




Motion for Rehearing Granted; Reversed and Rendered in Part; Affirmed in
Part; Opinion of December 13, 2005, Withdrawn and Majority and
Concurring/Dissenting Opinions On Rehearing filed August 10, 2006







 
Motion
for Rehearing Granted; Reversed and Rendered in Part; Affirmed in Part; Opinion
of December 13, 2005, Withdrawn and Majority and Concurring/Dissenting Opinions
On Rehearing filed August 10, 2006.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-04-01031-CV
 
______________________
 
IN THE INTEREST OF J.A.J.
 

 
On Appeal from the 314th
District Court
Harris County, Texas
Trial Court Cause No. 03-08998J
 

 
MAJORITY   OPINION   ON   REHEARING
Our previous opinion in this cause delivered on December
13, 2005, is withdrawn and substituted with this opinion on rehearing.
Angeline Jackson, mother of J.A.J., appeals from the trial
court=s judgment
terminating her parental rights to the child.  In three related points of
error, appellant contends the evidence was legally and factually insufficient
to support the termination order.  Specifically, appellant argues: (1) the
child was not Aendangered@ under the terms
of section 161.001(1)(D) or (E) of the Texas Family Code; and (2) termination
was not in the child=s best interest.  See Tex. Fam. Code Ann. ' 161.001(1)B(2) (Vernon
2002).  We reverse, in part, the decision of the trial court.




The record reflects that on November 4, 2003, the Texas
Department of Family and Protective Services (ATDFPS@), received a
referral alleging physical abuse of J.A.J, an eight-year-old  boy.[1] 
The report indicated J.A.J. tied two shoe-strings together, told his older
sister he was going to commit suicide, and then attempted to choke himself with
the strings.  His sister informed the children=s grandmother who
then told appellant.  Appellant disclosed the incident to her husband, Don
Perkins, who apparently became upset with J.A.J.=s suicide
threats.  Perkins allegedly ordered J.A.J. to put the strings back around his
neck and then proceeded to grab the strings and choke J.A.J.  The report
further indicated J.A.J. had visible marks around his neck from the choking
incident.
TDFPS sent a caseworker, Christine Powers, to investigate. 
Powers verified that J.A.J. had a dark, linear scab around his neck and
questioned family members about the wound.  J.A.J. gave his account of what
occurred, and his sister confirmed the story by explaining she actually saw
Perkins choke J.A.J.[2] 
In light of Perkins= conduct, TDFPS  removed both children
from appellant=s home and placed them in an emergency temporary
conservatorship with the agency.  Immediately after removing the children from
appellant=s home, Powers observed a six-inch wide bruise across
the back of J.A.J.=s left leg.[3] 
Appellant admitted that she had spanked J.A.J with a belt the previous day
after he had attempted to Aburn down the house.@  Appellant
further admitted that the spanking had left marks and bruises on J.A.J.




Two months later, on January 7, 2004, TDFPS completed a
Family Service Plan which required appellant to undergo a psychological
evaluation and a drug/alcohol assessment, attend parenting and anger management
classes at her expense, and attend an abuse prevention/intervention program as
well as family and individual therapy paid for by TDFPS.  The record suggests
that, while appellant failed to fully comply with the plan, she made some
effort to improve her situation and that of the children=s home
environment.  Specifically, she submitted to a psychological evaluation and
periodic drug testing.  During this period, appellant tested positive for
marijuana on one occasion.  Appellant also failed to complete the required
parenting classes, but she explained the absence from parenting classes was
caused by inadequate funds and a lack of transportation.  In addition,
appellant requested placement in individual and family counseling, but was
placed on a waiting list.  She also visited the childrenCalbeit
sporadicallyCand she separated from Perkins.  Finally, appellant
also succeeded in obtaining steady employment at Wal-Mart and was saving money
to secure permanent housing.
On September 9, 2004, a bench trial was conducted in the
314th District Court.  After considering the evidence and hearing
relevant testimony, the court terminated appellant=s parental rights
to J.A.J. but made no ruling as to appellant=s rights over her
daughter.[4] 
On appeal, appellant challenges only the court=s ruling as to
J.A.J.
Standard of Review
Involuntary
termination of parental rights is a serious matter implicating fundamental
constitutional rights.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). 
In
order to terminate parental rights, the State bears the burden to prove both:
(1) the parent engaged in one of the grounds for termination listed in section
161.001(1) of the Texas Family Code; and (2) termination is in the child=s best interest.  Tex. Fam. Code Ann. ' 161.001;  In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).  




