COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00394-CV

In the Interest of A.N.D., Minor Child §

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From the 235th District Court

of Cooke County (11-00124)

January 31, 2013

Opinion by Justice Meier

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s order. It is ordered that the order of the trial 

court is affirmed.

SECOND DISTRICT COURT OF APPEALS 

By_________________________________

 Justice Bill Meier
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COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00394-CV

IN THE INTEREST OF A.N.D., 

MINOR CHILD

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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant B.A. (Father) appeals the trial court’s order terminating his 

parental rights to his daughter, A.N.D. In five issues, Father challenges the trial 

court’s family code section 161.001(1) and (2) findings. We will affirm.

II. BACKGROUND

Father dated D.T. (Mother) for thirty to forty-five days in 2009. Mother 

learned that she was pregnant with A.N.D. after the relationship with Father had 

 

1See Tex. R. App. P. 47.4.
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ended. Father was incarcerated when he learned that Mother was pregnant and 

when A.N.D. was born in July 2010.

Appellee Department of Family and Protective Services (DFPS) became 

involved in Mother’s and A.N.D.’s lives after receiving a referral in November 

2010 that alleged neglectful supervision of then three-month-old A.N.D. by 

Mother. Several months later, in March 2011, DFPS removed A.N.D. from 

Mother’s care because Mother had been arrested and an appropriate caregiver

for A.N.D. could not be located. DFPS subsequently filed its original petition for 

protection of a child, for conservatorship, and for termination in this suit affecting 

the parent-child relationship.

Father remained incarcerated throughout the pendency of A.N.D.’s case, 

including during the final termination bench trial in August 2012. The trial court

ultimately found by clear and convincing evidence that termination of Father’s 

parental rights to A.N.D. was appropriate pursuant to family code subsections 

161.001(1)(E), (N), (O), and (Q) and that termination was in A.N.D.’s best 

interest. See Tex. Fam. Code Ann. § 161.001(1)(E), (N), (O), (Q), & (2) (West 

Supp. 2012). The interlocutory order terminating Father’s parental rights became 

final when the trial court signed a final order terminating the parent-child 

relationship between Mother and A.N.D. pursuant to Mother’s affidavit of 

relinquishment. Father appeals.
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III. DISPOSITIVE ISSUES

In his first issue, Father argues that the evidence is legally and factually 

insufficient to support the trial court’s finding that terminating his parental rights to 

A.N.D. is in her best interest. In his second issue, Father argues that the trial 

court “erred” by finding that termination was appropriate under family code 

subsection 161.001(1)(E).2

A. Burden of Proof and Standard of Review

Termination decisions must be supported by clear and convincing 

evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2008). Evidence is 

clear and convincing if it “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.” Id.

§ 101.007 (West 2008).

In evaluating the evidence for legal sufficiency in parental termination 

cases, we determine whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction that the challenged ground for 

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We 

review all the evidence in the light most favorable to the finding and judgment. 

Id. We consider evidence favorable to termination if a reasonable factfinder 

could, and we disregard contrary evidence unless a reasonable factfinder could 

not. Id.

 

2We construe this argument as a challenge to the legal and factual 

sufficiency of the evidence to support the finding.
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In reviewing the evidence for factual sufficiency, we give due deference to 

the factfinder’s findings and do not supplant the judgment with our own. In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire 

record, a factfinder could reasonably form a firm conviction or belief that the 

parent violated section 161.001(1) and that termination of the parent-child 

relationship would be in the best interest of the child. Tex. Fam. Code Ann. 

§ 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire 

record, the disputed evidence that a reasonable factfinder could not have 

credited in favor of the finding is so significant that a factfinder could not 

reasonably have formed a firm belief or conviction in the truth of its finding, then 

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

B. Endangerment Finding

The trial court may order termination of the parent-child relationship if it 

finds by clear and convincing evidence that the parent has engaged in conduct or 

knowingly placed the child with persons who engaged in conduct that endangers 

the physical or emotional well-being of the child. Tex. Fam. Code Ann. 

§ 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence 

exists that the endangerment of the child’s physical or emotional well-being was 

the direct result of the parent’s conduct, including acts, omissions, and failures to 

act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).

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 
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parent is required. Id.; In re D.T., 34 S.W.3d 625, 634 (Tex App.—Fort Worth 

2000, pet. denied). As a general rule, conduct that subjects a child to a life of 

uncertainty and instability endangers the child’s physical and emotional wellbeing. In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. 

denied). To support a finding of endangerment, the parent’s conduct does not 

necessarily have to be directed at the child, and the child is not required to suffer 

injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 

The specific danger to the child’s well-being may be inferred from parental 

misconduct alone, and to determine whether termination is necessary, courts 

may look to parental conduct both before and after the child’s birth. Id.; In re 

D.M., 58 S.W.3d 801, 812–13 (Tex. App.—Fort Worth 2001, no pet.). A 

factfinder may also infer from past conduct endangering the well-being of the 

child that similar conduct will recur if the child is returned to the parent. See In re 

D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved 

on other grounds by In re J.F.C., 96 S.W.3d 256, 267 (Tex. 2002).

