                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-354-CV


IN THE INTEREST OF Z.J.L. AND X.T.L.,
CHILDREN

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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

      Appellant N.L. appeals from the termination of her parental rights to her sons

Z.J.L., born September 7, 2005, and X.T.L., born July 9, 2007. The trial court found

by clear and convincing evidence that Appellant had (1) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings that endanger

their physical or emotional well-being and (2) engaged in conduct or knowingly

placed the children with persons who engaged in conduct that endangers the

children’s physical or emotional well-being. 2         The trial court also found that


      1
           See Tex. R. App. P. 47.4.
      2
           See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 2009).
termination of the parent-child relationship would be in the children’s best interest. 3

In five points, Appellant challenges the legal and factual sufficiency of the evidence

supporting the trial court’s endangerment findings and the factual sufficiency of the

evidence supporting the best interest finding. Because we hold that the evidence

is legally and factually sufficient to support the endangerment findings and factually

sufficient to support the best interest finding, we affirm the trial court’s judgment.

      As we have explained in a similar case,

              Endangerment means to expose to loss or injury, to jeopardize.
      The trial court may order termination of the parent-child relationship if
      it finds by clear and convincing evidence that the parent has knowingly
      placed or knowingly allowed the child to remain in conditions or
      surroundings that endanger the physical or emotional well-being of the
      child. Under subsection (D), it is necessary to examine evidence
      related to the environment of the child to determine if the environment
      was the source of endangerment to the child’s physical or emotional
      well-being. Conduct of a parent in the home can create an environment
      that endangers the physical and emotional well-being of a child.

      . . . Under subsection (E), the relevant inquiry is whether evidence
      exists that the endangerment of the child’s physical or emotional well-
      being was the direct result of the parent’s conduct, including acts,
      omissions, and failures to act. 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.

            To support a finding of endangerment, the parent’s conduct does
      not necessarily have to be directed at the child, and the child is not
      required to suffer injury. The specific danger to the child’s well-being
      may be inferred from parental misconduct alone, and to determine
      whether termination is necessary, courts may look to parental conduct
      both before and after the child’s birth. . . . A parent’s decision to
      engage in illegal drug use during the pendency of a termination suit,

      3
           See id. § 161.001(2).

                                           2
      when the parent is at risk of losing a child, supports a finding that the
      parent engaged in conduct that endangered the child’s physical or
      emotional well-being. Thus, parental and caregiver illegal drug use
      supports the conclusion that the children’s surroundings endanger their
      physical or emotional well-being. A factfinder may also reasonably infer
      from a parent’s failure to attend scheduled drug screenings that the
      parent was avoiding testing because the parent was using drugs. As
      a general rule, conduct that subjects a child to a life of uncertainty and
      instability endangers the child’s physical and emotional well-being. 4

      The trial court heard the following evidence. Appellant, who was twenty-two

years old at the time of trial, testified that she became pregnant with Z.J.L. while she

was living with the family of L.H., his alleged father. However, L.H. and his family

relocated to Chicago during her pregnancy. Appellant lived with A.B., X.T.L.’s

alleged father, and his aunt before and during her second pregnancy. At first, Z.J.L.

lived with them. But E.L., Appellant’s mother, demanded that Appellant let Z.J.L.

move to E.L.’s home after two or three months because A.B. was abusive.

      Appellant testified that on a scale measuring abuse from one to ten, with ten

being really bad, A.B. was an eight. He would body-slam her, hit her with blow-

dryers, and give her black eyes.       Regarding A.B.’s effect on Z.J.L., Appellant

admitted that Z.J.L. had seen A.B. hit her on one occasion but said that the little boy

was not paying attention. She testified,

      Q.     Okay. W hat were those two or three months like during the time
             when [Z.J.L.] was there?



      4
        In re J.W., No. 02-08-00211-CV, 2009 W L 806865, at *4 (Tex. App.—Fort
W orth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted); see also In re J.O.A.,
283 S.W .3d 336, 345–46 (Tex. 2009).

                                           3
      A.     There were signs, but, you know, you can’t really just spot abuse
             until the signs start coming up, and the baby was fine. I mean,
             [Z.J.L.] was fine, you know. He wouldn’t mess with him and he
             wouldn’t do it—well, one incident, he did, you know, but he was
             staying with his auntie and [Z.J.L.] and whatever. W hen [A.B.]
             would hit me, his auntie would grab [Z.J.L.] and take him in the
             next room so that he wasn’t sitting there watching it, and [Z.J.L.]
             was nine months. Eight months. He was little.

      ....

      Q.     . . . . So did [A.B.’s aunt] try to protect [Z.J.L.]? W ell, do you
             know why she would take [Z.J.L.] out of the room?