Due to the severity and permanency of the termination of
parental rights, the burden of proof at trial is heightened to the clear and
convincing evidence standard.  Tex.
Fam. Code Ann. ' 161.001 (Vernon 2002); In re J.F.C.,
96 S.W.3d 256, 265B66 (Tex. 2002).  This standard requires more proof
than the preponderance of the evidence standard in civil cases, but less than
the reasonable doubt standard in criminal cases.  In re J.F.C., 96 S.W.3d at 265B66.  A>Clear and
convincing evidence= means 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
2002).
When
reviewing the legal sufficiency of the evidence under this standard, we look at all the
evidence in the light most favorable to the finding Ato determine
whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.@  In re J.F.C., 96 S.W.3d at
266.  We must assume the
factfinder resolved disputed evidence in favor of its finding if a reasonable
factfinder could do so.  Id.  A corollary to this requirement is that we must disregard all evidence
that a reasonable factfinder could have disbelieved or found to have been
incredible.  Id.  But because of the heightened standard, we must also
be mindful of any undisputed evidence contrary to the finding and
consider that evidence in our analysis.  See id. (ADisregarding undisputed facts that do
not support the finding could skew the analysis of whether there is clear and
convincing evidence.@); see also In re J.L., 163 S.W.3d at 88 (reversing
and remanding to the appellate court for a determination of the factual
sufficiency of evidence where it was unclear whether the court considered
testimony involving disputed facts and opinions).  If, after conducting our review,
we determine that a reasonable factfinder could not form a firm belief or
conviction that the allegations were true, then we must conclude the evidence
is legally insufficient.  In re J.F.C., 96 S.W.3d at 266.




When reviewing a factual sufficiency challenge, the
analysis is slightly different because we must consider all the evidence
equally, both disputed and undisputed.  Id.  The court of appeals should
consider whether disputed evidence is such that a reasonable fact finder could
not have resolved that disputed evidence in favor of the finding.  Id. 
If, in light of the entire record, the disputed evidence that a reasonable fact
finder could not have credited in favor of the finding is so significant that a
fact finder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.  Id.
Dangerous Environment Under Section 161.001(1)(D)




In her first point of error, appellant contends the
evidence was both legally and factually insufficient to support the court=s finding that
J.A.J. was endangered, either physically or emotionally, under Texas Family
Code section 161.001(1)(D).[5] 
Subsection (D) permits a court to terminate parental rights when the parent Aknowingly 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(1)(D).[6] 
Under this subsection, the inquiry focuses on dangerous surroundings or
circumstances in which the parent knowingly places or allows her child to
remain.  See In re R.D., 955 S.W.2d 364, 368 (Tex. App.CSan Antonio 1997,
no writ) (differentiating between subsections (D) and (E)); In re S.H.A.,
728 S.W.2d 73, 84B85 (Tex. App.CDallas 1987, writ
ref=d n.r.e.) (ASubsection (D) . .
. requires a showing that the child has been placed in an environment dangerous
to the child=s physical or emotional well‑being.@) (emphasis in
original).  AThus, subsection (1)(D) refers only to the suitability
of the child=s living conditions.@  Williams v.
Tex. Dep=t of Human Sevcs., 788 S.W.2d 922,
926 (Tex. App.CHouston [1st Dist.] 1990), overruled on other
grounds by In re J.N.R, 982 S.W.2d 137, 143 n.5 (Tex. App.CHouston [1st
Dist.] 1998, no pet.).[7]




