## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00051

- CV

IN THE INTEREST OF B.B., A CHILD

On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 90406

Before Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION The Depa rtment of Family and Protective Services filed a petition to terminate Mother ’ s and Father ’s parental rights after both B.B. and Mother tested positive fo r methamphetamine a t B.B.’s birth. 1 After a bench trial, the trial court found that Mother and Father (1) knowingly placed or allowed B.B. to rem ain in conditions or surroundings that endangered her physical or emotional well

- being , (2) engaged in conduct o r knowingly pla ce d B.B. with persons who engaged in conduct that endangered her physical or emotional well

- being, (3) constructively abandoned B .B., ( 4 ) failed to comply with the provisions of a court order that specifically established the actions nece s sa ry for B.B.’s r et urn, and ( 5 ) used a controlled substance in a manner that endangered B.B.’s health or safety
. See T EX . F AM . C ODE A NN . § 161.001(b)(1)(D), (E), (N), (O), (P). The trial court also found that Father knowingly engaged in criminal conduc t th at resulted in a convictio n and confinement or imprisonment and inability to care for B.B. for not less than two years from the date of the Department’s petition. See T EX . F AM . C ODE A NN . § 161.001(b)(1)(Q). After determining that it was in B.B.’s bes t in terests, the tr i a l court terminated Mother ’ s and Father’s parental rights to B.B. See T EX . F AM . C ODE A NN . § 161.001(b)( 2). On appeal, Father 2 argues that the evidence is legally and factually insufficient to support the trial court’s findings that th ere were statutor y gr ounds to terminate his parental rights
. 3

1 We use ini tials to protect the identity of the child and refer to her parent s as Mother and Father
. See T EX . R. A PP . P
. 9.8.
2 Mother did not appeal the termination of her parental rights to B.B
. 3 Father does not challenge the trial court’s best

- interest finding.3

Because Father failed to challenge the trial court’s statutory Ground Q finding and sufficient evidence supported the trial court’s finding under Ground E , we overrule Father’s point of error and a ffirm the tri al c ourt’s judgment terminating his parental rights. I. S ta ndard of Review “The natural right existing between parents and their children is of constitutional dimensions.” In re E.J.Z. , 547 S.W.3d 339, 343 (Tex. App.

— Texarkana 2018, n o pet.) ( quoting Holic k v. Smith , 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, par ents have a fundamental right to make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel v. Granville , 530 U.S. 57, 65 (2000)). “B ec ause the termination o f pa rental rights implicates fundamental interests, a hig her standard of proof

— clear and convincing evidence

— is required at trial.” Id. (quoting In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to “engage in an e xacting r eview of the enti re record to determine if the evidence is . . . suffi cient to support the termination of parental rights.” Id. (quoting In re A.B. , 437 S.W.3d at 500).

“ [I]nvoluntary termination statutes are strictly construed in favor of the p arent.” Id. (quoting In r e S.K.A. , 236 S.W.3d 875, 900 (Tex. App.

— Texarkana 2007, pet. denied) (quoting Holick , 685 S.W.2d at 20)). “In order to terminate parental rights, the tria l court must find, by clear and convincing evidence, that the parent has en gaged in at least one stat utory ground for termination and that termination is in the child’s best interest.” Id. (citing T EX . F AM . C ODE A NN . § 161.001; In re E.N.C. , 384 S.W.3d 79 6, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of p roof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of4

the allegations sought to be established.’” Id. (quoting T EX . F AM . C ODE A NN . § 101.007 (citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009)). “This st andard of proof necess aril y affects our review of the evidence.” Id. “In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact

- finder reasonably could have formed a firm bel ie f
or conv iction that t he g rounds for termination were proven.” In re L.E.S. , 471 S.W.3d 915, 920 (Tex. App.

— Texarkana 2015, no pet.) (citing In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B. , 349 S.W.3d 836, 846 (Tex. App.

