







Reversed and Rendered in Part, Reversed and Remanded in Part; and
Opinion filed July 28, 2005














Reversed and Rendered in Part, Reversed and Remanded
in Part; and Opinion filed July 28, 2005.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-04-00359-CV
____________
 
IN THE
INTEREST OF J.R. AND B.R.
______________________________________________
 
On Appeal from the 314th District Court
Harris County,
Texas
Trial Court Cause No. 02-07575J
______________________________________________
 
O P I N I O N




This is an appeal from a judgment
terminating the parental rights of a mother and a father to two minor
children.  The father did not appear at
trial and does not appeal the termination of his parental rights.  The mother, in four issues, challenges the
legal and factual sufficiency of the evidence to support the trial court=s
termination findings.  Under the
applicable standard of review, we conclude that no reasonable fact finder could
form a firm belief or conviction that the mother engaged in the conduct
described in subsections 161.001(D) and (E) of the Texas Family Code, upon
which the trial court based its termination judgment.  Because the evidence is legally insufficient
to support termination of the mother=s
parental rights, we reverse this part of the trial court=s
judgment, render a take-nothing judgment as to termination of the mother=s
parental rights, and remand the case for further proceedings consistent with
this opinion.
I.  Factual and
Procedural Background
Crystal is the mother of four children,
J.R. (hereinafter AJohn@), B.R.
(hereinafter ABelinda@), a son
born to Crystal and her husband, and an infant born while this case was
pending.[1]  On September 16, 2002, the Texas Department
of Protective and Regulatory Services n/k/a the Texas Department of Family and
Protective Services (Athe
Agency@) removed
John and Belinda from the care of Crystal=s father.[2]  At this time, John was four years old, and
Belinda was three years old.   
The case was tried to the
court.  Three witnesses testified.  Their cumulative testimony takes up 60 pages
in our reporter=s
record.  Of these pages, the testimony
elicited by the Agency constitutes fewer than 26 pages.
The first witness, Simona Dunn (hereinafter the ACaseworker@) testified as follows:
!         She works for the Agency, and she is the caseworker for John
and Belinda.
!         John and Belinda are placed in a foster home and are doing Aokay@ there.
!         In September 2002, the children came into the Agency=s care Abecause of physical
negligence.@
!         The Agency removed the children from their grandfather, in
whose care their mother had left them.
!         The Agency has pictures indicating the Atype of negligence.@




!         This was not the first time the Agency was involved with
this family.  This family had a history
since 1997.  [There is no evidence as to
what happened before June 1999.]  In June
1999, Athere was an open
intensive family services case where physical negligence and medical negligence
was validated on both [Crystal] and the grandfather.@  The Agency offered Crystal services in June 1999.
!         Nothing Achanged with the children this time.@
!         The Caseworker had the opportunity to review the old case
file, which contained pictures.  A[I]t was the same
conditions.@
!         As of the Tuesday before trial, Crystal was living with a friend.
!         Crystal
had been living with her mother-in-law. 
After her mother-in-law died, Crystal
moved in with a friend and has been living sporadically with friends or at her
father=s home.
!         The Caseworker knows the different persons who have been
living in the homes in which Crystal has been
living, and the Caseworker has concerns regarding the persons with whom Crystal has been living.
!         The Caseworker found out that Crystal Awas with@ her husband=s brother, a registered
sex offender, and got pregnant by him. 
This sex offender Awas registered to the home
where [Crystal]
was living.  So, we ended up removing C [The Caseworker] and a Montgomery worker ended
up removing that baby.@
!         The Caseworker did not speak to Crystal about the ramifications of living
with this sex offender but an investigative worker did.  Crystal
was made aware that it was inappropriate to be around a sex offender.
!         Crystal
did not Acease being around this
registered sex offender.@  That was brought to the Caseworker=s attention because Crystal brought the
registered sex offender to the Agency=s office for family
visits.
!         Despite being told not to bring the registered sex offender
to the Agency=s office for family
visits, she brought him back with her for a subsequent family visit.
!         The Caseworker believes it was inappropriate for Crystal to expose the children to Crystal=s father because her
father had been arrested in 1968 for Amolestation, fondling a
child.@
!         Crystal
has completed some services; however, she has not completed the following: (1)
maintaining and locating stable housing, (2) following through with the Arecommendations on the
psychiatric to consult medication for her anxiety and her depression.@ 




!         The child of the registered sex offender in Montgomery County was six months old at the time of
trial.
!         Crystal
has not demonstrated that she can care for these two children. 
!         The Caseworker believes Crystal has not demonstrated she can
care for these two children for the following reasons: (1) Ashe kind of lives within
the moment@; (2) she has not shown
that she can provide a safe and nurturing environment for her kids; (3) she has
not Amaintained a place to live@; (4) A[s]he continues to put the
children around people who could potentially put the children at risk for abuse
and negligence@; and (5) she has not
demonstrated her ability to adequately care for these children.
!         The Caseworker did not talk to Crystal about the conditions of the home in
which John and Belinda were found in September 2002.
!         The Caseworker does not have personal knowledge of who was
living in the home in which John and Belinda were found in September 2002.
!         The Caseworker did not see the condition of the home in
which John and Belinda were found in September 2002.
!         The Caseworker believes it would be in the children=s best interest that
Crystal=s rights be terminated
because the children are four and six years old and, despite having a year and
a half of services, Crystal has shown minimal improvement of her ability to
adequately provide the type of care that these children need.
!         John and Belinda are doing well in the foster home.
!         Since the children have been in CPS custody, Crystal has visited them on a regular basis, and the
Caseworker has observed Crystal
during those visits.
!         Crystal
has bonded to the children.  The children
love Crystal,
and she loves them.  There is no doubt
there is a bond between Crystal and the children.
!         The Caseworker is concerned that Crystal is not getting medical attention for
her depression and that she has not followed the recommendations of her
psychiatrist.  
!         One week ago Crystal started
living with a friend, and the Caseworker has not been out to see Crystal=s current living conditions.
!         The Caseworker is willing to look at Crystal=s new home to see if it is
appropriate for the children, but states that there is more to this matter than
where Crystal
is living.




!         The other issue is that the Agency believes that Crystal did not follow
the recommendations of the psychiatric evaluation.
!         Crystal knowingly left the
kids in the home of Crystal=s father and that was
highly inappropriate.
!         The Caseworker did not remove the children from Crystal=s father=s home in September 2002,
and she does not have any personal knowledge of why they were removed. 
!         The Caseworker is concerned that Crystal cannot provide a safe and nurturing
environment.
!         The Agency asked Crystal
to complete the following services as part of her service plan to obtain her
children: (1) locate and maintain stable housing, (2) complete a A4=Cs assessment,@ (3) complete a
psychological assessment and all the recommendations from that assessment, (4) Acomplete parenting,@ (5) complete a GED
program, and (6) maintain financial resources.
!         Crystal
completed her 4=Cs evaluation, parenting
classes, individual counseling, and a psychiatric evaluation.
!         Crystal
attended three counseling sessions.  Crystal Awas self reporting
information that wasn=t correct, and the
therapist discharged her.@
!         The Caseworker has reason to believe Crystal was not honest with her therapist.
!         The three sessions Crystal
attended did not constitute completion of her counseling.  Crystal did
not voluntarily stop attending the counseling services; rather, the counseling
contractor terminated Crystal=s counseling services.
!         The Caseworker had a conversation with Crystal
in April 2003 that she should not be living with a registered sex offender;
yet, Crystal
was still living with a registered sex offender in October 2003.  Another worker at the Agency had told her the
same thing earlier.  This conduct could
potentially damage the emotional or physical well-being of these children.
!         Crystal
told the Caseworker that she was on the medication and that her therapist was
discharging her because she was in compliance with the medication and stable
housing.  The Caseworker has reason to
believe that this was not true.
!         The Caseworker told Crystal
that the Agency was concerned that Crystal=s therapist discharged her
after only three counseling sessions. 
The Caseworker also told Crystal that
additional therapy sessions were going to come from her case in Montgomery County,
so the Agency would not be providing more counseling services in Harris County.