      A.     She would just hold him because [Z.J.L.] would be crying,
             because he would be in my arms and he was like, one time [A.B.]
             pulled [Z.J.L.] out of my arms and sat him down and just went for
             what he knew on me, but [A.B.’s aunt] had grabbed him because
             he would do a lot of crying when all this stuff would be
             happening.

      Q.     About the time, when you say he went with what he knew on you,
             so we can be clear to the Court—

      A.     I mean, like this one incident that I’m really talking about when he
             grabbed [Z.J.L.], it was the incident when he was beating me with
             a blow dryer in the room.

Appellant testified that she never left Z.J.L. alone with A.B. Appellant testified that

allowing Z.J.L. to live with her mother back then was a good decision, that she felt

like she was getting him out of a dangerous situation, and that moving Z.J.L. to her

mother’s home took him out of harm’s way.

      But Appellant remained with A.B., and she testified that he elbowed her in the

stomach when she was pregnant with X.T.L. Although she initially indicated that

neither she nor A.B. knew she was pregnant at the time, later in her testimony she


                                          4
testified that the elbowing had happened shortly after she had told A.B. that she was

pregnant. She testified that after she told A.B. about the pregnancy, he was still

rough with her and that she would consent to sexual intercourse with him “to avoid

getting a black eye and stuff.” It was during this time that Child Protective Services

(CPS) first became directly involved with Appellant as a parent.

      In February 2007, when Appellant was about six months pregnant with X.T.L.,

she took Z.J.L. to Cook Children’s Medical Center to be treated for an ear infection.

Appellant had a black eye, which caused a staff member to call CPS. CPS asked

Appellant to temporarily sign over custody of Z.J.L. to E.L., and Appellant agreed.

      Appellant continued to live with A.B. for about a week after the incident

involving the elbowing and her black eye, until his arrest after a high-speed chase;

he possessed two Ecstasy pills at the time of his arrest. She testified that he had

sold drugs on the south side of Fort W orth, not in Forest Hill where they lived, and

she did not know if he ever brought drugs home. But she testified that he was using

drugs. After his arrest, A.B. was sent to prison for violating his probation from a

previous drug offense. About two weeks after his arrest, Appellant moved out of his

aunt’s home.

      From there Appellant moved in with her mother. Then she lived with a friend,

Trameka Turner, for four or five months. Apparently, Appellant then returned to her

mother’s home. In July 2008, Appellant and her sons moved into W omen’s Haven

after E.L. allegedly threw a toy truck at Appellant, cutting her lip. They stayed there


                                          5
about five weeks. Then they stayed with Trameka again for a brief period before

returning to E.L.’s home.

         On September 8, 2008, about two weeks after Appellant had returned to E.L.’s

home, the Saginaw police responded to a domestic disturbance call made by

Appellant. Appellant, Z.J.L., and X.T.L. had all been living with E.L. According to

Appellant, on that night, E.L. kicked Appellant and her sons out of her home.

         Kelli Smith, a CPS investigator, was assigned to Appellant’s case that night

after receiving a call from the Saginaw Police Department. She was alerted that

Appellant, Z.J.L., and X.T.L. had been kicked out of E.L.’s home and had no place

to go.    Smith called the Salvation Army to verify that space was available for

Appellant and her sons. Then Smith made contact with Appellant, Z.J.L., and X.T.L.

Smith testified that the boys appeared clean, clothed, and fed and that upon meeting

them, she had no concerns about their physical care.

         On the way to the Salvation Army shelter, Smith discussed with Appellant

options and programs that could help her with housing, employment, daycare,

transportation, and getting assistance. But Appellant decided that foster care was

the best option at the time. Even though Smith told Appellant that the Texas

Department of Family and Protective Services (TDFPS) did not recommend putting

the boys into foster care (as getting them out of foster care would require a long and

arduous process), Appellant did not change her mind and even put her request in

a written affidavit:


                                           6
             I[,] [Appellant,] is [sic] letting my kids go with CPS until I can get
      everything I need to be a better mama for them. [I’m] letting them go
      because I have worrie [sic] life[,] and with them[,] it’s more stressful to
      do what I need to do. So I would feel better knowing that they are safe
      and are clothed, and fed. I am going to do what I need to do so they
      will have a home to come to. And whatever I need to do to see them
      and wait for them.

Smith testified that Appellant was not tearful from the time they met, including when

she relinquished her sons, and that she did not appear to have any type of emotional

reaction when filling out the written affidavit. Smith testified that the only ground for

the removal was Appellant’s refusal to accept parental responsibility. Smith also

testified that at the time of the removal, no actual endangerment had occurred that

she knew of, but there was a risk of endangerment.