Here, the State introduced no evidence regarding J.A.J.=s living
environment, that is, the Aconditions or surroundings@ of the child=s home-life.  In
fact, the State asserts only two arguments on appeal to support the termination
request under subsection (D).  First, the State contends appellant is an
uncaring mother who failed to complete even the most basic requirements of the
TDFPS family service plan.  Certainly, when a mother=s parental rights
are in jeopardy, her failure to complete the goals in the service plan may be
considered in determining the best interest of the child.  In re W.D.W.,
173 S.W.3d 607, 613B14 (Tex. App.CDallas, no pet.). 
However,  the record shows appellant attempted to improve her situation after
J.A.J. was taken into State custody.  At the time of trial, she was living with
her sister and had additional support from her mother, who testified she would
help appellant.  Appellant was also gainfully employed and testified she was
saving money for a home of her own that she believed was obtainable within a
few months.  Undoubtedly, appellant should have complied with the remaining
requirements of the TDFPS-ordered family service plan.  Her failure to do so
directly affected the decision of the trial court to terminate her parental
rights.[8] 
Nevertheless, appellant=s alleged poverty and lack of
transportation, which she offered in explanation for her failure to comply with
all of the family service plan, was not rebutted by the State.  Further,
despite her poverty, the record also reflects that appellant has consistently
fought to maintain her parental rights, and there is reason in the record to
believe she loves her son.  While failure to meet conduct specified by an
agreement with TDFPS is a factor worthy of consideration in a parental rights
termination case, at least one court has held that it is not, by itself,
sufficient to support such a termination.  In re P.S., 766 S.W.2d at
840.




The second argument proffered by the State in support of
termination is that appellant maintained an excessive and unreasonable
disciplinary regimen that subjected J.A.J. to a dangerous environment. 
However, section 161.001(1)(D) of the Family Codes applies only to the
acceptability of a child=s living conditions or surroundings; it
generally does not apply to the conduct of the parent toward the child.  In
re N.R., 101 S.W.3d 771, 775B76 (Tex. App.CTexarkana 2003, no
pet.).  Thus, subsection (D) refers only to the acceptability of the child=s living
conditions, such as where, for instance, the child is living in a house where
there is no electricity, gas, or food.  In the Interest of S.H.A., 728
S.W.2d at 84.  Thus, under subsection (D), it must be the environment itself
that causes the child=s physical or emotional well‑being
to be endangered, not the parent=s conduct.  Id.
at 84‑85.
We find the evidence legally insufficient to support the
termination of appellant=s parental rights under section
161.001(1)(D) of the Family Code.  Accordingly, appellant=s first point of
error is sustained. 
Conduct Under Section 161.001(1)(E)
In her second point of error, appellant contends the
evidence is legally and factually insufficient to show she Aengaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endanger[ed] the physical or emotional well‑being of [her son],@ as required by
section 161.001(1)(E) of the Family Code.
Subsection (E) permits termination of parental rights where
the parent has either: (1) personally engaged in conduct which endangers the
child; or (2) knowingly placed the child with another person who engaged in
dangerous conduct.  Tex. Fam. Code Ann.
' 161.001(1)(E). 
Unlike subsection (D), the source of the danger must be the parent=s conduct alone.  In
re D.P., 96 S.W.3d 333, 338 (Tex. App.CAmarillo 2001, no
pet.); Doyle v. Tex. Dep=t of Protective
& Regulatory Sevcs., 16 S.W.3d 390, 395 (Tex. App.CEl Paso 2000, pet.
denied); In re S.H.A., 728 S.W.2d at 85.  Thus, the relevant inquiry
involves the parent=s acts and omissions.  See In re
D.P., 96 S.W.3d at 338; Doyle, 16 S.W.3d at 395; In re
S.H.A., 728 S.W.2d at 85.