!         Crystal
has told the Caseworker that she has stable housing and is complying with her
medication, but the Caseworker does not believe this has ever been true.
The following are excerpts from the Caseworker=s testimony:
Q.        And you didn=t talk to her about the
ramifications of living with a registered sex offender?
A.        Well, I had C
. . .
Yes. I=ll say AYes.@
Q.        Your earlier testimony was incorrect?
A.        Well, initially, no; but after I looked
through the file and saw that this was C
. . .
[The Court]:  Are you changing your answer?
A.        Well, initially, Judge, we did not know
that the mom was living with this man; and once we found that out, I told her
that she could not C he could not be a part of
these kids= lives.  But that was an Ainitial@ question.  So initially no, I did not speak with her
about that.
[The Court]:  All right. 
So, initially no.  But if the
question was, AHave you ever talked about
it?@ your answer is what?
A:  AYes.@
. . .
Q.        And how long did [Crystal] live with the registered sex
offender?
A.        She was there up until the grandmother
died.  She had B when we went out in
October, she was still living there.
[Crystal=s counsel]:  Objection. 
Nonresponsive.
[The Court]:  Just answer the question asked.
A.        Yes.
Q.        Just, like, total number of months if
you can.
A.        From September of =02 to October of =03, she was living
there.  
Q.        So that=s some 13 months she was
living there?
A.        Yes.




The second witness, Stacey Truss (hereinafter the AInvestigator@) testified as follows:
!         She works for the Agency, and she is the caseworker who did
the initial investigation.
!         She was called out to Crystal=s father=s house because the Agency
had received Aa referral for physical
negligence and medical negligence of [John] and [Belinda].@
!         There were concerns about ringworm and flea bites and the
condition of the home.
!         AWe=ve had, I think, six prior
referrals of [Crystal].@
!         The Agency had two prior referrals regarding John and
Belinda and one prior referral regarding Crystal=s father.  
!         When she arrived at Crystal=s father=s trailer, the
Investigator found deplorable conditions throughout the trailer.  She found a knife on the floor A[i]n the bathroom.@  A toilet bowl was completely brown.  There were all kinds of clothes thrown
around, bags of trash in the kitchen, dirty dishes, and spoiled food.  There were Apiles of clothes where
kids could pull them down on themselves C just not a healthy living
environment for these kids.@
!         The Investigator said there were Acats C I think three cats in the
home and no litter box.  When I asked,
she said they used the box out [sic] and they go outside in the environment.  You could tell they used the bathroom in the
house.@
!         The Investigator took pictures of the conditions of the home
and the children. Petitioner=s exhibit 1 fairly and accurately depicts the
conditions of the home at that time.
!         The Investigator talked to Crystal about the conditions of the home.
!         Regarding medical negligence A[t]he allegations were
that the children had ringworm C pretty significant ringworm C and flea bites and they
were allergic to the flea bites.@
!         The Investigator observed the condition of the children=s bodies.  John and Belinda were both Avery, very thin.@  You could see their ribcages.  You could see the ringworm and flea bites on
their bodies.
!       The Investigator found out that Harold, the father of John and Belinda,
is a registered sex offender.




!       The Investigator is aware of another registered sex offender, Anthony,
who is the brother of Crystal=s husband.  Crystal
has a son with her husband.  Anthony was
not Crystal=s paramour when the
Investigator was involved with the case; however, Crystal later had a child with Anthony.  The Investigator had concerns regarding
Harold and Anthony having access to the children.  The Investigator discussed these concerns
with Crystal.  Crystal
responded by saying that Harold had not been a part of the children=s lives for a while.  Anthony was living in Crystal=s father-in-law=s house at that time, and
the Investigator discussed her concerns about having a sex offender in Crystal=s father-in-law=s house.  Crystal
Awas not with [Anthony] at
that time.@  Subsequently, Crystal had a child with Anthony.  
!         The Investigator believes that termination of Crystal=s rights would be in these
children=s best interests for the
following reasons: (1) the Agency has been involved with the children for the
same reasons; (2) the Agency Aoffered family preservation back in 1999 for
physical negligence with the same concerns of the condition of the home@; (3) Crystal Astill continues to get
involved with men who are registered sex offenders@; (4) there were some
concerns of sexual abuse in Crystal=s own past by her father,
but the Agency could not validate that; and (5) the Investigator feels that
Crystal has not placed her children=s needs above her own.
!       On September 16, 2002, the Investigator spoke to Crystal in general about sex offenders.  About a week later, the Investigator spoke to
Crystal
specifically about Anthony.  
!         This case was transferred from the Investigator to the
newest caseworker 20 days after the children were removed, around the middle of
October 2002.  Since then, the
Investigator has not been involved in this case.
!         A[F]amily preservation@ worked with Crystal twice in 1999,
and the Agency provided services regarding homemaking and cleaning the house.
 
The following are excerpts from
the Investigator=s
testimony:
Q.      Do
you recall the exact date that you spoke with [Crystal] about [Anthony]?
A.        I spoke with her in general about sex
offenders on 9-16.
Q.      What
year?
A.        2002. 
Then.  I can=t remember exactly when I found
out about C
Q.        Okay.
[Crystal=s counsel]:  Objection. Nonresponsive.
Q.      You
talked to her about [Anthony], specifically on 9-16?




A.        I talked to her about sex offenders on
9-16-02.  Then a week later I was out
there and I found [Anthony] C
[Crystal=s counsel]:  Objection. 
Nonresponsive.
A.        A week later C
The final witness, Crystal, testified as
follows:
!         Crystal
is aware that Harold and Anthony are registered sex offenders, and she has had
children with both men.
!         Harold has never provided financial support for John and
Belinda.
!         Crystal
understands that John and Belinda were removed from her father=s house because of its
condition.
!         John and Belinda were at her father=s home at that time
because her father was taking care of the children while Crystal
worked at night and lived at her father-in-law=s home in Cleveland, Texas.  Her father-in-law did not want the children
at his home, so Crystal=s father was watching the
children.  Crystal=s father had been watching
John and Belinda for one month when the Agency removed them.  Since then, the children have been in the
Agency=s care.  
!         Before the Agency removed John and Belinda, these children
were not living at her father-in-law=s house.  A few weeks before the Agency removed John
and Belinda on September 16, 2002, Crystal
Atook the children down
there@ because she Aneeded somewhere to leave
them.@  
!         After the Agency removed John and Belinda, Crystal lived a few months with her
mother-in-law.
!         Crystal
thinks she went to five counseling sessions altogether before the counseling
contractor terminated the sessions.
!         Crystal
sometimes needed medication; however, she did not want to take medication while
she was pregnant.
!         After living with her mother-in-law for a few months, Crystal lived with her
friend Brittany for a month and then with her friend Rachel.
!         Crystal
has currently been living with her friend Theresa for about a month and a half,
and she introduced four letters into evidence in support of this
assertion.  If Crystal regained custody of John and Belinda,
they would live with her at her friend Theresa=s home, which is an
appropriate place with three bedrooms.  




