Opinion filed August 13, 2009




                                               In The


   Eleventh Court of Appeals
                                             __________

                                      No. 11-09-00033-CV
                                           ________

               IN THE INTEREST OF D.S. AND D.J.U., CHILDREN


                            On Appeal from the 323rd District Court

                                      Tarrant County, Texas

                              Trial Court Cause No. 323-87554-J-08


                             MEMORANDUM OPINION
        In this appeal, appellant A.W. contends the trial court erred in terminating her parental rights
to her minor children D.S. and D.J.U. In doing so, she presents four issues for our determination.
In the first three issues, she asserts the evidence was factually insufficient to show (1) that she
knowingly placed or allowed the children to remain in conditions that endangered the physical or
emotional well-being of the children, (2) that she engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the physical or emotional well-being
of the children, and (3) that the termination of the parent-child relationship between herself and her
sons was in her sons’ best interest. In the fourth issue, she argues that TEX . FAM . CODE
ANN . § 263.405(i) (Vernon 2008) violates the separation of powers provision of Article II, section 1
of the Texas Constitution. Disagreeing that reversible error exists, we affirm the judgment of the
trial court.
        In any consideration as to the validity of a termination of parental rights, a reviewing court
must bear in mind that the natural right existing between a parent and child is of constitutional
dimension and that a termination of that right interferes with a fundamental constitutional right.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).
Consequently, termination proceedings should be strictly construed in favor of preserving the
relationship. Holick, 685 S.W.2d at 20. Parental rights are so important that, for a trial court to
terminate those rights, there must be clear and convincing evidence that establishes one statutory
ground for the termination and that termination is in the child’s best interest. TEX . FAM . CODE
ANN . § 161.001 (Vernon 2008); Holick, 685 S.W.2d at 20. The “clear and convincing evidence”
requirement is statutorily defined as “the measure or degree of proof that 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.” TEX . FAM . CODE ANN . § 101.007 (Vernon 2008).
        In considering factual sufficiency, we must give “due consideration” to any evidence the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002). This means that we must look at the disputed evidence and determine if a reasonable
factfinder could have resolved that evidence in favor of the finding. The evidence is factually
insufficient 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 the factfinder could not have reasonably
formed a reasonable belief or conviction. Id. A proper application of this rather complicated
mandate requires us to review the rather extensive evidence in some detail.
        A.W. is the mother of D.C., D.W, De.S, D.S., and D.J.U. D.C. lives with A.W.’s mother,
and A.W. voluntarily relinquished her rights to D.W. and De.S in a previous termination case. This
case we are reviewing concerns the termination of A.W.’s parental rights to D.S. (originally A.W.
did not remember his date of birth but, when prompted, agreed it was April 14, 2003) and D.J.U.
(born March 19, 2007). Shortly before the trial, A.W. lost a sixth son when her pregnancy was
terminated at five months.
        At the time of the October 2008 trial, A.W. said that she was currently living at the Budget
Suites in Tarrant County with R.M. and that she had lived with him off and on for about three years.
She had been employed as a topless dancer. She admitted that W.S. (the father of D.S. and De.S.)
was a registered sex offender as was the father of D.J.U. and the father of D.C.

