                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION

                                               No. 04-18-00249-CV

                                         IN THE INTEREST OF C.W.

                      From the 407th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2016PA02259
                     Honorable Charles E. Montemayor, Associate Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 29, 2020

AFFIRMED

           On September 19, 2018, this court issued an opinion and judgment affirming the trial

court’s order terminating Appellant Mother Ana’s parental rights. 1 See In re C.W., 594 S.W.3d

360 (Tex. App.—San Antonio 2018), aff’d in part, rev’d in part, 586 S.W.3d 405 (Tex. 2019).

The trial court had terminated Ana’s parental rights based on multiple grounds found in the Texas

Family Code: section 161.003(a) (mental illness or deficiency), section 161.001(b)(1)(D)

(dangerous surroundings or conditions), section 161.001(b)(1)(N) (constructive abandonment),

and section 161.001(b)(1)(O) (failure to comply with a court-ordered plan for return of the child).

See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (N), (O), 161.003(a). The trial court also found



1
 To protect the identity of the minor children, we refer to the parties by fictitious names, initials, or aliases. See TEX.
FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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that termination was in the child’s best interest. See id. §§ 161.001(b)(2), 161.003(a)(5). On appeal

in this court, Ana argued that none of the above findings made by the trial court were supported

by legally and factually sufficient evidence. Because only one statutory ground is necessary to

support a judgment terminating parental rights when there is also a finding that termination is in

the child’s best interest, see In re A.V., 113 S.W.3d 355, 362 (Tex. 2003), this court reached only

two of Ana’s issues: (1) whether the evidence was legally and factually sufficient to support the

trial court’s best-interest finding, and (2) whether the evidence was legally and factually sufficient

to support the trial court’s finding pursuant to subsection (O) that Ana failed to comply with her

court-ordered service plan. See In re C.W., 594 S.W.3d 362-64. This court held that there was

legally and factually sufficient evidence to support both the trial court’s best-interest finding and

the trial court’s finding pursuant to subsection (O). See id. at 362. On October 29, 2018, Ana filed

a petition for review in the supreme court, asserting that this court erred in (1) upholding the trial

court’s finding that termination was in the child’s best interest; and (2) failing to address her

subsection (D) issue. See In re C.W., 586 S.W.3d at 406.

       On May 17, 2019, the supreme court held in In re N.G., 577 S.W.3d 230, 235 (Tex. 2019),

that “even when another ground is sufficient for termination, because of the potential consequences

for parental rights to a different child,” if a parent presents issues on appeal relating to the trial

court’s findings pursuant to subsections (D) and (E), an appellate court must address those issues.

Then, on October 18, 2019, the supreme court issued an opinion in the instant appeal. See In re

C.W., 586 S.W.3d at 405-06. Because the trial court’s subsection (D) finding could affect Ana’s

“parental rights to other children under section 161.001(b)(1)(M),” the supreme court held this

court erred in failing to address Ana’s “challenge to the section 161.001(b)(1)(D) finding.” Id. at

407. With regard to the other issue brought in the supreme court by Ana, whether this court erred

in upholding the trial court’s best-interest finding, the supreme court stated this court had


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“thoroughly detailed and analyzed the evidence,” and agreed “the evidence was legally sufficient

to uphold that termination of the mother’s rights was in the child’s best interest.” Id. Accordingly,

the supreme court affirmed in part and reversed in part our judgment and remanded the case to this

court to consider Ana’s challenge to the trial court’s subsection (D) finding. See id.

        We note that (1) because Ana did not challenge in the supreme court this court’s holding

that sufficient evidence supported the trial court’s finding pursuant to subsection (O), and (2)

because the supreme court has upheld our determination that the evidence was sufficient to support

the trial court’s best-interest finding, the trial court’s order terminating her parental rights must be

affirmed. See In re N.G., 577 S.W.3d at 232 (“To affirm a termination judgment on appeal, a court

need uphold only one termination ground—in addition to upholding a challenged best interest

finding—even if the trial court based the termination on more than one ground.”). Thus, we need

consider only whether the trial court’s finding pursuant to subsection (D) should be stricken from

the order.

                         ENDANGERMENT PURSUANT TO SUBSECTION (D)

        Subsection (D) allows termination of parental rights if the trial court 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.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Under subsection (D), the trial court examines

“evidence related to the environment of the children to determine if the environment was the source

of endangerment to the children’s physical or emotional well-being.” In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.). “Conduct of a parent in the home can create an

environment that endangers the physical and emotional well-being of a child.” Id. “For example,

abusive or violent conduct by a parent or other resident of a child’s home may produce an

environment that endangers the physical or emotional well-being of a child.” Id. “Parental and


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caregiver illegal drug use and drug-related criminal activity likewise supports the conclusion that

the children’s surroundings endanger their physical or emotional well-being.” Id. “A child is

endangered when the environment creates a potential for danger that the parent is aware of but

consciously disregards.” In re C.J.G., No. 04-19-00237-CV, 2019 WL 5580253, at *2 (Tex.

App.—San Antonio Oct. 30, 2019, no pet.) (mem. op.) (quoting In re S.R., 452 S.W.3d 351, 360

(Tex. App.—Houston [14th Dist.] 2014, pet. denied)). “[A] parent need not know for certain that

the child is in an endangering environment, awareness of such a potential is sufficient.” Id. (quoting

In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.)). “In evaluating

endangerment under subsection D, we consider the child’s environment before the Department

obtained custody of the child.” Id. at *3 (emphasis added) (citation omitted).