More importantly, termination may not ordinarily be
based on a single transaction, but rather Aa showing of a
course of conduct is required.@[9]  In re D.P.,
96 S.W.3d at 338; see also In re D.T., 34 S.W.3d 625, 634 (Tex. App.CFort Worth  2000,
pet. denied) (A[A] voluntary, deliberate, and conscious >course of conduct= by the parent is
required.@).  Particularly where the ground for termination involves
the conduct of third parties rather than the direct conduct of the parent, knowledge
that the third party is engaging in dangerous conduct is a required
element.  See In re U.P., 105 S.W.3d at 236 n.7 (A[S]ubsection (E)
requires only that the parent know others are engaging in endangering
conduct.@) (emphasis in
original).  In other words, a parent=s rights should
not be terminated absent proof she knew that placing her child with a third
party endangered the child=s well-being.
Placing J.A.J. in an environment that included Perkins
might well have satisfied the Aendangerment@ requirements of 
subsection (E).  Certainly, Perkins= choking of J.A.J.
with a shoe string is a startlingly dangerous act.  However, if Perkins had a
known proclivity for  abusing children, the State did not attempt to prove up
this fact.  To the contrary, nothing in the record suggests that Perkins had
ever abused the boy before or given appellant any reason to believe that he
might pose a threat to J.A.J.  Moreover, as to the one incident of abuse, i.e.,
the choking of J.A.J. with a shoe string, the State offered no evidence
regarding appellant=s reaction to the abuse.  Did she approve,
encourage, and promote Perkins= abuse; or did she intervene, resist, and
report the abuse?  The record is silent in this regard.




The
record establishes that some time after the incident, appellant and Perkins
separated and remained separated at the time of trial.  The State contends
appellant wants to get back together with Perkins in the future.  However,
unless and until appellant and Perkins are reunited, the Athreat@ to J.A.J.=s physical or emotional well-being is
purely theoretical.  If Perkins rejoins the family, the State may file an
appropriate action at that time.  Under our present record, however, there is
insufficient evidence that appellant knew Perkins was a threat to J.A.J.
and yet permitted the harmful interaction to occur.  Without more in the
record, this singular incident is not enough to prove, by clear and convincing
evidence, that appellant=s parental rights should be terminated according to
subsection (E).  See generally In re D.J., 100 S.W.3d 658, 668B70 (Tex. App.CDallas 2003, no pet.) (supporting termination
of father=s parental rights but finding insufficient evidence to support
termination of mother=s rights under (D) or (E) despite father=s criminal history, past drug use,
and anger issues where no evidence provided mother with notice of present
danger to child); In re D.P., 96 S.W.3d at 338B39 (holding
evidence of a mother=s actions or knowledge was insufficient to
support trial court=s termination order under subsections (D)
or (E)); Williams, 788 S.W.2d at 927 (finding mother=s two-month period
of neglect when she was 17-years-old was insufficient to support termination).
Regarding appellant=s conduct, the
State alleges the evidence shows she had an admitted Apattern of hitting
her child, though she could not recall how many times, and specifically in her
admission that she inflicted bruises on her child=s leg and back
that were visible in pictures taken of the child.@  The record
reflects, however, that no photographs were offered or received in evidence. 
Moreover, while appellant admitted that she spanked J.A.J. with a belt after Ahe had tried to burn
down the house,@ she could not recall how many times she
had spanked him.  Although she conceded that bruises were visible on his back
and leg the day following the spanking, she said she spanked the boy only
infrequently.  However, she admitted that when she used a belt to spank the
boy, she would sometimes leave Amarks.@  This is the full
extent of the evidence regarding appellant=s Aendangerment@ of the child. 
Thus, the issue before us is whether infrequent spankings of a child that leave
Amarks@ or visible
bruises 24 hours after the spanking constitute sufficient evidence to show that
a parent has endangered the child=s physical or
emotional well-being to such a degree as to warrant termination of the actor=s parental rights.