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       A.W. lived with W.S. for a period of three and one-half years. During that period, he had
physically abused her. He had also had unsupervised contact with A.W.’s children, three of whom
had made an outcry of physical abuse against him. In 2005, W.S. left with D.S, went to Michigan,
and had the boy in his care until January 2006. Although A.W. went to Michigan for a week in an
effort to get D.S. back, W.S. would not give possession of the child to A.W. He did promise to
return D.S. when the summer was over, but he did not do so. A.W. also admitted that W.S. was a
drug addict who left D.S. with “whomever” and that, on the telephone, he would tell her that D.S.
was in “random” places. This concerned her, but she never really did anything about the situation.
She testified that, when D.S. was finally returned to her, he was violent, sexually active, skinny, and
bruised and “stunk like urine.”
       The father of D.J.U. had been incarcerated in the Texas Department of Criminal Justice since
2006 after his parole for indecency with a child was revoked. A.W. denied ever actually living with
D.J.U.’s father and denied that he ever told her he was a sex offender. She also denied that she
conceived D.J.U. after learning that J.U. was a sex offender. CASA worker Toni Taylor voiced
concerns to A.W. about the safety of the children around J.U. because he was a convicted sex
offender, but A.W. said that she did not bring the boys around him and that she wanted the worker
to meet J.U.
       In October 2006, A.W. met R.M. at a Wal-Mart store, began a relationship with him, and had
been “[p]retty much” with him since that time. R.M. had a felony drug possession conviction for
which he was on probation during at least part of the time period with which this case is concerned.
In September 2007 and in the summer of 2008, the Department of Family and Protective Services
(the Department) investigated referrals for domestic violence between R.M. and A.W.
       On December 1, 2007, when D.S. was four years old and D.J.U. was about nine months old,
A.W. found D.S. under the covers in D.J.U.’s crib straddling D.J.U. face to face. The baby was
naked, and D.S. had his clothes on. A.W. admitted that she thought D.S. was trying to have some
kind of sexual contact with D.J.U. and that he was “experimenting.” She spanked D.S. and did
nothing further until she sought help through Catholic Charities later in the month.
       Pursuant to a recommendation from Catholic Charities, A.W. took D.S. to Cook Children’s
Medical Center who transferred the child to a Dallas residential treatment center. However, because
she thought he was being mistreated, A.W. removed the boy from that facility shortly thereafter.

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Inasmuch as that removal was against the medical advice of the center and because of a concern
about D.S. trying to have sex with D.J.U., the Department received a referral from the center
accusing A.W. of neglectful supervision and medical neglect.           Noting these concerns, the
Department set up a safety plan for R.M.’s mother to take D.S., for D.J.U. to stay with A.W., and
for A.W. to follow through with a mental health evaluation and treatment for D.S.
       On January 2, 2008, R.M.’s mother placed D.S. in a psychiatric hospital. The evidence
showed that, while there, he played out sexual games that allegedly had occurred between him and
A.W. While in the hospital’s dayroom, he licked a teddy bear’s crotch area and told a staff member
that A.W. would suck his “pee-pee,” that it hurt, that he would lick A.W.’s “woo-woo,” and that
R.M. would stick his “big pee-pee” in D.S.’s mouth.
       In light of this testimony, another referral was made to the Department that resulted in its
conclusion that A.W. had sexually abused and neglectfully supervised both D.S. and D.J.U. and that
R.M. had sexually abused D.S. Because of these conclusions, the Department took custody of both
D.S and D.J.U. on January 10, 2008. At that time, D.J.U. was nine months of age, was underweight,
and had strep throat, an ear infection, and a temperature of 103 degrees. A.W. denied that the child
was underweight at the time and opined that he was chubby. She admitted that she was aware that
D.J.U. may have missed some of his shots but said that the child had shots in the hospital when he
was born and another set at his six-week checkup. A.W. averred that she did not know where to get
the shots and that she did not have a regular pediatrician. She opined that it was not important for
her children to get the shots because they got violently sick afterward. She also denied that D.J.U.
was ever sick while in her care. She said that she was in a position to take care of D.J.U. and that
she could handle him “just fine.”
        The Department immediately placed D.J.U. in a foster home, while D.S remained in the
psychiatric hospital until he was placed at the All Church Home for Children, a residential treatment
center for children with emotional issues. Parenthetically, the Department asserts that no suitable
suggestion for relative placement was provided by any of the parents of the children.
       The record reveals testimony that, from the time D.S. was moved to the All Church Home
for Children, he acted out sexually, had no personal social skills or boundaries, and was physically
and verbally abusive toward both children and adults. Therapy testimony was that D.S. acted out
sexual abuse, displayed anxiety, and was hypervigilant.

