In the interest of S.J.F., a child--Appeal from 35th District Court of Brown County

Opinion filed April 26, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00198-CV

__________

   IN THE INTEREST OF S.J.F., A CHILD

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. 02-10-599

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

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

S.J.F. was born on June 2, 2005, while both her mother Betty Skaggs and her father George Ford (appellant) were incarcerated. On June 13, 2005, the Texas Department of Health and Family Services was named temporary managing conservator of S.J.F. S.J.F. was placed by the Department in a foster home with two of her siblings. The Department had been involved with the mother and each of her four children for several years. Betty had an extensive drug abuse history. As a result of not being able to care for her children, she relinquished her rights to S.J.F. and to two of S.J.F.=s older siblings in January 2006. At the trial on the merits that involved those two older siblings, the trial court found by clear and convincing evidence that appellant had violated Tex. Fam. Code Ann. ' 161.001(1)(D), (E), (O) (Vernon Supp. 2006) and that it was in the best interest of the two children that appellant=s parental rights be terminated.

Before Betty relinquished her rights to S.J.F., an adversary hearing was held on June 13, 2005, in regard to S.J.F.; appellant did not attend because he was incarcerated. At that hearing, the trial court entered a temporary order granting appellant and Betty temporary possessory conservatorship and requiring, among other things, that S.J.F. would have supervised visitation with her parents and that both Betty and appellant attend parenting classes, submit to drug testing, and comply with a service plan. On September 26, 2005, a services review hearing was held. Appellant was not served with notice of the hearing. At the hearing, the trial court made a finding that the Department had exercised due diligence to locate appellant. The trial court also found that appellant had not demonstrated adequate and appropriate compliance with the service plan. Appellant was served on November 14, 2005.

Appellant attended a permanency review hearing on March 20, 2006, during which the final hearing was set for May 15, 2006. At the hearing on May 15, the trial court took judicial notice of the testimony at the previous hearing on January 4-5, 2006. After the hearing, the court entered an order terminating appellant=s parental rights to S.J.F. The final order of termination incorporated the relinquishment of Betty=s rights. Pursuant to Section 161.001(1)(D), (E), (O), the trial court found by clear and convincing evidence that appellant:

[1] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

[2] engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; and,

[3] failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child=s removal from the parent under Chapter 262 for the abuse or neglect of the child.

The trial court also found by clear and convincing evidence that the termination of appellant=s parental rights was in S.J.F.=s best interest. Tex. Fam. Code Ann. 161.001(2) (Vernon Supp. 2006). In four issues, appellant argues that the evidence was legally and factually insufficient to support each of the three grounds for termination and to support the finding that termination was in the best interest of S.J.F.

Texas courts have long recognized that the natural right existing between a parent and a child is of Aconstitutional dimensions.@ Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). There is a strong presumption that the best interest of a child is served by keeping the child with the natural parent. In re G.M., 596 S.W.2d 846 (Tex. 1980). Thus, involuntary termination statutes are strictly scrutinized in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985).

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.-Eastland 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. Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); In re J.P.H., 196 S.W.3d at 292.

When conducting a legal sufficiency review, we review the entire record in the light most favorable to the finding and 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 fact-finder resolved disputed facts in favor of its finding. Phillips v. Tex. Dep=t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.- Eastland 2004, no pet.). We must also disregard all evidence that a reasonable fact-finder could have disbelieved or found incredible, but we cannot disregard undisputed facts. In re J.F.C., 96 S.W.3d at 266.

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); In re J.P.H., 196 S.W.3d at 292. We then determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the State=s allegations. In re C.H., 89 S.W.3d at 25.

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 termination of parental rights is in the child=s best interest. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984).

We first review the evidence supporting the trial court=s findings that appellant had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child and that he engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child=s physical or emotional well-being. See Section 161.001(1)(D), (E).

Both Subsections (D) and (E) require proof of endangerment, which 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). While endangerment means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. Doyle, 16 S.W.3d at 394. Subsections (D) and (E) differ in one respect: the source of the physical or emotional endangerment to the child. See In re B.S.T., 977 S.W.2d 481, 484 (Tex. App.CHouston [14th Dist.] 1998, no pet.); In re S.H.A., 728 S.W.2d 73, 83-84 (Tex. App.CDallas 1987, writ ref=d n.r.e.). Subsection (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. This provision addresses the child=s surroundings and environment rather than parental misconduct, which is the subject of Subsection (E). Doyle, 16 S.W.3d at 394; In re B.S.T., 977 S.W.2d at 484; In re S.H.A., 728 S.W.2d at 84. Under Subsection (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 B.S.T., 977 S.W.2d at 484; In re S.H.A., 728 S.W.2d at 83-84.

Conduct of a parent or another person in the home can create an environment that endangers the physical and emotional well-being of a child required for termination under Subsection (D). In re W.S., 899 S.W.2d 772, 776 (Tex. App.CFort Worth 1995, no writ); D.O. v. Tex. Dep=t of Human Servs., 851 S.W.2d 351, 354-55 (Tex. App.CAustin 1993, no writ); In re B.R., 822 S.W.2d 103, 105-06 (Tex. App.CTyler 1991, writ denied). For example, an environment that routinely subjects a child to the probability that he will be left alone because his parents or caregivers are incarcerated endangers both the physical and emotional well-being of a child. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.CSan Antonio 1998, pet. denied) (parents repeatedly jailed due to illegal drug use and drug-related criminal activity).