The propriety of
corporal punishment is an increasingly controversial subject.  Not many years
ago, Achildren were
disciplined in homes and at school by spanking them with rulers, sticks, and
belts, and this type of discipline was not looked upon as child abuse. Rather,
it was considered an acceptable form of discipline.@   In re B.B.,
598 N.W.2d 312, 317 (Iowa App. 1999) (Sackett, C.J., concurring).  This
traditional method of discipline, however, may be declining.
For example, in
1962, fifty‑nine percent of parents used spanking as the Amain disciplinary
method,@ whereas by 1993,
that figure had dropped to nineteen percent, with thirty‑eight percent of
parents preferring time‑outs and twenty‑eight percent favoring
lecturing. In 1968, ninety‑four percent of U.S. adults agreed with the
statement that it is Asometimes necessary to discipline a child
with a good hard spanking,@ yet by 1992, only sixty‑six percent
agreed with this statement.@
Deana
Pollard, Banning Child Corporal Punishment, 77 Tul. L. Rev. 575, 582 (2003).




But while many critics of corporal punishment contend the
practice violates Achildren=s rights@ grounded in Atheir autonomy,
dependence . . . capacity for development . . . [and] essential humanity,@[10] it is still
widely employed in this country.  At least 90 percent of American parents have
used corporal punishment at some time in rearing their children.[11] 
So prevalent is the practice that one sociologist has observed, AWere we speaking
statistically, we would surely describe those parents who do not spank their
children as deviants.@[12]  A 1992 Ohio
study showed that 70 percent of 800 family physicians and 59 percent of 400
pediatricians supported spanking.[13] 
Moreover, A[r]ecent research on parenting styles has found . . .
that >authoritative= styles,
characterized by strict discipline, high demands for obedience, and high levels
of warmth, tend to produce better-adjusted children than non-authoritative
styles.@[14]  Finally, to the
degree that corporal punishment is declining, at least one sociologist has
suggested there may well be a direct correlation between the declining use of
corporal punishment and rising juvenile violence.[15]
Nevertheless, courts have, with increasing frequency,
concluded that spanking with a belt constitutes child abuse and may be
considered as a factor in terminating a person=s parental
rights.  See In re Adrian H, No. A102631, 2003 WL
23100264, *3 (Cal. App. 1 Dist. Dec. 31, 2003) (holding that Ahitting a child with a belt
goes beyond spanking and is not an appropriate form of
discipline . . . hitting with a belt and a switch crossed
the line over into abuse@);
In re T.M.K., No. COA04-1019, 2005 WL 1804792, at *1 (N.C. App. Aug. 2,
2005) (holding that spanking with a belt in a manner that leaves marks was a
factor in the termination of parental rights); In re T.A., 2003 S.D. 56,
& 36, 663 N.W.2d
225, 236 (2003) (the state successfully alleged as an act of abuse a spanking
with a belt that left a bruise on one hip); Matter of J.A.H.,  502
N.W.2d 120, 123 B24
(S.D.  1993) (holding one basis for terminations was physical abuse consisting
of spanking with belts or other instruments).
However, it is Anot a court=s function to
determine whether >parents measure up to an ideal, but to
determine whether the child=s welfare has been compromised.=@  In Interest
of J.P., 294 Ill. App.3d 991, 1005, 229 Ill. Dec. 565, 573, 692 N.E.2d 338,
346 (Ill. App. [1st Dist.] 1998) (quoting In re F.W., 261 Ill. App.3d 894, 902,
199 Ill. Dec. 769, 634 N.E.2d 1123 (1994).  AWe must take care
not to create a legal standard from our personal notions of how best to
discipline a child.@ Id.