!         She has been visiting her children regularly.  They are excited to see her and sad when she
leaves.
!         Crystal
is currently unemployed.  She has worked
as a waitress and is currently looking for a job at Wal-Mart, Waffle House C one of her former
employers C and a video store.  
!         Crystal
wants the children returned to her.  She
is capable of caring for them, and she has a babysitter, Theresa=s oldest daughter.  
!         At the time of trial, Crystal
was twenty-one years old, and she was fifteen years old when her first child
was born.  
!         John hit her one time when she told him that her mother had
died, and John has never told Crystal
that he hates her.  
!         The Investigator=s earlier testimony that
Crystal was living with a sex offender around the time that the Agency removed
the children was not true because when the Agency removed John and Belinda,
Crystal and her father-in-law were the only people living in her father-in-law=s home. 
!         Crystal
has no objection to the trial court issuing an injunction that Anthony and
Harold cannot see the children.  
!         She is able to seek medical attention through Medicaid but
she does not have health care coverage. 
At the time the Agency removed the children, they did not have any
Medicaid coverage.  
!         Crystal
saw the ringworm on the children when she went to visit them at her father=s home, and she put
medicine on it.  Her father, sister, and
brother-in-law also put ointment on it.  Crystal did not observe
any other illnesses in the children.
 
During examination of Crystal by her own attorney, the following exchange
occurred:
Q.        Earlier C did you hear the
testimony earlier when the caseworker had testified that you were living with a
sex offender?
A.        Yes.
Q.        Was that true?
A.        No C because at the time that
the C.P.S. picked up my son and my daughter I was living only with my
father-in-law.  He was the only person
besides me that was living in that house. 

Q.        Since that time were you living with
anybody else during the time of this case?




A.        Just Dorothy Weathers . . . my
mother-in-law, and my dad for a few weeks and then Theresa.
Q.        You aren=t living with the fathers
of any of these children?
A.        When Anthony moved in, yes; but it wasn=t long.
Q.        For how long?
A.        Well, it was from September C from September of C
Q.        What year?
A.        September B from February of 2003 to
October of 2003.
The Agency=s only
closing argument as to the termination of Crystal=s
parental rights was a plea that Athis
mother=s rights
be terminated based on 161.001(E) and (D) and based on the best interest of the
children.@ 
The guardian ad litem did not introduce any evidence at trial, and the
trial court=s order compensating the guardian
ad litem indicates that she did not conduct any investigation.  The only recommendation made at trial by the
guardian ad litem was the following sentence, which also was the guardian=s entire
closing argument:  AYour
Honor, on behalf of the children, I would concur with the [Agency=s]
position and ask that the parental rights be terminated.@  
At the conclusion of the trial,
the court terminated the parental rights of both Harold and Crystal as to John
and Belinda.  In its findings of fact,
the trial court found in pertinent part as follows:
!         Crystal
knowingly brought a registered sex offender to a visit with her children.
!         Crystal
has not had consistent, stable housing.
!         Crystal
has not complied with her therapy/treatment.
Both in its termination judgment
and in its findings of fact and conclusions of law, the trial court found the
following by clear and convincing evidence:
!         Crystal
knowingly placed or knowingly allowed John and Belinda to remain in conditions
or surroundings which endanger their physical or emotional well‑being.




!         Crystal
engaged in conduct or knowingly placed John and Belinda with persons who
engaged in conduct which endangers their physical or emotional well‑being.
!         Termination of Crystal=s
parental rights is in the best interest of John and Belinda.[3]
II.  Standard of Review
The natural
right that exists between parents and children is one of constitutional
dimensions.  Holick v. Smith, 685
S.W.2d 18, 20 (Tex.
1985).  Crystal=s
parent-child relationship with John and Belinda is a fundamental liberty
interest protected by the Fourteenth Amendment to the United States
Constitution.  M.L.B. v. S.L.J.,
519 U.S. 102, 118B19, 117 S. Ct. 555, 565, 136 L. Ed. 2d 473 (1996).  A termination judgment is complete, final,
and irrevocable, and it divests for all time the parent and child of all legal
rights, privileges, duties, and powers with respect to each other except for
the child=s right to inherit.  Holick, 685 S.W.2d at 20.  Consequently, termination proceedings should
be strictly scrutinized, and involuntary-termination statutes are strictly
construed in favor of the parent.  Id.  On the other hand, parental rights are not
absolute.  In re C.H., 89 S.W.3d
17, 26 (Tex.
2002).  While it is imperative that
courts recognize and respect the constitutional underpinnings of the
parent-child relationship, it is also essential that children=s
emotional and physical interests not be sacrificed merely to preserve that
right.  See id. It is the tension
and conflict between these two important interests that often makes
parental-termination cases difficult.




Because termination of parental
rights is such a drastic remedy, due process and the Texas Family Code require
the Agency to prove the necessary elements by the heightened burden of proof of
Aclear and
convincing evidence.@  See Tex.
Fam. Code Ann. ' 161.001
(Vernon 2002); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). 
In this case, the Agency had to prove by clear and convincing evidence
that Crystal engaged in the conduct described in subsection 161.001 (1)(D) or
(E) and that termination is in the children=s best
interest.[4]  See Tex.
Fam. Code Ann. '
161.001.  AClear and
convincing evidence@ means Athe
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). 




