In the interest of K.J.R. and T.R.B., children--Appeal from 318th District Court of Midland County

Opinion filed July 24, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00344-CV

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IN THE INTEREST OF K.J.R. AND T.R.B., CHILDREN

On Appeal from the 318th Judicial District

Midland County, Texas

Trial Court Cause No. FM 45,015

M E M O R A N D U M O P I N I O N

This is an accelerated appeal from the trial court=s termination of parental rights. We affirm.

Background Facts

Shamika Shakay Reed is the mother of K.J.R. and T.R.B. Tony Delyne Brazell is the father of T.R.B.[1] The Texas Department of Family and Protective Services became involved with these children when T.R.B. was born. T.R.B. tested positive for marihuana at the time of his birth, and Reed tested positive for both marihuana and cocaine. The Department referred the family to Family Based Social Services. As part of these services, both Brazell and Reed were to participate in a drug and alcohol assessment, a psychological assessment, parenting classes, and individual counseling. However, services had not yet been started when the Department received another call regarding the neglect of the children. At this time, the Department removed the children. The removal resulted from Brazell=s brother, Reginald Brazell, dropping the children off at the Midland County Detention Center. Reginald contacted the Department alleging that Reed=s whereabouts were unknown and Brazell was not mentally stable to care for the children. Both Brazell and Reed contested Reginald=s story and denied that they were unable to care for the children. The Department removed the children and implemented a family service plan for both Reed and Brazell, seeking reunification of the family. However, when both parents failed to comply with the service plan, the Department filed a notice of intent to terminate parental rights.

After a bench trial, the court entered an order terminating Reed and Brazell=s parental rights to K.J.R. and T.R.B. The trial court found by clear and convincing evidence that appellant, under Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2007):

[1] knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children (Section 161.001[1][D]);

[2] engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children (Section 161.001[1][E]);

[3] constructively abandoned the children who had been in the temporary managing conservatorship of the Department of Family and Protective Services or an unauthorized agency for not less than six months and: (1) the Department or agency has made reasonable efforts to return the children to the parents; (2) the parent has not regularly visited or maintained significant contact with the children; and (3) the parent has demonstrated an inability to provide the children with a safe environment (Section 161.001[1](N)); and

[4] failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children who have been in the temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children=s removal from the parent under Tex. Fam. Code Ann. ch. 262 (Vernon 2002 & Supp. 2007) for the abuse or neglect of the children. (Section 161.001[1](O).

Brazell=s Statement of Points

The Department asserts that Brazell did not preserve any issues for review on appeal because he did not timely file a statement of points as required by Tex. Fam. Code Ann. ' 263.405 (Vernon Supp. 2007). Section 263.405(b)(2) provides:

Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to request a new trial or appeal the order must file with the trial court:

(2) if an appeal is sought, a statement of the point or points on which the party intends to appeal.

Section 263.405(i) further provides in relevant part:

The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.

In this case, the order of termination was signed on November 1, 2007. Brazell filed his notice of appeal and statement of points on November 28, 2007. Brazell, therefore, did not file a statement of points within fifteen days of the termination order as required under the statute. The policy behind the statutes is to shorten postjudgment delays. In re M.N., 230 S.W.3d 248, 249 (Tex. App.CEastland 2007, pet. filed); In re D.R.L.M., 84 S.W.3d 281, 290 (Tex. App.CFort Worth 2002, pet. denied). The statute is clear that a party who does not file a statement of points on appeal within fifteen days does not preserve any issues for appeal. In re M.N., 230 S.W.3d at 249. Not only does the party waive those issues, but the statute also prohibits the appellate court from considering any issues that are not contained in a statement of points on appeal. Id. at 249-50. Because we cannot consider Brazell=s issues on appeal, we affirm the portion of the judgment that terminates Brazell=s rights as to T.R.B.

Reed=s Issues on Appeal

In eight issues, Reed argues that the evidence was legally and factually insufficient to support each of the four grounds that the trial court found to support the termination. Reed does not challenge the trial court=s finding that the termination was in the best interest of the children.

Standard of Review

Due process requires that the grounds for termination be established by clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re J.P.H., 196 S.W.3d 289, 292 (Tex. App.CEastland 2006, no pet.). This requires a 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. In re J.P.H., 196 S.W.3d at 292.

When conducting a legal sufficiency review, we review all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266; In re J.P.H., 196 S.W.3d at 292. We must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Phillips v. Tex. Dep=t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.). We must consider all the evidence, not only that which favors the verdict. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

When conducting a factual sufficiency review, we review the entire record, including evidence in support of and contrary to the judgment, and give due consideration to evidence the trial court could have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We then determine whether the evidence is such that a factfinder could form a firm belief or conviction that grounds for termination exist. Id. We also consider whether any disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.

Discussion

To terminate parental rights, the proponent must prove by clear and convincing evidence that a parent committed one or more of the acts or omissions set forth in Section 161.001(1) and that the termination of parental rights is in the child=s best interest. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

We will first review the evidence supporting endangerment as grounds for termination under Section 161.001(1)(D), (E). Endanger means to expose to loss or injury or to jeopardize a child=s emotional or physical health. Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Doyle v. Tex. Dep=t of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex. App.CEl Paso 2000, pet. denied). The conduct must be more than a threat of physical injury or the possible ill effects of a less-than-ideal family environment. However, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. Doyle, 16 S.W.3d at 394.