The State interprets the appellant=s testimony to
imply she hit J.A.J. to the point it left marks any time she had problems with
the child.  However, contrary to the State=s interpretation,
appellant unequivocally stated the spankings were Anot regular@ occurrences.  She
also explained that she never hurt the child other than the Ainfrequent@ spankings.  The
record contains no photographs of the bruise seen on J.A.J.=s body when he was
taken into State custody.[16] 
Moreover, there is no evidence of previous bruises.[17] 
While the testimony offered by the State constitutes some evidence that
appellant may have used excessive force, we are not free to make assumptions or
inferences not wholly supported by the record, particularly in cases involving
such fundamental constitutional rights as parental rights.  See generally
Stanley v. Illinois, 405 U.S. 645, 651 (1972) (characterizing parental
rights as Aessential,@ a Abasic civil right,@ and Afar more precious
. . . than property rights@); Holick, 685 S.W.2d at 20B21 (A[T]ermination
proceedings should be strictly scrutinized, and involuntary termination
statutes are strictly construed in favor of the parent.@).  Thus, despite
the State=s assertion that appellant=s disciplinary
regimen was frequently excessive, there is no evidence before us of any
previous abuse or prior complaints.  In fact, the TDFPS caseworker initially
assigned to investigate the family provided an affidavit explaining Athe family has no
history of CPS referrals.@  Further, the caseworker overseeing the
children=s foster care
conceded at trial that but for the allegations against Perkins, J.A.J. would
not have been taken from appellant and placed in foster care.[18]
Accordingly, the State=s contention that appellant regularly and
excessively hit J.A.J. is not supported by the record.




Utilizing the standards heretofore articulated, we find the
evidence both legally and factually insufficient to support a termination of
parental rights under section 161.001(1)(E) of the Family Code.  Accordingly,
appellant=s second point of error is also sustained.
Best Interest of the Child
In her third point of error, appellant contends the
evidence is legally and factually insufficient to support the trial court=s finding that the
termination of her parental rights was in the best interest of the J.A.J.  The
record reflects that all parties agree that J.A.J. should remain in contact
with his sister to the fullest extent possible.  She appears to be the one
person with whom J.A.J. has a very close relationship.  There is a substantial
concern that terminating appellant=s parental rights
over J.A.J. but not his sister will have a detrimental impact on J.A.J. 
Furthermore, the attorney ad litem appointed to represent J.A.J.=s interests at
trial said he believed appellant=s parental rights
over J.A.J. should not be terminated.  However, having found the evidence
legally insufficient under section 161.001(1)(D) and (1)(E), we need not decide
whether the evidence is also legally and factually insufficient to support the
trial court=s conclusion that termination was in the J.A.J.=s best interest.
Accordingly, we reverse that portion of the trial court=s decree
terminating appellant=s parental rights as to J.A.J. and
appointing the Department of Family Protective Services as the sole managing
conservator of the child, and render judgment denying the Department=s request to
terminate appellant=s rights as to J.A.J.  In all other
respects, the judgment of the trial court is affirmed.
 
 
/s/      J. Harvey Hudson
Justice
 
 
Judgment rendered
and Majority and Concurring/Dissenting Opinions filed August 10, 2006.
Panel consists of Justices Yates, Hudson, and Senior
Justice Margaret G. Mirabal (sitting by assignment).  (Mirabal, J., concurring
and dissenting).




[1]  At the time of the alleged abuse involved in this
case, the state agency charged with preventing delinquency, abuse, neglect, and
exploitation of Texas children and elderly or disabled adults was known as  the
Texas Department of Protective and Regulatory Services (ATDPRS@).  The agency=s name has since been changed to TDFPS and, therefore,
we will refer to the agency only by its current name.


[2]  In addition, J.A.J.=s sister said
the children=s grandmother fabricated a story
about how the marks appeared on J.A.J.=s neck and told the children to Astick to the story.@  However, appellant herself
admitted witnessing Perkins pull on the strings once they were around J.A.J.=s neck.  Thus, there is little
dispute that the incident occurred.  


[3]  In an affidavit attached to its original petition
for termination, Powers stated that both J.A.J. and his sister reported that
the bruise was sustained when J.A.J. was paddled with a board.  Although both
children claimed appellant and Perkins had paddled J.A.J. with a Aboard,@ appellant
testified that she only used a belt to spank J.A.J.  In any event, neither the
TDFPS employee, J.A.J., nor his sister testified at trial, and no evidence was
introduced to indicate that J.A.J. was ever struck with a board.