      Appellant testified that at the time she signed the affidavit, she could not take

care of the children. She could not “do what [she] needed to do as far as a parent

for them.” Appellant testified that she made the decision not to go to the Salvation

Army shelter—and instead place the boys in foster care—because she felt it was the

best decision at the time. However, at trial, she no longer thought that allowing them

to go into foster care was a good decision for them, and she noted that if given the

opportunity to make the decision again, she would have chosen to “take [her]

responsibility by taking care of them.” W hen asked whether she thought the boys

had been hurt emotionally by being in foster care, she answered, “I don’t know.”

      Smith interviewed Appellant for background information at the time of the

removal. Appellant told her that the boys were both behind on their immunizations


                                           7
and that their Medicaid had lapsed more than three months earlier, and she had not

had time to renew it.

      Appellant also told Smith that she had been in foster care as a teenager

because her mother, E.L., had gone to prison. Appellant testified that she had been

told that she was depressed since the age of thirteen years. She stated that she

was diagnosed with depression at the age of fifteen while she was in the Nexus

Recovery Center after she left foster care and again in July 2008, when she was

staying at W omen’s Haven after E.L. had allegedly beaten her. Appellant testified

that she had been depressed for the last year before trial and was depressed during

trial. She last took medication for her depression when she was fifteen. At the time

of trial, Appellant’s psychological evaluation had not been completed, and she had

never gone to MHMR.

      At trial, Appellant testified about her drug use. She stated that she had first

tried marijuana when she was sixteen years old and had also taken Xanax

“whenever [she] could get hold if it” at that age. She also testified that she had tried

cocaine once when she was nineteen years old and had tried Ecstasy for the first

time at that age. She testified that she last used Ecstasy when she was twenty

years old.

      Appellant also discussed her recent drug use, consumption of alcohol, and her

criminal history with Smith. Appellant told Smith that she had last used marijuana




                                           8
in December 2007 and January 2008, eight to nine months before relinquishment.

She testified that she used maybe once a week during that period.

      Appellant also told Smith that she would smoke outside while her children

were in the apartment. Appellant testified that she had never smoked marijuana in

her mother’s apartment, on the porch, or even near the apartment but had smoked

when she was walking alone in the complex. She testified that she waited about an

hour before returning home after smoking, that she would not then be “high” but

might be “a little buzzed,” that she and her mother both took care of the children after

the smoking sessions, and that she had no difficulty taking care of them while under

the influence of marijuana. She testified that she never used drugs or alcohol in the

children’s presence.

      Appellant told Smith that she was also “drinking heavily” to “forget about her

problems” during that time but denied having a problem with alcohol or drugs.

Appellant explained at trial that by “drinking heavily” she meant drinking frequently,

as in three days a week instead of one.

      At trial, Appellant admitted to using marijuana in November 2008 and on her

birthday, May 20, 2009, less than two months before the trial began, but she testified

that she did not use drugs from the time she got pregnant with Z.J.L. until she

delivered X.T.L. Appellant admitted at trial that she had signed a paper indicating

that she had used drugs while the case was proceeding.




                                           9
      Appellant was caught stealing diapers and lotion from an Albertson’s grocery

store in 2007 and subsequently spent three days in jail. However, the time spent in

jail was not for the theft, but for an unpaid assault ticket. Appellant testified that she

had received the ticket for assaulting another woman during an altercation that took

place on her birthday. The boys were at Trameka’s house under the supervision of

Trameka’s relative when Appellant was arrested; E.L. retrieved them that same day.

      Appellant testified that she had dropped out of high school in the eleventh

grade and had not obtained a GED. Appellant was not working at the time of her

relinquishment of her sons but told Smith that she had worked at several different

fast food restaurants in the past. Appellant testified that she had not worked since

2006; her last job was working for Church’s Chicken in Saginaw, but she quit

because she moved. She also testified that she worked at Ebony’s Hair Supply and

as a receptionist at an income tax preparation business in 2006. Appellant has

relied on financial support from E.L., other relatives, and friends since 2006 as well

as government aid for the boys.

      Obtaining stable employment, however, was a requirement set forth in the

CPS service plan. Appellant only sent out five applications during the approximately

ten months before trial began and did nothing before trial to obtain a GED or gain

any additional job training.

      Appellant failed to comply with the family service plan, with the exception of

attending nineteen out of thirty scheduled visits with her children and obtaining a


                                           10
drug and alcohol assessment. She attended one individual counseling session but

was ultimately discharged because of her continued failure to attend. In answer to

the question, “W hy haven’t you gone . . . ?”, Appellant responded, “Because I didn’t

know where this was going to lead as far as termination or if I get my rights back, so

I didn’t go.”

