Opinion filed December 19, 2013




                                     In The


        Eleventh Court of Appeals
                                   ___________

                              No. 11-13-00191-CV
                                   ___________

                IN THE INTEREST OF J.A.L., A CHILD


                    On Appeal from the County Court at Law
                              Midland County, Texas
                        Trial Court Cause No. FM 54,225


                     MEMORAND UM OPI NI ON
      This is an appeal from an order terminating the parental rights of J.A.L.’s
mother and father. The father appeals. We affirm.
                                     I. Issues
      Appellant presents three issues for review. In his first issue, Appellant
contends that his conduct prior to J.A.L.’s birth should not have been considered at
trial. In his second issue, Appellant challenges the sufficiency of the evidence to
support the trial court’s finding that he engaged in conduct or knowingly placed
J.A.L. with persons who engaged in conduct that endangered the physical or
emotional well-being of the child. In the third issue, Appellant challenges the legal
and factual sufficiency of the evidence to support the trial court’s finding that he
constructively abandoned J.A.L.
                 II. Termination: Standard of Review and Findings
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine if the evidence is legally sufficient in a parental termination case, we
review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if
the evidence is factually sufficient, we give due deference to the finding and
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations against the parent. In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown
by clear and convincing evidence that the parent has committed one of the acts
listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
      In this case, the trial court found that Appellant had committed two of the
acts listed in Section 161.001(1): endangering conduct pursuant to Section
161.001(1)(E) and constructive abandonment pursuant to Section 161.001(1)(N).
With respect to subsection (N), the trial court determined that Appellant had
constructively abandoned J.A.L. because J.A.L. had been in the permanent or
temporary managing conservatorship of the Department of Family and Protective
Services or an authorized agency for not less than six months and (1) the
Department or authorized agency had made reasonable efforts to return J.A.L. to
Appellant, (2) Appellant had not regularly visited or maintained significant contact

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with J.A.L., and (3) Appellant had demonstrated an inability to provide J.A.L. with
a safe environment. See id. § 161.001(1)(N). The trial court also found that
termination of Appellant’s parental rights would be in the best interest of J.A.L.
See id. § 161.001(2). Appellant does not challenge the best interest finding.
                               III. Pre-Birth Conduct
      In his first issue, Appellant asserts that Section 161.001(1)(E) should not be
interpreted to include pre-birth conduct. We disagree. The Texas Supreme Court
has determined that conduct committed by a parent prior to a child’s birth may be
considered by courts making a determination under Section 161.001(1)(E). In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (endangering conduct “may include the
parent’s actions before the child’s birth,” including evidence of drug usage). As an
intermediate appellate court, we decline Appellant’s invitation to interpret the
statute in a manner inconsistent with supreme court precedent. Appellant’s first
issue is overruled.
                         IV. Evidence Supporting Findings
      In his second and third issues, Appellant challenges the sufficiency of the
evidence regarding the trial court’s findings of endangering conduct and
constructive abandonment. To support termination under Section 161.001(1)(E),
the offending conduct does not need to be directed at the child, nor does the child
actually have to suffer an injury. J.O.A., 283 S.W.3d at 345. A parent’s use of
narcotics and the effect of such use on his ability to parent may qualify as an
endangering course of conduct. Id. Mere imprisonment, standing alone, does not
constitute conduct that endangers the emotional or physical well-being of a child.
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987).
However, if the evidence, including imprisonment, shows a course of conduct that
has the effect of endangering the physical or emotional well-being of the child, a

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finding under Section 161.001(1)(E) is supportable. Id. Endangering conduct is
not limited to actions directed toward the child and “may include the parent’s
actions before the child’s birth,” including evidence of drug usage. J.O.A., 283
S.W.3d at 345.
      To support termination for constructive abandonment under Section
161.001(1)(N), it must be shown that the Department or an authorized agency had
been the managing conservator of the child for not less than six months, that the
Department or authorized agency had made reasonable efforts to return the child,
that the parent had not regularly visited or maintained significant contact with the
child, and that the parent had demonstrated an inability to provide the child with a
safe environment.
      J.A.L. was born in January 2012. The record shows that he has been under
the managing conservatorship of the Department since January 27, 2012. J.A.L.
was placed in the same foster home in which his older brother had been placed.
The final hearing in this case commenced on June 24, 2013.             At that time,
Appellant had not even met J.A.L.         Appellant was released from prison in
September 2012 and arrested again on November 28, 2012. About four or five
months prior to his release from prison, Appellant was informed that he might be
J.A.L.’s father. Appellant was in jail when the DNA test results confirmed that
Appellant was J.A.L.’s father. The Department had no personal contact with
Appellant but did send him correspondence through the mail.                Appellant
recommended that J.A.L. be placed with Appellant’s mother or sister while
Appellant was incarcerated; however, neither responded to the Department’s
attempts to contact them regarding placement.
      At the time of the final hearing in this case, Appellant was in jail and did not
know when he would be released. In addition to pending charges for possession of

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methamphetamine and evading arrest, there was a “parole hold” on Appellant.
Appellant had two prior convictions for possession of methamphetamine, one prior
conviction for possession of marihuana, and one prior conviction for evading
arrest. Appellant invoked the Fifth Amendment and refused to answer questions
posed to him about whether he was addicted to methamphetamine and whether he
sold drugs. We note that a trier of fact in a civil case is free to draw negative
inferences from a witness’s repeated invocations of the Fifth Amendment. Wilz v.
Flournoy, 228 S.W.3d 674, 677 (Tex. 2007); see TEX. R. EVID. 513(c).
      The trial court’s finding under Section 161.001(1)(E) is supported by the
record. There was clear and convincing evidence from which the trial court could
reasonably have formed a firm belief that Appellant engaged in a course of conduct
that endangered the physical or emotional well-being of J.A.L. The evidence
indicates that Appellant was released from prison and rearrested after he knew that
he could be J.A.L.’s father. Appellant had three prior drug-related convictions.
Appellant’s drug activity and repeated incarceration constituted a course of
conduct that endangered J.A.L.’s well-being. Appellant was not able to personally
care for J.A.L., and his suggested placements did not respond to notifications from
the Department. Appellant’s second issue is overruled.
      The trial court’s finding under Section 161.001(1)(N) is also supported by
the record. There was clear and convincing evidence that the Department had been
J.A.L.’s managing conservator for more than six months, that the Department had
made reasonable efforts to return J.A.L. or contact Appellant’s suggested
placements, that Appellant had not regularly visited or maintained significant
contact with J.A.L., and that Appellant had demonstrated an inability to provide
J.A.L. with a safe environment. Appellant’s third issue is overruled.



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                               V. This Court’s Ruling
      We affirm the trial court’s order of termination.




                                                    MIKE WILLSON
                                                    JUSTICE


December 19, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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