The heightened Aclear and
convincing evidence@ burden
of proof alters the appellate legal-sufficiency standard of review.  See In re J.F.C., 96 S.W.3d 256, 264B66 (Tex. 2002). In
conducting such a legal-sufficiency review, a court must look at all the
evidence in the light most favorable to the termination findings to determine
whether a reasonable trier of fact could have formed a firm belief or conviction
that these finding are true.  See id. at
266.  To give appropriate deference to
the factfinder=s conclusions and the role of a
court conducting a legal-sufficiency review, looking at the evidence in the
light most favorable to the judgment means that a reviewing court must assume
that the factfinder resolved disputed facts in favor of its findings if a
reasonable factfinder could do so. Id.  Furthermore, a reviewing court should
disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been incredible.  Id.  This does not mean that a reviewing court
must disregard all evidence that does not support the findings in
question.  Id.  Disregarding undisputed facts that do not
support the finding could skew the analysis of whether there is clear and
convincing evidence.  Id. 
If, after conducting its legal-sufficiency review of the record
evidence, a court determines that a reasonable factfinder could not form a firm
belief or conviction that the matter that must be proven is true, then that
court must conclude that the evidence is legally insufficient.  Id.; see
also In re J.L., 163 S.W.3d 79, 84B85 (Tex. 2005) (outlining
legal-sufficiency standard of review). 
We apply the same legal-sufficiency standard in reviewing the evidence
regardless of whether we are reviewing a jury=s verdict
or, as in this case, the trial court=s
findings following a bench trial.  Catalina
v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). 
III.  Issues
and Analysis
In her first issue, Crystal asserts that the
evidence is legally insufficient to support the trial court=s
findings under subsections 161.001(1)(D) and (E).  The trial court found that the Agency proved
by clear and convincing evidence the following:
!         Crystal
knowingly placed or knowingly allowed John and Belinda to remain in conditions
or surroundings which endanger their physical or emotional well‑being.
!         Crystal
engaged in conduct or knowingly placed John and Belinda with persons who
engaged in conduct which endangers their physical or emotional well‑being.
See Tex. Fam. Code Ann. '
161.001(1)(D) and (E).
A.        Is the evidence legally sufficient to
support the trial court=s finding under subsection 161.001(1)(D)?
The trial court found that Crystal knowingly placed
or knowingly allowed John and Belinda to remain in conditions or surroundings
which endangered their physical or emotional well-being.  See Tex.
Fam. Code Ann. '
161.001(1)(D).  Subection 161.001(1)(D)
focuses on John and Belinda=s
environment, and the Agency had the burden of proving by clear and convincing
evidence that this environment endangered the children=s
physical or emotional well-being.  See
Doyle v. Texas Dep=t of
Protective & Reg. Servs., 16 S.W.3d 390, 394 (Tex. App.CEl Paso
2000, pet. denied).  In support of this
ground, the Agency asserts that it sufficiently proved environmental
endangerment to John and Belinda based on the following: (1) Crystal=s
maintaining a relationship with Anthony, a registered sex offender who could
place John and Belinda at risk, and (2) placing or allowing John and Belinda to
remain in the unsanitary conditions at the home of Crystal=s
father.  




AEndanger@ means to
expose to loss or injury or to jeopardize.  Texas
Dep=t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex.
1987).  Endanger means more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal family
environment.  Boyd, 727 S.W.2d at
533.  Nonetheless, it is not necessary
that the conduct be directed at the child or that the child actually suffers
injury.  Id. 
Rather, it is sufficient that the child=s
well-being be jeopardized or exposed to loss or injury.  
Alleged Exposure to Sex Offender
The Agency
asserts on appeal that the evidence at trial is sufficient to support the trial
court=s finding
under subsection 161.001(1)(D) based on evidence that Crystal decided to
maintain a relationship with Anthony, a sex offender who could place her
children at risk, after the Agency warned her that she should not become
involved with registered sex offenders. 
The Agency also argues that legally sufficient evidence supports this
finding because there is evidence that Crystal
brought Anthony to two supervised visits with her children at an office of the
Agency.  The Agency asserts that this
conduct of Crystal regarding Anthony shows Crystal=s intent
to involve Anthony in her family affairs and jeopardize John and Belinda.  The Agency asserts that this behavior
constitutes an Aendangering
lifestyle@ that proves environmental
endangerment of John and Belinda.  The
trial court found that Crystal
Aknowingly
brought a registered sex offender to a visit with her children.@




There are several problems with
the Agency=s argument.  The Caseworker testified that Crystal twice Abrought
[Anthony] up to the office for family visits,@ once
after being told not to do so again by the Agency.  On the other hand, there is no evidence that
John and Belinda saw Anthony or had any contact with him while he was present
at the Agency=s office on these two
occasions.  Further, even if there had
been evidence that Anthony had been in the children=s
presence on these two occasions, it would not be reasonable to conclude that
Anthony=s
presence at the office endangered John and Belinda, given that the Agency
supervised these visits.  Furthermore, in
a section 161.001(1)(D) case, the relevant time frame to determine whether
there is clear and convincing evidence of endangerment is before the Agency
removed John and Belinda.  See Ybarra
v. Texas Dep=t of
Human Servs., 869 S.W.2d 574, 577 (Tex. App.CCorpus
Christi 1993, no writ).  The undisputed
evidence at trial proved that Anthony did not become Crystal=s
paramour until after the Agency removed John and Belinda.  Therefore, Crystal=s affair
with Anthony and her giving birth to his child all occurred when John and
Belinda were in the Agency=s care
and cannot constitute environmental endangerment.  See Ybarra, 869 S.W.2d at 577.
The Investigator stated that, one
week after the Agency removed John and Belinda, she told Crystal she should not be living in the same
place as Anthony because he was a registered sex offender.  The Caseworker stated that she repeated this
admonition in April 2003 and that Crystal
was still living with Anthony in October 2003. 
The Agency does not contend, and the trial court could not reasonably
have found, that the children were endangered during any Agency-supervised
family visit.  Rather, the Agency argues
that it is reasonable to infer from Crystal=s
bringing Anthony to the Agency=s office
on these two occasions, that if Crystal=s
parental rights are not terminated, she will endanger the children by contact
with Anthony in the future.
The unambiguous language of
subsection 161.001(1)(D) requires proof of Crystal=s knowing
exposure of the children to an endangering environment in the past.  Any alleged likelihood that Crystal will knowingly expose the children to
a dangerous environment in the future is not sufficient to prove a violation of
subsection 161.001(1)(D). Such a likelihood would be relevant to the issue of
whether termination is in the children=s best
interest and also would be relevant to the issue of how much contact Crystal should have with
her children if her parental rights are not terminated, but it does not amount
to proof of a past act of knowing environmental endangerment.[5]




The evidence at trial is silent
as all of the following pieces of information about Anthony:
!         The correct spelling of his last name.
!         His age.
!         The sexual offense or offenses that required Anthony to register.  For example, the record does not indicate
whether Anthony=s conviction is for
aggravated sexual assault of a young child when Anthony was in his thirties or
whether it was for unforced sexual relations with a 16-year old girl who
willingly participated and whom Anthony believed was 17 years old when he was
20 years old.  See Tex. Pen. Code Ann. ' 22.011(a), (c), (e) (Vernon Supp. 2005).
!         Any evidence that Anthony was living in the same place as Crystal before September
23, 2002Cone week after the Agency
removed John and Belinda.[6]
!         Any evidence that Crystal
has ever left John and Belinda alone with Anthony or allowed Anthony
unsupervised contact with the children.
!         Any evidence that John and Belinda have ever lived in the same home as
Anthony.
 