       She did not attend any parenting classes or get a psychological evaluation.

She did not go to Safe Haven Education Program.

       Appellant also failed to obtain stable housing. She agreed that she had not

had stable housing since the children were born. In September 2008, after she

relinquished her children, Appellant apparently moved back to E.L.’s home until the

summer of 2009, when she lived with Trameka again for about two-and-a-half

weeks. W hen the trial began, Appellant was living with someone named Bridgett but

did not know her last name. Appellant stayed with her about a month and a half.

Appellant testified that she moved in with her godmother after the trial began and

had been living with her a week before the second day of trial, but she also testified

that she was not living with her godmother. Appellant testified that if the boys were

returned to her, they could all stay with the godmother until Appellant could “get on

[her] two feet.” Appellant admitted that E.L. was living with her godmother until she

too could get her own apartment.

       Appellant’s godmother’s testimony indicated that Appellant had not been

sleeping at her home the past several nights and that she and her children could


                                         11
stay there, depending on Appellant’s actions. The godmother also testified that in

her opinion, Appellant does not really want the children back; instead, she just wants

them in a stable environment where she can visit as often as she would like but not

have the responsibility of settling down and taking care of them.

      Appellant testified that if the children were returned, then “first of all,” she

would move in with Vera Dillard or “PeeW ee,” her mother’s estranged husband’s

aunt whom she had not seen for about a year before trial. PeeW ee had told

Appellant that she and the boys could live with her “no matter how long it takes until

[she] gets on [her] feet.” Then, Appellant planned to go to MHMR and to find a job.

She also testified that she was willing and able to provide a safe environment for the

children.

      W hen asked by the children’s attorney ad litem to name something she had

changed in the month before trial to put her in a position to care for her sons,

Appellant answered that she could not recall and did not know. But she testified that

she loved them very much, that she wanted them to have a good life, and that they

could have opportunities that she had not had as a child because she “would be

supportive”; she “would be their mother.” She admitted that she needed to be

mentally healthy to take good care of her children, that she had not gone to MHMR

despite the advice of her mother, her lawyer, her caseworkers, and her CASA

worker, and that knowing that she needs medication, she nevertheless “keep[s]

pushing it back.”


                                         12
      She also admitted that she would need about eight months to get into a

position in which she could raise her children in a safe, stable, and nurturing

environment.

      Tonyia Brown, the CPS caseworker at the time of trial, testified that the boys

have been in the same foster home since the removal. She said that the boys are

now current on their shots and are physically healthy, but they have asthma and are

allergic to mosquitos. She also testified that the boys are developmentally on target,

speaking clearly and interacting with their foster family. She opined from observing

one visit and reading the case notes that the boys are bonded to both their

grandmother and Appellant. Brown testified that the foster parents want to adopt the

boys, that she believed termination was in the boys’ best interest, and that TDFPS

would support adoption by the foster parents if the birth parents’ rights were

terminated.

      Marla Hogan, the CASA worker, explained why she believes termination is for

the best in this case. She stated that Appellant has been unable to maintain and

does not currently have stable housing, she has been unable and unwilling to find

and maintain steady employment, she has failed to complete her service plan, and

the children have no viable support system if they are returned to her.

      Applying the appropriate standard for reviewing the legal sufficiency of the

evidence, 5 we hold that, based upon our review of the record, the evidence is legally

      5
           See In re J.P.B., 180 S.W .3d 570, 573–74 (Tex. 2005).

                                         13
sufficient to support the trial court’s endangerment findings regarding Appellant

under subsections (D) and (E). Further, applying the appropriate standard for

reviewing the factual sufficiency of the evidence, 6 we hold that, based upon our

review of the record, the evidence is factually sufficient to support those findings.

W e overrule Appellant’s first, second, third, and fourth points.

       Further applying the appropriate standard of review, 7 we hold that the

evidence is factually sufficient to support the best interest finding, and we overrule

Appellant’s fifth point.

       Having overruled all of Appellant’s points, we affirm the trial court’s judgment.




                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: July 1, 2010




       6
        See In re H.R.M., 209 S.W .3d 105, 108 (Tex. 2006); In re C.H., 89 S.W .3d
17, 28 (Tex. 2002).
       7
        See Tex. Fam. Code Ann. § 263.307(a), (b) (Vernon 2008); In re R.R., 209
S.W .3d 112, 116 (Tex. 2006); H.R.M., 209 S.W .3d at 108; C.H., 89 S.W .3d at 28;
Holley v. Adams, 544 S.W .2d 367, 371–72 (Tex. 1976).

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