— Texark an a 2011, no pet.)). “We
ass ume the trial court, acting as fact

- finder, resolved disputed facts in favor of the finding, if a reasonable fact

- finder could do so, and disregarded evide nce that the fact

- finder could have reasonably disbelieved or the credib il ity of whi ch reasonably cou ld be doubted.” Id
. (citing In re J.P.B. , 180 S.W.3d at 573). “In our review of factual sufficiency, we give due consideration to evidence the trial
cou rt could have reasonably found to be clear and convincing.” Id. (citing I n re H.R.M

. , 209 S.W.3d 105 , 108 (Tex. 2006) (per curiam)). “We consider only that evidence the fact

- finder reasonably could have found to be clear and convincing and determine ‘whe ther the evidence is such that a fact[

- ]finder could reasonably form a f ir m belief o r conviction abou t the truth of the

. . . allegations.’” Id. (alteration in original) (quoting In re H.R.M. , 209 S.W.3d at 108 (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002)) ) ; In re J.F.C. , 96 S.W.3d 256, 264, 266 (Tex. 2002). “If, in lig ht of the entire record, t he dispute d evidence that a reasonable fact [

- ] finder could not have credited in favor of the finding is so significant that a fact [

- ] finder could not reasonably5

have formed a firm belief or conviction, then the evidence is factual ly insufficient.” Id. (q u oting In re J.F. C. , 96 S.W.3d at 2 66). “‘[I]n making this determination,’ we must undertake ‘an exacting review of the entire record with a healthy regard for the constitutional interests at stake.’” Id. (quoting In re A.B. , 437 S.W.3d 498, 503 (Tex. 20 1 4) (quoting In r e C.H. , 89 S.W.3d at 26)). “We also recognize that the trial court, as the fact

- finder, is the sole arbiter of a witness’ demeanor and credibility, and it may believe all, part, or none of a witness’ testimony.” In re A.M. , No. 06

- 18

- 000 1 2

- CV, 2018 WL 30 77784, at *3 (Tex. App.

— Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M. , 209 S.W.3d at 109). “Despite the profound constitutional interests at stake in a proceeding to terminate parental right s, ‘the rights of natural parents are not absolute; protecti on of the child is paramount.’” In re L.E.S. , 471 S.W.3d at 920 (quoting In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T. , 872 S.W.2d 189 , 195 (Tex. 1994))) (citing In re M.S. , 1 15 S.W.3d 534, 547 (Tex. 2 003)). “A child ’s emotional and p hysical interests must not be sacrificed merely to preserve parental rights.” Id. (quoting In re C.A.J. , 459 S.W.3d 175, 179 (Tex. App.

— Texarkana 2015, no pet.) (citing In re C.H. , 89 S.W.3d at 2 6)). II. Unchallenged Gro und Q Finding Supports T ermination of Fath er’s Parental Rights

“ Only one predicate finding under Section 161.001[b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the chil d’s best interest.” Id. a t 923 (q uoting In re O.R .F. , 417 S.W.3d 24 , 37 (Tex. App.

— Texarka na 2013, pet. denied) (quoting In re A.V. , 113 S.W.3d at 362) (citing In re K.W. , 335 S.W.3d 767, 769 (Tex. App.

— Texarkana 2011, no pet.))).6

Father asserts that th e evidence is legally and factuall y insufficient t o support the tria l court’s findings unde r Grounds D, E, N, O, and P, but his brief wholly fails to challenge the trial court’s Ground Q finding. When the trial court makes findings that multiple statutory grounds support terminati on of pa rental rights an d the appellant do es not challenge all st atutory grounds found, we will affirm the trial court’s termination order based on the unchallenged statutory ground if the trial court’s best

- interest finding is al so unchallenged. See In r e A.G.

- U
. , No. 06

- 17

- 000 78

- CV, 2017 WL 547 3766, at *1 (Tex. App.

— Texarkana Nov. 15, 2017, no pet.) (mem. op.) (order terminating parental rights affirmed when parent did not challenge trial court’s findings on one statutory ground and best interest); B.H.

- L v. Tex . Dep’t of Fam. & Protective Serv s . , No. 03

- 17

- 00772

- CV, 2 018 WL 1278720, at *1

– 2 (Tex. App.