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        A.W. testified that she and R.M. were no longer together. She said that she had worked at
a dance club the night before the trial but, prior to that time, had not worked for two to two and one-
half months due to her pregnancy. She denied that R.M. was currently on probation, although she
acknowledged that he had been so in the past.
        The Department testimony was that, throughout the pendency of the case, the Department
notified A.W. of the requirements of her service plan and maintained contact with her. The service
plan required weekly visits with D.J.U., individual counseling, a psychological evaluation and follow
through with any recommendations made, random drug tests, parenting classes, proof of appropriate
housing, and gainful employment. The plan was similar to one she had been given a couple of years
before. Because of A.W.’s limited compliance with the service plan, the Department advised her
that it intended to seek termination of her parental rights if she did not follow the plan more closely.
She did not do so. Moreover, D.S. had psychological problems beyond that which A.W. could
handle. Based upon this, it was the Department’s recommendation that he not be returned to A.W.
but remain in a facility like the All Church Home for Children where he could receive the treatment
he needed. D.J.U. was doing well in foster care and had thrived there, and the Department felt it was
in the best interest of D.J.U. that he remain there.
        By virtue of Section 161.001(1)(D), a trial court may order termination of an individual’s
parent-child relationship if it finds by clear and convincing evidence that the person has knowingly
placed or knowingly allowed the child to remain in conditions or surroundings that endanger the
emotional or physical well-being of the child. Under that subsection, we are required to examine
evidence related to the environment of the child to determine if that environment was the source of
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). The phrase “conditions or surroundings” refers only to the
acceptability of the child’s living conditions and does not concern the parent’s conduct toward the
child. In re D.J.J., 178 S.W.3d 424, 429 (Tex. App.—Fort Worth 2005, no pet.).
        Thus, the Department must show that the children’s living conditions pose a real threat of
injury or harm. In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.). Although it
is not required that the parent have certain knowledge that an actual injury is occurring, there must
be evidence that the parent was aware of the potential for danger to the child and disregarded that
risk. Id.

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         Conduct of a parent or another person in the home can create an environment that endangers
the physical or emotional well-being of a child under subsection D. In re W.S., 899 S.W.2d 772, 776
(Tex. App.—Fort Worth 1995, no writ). Thus, inappropriate, abusive, or unlawful conduct by
persons who live in the child’s home or with whom the child is compelled to associate in the home
on a regular basis is a part of the “conditions or surroundings” of the child’s home under
Section 161.001(1)(D). In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no
pet.).
         Section 161.001(1)(E) authorizes a trial court to terminate a parent-child relationship if it
finds clear and convincing evidence that the parent 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. Although “endanger” means more than a mere threat of metaphysical injury or the possible
ill effects of a less than perfect family environment, it is not necessary that the conduct be directed
at the child or that the child actually suffer injury. Rather, “endanger” means to expose the child to
loss or injury or to jeopardize the child’s emotional or physical health. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment may be established through actions
and omissions. In re J.I.T.P., 99 S.W.3d 841, 844 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Under subsection (E), the cause of endangerment must be the parent’s conduct, as evidenced not only
by the parent’s acts but also by the parent’s omission. In re C.M.B., 204 S.W.3d 886, 895 (Tex.
App.—Dallas 2006, pet. denied).
         Our careful review of all the evidence, pertinent portions of which we have set out, convinces
us that it is amply sufficient, factually, to sustain the trial court’s finding that A.W. had knowingly
placed or knowingly allowed the children to remain in conditions or surroundings that endangered
their physical or emotional well-being and also engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangered their physical or emotional well-being. It is
also sufficient to sustain the trial court’s conclusion that the termination of A.W.’s parental rights
was in the best interest of the children.
          Accordingly, because they do not reveal error, we overrule A.W.’s first three issues
presented for our review. In A.W.’s fourth issue, she argues that, in the event the Department
presented an argument of waiver based upon Section 263.405(i), that provision violates the



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separation of powers provision of Article II, section 1 of the Texas Constitution. However, the
Department has not presented any such argument, and A.W.’s fourth issue is summarily overruled.
       Inasmuch as we have overruled all of A.W.’s issues, the judgment of the trial court must be,
and is hereby, affirmed.1




                                                                                JOHN T. BOYD
                                                                                SENIOR JUSTICE


August 13, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Boyd, S.J.2




       1
           Although the trial judge in this matter and the undersigned have the same last name, they are not in any way related.
       2
           John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo, sitting by assignment.

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