[4]  Because a prior case was filed affecting the sister=s relationship with her father, the 314th
District Court severed and transferred her case to the court with continuing
jurisdiction, the 308th District Court.


[5]  The trial court found appellant engaged in conduct
under both subsections (D) and (E).  However, a finding under any one
subsection listed in 161.001(1) can be sufficient grounds for termination.  See generally In re A.V., 113 S.W.3d 355,
362 (Tex. 2003) (AOnly one predicate finding under
section 161.001(1) is necessary to support a judgment of termination when there
is also a finding that termination is in the child=s best interest.@); In re U.P., 105 S.W.3d at
236 (A[A]ppellant=s parental rights can be terminated
with a finding of best interest of the child and any one of the . . . ' 161.001(1) grounds challenged by
appellant.@); In re W.J.H., 111 S.W.3d
707, 715  (Tex. App.CFort Worth  2004, pet. denied) (AIf multiple conduct grounds are
alleged for termination, the evidence is factually sufficient if it factually
supports just one of the alleged conduct grounds.@).  Therefore,
because appellant challenges both findings, on appeal we must address both subsections to
determine whether there was sufficient evidence to support the trial court=s termination order.  See In re
A.V., 113 S.W.3d at 362; In re U.P., 105 S.W.3d at 236; In re
W.J.H., 111 S.W.3d at 715.


[6]  AEndanger@ under section 161.001(1) means to Aexpos[e] to loss or injury; to
jeopardize.@  In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)
(quoting Tex. Dep=t of Human Servs. v Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  AAlthough >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 conduct be directed at the
child or that the child actually suffers injury.@  Id.; see also In re U.P., 105 S.W.3d
at 233 (detailing the range of actions considered Aendangerment@); In re J.I.T.P., 99 S.W.3d
841, 844 (Tex. App.CHouston [14th Dist.] 2003, no pet.)
(similarly defining endangerment).


[7]  We recognize a number of courts have applied
subsections (D) and (E) together and have extended the Aconduct@
requirement to subsection (D).  See, e.g., In re R.D., 955 S.W.2d at 367 (observing that
termination under both subsections (D) and (e) res on parental conduct); In
re W.S., 899 S.W.2d 772, 776  (Tex. App.CFort Worth  1995, no writ) (considering both the physical
environment as well as the parents= conduct to support termination under subsection (D)); In re B.R.,
822 S.W.2d 103, 106 (Tex. App.CTyler 1991,
writ denied) (holding that abusive or violent conduct by a parent or other
resident of a child=s home can produce an environment which endangers a
child=s physical or emotional well-being); Smith v. Sims, 801 S.W.2d 247, 251 (Tex. App.CHouston [14th Dist.] 1990, no writ) (concluding the conduct of a parent
is relevant in determining whether a dangerous environment exists as required
for termination under subsection (D)).  We agree that the conduct of
parents or others in the home, generally, can produce dangerous surroundings or
circumstances sufficient to support termination under subsection (D).  For
example, if there is a history or pattern of abuse over time, this can create a
home environment which threatens the child=s physical or emotional maturation and risks future
emotional problems.  See generally In re N.R., 101 S.W.3d 771, 776B77 (Tex. App.CTexarkana 2003, no pet.) (noting
father=s propensity for extensive physical
abuse towards children and others); In re T.T., 39 S.W.3d 355, 362B63 (Tex. App.CHouston [1st Dist.] 2001, no pet.)
(finding sufficient evidence for termination where mother knew her husband
abused oldest child even before youngest child was born).  We also agree that
knowingly placing a child in a specific, dangerous situation can support
termination under subsection (D).  See
Smith, 801 S.W.2d at 251 (Tex. App.CHouston [14th Dist.] 1990, no writ) (finding a father=s conduct created a dangerous environment where, in the presence of his
children, he took hostages and forced a confrontation with a Houston Police
Department SWAT team).  
However, absent a
notable history of abuse or a specific instance which clearly endangers a
child, we should be careful to maintain the critical distinction between Aconditions or surroundings@ required under subsection (D) and Aconduct@ required under subsection (E).  See
generally Williams, 788 S.W.2d at 926 (explaining that different proof is
required under subsections (D) and (E)); In re S.H.A., 728 S.W.2d at 85
(AWe perceive the distinction between
subsections (D) and (E) to be the cause of the resulting danger to the
child=s physical or emotional well‑being.
Under subsection (D), it must be the environment which causes the child=s physical or emotional well‑being
to be endangered.@) (emphasis in original).
After reviewing the
statutory language and relevant case law, we believe the more logical
interpretation of section 161.001(1)(D) suggests A[e]vidence regarding a parent=s conduct is relevant only to the
issue of whether the parent >knowingly= placed or allowed the child to remain
in [dangerous] >conditions or surroundings.=@  In re P.S., 766 S.W.2d
833, 835 (Tex. App.CHouston [1st Dist.] 1989, no
writ).  Accordingly, we will limit our analysis under subsection (D) to the
evidence pertinent to the dangerous conditions or surroundings to which J.A.J.
was exposed.