       On appeal, Ana argued that the trial court’s finding pursuant to subsection (D) was not

supported by legally and factually sufficient evidence. In reviewing the legal sufficiency of the

evidence to support the trial court’s best-interest finding, we 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.” In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)

(quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In reviewing the factual sufficiency of the

evidence, we consider disputed or conflicting evidence. Id. at 345. “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. (quoting In re J.F.C., 96 S.W.3d at 266). Under these

standards, the trial court is the sole judge of the weight and credibility of the evidence. Id.

                                    Evidence of Endangerment

       In late September 2017, the Department received information alleging that Ana was

prostituting her fourteen-year-old daughter, C.W., and that they were homeless. At the time the


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Department received this referral, C.W. had been reported missing; she was not found until

November 2, 2017. Robert Rangel, the Department’s caseworker, testified that C.W. was removed

from Ana’s care because of safety concerns. The Department was able to identify C.W.’s father

and eventually communicate with him by phone. The father indicated he had no relationship with

C.W. and had not seen her for eight years. During the pendency of the case, he made no attempts

to become involved in C.W.’s life and had no contact with her. As for Ana, Rangel testified that

at the time of trial, the Department was concerned about Ana’s mental health status, her inability

to provide safe and stable housing, and her inability to provide a safe environment for C.W.

According to Rangel, through therapeutic services, C.W. was able to explain that she did not want

to live with her mother and wished instead to remain in the foster home where she had been placed.

Rangel testified C.W. was doing well in school and had a good bond and attachment with her

caregivers. Similarly, the ICU worker 2 testified that C.W. was relaxed and comfortable with her

caregivers, that she was bonded and attached to them, and that she wished to remain under their

care until she reached the age of majority. The ICU worker testified that the caregivers were also

attached and bonded with C.W. and expressed their wish for C.W. to remain with them.

           Although C.W. did not fully disclose to Rangel the extent to which C.W. would engage in

“friendships” with older males to help her mother, Rangel was able to testify about the lack of

stable housing and exposure to domestic violence that C.W. had endured under Ana’s care. Rangel

testified that while living in Mesquite, Texas, Ana and C.W. had been evicted from an apartment

and were homeless for a while. They then lived in a homeless shelter but were “kicked out” because

of a fight between C.W. and Ana’s paramour. After relocating to San Antonio, they lived on the

streets for approximately two months. They eventually sought shelter at Haven for Hope but were



2
    Although not expressly stated, the record indicates that the ICU worker is a social worker.


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not allowed to stay because of the violent history between C.W. and Ana’s paramour. Ana could

have chosen to separate from her paramour so that she and C.W. could seek shelter at Haven for

Hope, but she refused. By choosing to stay with a paramour who had violent interactions with

C.W., Ana showed an inability to be protective of C.W. Ana knowingly remained in a situation

that would continue to endanger C.W. and that precluded Ana and C.W. from obtaining shelter.

Indeed, the history of Ana’s relationships showed that she would choose a paramour over C.W.,

which had a detrimental emotional impact on her daughter. Rangel testified that after C.W. came

into the Department’s care, Ana moved to Houston where she continued to be homeless. As of the

trial date, Rangel did not believe Ana had ever established a safe environment appropriate for her

child. According to Rangel, Ana was never able to provide documentation verifying she had

complied with her plan of service, which included the following: seeing a psychiatrist; following

through with a mental health evaluation and treatment; and completing NAMI classes, parenting

classes and individual counseling. Rangel testified that Ana posed a threat to her child if C.W.

were to be returned to her. According to Rangel, Ana had pressured C.W. during the pendency of

this case to tell the judge that C.W. wanted to return to Ana’s care. C.W., however, informed

Rangel that she did not want to live with her mother. Rangel testified because of this pressure Ana

had placed on C.W., C.W. had suffered a recent “breakdown” and had begun acting out with her

caregivers.

       Rangel testified that by failing to complete her service plan and by continuing to make poor

choices throughout the pendency of the case, Ana and C.W.’s relationship had become “toxic.”

Rangel did not believe that Ana was able to make rational decisions on behalf of her child, be

protective of her, or provide her a safe and stable environment.

       In arguing that the evidence is legally and factually insufficient to support the trial court’s

finding under subsection (D), Ana merely points to the fact that she is no longer with her paramour.


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The trial court, however, could have concluded from all the evidence that Ana had a history of

choosing her paramours over her children, that there was evidence C.W. had to engage in

“friendships” with men due to her mother’s insistence, that Ana would not be protective of C.W.

in the future based on her past choices, and that Ana was incapable of providing C.W. with a safe

and stable environment. See In re J.T.G., 121 S.W.3d at 125. Therefore, in considering the entire

record, we conclude the evidence is legally and factually sufficient to support the trial court’s

finding that Ana “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); see also In re C.J.G., 2019 WL 5580253, at *2 (stating that a “child is

endangered when the environment creates a potential for danger that the parent is aware of but

consciously disregards”).

                                           Conclusion

       The trial court’s order terminating Ana’s parental rights is affirmed.

                                                 Liza A. Rodriguez, Justice




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