The undisputed evidence shows that Crystal left John and Belinda in the care of her father
from the beginning of September 2002 and that the Agency removed the children
from Crystal=s father
on September 16, 2002.  There is no
evidence that Crystal
knowingly exposed the children to Anthony during this period or at any prior
time.  Accordingly, under the applicable
standard of review, even if exposing John and Belinda to Anthony would be
placing them in an endangering environment, no reasonable factfinder could form
a firm belief or conviction that, prior to September 16, 2002, Crystal exposed the children to Anthony.  See In re K.W., 138 S.W.3d 420, 431B32 (Tex.
App.CFort
Worth 2004, pet. denied) (holding evidence legally insufficient to support
trial court=s finding of endangerment under
subsection 161.001(1)(D)); In re T.H., 131 S.W.3d 598, 603B04 (Tex.
App.CTexarkana
2004, pet. denied) (same).
Another missing link in the
evidence at trial was the issue of when Crystal
learned that Anthony is a registered sex offender.  Although Crystal testified at trial that she is aware
that Anthony is a registered sex offender, nobody ever asked her when she
learned this information.  The
Investigator testified that she mentioned to Crystal
that Anthony was a registered sex offender on September 23, 2002; however,
there is no evidence that Crystal
knew this fact before September 23, 2002. 
Therefore, even if there had been evidence that, prior to September 16,
2002, Crystal exposed the children to Anthony,
under the applicable standard of review, no reasonable factfinder could form a
firm belief or conviction based on this conduct that Crystal knowingly placed or knowingly
allowed the children to remain in an environment that endangered their physical
or emotional well-being. Accordingly, the evidence regarding Anthony is legally
insufficient on the issue of endangerment under subsection 161.001(1)(D).  We conclude that the testimony regarding
Anthony is legally insufficient to support the trial court=s finding
that Crystal
acted knowingly as to any alleged environmental endangerment based on
Anthony.  See In re T.H., 131
S.W.3d at 603B04 (holding evidence legally
insufficient to support trial court=s finding
as to Aknowingly@ element
of subsection 161.001(1)(D)).   




Though Crystal=s actions
with respect to Anthony reflect very poor judgment, under the applicable standard
of review, we conclude the evidence regarding Anthony is legally insufficient
to support the trial court=s
termination finding under subsection 161.001(1)(D).
Unsanitary Conditions  
The
Agency also asserts that there is legally sufficient evidence to prove that Crystal knowingly placed
or knowingly allowed John and Belinda to remain in unsanitary conditions at her
father=s house
that endangered the children=s
physical or emotional well‑being. 
Regarding the conditions at the home of Crystal=s father,
the evidence shows:
!         When she arrived at Crystal=s father=s trailer home, the
Investigator found Adeplorable conditions
throughout the trailer.@  She found a knife on the floor A[i]n the bathroom.@  The toilet bowl was completely brown.  There were all kinds of clothes thrown
around, bags of trash in the kitchen, dirty dishes, and spoiled food.  There were Apiles of clothes where
kids could pull them down on themselves C just not a healthy living
environment for these kids.@  
!         The Investigator said there were Acats C I think three cats in the
home and no litter box.  When I asked,
she said they used the box out [sic] and they go outside in the
environment.  You could tell they used
the bathroom in the house.@
!         The Investigator took pictures of the conditions of the home
and the children. Petitioner=s exhibit 1 fairly and accurately depicts the
conditions of the home at that time.
!         Regarding medical negligence A[t]he allegations were
that the children had ringworm C pretty significant ringworm C and flea bites and they
were allergic to the flea bites.@
!         The Investigator observed the condition of the children=s bodies.  John and Belinda were both Avery, very thin.@  You could see their ribcages.  You could see the ringworm and flea bites on
their bodies.




The Petitioner offered a single
exhibit that the trial court admitted into evidence. This exhibit contains
sixteen photographs that the Investigator took of John and Belinda and part of Crystal=s father=s
residence on September 16, 2002.  In
general the quality of the pictures in the record is poor.  There are two pictures labeled ALiving
Room.@  In one of these pictures, the only thing that
can be seen clearly is John leaning on a chair. 
The other picture shows what appears to be a stereo system along with
other items on some shelves, two chairs with some items on them, and an air
conditioner in a window.  There are other
items in the room but there is no visible trash or other unsanitary items.  There are two pictures labeled AKitchen@ that
show cabinets, a sink, a countertop containing what appear to be dirty dishes,
a microwave oven, some food, a curtain covering a window, and what appears to
be a pile of items including some trash. 
There is one picture labeled AChildren=s
Bathroom.@  This picture shows a vanity containing what
appears to be an empty and clean sink with a hair brush and other toiletries
around it.  The only items visible on the
floor are a white laundry container which appears to be full of clothes and a
stray sock.  This photo does not show the
toilet or any knife.  There is a picture
labeled AChildren=s
Bedroom.@  It shows a mattress on the floor with what
appear to be blankets on top, a curtain covering a window, and an air
conditioner in the window.  There do not
appear to be observable amounts of clothes, trash, or any unsanitary items in
this photo.  




There is a photograph labeled A[Crystal=s father=s]
Bedroom.@  This photograph shows what appears to be a
mattress on the floor with a blanket on it, a football, and some other items
that might include clothes or trash, although there are no visible large piles
of any items.  There is a photo labeled A[Crystal=s father=s]
Closet.@  This photo shows clothes on hangers and also
what appear to be piles of clothes. 
There is a photo of a third bedroom that shows a mattress on the floor
and some piles of clothes alongside the mattress.  There is a photo labeled AKitchen
Table@ that
shows a table covered with a ripped tablecloth with what appear to be food items
on it, and a chair.  There is a photo
labeled ARefrigerator@ that
shows a refrigerator and freezer that are somewhat messy but appear to contain
a variety of food items.  There is a
photo labeled A[Crystal=s father=s]
Bathroom@ showing
a bathtub and a toilet bowl that appears to contain a normal amount of water,
although the water appears to be brown. 
Even if one toilet was not working properly, there were two bathrooms in
this home, and there was no evidence that the home lacked a functioning
toilet.  There are various items on the
floor, none of which appear to be a knife, and there is a clear path to the
bathtub.  Although the Investigator
stated that she Acould
tell [the cats] used the bathroom in the house,@ she did
not indicate that she observed cat excrement in the home.  There is no indication of any cats or cat
feces in the photographs the Investigator took of the home.  
In addition to testifying about
the untidy state of the home, the Investigator testified that there was a knife
on a bathroom floor.  The entire
testimony concerning the knife consists of the following: A[i]n the
bathroom I found a knife on the floor.@  There is nothing in the record to indicate
the type of knife she observed (for example, a butter knife or a machete) or
whether the knife was found in the children=s
bathroom or in the grandfather=s
bathroom.  Apparently, the Investigator
did not photograph the knife or document the location where it was found.  At trial, she did not describe the knife, nor
did she state how long the knife had been on the floor, whether the children
had access to it, or whether Crystal was aware of the situation and failed to
take appropriate action.  The
Investigator did not give any testimony concerning any discussions she or any
other agency personnel may have had with Crystal about the knife, nor did she
indicate that Crystal was aware of the knife being on the floor of a bathroom
in the grandfather=s home or
that the knife ever posed a safety risk to John or Belinda. 