Under Subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child=s physical and emotional well-being was the result of the parent=s conduct, including acts and omissions. In re R.D., 955 S.W.2d 364, 368 (Tex. App.CSan Antonio 1997, pet. denied); Dupree v. Tex. Dep=t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.CDallas 1995, no writ). The conduct to be examined includes what the parents did both before and after the child was born. In re D.M., 58 S.W.3d 801, 812 (Tex. App.CFort Worth 2001, no pet.); Dupree, 907 S.W.2d at 84. To be relevant, the conduct does not have to have been directed at the child nor must actual harm result to the child from the conduct. Dupree, 907 S.W.2d at 84; In re C.D., 664 S.W.2d 851, 853 (Tex. App.CFort Worth 1984, no writ). Additionally, termination under Subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. Section 161.001(1)(E); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.CEastland 1999, no pet.). The specific danger to the child=s well-being need not be established as an independent proposition but may be inferred from parental misconduct. In re N.K., 99 S.W.3d 295, 300 (Tex. App.CTexarkana 2003, no pet.).

Drug addiction and its effects on a parent=s life and ability to parent may establish an endangering course of conduct as well. Dupree, 907 S.W.2d at 84. While a parent=s incarceration, standing alone, will not prove endangerment under Subsection (E), it is a factor for consideration by the trial court on the issue of endangerment. Boyd, 727 S.W.2d at 533-34; In re M.D.S., 1 S.W.3d 190, 199 (Tex. App.CAmarillo 1999, no pet.). If the evidence, including the imprisonment, shows a course of conduct that has the effect of endangering the physical or emotional well-being of the child, a finding under Subsection (E) is supportable. Boyd, 727 S.W.2d at 534 (citing to prior version of the statute); In re M.D.S., 1 S.W.3d at 199.

We will review the evidence pertaining to Subsections (D) and (E) together. Jacqueline Cordry, a CASA volunteer involved in the case, testified that, in her opinion, appellant=s rights were terminated as to the two older twin siblings because appellant had testified at an earlier hearing that he observed Betty use crack cocaine and other drugs in her house and then he left the house and children. There is no indication in the record that he called his caseworker or did anything to protect the children in the house. Appellant visited his children on Sundays, and during those visits, crack dealers came to the house. There is no indication in the record that appellant ever contacted his caseworker regarding Betty=s drug use in the house. Cordry further testified that it would be in the best interest of S.J.F. that appellant=s parental rights to her be terminated. Stephanie Hartman, a caseworker for the Department, testified that Betty and appellant were using drugs together while Betty was in her first months of pregnancy with S.J.F.

The Department became involved with appellant=s eldest of four children in March 2000 because of allegations of neglectful supervision and physical neglect. The next oldest children of appellant were twins. The Department completed the investigation and ruled out the allegations as to the eldest child before the twins were born. After the twins were born in July 2002, the Department temporarily placed the twins in a home and required that Betty be supervised with the children. The Department subsequently removed the twins from Betty some months later due to a later validated belief that she was using drugs during the pregnancy. At the time of the twins= removal, appellant was incarcerated, and a safety plan was put in place that required that the mother not be alone with the twins.

Appellant had a long history of incarceration and noncompliance with the Department=s service plan. At the time of the hearing on the termination of appellant=s parental rights to S.J.F., he was incarcerated and refused to go to the hearing. He was also absent from the hearing regarding the termination of his rights to the twins. Even though appellant knew that his children were in an environment where illegal criminal activity was taking place, he did nothing to place his children in a safe environment. He was incarcerated again after S.J.F. was born. Between the time she was born and the time of the May 2006 termination hearing, appellant visited S.J.F. once when she was one month old.

We overrule appellant=s first two appellate 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 appellant=s third issue regarding sufficiency of the evidence to support the trial court=s findings under Section 161.001(1)(O). Only one finding alleged under Section 161.001(1)(D), (E), (O) is necessary for a judgment of termination. In re D.M., 58 S.W.3d 801; In re S.F., 32 S.W.3d 318, 320 (Tex. App.CSan Antonio 2000, no pet.); see also Tex. R. App. P. 47.1.

Appellant argues in his fourth issue that the evidence was legally and factually insufficient to support the trial court=s finding that termination of his parental rights was in S.J.F.=s best interest. In deciding whether the evidence is sufficient to support a trial court=s finding that termination is in the child=s best interest, we are guided by the nonexclusive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.; In re C.A.J., 122 S.W.3d 888, 892-93 (Tex. App.CFort Worth 2003, no pet). These factors are not exhaustive, nor must all of the factors be proved as a condition precedent to parental termination. See In re C.H., 89 S.W.3d at 27; Vasquez v. Tex. Dep=t of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.CHouston [1st Dist.] 2005, pet. denied). The absence of evidence of some of these considerations would not preclude a fact-finder from reasonably forming a strong conviction or belief that termination was in the child=s best interest, particularly if the evidence was undisputed that the parental relationship endangered the safety of the child. See In re C.H., 89 S.W.3d at 27.

Appellant knew about and chose not to attend the hearings concerning S.J.F. and her two older siblings. He had a history of incarceration, and he failed to provide a safe environment for S.J.F. knowing that drug use and drug dealing were occurring in S.J.F.=s home environment. His caseworker testified that, in her opinion, it was in S.J.F.=s best interest that the parent-child relationship be terminated. There was no indication at any hearing that appellant made efforts during the four years the Department was involved with his children to remain out of prison, to attain employment, and to provide a safe home environment for his children.

We have reviewed the entire record including evidence in support of and contrary to the judgment and have given due consideration to evidence the trial court could have found to be clear and convincing. In re C.H., 89 S.W.3d at 25; In re J.P.H., 196 S.W.3d at 292. We conclude that a reasonable trier of fact could have formed a firm belief or conviction that termination of the parent-child relationship between appellant and S.J.F. was in S.J.F.=s best interest. The fourth issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

April 26, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.