v. Kramer,

455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (quoting Stanley v.

Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). Therefore, in a case

terminating parental rights, the proceedings are strictly scrutinized, and the involuntary
termination statutes are strictly construed in favor of the parent. Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985).

        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.” Spangler v. Tex. Dep’t of Prot. & Reg. Servs., 962 S.W.2d 253, 256

(Tex. App.—Waco 1998, no pet.). This standard is defined as “that measure or degree of

proof which 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.” Id. In a proceeding to terminate

the parent-child relationship brought under section 161.001 of the Texas Family Code,

the movant must establish by clear and convincing evidence two elements: (1) one or

more acts or omissions enumerated under subsection (1) of section 161.001 (termed a

predicate violation); and (2) that termination is in the best interest of the child. TEX.

FAM. CODE ANN. § 161.001 (Vernon 2009); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.

App.—Waco 2002, pet. denied).           The factfinder must find that both elements are

established by clear and convincing evidence, and proof of one element does not relieve

the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370

(Tex. 1976); Swate, 72 S.W.3d at 766.

                                    Tashawna’s Issues

        The trial court found two predicate violations under section 161.001(1) for

Tashawna: (1) that she engaged in conduct or knowingly placed A.S. with persons who

engaged in conduct that endangered the physical or emotional well-being of the child

(see TEX. FAM. CODE ANN. § 161.001(1)(E)); and (2) that she knowingly engaged in

In the Interest of A.S., a Child                                                     Page 2
criminal conduct that resulted in her conviction of an offense and confinement or

imprisonment and inability to care for A.S. for not less than two years from the date of

filing the petition. See id. § 161.001(1)(Q). In two issues, Tashawna challenges the legal

and factual sufficiency of the evidence to support these findings.

        Both legal and factual sufficiency reviews in termination cases must take into

consideration whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction about the truth of the matter on which the petitioner bears the

burden of proof.          In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal

sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual

sufficiency review).

        In a legal sufficiency review, a court should 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 finding was
        true. To give appropriate deference to the factfinder’s conclusions and the
        role of a court conducting a legal sufficiency review, looking at the
        evidence in the light most favorable to the judgment means that a
        reviewing court must assume that the factfinder resolved disputed facts in
        favor of its finding if a reasonable factfinder could do so. A corollary to
        this requirement is that a court should disregard all evidence that a
        reasonable factfinder could have disbelieved or found to have been
        incredible.

J.F.C., 96 S.W.3d at 266.

        In conducting a factual sufficiency review, “a court of appeals must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing.” Id.

        [T]he inquiry must be “whether the evidence is such that a factfinder
        could reasonably form a firm belief or conviction about the truth of the
        State’s allegations.” A court of appeals should consider whether disputed

In the Interest of A.S., a Child                                                        Page 3
        evidence is such that a reasonable factfinder could not have resolved that
        disputed evidence in favor of its finding. 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, then the evidence is
        factually insufficient.

Id. at 266-67 (footnotes and citations omitted).

        We begin by addressing Tashawna’s challenge to the legal and factual sufficiency

of the evidence to support the court’s finding under subsection 161.001(1)(E).

Subsection E states that the court may order termination of the parent-child relationship

if the court finds by clear and convincing evidence that the parent has engaged in

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

endangers the physical or emotional well-being of the child. TEX. FAM. CODE ANN. §

161.001(1)(E).

        To endanger means to expose to loss or injury, to jeopardize. Tex. Dep’t of Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269

(Tex. 1996). Under subsection E, the relevant inquiry is whether there was evidence

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

parent’s conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d

215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep’t of Prot. & Reg.

Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ). 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. In re S.A.P., 169




In the Interest of A.S., a Child                                                        Page 4
S.W.3d 685, 702 (Tex. App.—Waco 2005, no pet.); In re J.T.G., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.).

        While “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. Boyd,

727 S.W.2d at 533. Endangerment may include what a parent does both before and after

birth of a child. In re U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied); accord Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.]

1997, no writ).