In addition to setting forth
evidence about the physical condition of the home, the Agency also offered
evidence about the condition of the children. 
There is a picture of John and Belinda. 
Both children seem thin, as children in their age range typically are,
but not emaciated.  Both children are
smiling and appear to be playing. 
Belinda is fully clothed.  John
has pants on but no shirt, and there are no flea bites visible on his
body.  There is another picture showing a
closeup, back view of the lower half of Belinda=s
body.  The quality of the picture is not
good.  There seem to at least five
blemishes on her skin.  It is possible
that some or all of these might be flea bites. 
The picture does not show whether these slight discolorations are insect
bites or some kind of skim blemishes. 
During the September 2002 visit, the Investigator inspected the children
and found they had ringworm and flea bites. The record, however, also shows
they were given a treatment (a topical ointment) for this common childhood
ailment.  There was no evidence offered
as to the source of the ringworm and flea bites or how long the children had
had ringworm and flea bites.  There is no
indication that the children required medical attention beyond that provided by
their caregivers.
The Investigator described
three-year old Belinda and four-year old John as Avery,
very thin@; however, there is no indication
in the record that the children were malnourished, underfed, or hungry.  Many young children are Avery,
very thin@; thinness, alone, is not an
indication of malnutrition or malnourishment. 
If the Agency interviewed the children about their eating habits or the
availability of food in their home, that evidence does not appear in our
record.  There is no evidence in the
record to suggest the children were not fed or that the food supply in the home
was inadequate.  Crystal=s
testimony was uncontested that her children had been at her father=s house
for approximately one month before the Agency removed them on September 16,
2002.




Although it is true that
unsanitary conditions can qualify as surroundings that endanger a child, it is
also true that most cases upholding termination of parental rights based on
unsanitary home conditions do not uphold the termination findings solely based
on these unsanitary conditions.  In In
re M.C., the Texas Supreme Court concluded that, under the former standard
of review, the evidence of unsanitary conditions was legally sufficient to
terminate parental rights under subsection 161.001(1)(D) or (E).  917 S.W.2d 268, 269B70 (Tex. 1996).  However, this was based in part on evidence
that, on at least two occasions the mother left the children alone in
potentially dangerous conditions.  See
id.  On one occasion, two young children
were found wandering on a highway at night, and an infant was found at home
alone.  See id.  On another occasion, the mother left her
children alone in a car with the engine running, and the children drove the car
into a neighbor=s house.  See id. In contrast, in the case at hand,
there is no allegation that Crystal
left the children unsupervised, and there is no evidence controverting the
Caseworker=s testimony that the children
were removed from their grandfather.  
The In re M.C. court also
found legally sufficient evidence, in part, based on Aextraordinarily
unsanitary conditions.@  Id.
at 270.  There was testimony that the
children=s home
was infested with roaches, that the children ate food off the floor and out of
the garbage, and that the floor and furniture were littered with food, dirty
clothes, garbage, and feces.  Id.  The children often wore soiled diapers and
clothes, and sometimes had dried food, feces, and mucus on their skin and
clothes.  Id. 
There was evidence the children Awere unclean@ and Ahad a bad
odor.@  Id.  One of the
children had dead cockroaches matted in her hair, another infant had dead
roaches inside her bottle.  Id.  There was
evidence that during one summer, the mother moved the family into a house that
lacked plumbing or drinking water, and the children were found suffering from
severe diarrhea and vomiting.  Id.  There was
also evidence that the children were often sick with diarrhea and vomiting, but
that their mother rarely took them to the doctor.  Id.  The facts in In
re M.C. are not even close to the facts of this case.  The children had only been in their
grandfather=s house for approximately one
month.  There is no evidence that their
grandfather=s home lacked plumbing or
drinking water.  John and Belinda were not
found to be dirty or having a bad odor. 
There was no testimony that they were unclean or had hygiene
problems.  They did not suffer from
severe diarrhea or vomiting.  There is no
evidence that John and Belinda were eating contaminated food or that their
grandfather=s home was infested with insects
or rodents or was littered with feces.




In another case cited by the
Agency, there was evidence that the children were left unsupervised in the
home, with animal urine and feces in which one of the children was seen walking
barefoot.  See In re H.B., No.
07-04-0010-CV, 2004 WL 1313764, at *2 (Tex.
App.CAmarillo
June 14, 2004, no pet.)(mem. op.). 
Another child had a bottle of curdled milk, and there were Aflies
everywhere,@ some of which attempted to
alight on the faces and in the mouths of the children.  See id.  The children were dirty and had access to a
tattoo gun with needles, spray-painted towels, paints, and cigarette
lighters.  Id. 
There was also evidence that the mother would leave her children alone
on multiple occasions for several days at a time with a mentally handicapped
man, who had no training in how to care for children.  Id.
at *3.  The mother continued to leave her
children with this man, even after she had been told by others that he was
molesting the children and even after the mother found her children with the
man only in towels or their underwear.  Id.  In the case at hand, there is no evidence of
flies everywhere or the children being left unattended with potentially hazardous
items.  Nor is there evidence that they
were left alone with any person suspected of molesting them.  There is no evidence that any person has ever
sexually assaulted or attempted to sexually assault John or Belinda.  
The Agency also cites In re
P.E.W., 105 S.W.3d 771 (Tex. App.CAmarillo
2003, no pet.).  This case involved a
home in which 
!         The floors were very dirty, and onion plants sprouted from
the carpet.
!         The house was infested with cockroaches, which crawled in and
about baby bottles.  
!         The toilet did not work, and the house smelled horrible.
!         The house lacked running water at times, and part of its
walls and ceiling were caving in and falling down.  
!         The house smelled of animal feces and urine.
!         Boards with rusty nails and broken glass were strewn about in
the yard.
!         One of the children suffered a cut requiring ten stitches as
a result of coming into contact with a nail in a closet.
!         The mother=s husband sexually abused two of their children,
and although the mother professed ignorance, there was evidence that she was
made aware of this sexual abuse and did nothing.
 




In re P.E.W., 105
S.W.3d 771, 777B79 (Tex. App.CAmarillo
2003, no pet.).  Again, there is no
evidence in the case at hand of any sexual abuse of the children or of a home
environment similar to that in P.E.W. 
Likewise, the other case the Agency cites is not analogous.  See In re K.M.B., 91 S.W.3d 18, 22B25 (Tex. App.CFort
Worth 2002, no pet.) (involving home in which the child was infested with head lice
and lived among animal feces, mother continued using drugs, there were problems
with roaches and terrible odors, mother left the child with someone incapable
of properly caring for her, and mother constructively abandoned the child).  
As a general proposition, it is
possible for a factfinder to find environmental endangerment based solely on
evidence of extraordinarily unsanitary living conditions in the home.  Nonetheless, under the applicable standard of
review, we conclude that the conditions of the home of Crystal=s father,
while not an ideal environment for the children, do not rise to the level of
endangering the physical or emotional well-being of John and Belinda.  See Doyle, 16 S.W.3d at 394B95
(holding evidence was legally insufficient to support finding under subsection
161.001(1)(D) despite evidence that apartment in which children lived was
roach-infested and that the stove and oven did not work); In re P.S.,
766 S.W.2d 833, 836B38 (Tex.
App.CHouston
[1st Dist.] 1989, no writ) (holding evidence was legally insufficient to
support finding under subsection 161.001(1)(D) despite evidence of a Adeplorable@
apartment in which dirty diapers and soiled clothing were scattered throughout
the apartment, the sink was filled with dirty dishes, garbage was all over the
place, the refrigerator was virtually empty, and the environment was generally
unkept and unclean).  Accordingly, after
reviewing the evidence in this record under the applicable standard of review, we
conclude that no reasonable factfinder could form a firm belief or conviction
that Crystal
knowingly exposed John and Belinda to an unsanitary living environment that
endangered their physical or emotional well‑being.  In sum, we conclude the evidence is legally
insufficient to support the trial court=s finding
under subsection 161.001(1)(D).