Texas courts have recognized that criminal activity that exposes a parent 

to incarceration may be relevant to establish conduct that endangers the 

emotional and physical well-being of a child. Boyd, 727 S.W.2d at 533–34; In re 

M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.); In re K.M.M., 

993 S.W.2d 225, 227–28 (Tex. App.—Eastland 1999, no pet.). But mere 

imprisonment will not, standing alone, constitute engaging in conduct that 

endangers the emotional or physical well-being of a child. Boyd, 727 S.W.2d at 
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533–34. “[I]f the evidence, including the imprisonment, shows a course of 

conduct which has the effect of endangering the physical or emotional well-being 

of the child, a finding” of endangerment under section 161.001(1)(E) is 

supportable. Id.

The record demonstrates that Father has a lengthy history of engaging in

primarily drug-related criminal activity for which he has ultimately been convicted 

and punished. Father’s criminal history includes (1) a 2011 conviction and threeyear sentence for burglary of a habitation, (2) a 2004 conviction and ten-year 

sentence for possession of cocaine, (3) a 2002 conviction and five-year sentence 

for possession of cocaine, (4) a 2002 conviction and 180-day sentence for 

possession of cocaine, and (5) a 1998 conviction for possession of cocaine. 

Father was incarcerated at all times relevant to this case—when he learned that 

Mother was pregnant, when A.N.D. was born, during A.N.D.’s DFPS case, and at 

the time of trial. His criminal history evidences a deliberate and continuing 

course of possessing illegal, controlled substances—conduct that has exposed 

him to incarceration on several occasions. Consequently, the trial court could 

have reasonably concluded that this course of conduct, and his imprisonment, 

negatively affected his ability to financially, physically, and emotionally care for 

A.N.D. Accordingly, we hold that the evidence is legally and factually sufficient to 

show that Father engaged in conduct that endangered the physical or emotional 

well-being of A.N.D. We overrule Father’s second issue. Having overruled 

Father’s second issue, we need not address his third, fourth, and fifth issues 
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challenging the sufficiency of the evidence to support the trial court’s subsection 

161.001(1)(N), (O), and (Q) findings. See Tex. R. App. P. 47.1; In re J.L., 163 

S.W.3d 79, 84 (Tex. 2005) (stating that parent must have committed only one of 

the acts prohibited under family code section 161.001(1) for termination of her 

parental rights).

C. Best Interest

There is a strong presumption that keeping a child with a parent is in the 

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and 

permanent placement of the child in a safe environment is also presumed to be 

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008) 

(listing factors that should be considered in evaluating the parent’s willingness 

and ability to provide the child with a safe environment). Nonexclusive factors 

that the trier of fact in a termination case may use in determining the best interest 

of the child include: (A) the desires of the child; (B) the emotional and physical 

needs of the child now and in the future; (C) the emotional and physical danger 

to the child now and in the future; (D) the parental abilities of the individuals 

seeking custody; (E) the programs available to assist these individuals to 

promote the best interest of the child; (F) the plans for the child by these 

individuals or by the agency seeking custody; (G) the stability of the home or

proposed placement; (H) the acts or omissions of the parent which may indicate 

that the existing parent-child relationship is not a proper one; and (I) any excuse 

for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
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72 (Tex. 1976). These factors are not exhaustive; some listed factors may be 

inapplicable to some cases, and other factors not on the list may also be 

considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed 

evidence of just one factor may be sufficient in a particular case to support a 

finding that termination is in the best interest of the child. Id. On the other hand, 

the presence of scant evidence relevant to each factor will not support such a 

finding. Id. The same evidence of acts or omissions used to establish grounds 

for termination under section 161.001(1) may be probative in determining the 

best interest of the child. Id. at 28.

Father has never met A.N.D. He testified that he is currently unable to 

care for A.N.D., that he wanted his mother (P.F.) to care for A.N.D., and that he 

planned to work on an oil rig after his release from prison. DFPS performed a 

home study of P.F. but declined to place A.N.D. with her. P.F. acknowledged 

that DFPS had removed two of her grandchildren from her care in 1997; 

according to A.N.D.’s caseworker, Darless Collins, DFPS determined that “some 

severe forms of discipline were used in the home on both her own children and 

her grandchildren.” Collins testified that she had concerns about Father’s 

extensive history with drugs, that Father had not maintained significant contact 

with A.N.D., and that she had no indication that Father could provide A.N.D. with 

a safe home or with any support.
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Collins explained that A.N.D. had been in a foster home since her removal 

and that

[s]he’s doing really, really well there. She has bonded to the 

foster family, their children, their extended family. She has bonded 

to her sibling, who was briefly placed in that same home. She has 

no ongoing issues. They’ve been very diligent about her, her health, 

her dental care. She did have to have some ECI. An ECI program 

that she was working, that they took care of that. And then she was 

dismissed from that program. So she’s doing very well there.

Collins opined that all of A.N.D.’s needs were being met and said that DFPS’s 

recommendation for A.N.D. was that she be placed with the foster family long

term.

Viewing the evidence under the appropriate standards, we hold that the 

evidence is both legally and factually sufficient to support the trial court’s finding 

that termination of Father’s parental rights to A.N.D. is in her best interest. We 

overrule Father’s first issue.

IV. CONCLUSION

Having overruled Father’s two dispositive issues, we affirm the trial court’s 

order terminating Father’s parental rights to A.N.D.

BILL MEIER

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J., concurs without opinion.

DELIVERED: January 31, 2013