Section 161.001(1)(D) requires a showing that the environment in which the child is placed endangered the child=s physical or emotional health. Doyle, 16 S.W.3d at 394. Conduct of a parent or another person can create an environment that endangers the physical and emotional well-being of a child. In re W.S., 899 S.W.2d 772, 776 (Tex. App.CFort Worth, 1995, no writ). Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well being of a child. In re S.D., 980 S.W.2d 758, 763 (Tex. App.CSan Antonio 1998, pet. denied).

Under Section 161.001(1)(E), the cause of the danger to the child must be the parent=s conduct alone as evidenced not only by the parent=s actions but also by the parent=s omission or failure to act. Doyle, 16 S.W.3d at 395; In re S.H.A., 728 S.W.2d 73, 83-84 (Tex. App.CDallas 1987, writ ref=d n.r.e.). The conduct to be examined includes what the parents did both before and after the child was born. Dupree v. Tex. Dep=t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.CDallas 1995, no writ). Additionally, termination under Section 161.001(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.CEastland 1999, no pet.).

Lennah Frost, an investigator for the Department, testified that she became involved with Reed when T.R.B. tested positive for marihuana when he was born. Frost testified that Reed admitted to smoking marihuana during her pregnancy. Frost testified that Reed also tested positive for cocaine at the time T.R.B. was born but that Reed denied using cocaine. Frost testified that both Reed and Brazell were referred to Family Based Safety Services for a drug and alcohol assessment, psychological assessments, parenting classes, and individual counseling. However, before these services were available, the Department removed the children based upon another call.

After the Department had conservatorship of the children, a service plan was implemented. Reed testified that she agreed to follow the service plan and participate in a drug and alcohol assessment, parenting classes, individual counseling, urinalysis, and psychological evaluation. Reed testified that she completed her psychological evaluation. She further testified that she started individual counseling and parenting classes but that she failed to complete all the sessions. She testified that she went to San Antonio to Atake just a little break from what=s been going on with [her]@ instead of finishing the sessions. She testified that she did not make an effort to finish the sessions when she returned to Midland because she was arrested for aiding and abetting in a drug- related charge. Reed testified that she did not participate in the drug assessment classes but that she did take four urinalysis tests. She testified that two of the tests came back positive for marihuana. She admitted to using marihuana throughout her pregnancy with T.R.B. and admitted to smoking marihuana throughout the time this case was pending. Reed denied ever using cocaine but stated that she was around it during her pregnancy with T.R.B.

Reed was incarcerated at the time of trial. Reed testified that she was set to be released from incarceration in November. She further testified that she was scheduled to be released earlier than November but that, because she had gotten into a fight, her sentence was extended for a month. She also testified that she would be on probation for three years after she was released. She testified that she was going to live with her grandmother after she got out of prison. She testified that she did not have a job but intended to look for one when she got out of prison.

The evidence is legally and factually sufficient to support the trial court=s finding of termination under the grounds listed in Section 161.001(1)(D), (E). Reed used drugs while she was pregnant with T.R.B. and throughout the pertinent time frame. Endangerment to a child can be inferred from drug use during pregnancy. In re W.A.B., 979 S.W.2d 804, 807-08 (Tex. App.CHouston [14th Dist.] 1998, pet. denied); Dupree, 907 S.W.2d at 84. Drug use and its effects on a person=s ability to parent can show a course of endangering conduct. Dupree, 907 S.W.2d at 84.

As part of her service plan, Reed agreed to participate in a drug and alcohol assessment and to refrain from future criminal activities. However, Reed failed to participate in the drug and alcohol assessment, and she failed two of the four urinalysis tests demonstrating a failure to refrain from criminal activities. Further, she went to San Antonio instead of completing the parenting classes and individual counseling as part of the service plan implemented for the reunification with her children. Failure to follow a service plan requiring an agreement to not engage in illegal drug activity is sufficient to show conduct that endangered the well-being of the children. In re T.N., 180 S.W.3d 376, 383 (Tex. App.CAmarillo 2005, no pet.).

Reed was incarcerated on a drug-related aiding and abetting charge. She admitted to being unable to care for the children at the time of trial. Incarceration alone is not sufficient to show endangerment. However, evidence that shows conduct subjecting a child to a life of uncertainty and instability will support a finding of endangerment. In re T.N., 180 S.W.3d at 383. A parent=s misbehavior during incarceration extending her release date is evidence of endangerment. In re S.F., 32 S.W.3d 318, 322 (Tex. App.CSan Antonio 2000, no pet.). Reed=s conduct that caused her to be arrested for aiding and abetting, her continuous use of marihuana throughout the case, and her conduct while incarcerated that extended her incarceration time is all conduct that endangered her children=s physical and emotional well-being.

We overrule Reed=s first four issues. Because we have concluded that there was both legally and factually sufficient evidence to support the trial court=s findings under Section 161.001(1)(D), (E), we need not address Reed=s remaining issues. Only one finding alleged under Section 161.001(1) is necessary for a judgment of termination. In re D.M., 58 S.W.3d 801, 813 (Tex. App.CFort Worth 2001, no pet.); In re S.F., 32 S.W.3d at 320.

Conclusion

We affirm the judgment of the trial court.[2]

RICK STRANGE

JUSTICE

July 24, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Leon Fletcher is the adjudicated father of K.J.R. Fletcher=s rights were terminated in the same order, but he is not appealing the termination and, therefore, is not a party to this appeal.

[2]Reed filed a motion to strike a portion of the clerk=s record. The Department does not oppose the motion. The motion is granted.