B.        Is the evidence legally sufficient to
support the trial court=s finding under subsection 161.001(1)(E)?
The trial court found that Crystal engaged in
conduct or knowingly placed John and Belinda with persons who engaged in
conduct which endangered their physical or emotional well‑being.  See Tex.
Fam. Code Ann. '
161.001(1)(E).  Subsection 161.001(1)(E)
focuses on Crystal=s conduct,
and the Agency had the burden of proving by clear and convincing evidence that
this conduct endangered the children=s
physical or emotional well-being.  See
Doyle, 16 S.W.3d at 395.  In support
of this ground, the Agency asserts that Crystal
engaged in a course of conduct that endangered the children=s
physical or emotional well-being by (1) involving herself with Anthony, a man
she knew was a registered sex offender, and (2) leaving her children in
unsanitary living conditions.  
Alleged Exposure
to Sex Offender
There is evidence in the record
of the following:
!         Anthony is Crystal=s brother-in-law. 
!         Crystal
knew, as of September 23, 2002, that Anthony is a registered sex offender.  
!         Sometime after September 23, 2002, Crystal began a sexual relationship with
Anthony and later gave birth to his son. 

!         Crystal
brought Anthony to two family visits supervised by the Agency.
 
Crystal=s conduct
in associating with a registered sex offender and in allowing him to accompany
her to Agency-supervised visits was improper. 
Nonetheless, we must determine if there is legally sufficient evidence
that this improper course of conduct endangered the children=s
physical or emotional well‑being.  See
Tex. Fam. Code Ann. '
161.001(1)(E).




As discussed above, there is no
evidence that John and Belinda saw Anthony or had any contact with him while he
was present at the Agency=s office
on these two occasions.  Further, even if
there had been evidence that Anthony was in the children=s
presence on these two occasions, it would not be reasonable to conclude that
Anthony=s
presence endangered John and Belinda, given that the Agency supervised these
visits.  The only time any witness at
trial specifically addressed the issue of endangerment to the children=s
emotional or physical well-being was when the Caseworker testified that Crystal=s
continuing to live with Anthony Acould
potentially damage the emotional or physical well-being of these children.@  Conclusory statements of law such as this are
no evidence.  See Anderson v. Snider,
808 S.W.2d 54, 55 (Tex.
1991) (stating that legal conclusions and conclusory statements are not legally
sufficient evidence).  There is no
evidence that John or Belinda has any knowledge of Crystal=s
relationship with Anthony, and there is no evidence in the record that John or
Belinda has ever met Anthony or had any contact with him whatsoever.




The Agency does not contend, and
the trial court could not reasonably have found, that the children were
endangered by Anthony during any Agency-supervised family visit.  Rather, the Agency argues that it is
reasonable to infer from Crystal=s
allowing Anthony to accompany her to these two visits, that if Crystal=s
parental rights are not terminated, she will endanger the children by contact
with Anthony in the future.  First of
all, the evidence shows that Crystal stopped living with Anthony in October of
2003, five months before trial, and the record does not reflect the status of Crystal=s
relationship with Anthony as of trial, except that Anthony and Crystal are
parents of a young infant over whom the Agency currently has custody.  Crystal
also testified that she would agree to being enjoined from having John and
Belinda see Anthony.  In any event, the
unambiguous language of subsection 161.001(1)(E) requires proof of endangerment
by Crystal=s past
conduct, not by possible future conduct. 
There is no evidence that Crystal
has exposed the children to Anthony. 
Under the applicable standard of review, we conclude that, based on the
evidence at trial, no reasonable factfinder could form a firm belief or
conviction that the children=s
physical or emotional well‑being was endangered by Crystal=s course
of conduct in having a sexual relationship with Anthony while John and Belinda
were in the Agency=s
custody.  See In re K.W., 138
S.W.3d at 431B32 (holding evidence legally
insufficient to support trial court=s finding
of endangerment under subsection 161.001(1)(E)); In re T.H., 131 S.W.3d
at 604 (same).  Accordingly, the evidence
regarding Anthony is legally insufficient on the issue of endangerment under
subsection 161.001(1)(E).  Though it is
hardly debatable that Crystal has exercised very poor judgment with respect to
Anthony, under the applicable standard of review, we conclude the evidence
regarding Anthony is legally insufficient to support the termination finding
under subsection 161.001(1)(E).
Unsanitary
Conditions
The Agency argues the unsanitary
conditions of Crystal=s father=s home
support the trial court=s finding
under subsection 161.001(1)(E) as well. 
However, as discussed above, under the applicable standard of review, we
have concluded that the conditions of Crystal=s father=s home,
while not an ideal environment for the children, do not rise to the level of
endangering the physical or emotional well-being of John and Belinda.  See Doyle, 16 S.W.3d at 394B95; In
re P.S., 766 S.W.2d at 836B38.  Therefore, for the same reasons, after
reviewing the evidence in this record under the applicable standard of review,
we conclude that no reasonable factfinder could form a firm belief or
conviction that Crystal
engaged in a course of conduct that endangered the children=s
physical or emotional well‑being by exposing them to an unsanitary living
environment.  
Lack of Stable Housing
The trial
court found that Crystal
has not had consistent, stable housing; however the trial court did not
expressly find that this failure to maintain stable housing endangered the
children=s
physical or emotional well‑being. 
On appeal, the Agency does not argue that Crystal=s failure
to maintain stable housing is a basis for affirming the trial court=s
judgment.  However, we consider whether
there is legally sufficient evidence to support an implied finding under subsections
161.001(1)(D) and (E) based on this conduct.




First, we note that there is a
statutory basis for terminating parental rights based on the parent=s failure
to comply with the provisions of a court order that specifically establishes the
actions necessary for the parent to obtain the return of a child who has been
in the permanent or temporary managing conservatorship of the Agency for not
less than nine months as a result of the child=s removal
from the parent under Chapter 262 of the Family Code.  See Tex.
Fam. Code Ann. '
161.001(1)(O).  Although Crystal=s family
service plan listed the maintenance of proper housing as a goal, the trial
court did not order Crystal
to maintain stable housing as a necessary action to obtain the return of her
children.[7]  Therefore, the trial court did not and could
not properly have found that termination was appropriate based on subsection
161.001(1)(O).