[8]  Just before pronouncing the court=s termination order, the trial judge stated AI think [appellant] certainly could have done more in
terms of visiting, in terms of following through on the parenting classes.  I=m disappointed she had one positive drug U.A.  I=m certainly not commending her on her performance.  I
really did think they were inadequate.  The ultimate sanction is termination .
. .@


[9]  Certainly, it is possible in a case of extreme abuse
for termination to be warranted by conduct arising out of a single incident.  See,
e.g., Smith v. Sims, 801 S.W.2d 247, 250 (Tex. App.CHouston [14th Dist.] 1990, no writ) (holding
termination was warranted where father held the child hostage after murdering
her mother).


[10]  Tamar Ezer, A Positive Right to Protection for
Children, 7 Yale Hum. Rts. &
Dev. L.J. 1, 37 (2004)


[11]  Pollard, at 577.


[12]  Steven L. Nock, Violence in the Family:  Is
Spanking Universal?, 8 Va J. Soc.
Pol=y & L. 61, 62 (2000).


[13]  Pollard, at 581B82.


[14]  Nock, at 68.


[15]  Id. at 62.


[16]  The record indicates photographs were taken and were
shown to appellant at some time prior to trial.  However, these photographs
were not introduced into evidence or otherwise published to the court, and the
pictures are not contained in the appellate record.


[17]  For example, the State points out appellant admitted
leaving marks on J.A.J. Aat times.@ 
This could mean, as the State postulates, that appellant often left bruises on
J.A.J.  However, the record does not indicate the frequency or severity of
these Amarks.@  Thus, it is
also possible the marks were nothing more than temporary welts or red marks
typical of many spankings.
Regarding the spanking that left a visible
bruise, appellant explained the spanking was in response to J.A.J.=s attempt to burn down their house.  Moreover, we are
not prepared to hold that a bruise on the buttocks or the back of the legs is,
by itself, proof of unreasonable or excessive force.  See generally Tex. Fam. Code Ann. ' 261.001(1) (Vernon 2002) (setting forth the Family
Code definition of child abuse).


[18]  Again we note, as far as Perkins is concerned, there
is no history or pattern of abuse suggesting J.A.J. was exposed to a dangerous
environment by living with his stepfather.  Some evidence exists to suggest
J.A.J. is scared of Perkins.  However, we find no authority to support the
proposition that general fear of one=s
parents, without more, creates an unhealthy or  dangerous environment.  The choking incident could be
construed as an act that placed J.A.J. in a dangerous circumstance.  However,
this singular act is not enough to find appellant knowingly placed or
allowed J.A.J. to remain in a dangerous environment.  For more analysis of
Perkins= involvement, see discussion infra
AConduct Under Section
161.001(1)(E).@