        In this case, Tashawna testified that on February 25, 2007, she, Antoine, and

another of their children came to Texas from California. At that time, there was an open

CPS case in California, and CPS in California was attempting to locate Tashawna. On

March 24, 2007, the child was killed in Texas. Antoine pleaded guilty to the murder of

the child and was sentenced to life in prison. Tashawna was convicted of the offense of

injury to a child in connection with the child’s death and was assessed a punishment of

thirty years’ imprisonment. On December 13, 2007, approximately two months before

her conviction, Tashawna was taken from jail to the hospital, where she gave birth to

A.S. A.S. was immediately removed from Tashawna’s care at the hospital.

        Tashawna argues that the evidence is legally and factually insufficient to support

the court’s finding under subsection E because the death of her other child was a single

incident, rather than a course of conduct that endangered the well-being of A.S.

However, the above evidence is legally and factually sufficient for a reasonable

In the Interest of A.S., a Child                                                    Page 5
factfinder to form a “firm belief or conviction” that Tashawna engaged not just in a

single act or omission that endangered A.S.’s physical or emotional well-being, but in a

course of conduct that endangered A.S.’s physical or emotional well-being.

        While mere imprisonment, standing alone, does not constitute conduct

endangering the emotional or physical well-being of a child, it may contribute to a

finding that the parent engaged in a course of conduct endangering the child and

supports termination of parental rights under subsection E. Boyd, 727 S.W.2d at 533-34.

Furthermore, although Tashawna complains in her brief that there was no testimony at

the hearing that A.S. had been conceived at the time of the other child’s death, she

acknowledges that there is evidence that A.S. was born only eight months and nineteen

days after the death of the other child. A parent’s conduct with regard to other children

can be used to support a finding of endangerment even against a child who was not yet

born at the time of the conduct. In re D.T., 34 S.W.3d 625, 636-37 (Tex. App.—Fort

Worth 2000, pet. denied); see Clark v. Clark, 705 S.W.2d 218, 219 (Tex. App.—Dallas 1985,

writ dism’d) (father’s conduct in killing stepdaughter before conception of child

considered as evidence of conduct which endangered the physical or emotional well-

being of child). Thus, we overrule Tashawna’s first issue.

        Because only one predicate violation under section 161.001(1) is necessary to

support a termination judgment, we need not address Tashawna’s second issue. See

TEX. R. APP. P. 47.1; In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet.

denied).



In the Interest of A.S., a Child                                                   Page 6
                                     Antoine’s Issue

        In his sole issue, Antoine contends that the trial court erred in appointing the

Department of Family and Protective Services (DFPS) as permanent managing

conservator of A.S. when a qualified relative was willing and able to care for the child.

However, Antoine lacks standing to assert this complaint because he does not contest

the termination of his parental rights.

        Because Antoine did not appeal the trial court’s findings terminating his parental

relationship with A.S., he is bound by those findings. Antoine has thus become a

former parent with no legal rights with respect to A.S. See TEX. FAM. CODE ANN. §

161.206(b) (Vernon 2009) (“[A]n order terminating the parent-child relationship divests

the parent and the child of all legal rights and duties with respect to each other, except

that the child retains the right to inherit from and through the parent unless the court

otherwise provides.”). Having no legal rights with respect to A.S., Antoine has no

standing to attack that portion of the termination order appointing DFPS as permanent

managing conservator of A.S. See In re H.M.M., 230 S.W.3d 204, 204-05 (Tex. App.—

Houston [14th Dist.] 2006, no pet.) (holding mother did not have standing to appeal

post-termination custody decision when she did not appeal the termination of her

parental rights); see also In re R.A., No. 07-08-0084-CV, 2009 WL 77853, at *2 (Tex. App.—

Amarillo Jan. 13, 2009, no pet.) (mem. op.); In re S.M.C., No. 07-04-0429-CV, 2005 WL

441538, at *1 (Tex. App.—Amarillo Feb. 25, 2005, no pet.) (mem. op.). We overrule

Antoine’s sole issue.



In the Interest of A.S., a Child                                                    Page 7
                                      Conclusion

        We affirm the termination order.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
        Justice Reyna, and
        Justice Davis
        (Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s judgment. He does not join the opinion, and disagrees with the statement
that Section 161.001(1)(E) must, in all cases, be based on more than a single act or
omission. I could imagine single acts sufficient for termination. A separate opinion will
not issue.)
Affirmed
Opinion delivered and filed October 28, 2009
[CV06]




In the Interest of A.S., a Child                                                   Page 8