There is some evidence that Crystal moved rather frequently, and the Caseworker stated
that Crystal
had failed to maintain stable housing. 
Presuming for the sake of argument there is some evidence Crystal failed to
maintain consistent, stable housing, there is still no evidence that such
conduct endangered the children=s
physical or emotional well‑being. 
Failure to maintain stable housing is relevant to determining whether
termination is in the children=s best
interests, and in appropriate cases, it may support a 161.001(1)(O)
finding.  See Doyle, 16 S.W.3d at
398.  Failure to maintain a stable home,
combined with failure to provide for the children=s needs,
may also support a finding under subsection 161.001(1)(E).  However, the Agency has not cited and this
court has not found a case that upholds a subsection 161.001(1)(E) finding
based solely on failure to maintain stable housing.  Under the applicable standard of review, we
conclude the record lacks legally sufficient evidence that any failure by Crystal to maintain
stable housing endangered the children=s
physical or emotional well‑being.  See
Doyle, 16 S.W.3d at 398B99
(holding there was legally insufficient evidence that mother=s failure
to maintain stable home endangered the children=s
physical or emotional well‑being).
Failure
to Comply with Therapy or Treatment
The trial court found that Crystal Ahas not
complied with her therapy/treatment.@  The trial court, however, did not expressly
find that this conduct endangered the children=s
physical or emotional well‑being. 
On appeal, the Agency does not argue that this conduct is a basis for
affirming the trial court=s
judgment.  Furthermore, the trial court
did not find and could not have made a proper finding that this conduct was a
basis for a finding under subsection 161.001(1)(O) because the court did not
order Crystal to comply with her therapy or treatment as a necessary action to
obtain the return of her children. 
However, we consider whether there is legally sufficient evidence to
support an implied finding under subsections 161.001(1)(D) and (E) based on
this conduct.
Regarding therapy and counseling,
the Caseworker testified that Crystal
has not followed through with the recommendations from her psychiatric
evaluation by taking medication for anxiety and depression.  The Caseworker also testified that Crystal attended only
three counseling sessions and that the counseling contractor refused to see her
after that because she Awas self
reporting information that wasn=t
correct.@  The Caseworker told Crystal
that additional therapy sessions were going to come from her case in Montgomery County,
so the Agency would not provide further counseling services in Harris County.  There is no evidence that any failure by Crystal to take
medication or any alleged failure to complete counseling endangered the
children=s physical
or emotional well‑being.  Under the
applicable standard of review, we conclude the evidence is legally insufficient
to support a finding under subsection 161.001(1)(D) or (E) based on this
conduct.




Exposure
to Crystal=s Father
Although not mentioned in the
trial court=s findings of fact and not argued
by the Agency on appeal as a basis for termination of Crystal=s
parental rights, the Caseworker testified at trial that she believes it was
inappropriate for Crystal to expose John and Belinda to Crystal=s father
because her father was arrested in 1968 for fondling a child.  Crystal
was born in 1982.  There is no evidence
that Crystal knew that her father had been
arrested in 1968 for allegedly fondling a child, and there is no evidence that Crystal=s father
has ever been charged with or convicted of any sexual assault or indecency with
a child.  The Investigator testified that
the Agency had concerns that Crystal=s father
had sexually abused Crystal
in the past but that the Agency could not validate these concerns.  The Agency=s
unsubstantiated concerns and an arrest more than 35 years ago do not constitute
legally sufficient evidence that Crystal engaged in conduct or knowingly placed
John and Belinda with persons who engaged in conduct which endangered their
physical or emotional well‑being.  See
In re K.W., 138 S.W.3d at 431B32; In
re T.H., 131 S.W.3d at 604. 
Accordingly, after reviewing the
evidence in this record under the applicable standard of review, we conclude
that no reasonable factfinder could form a firm belief or conviction that Crystal engaged in
conduct or knowingly placed John and Belinda with persons who engaged in
conduct which endangered their physical or emotional well‑being.  
Conclusion




The trial court cannot break the
ties between a parent and child without clear and convincing evidence
supporting at least one of the grounds listed in subsection 161.001(1).  The Agency elicited no more than 26 pages of
testimony at trial, and this testimony seemed to focus only on whether
termination was in the best interest of the children.  On this record, we conclude the evidence is
legally insufficient to support the trial court=s
findings under subsections 161.001(1)(D) and (E), and we sustain Crystal=s first
issue.  Accordingly, we reverse the trial
court=s
judgment to the extent it terminates Crystal=s
parental rights as to John and Belinda, and we render judgment in part that the
Agency take nothing as to termination of Crystal=s
parental rights.  Crystal has not challenged on appeal the
trial court=s appointment of the Agency as
sole managing conservator of John and Belinda, and we do not reverse the trial
court=s
judgment in this regard.  We remand this
case to the trial court for further proceedings consistent with this
opinion.  See Tex. R. App. P. 43.3(a).
 
/s/        Kem Thompson Frost
Justice
 
Judgment rendered and Opinion filed July 28, 2005.
Panel consists of Justices Anderson, Hudson, and Frost. 
 
 




[1]  To protect the
privacy of the parties in this case, we identify the children by the fictitious
names AJohn@ and ABelinda,@ and we identify
the parents by their first names only.  See Tex.
Fam. Code Ann. ' 109.002(d) (Vernon 2002).
 


[2]  The Agency=s original petition in the trial court and all of the
evidence on this issue at trial reflect that the Agency removed John and
Belinda on September 16, 2002, and the Agency agrees with this date in its
appellate brief.


[3]  The trial
court also terminated the parental rights of the children=s father, Harold. 
He has not appealed the termination of his parental rights, so this part
of the trial court=s judgment is not before us.


[4]  Unless
otherwise specified, all statutory citations in this opinion are to the Texas
Family Code.


[5]  The trial
court did not order Crystal
to avoid contact with Anthony as a necessary action to obtain the return of
John and Belinda. Although this issue is not briefed by the parties nor
necessary to our decision, we note that the enforceability of such an order
might be in doubt.  Compare Lawrence
v. Texas, 539 U.S. 558, 573B79, 123 S. Ct. 2472, 2481B84, 156 L. Ed. 2d 508 (2003) (stating that personal
decisions relating to private, consensual sexual conduct, marriage,
procreation, contraception, family relationships, and child rearing are
constitutionally protected) with City of Sherman v. Henry, 928 S.W.2d
464, 468B74 (Tex. 1996) (holding that there is no
constitutional right to engage in adultery under either the Texas or United
States Constitution).  If the trial court
had done so and if such an order were enforceable, then the trial court could
have terminated Crystal=s parental rights based on subsection
161.001(1)(O).  In that event, the
language of subsection 161.001(1)(O) would accommodate the Agency=s argument regarding Anthony.  Because this provision is not before us, we
must focus on the language of the two provisions in question, both of which
require proof that the children have been endangered in the past, rather than
the potential for endangerment in the future if Crystal=s
parental rights are not terminated.  See Tex.
Fam. Code Ann. ' 161.001(1)(D) and (E).


[6]  The Caseworker
testified that Crystal
lived in her father-in-law=s house from September 2002 to October 2003.  Crystal
stated that Anthony lived with her at her father-in-law=s house only from February 2003 to October 2003, but
under the legal-sufficiency standard of review, we presume the trial court
resolved this dispute in favor of the Caseworker=s
statement because a reasonable factfinder could do so.  The Investigator, in an interrupted statement
at trial, mentioned that Anthony and Crystal were both living at her
father-in-law=s house on September 23, 2002, but there is no
evidence of when Anthony started living at his father=s house or that he was living there before September
23, 2002.


[7]  Although the trial
court did order Crystal to comply with each
requirement set out in any service plan, Crystal=s service plan did not set out the maintenance of
stable housing as a requirement, and it unambiguously stated that the goal of
proper housing was not ordered by the trial court.