— Austin Mar. 13, 2016, no pet.) (mem. op.) (same). Based on the unchallenged Ground Q and best

- interest finding s , we overrule Fa ther’s point of error and a ffirm t he termination of Father’s parental rights to B.B. III. We Must Still Conduct a Due Process Review of Ground D or E Even so, when the trial court’s findings under Grounds D or E are challeng ed on appeal, due pr ocess demands that we review the e vi d ence supporting the fi nding under at le ast one of those grounds. See In re N.G. , 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“ We hold that due process and due course of law requirements mandate that an appellate cou rt detail its analysis for an appe al o f termination of pare ntal rights under [S]ection 161.001(b)(1)(D) or (E) of the Family Code.”). This is because termination of p arental rights under these grounds may implicate the parent’s parental rights to other ch ildren. Id. at 234; see T EX . F AM . C O D E7

A NN . § 161.001(b)(1 )(M) (providing as a ground for termination of parental rights that the parent “had his or her parent

- child relationship terminated with respect to another child based on a finding that the parent’ s conduct was in violation of Para gra p h (D) or (E)”). A. Requi rements Under Grou nd E Ground E permits the termination of a parent’s parental rights “if the court finds by clear and convincing evidence . . . that the parent has . . . engaged in conduct . . . w hich endangers the physical or emo tio n al well

- being of the child.” T EX . F AM . C ODE A NN . § 161.001(b)(1)(E). Endanger “means more than a threat of metaphysical inju ry or potential ill effects of a less

- than

ideal family environment.” In re E.N.C
. , 384 S.W .3d 796, 803 (Tex. 2012) . “‘Endan ger ’ means to expose to l oss or injury; to jeopardize.” Tex. Dep’t of Hum
. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); In r e L.E.S. , 471 S.W.3d at 923; In re N.S.G. , 235 S.W.3d 358, 367 (Tex. App.

— Texarkana 2007, n o pet.). “It is not necessary that the conduct be directed at the child[ren] or that the child[ren] actually suffer injury.” In re L.E.S. , 471 S.W.3d at 923. Under Ground “(E), it is sufficient that the child[ren]’s well

- being is jeopardized or exposed to loss or injury.” Id. (citing B oyd , 7 27 S.W.2d at 533; I n re N.S.G. , 235 S .W.3d at 367). “Further, termination under [Ground] (E) mus t be based on more than a single act or omission. Instead, a ‘voluntary, deliberate, and conscious course of conduct by the parent is required.’” Id. (quot i ng Perez v. Tex. De p’t of Protective & Regul
. Servs. , 148 S.W.3d 427, 436 (Tex. App.

— El Paso 2 004, no pet.) (citing In re K.M.M. , 993 S.W.2d 225, 228 (Tex. App.

— Eastland 1999, no pet.))); see Boyd , 727 S.W.2d a t 533; In re N.S.G. , 235 S.W.3d at 3 66

– 67. G r ound E “refers only to the parent ’s conduct, as evidenced not only by the parent’s acts, but8

a lso by the parent’s omissions or failures to act.” In re M.C. , 482 S.W.3d 675, 685 (Tex. App.

— Texarkana 2016, pet. denied) (quoting In re N.S.G. , 235 S .W.3d at 3 66

– 67 ) . “The c onduct to be exami ned includes what the parent did both before and after the ch ild was born.” Id. at 685 (quoting In re N.S.G. , 235 S.W.3d at 367 )
. “ The endangering conduct may also occur ‘ eith er before or after the child’s remov al by the Department. ’ ” In re S.A.W
. , No. 06

- 21

- 00116

- CV, 2022 WL 1193667, at *4 (Tex. App.

— Texarkana A pr. 22, 2022, pet. denied) (mem. op.) (quoting In re Z.J. , No. 02

- 19

- 00118

- CV, 2019 WL 6205252, at *11 (Tex. App.

— F ort Worth Nov. 21, 2019, pet. denied) (mem. op
. ) (citing Walke r v. Tex. Dep’t of Fam
. & P rotective Servs. , 312 S.W.3d 608, 616

– 17 (Tex. App.

— Houston [ 1st Dist.] 2009, pet. denied) ) ). B. The Evidence at Trial B.B. , who was born on June 4, 2021, was one y ear old at the time of trial. Brittan y Allen, th e Department’s caseworker, testified that F ather admitted to using methamphetamine daily
. Allen testified , and admitted drug test results showed , that Father tested positive for methamphetamine and amphetam ine four days after B.B.’s birth. Acc ording to A l len, F ather
w as incarcerated shortly after B.B.’s birth and remained incarcerated during the pendency of the
case . Allen also testified that Father reported being in a gang that called him “Tow Chain.” T he record showed that Father, who was thirty

- six, had a prior c riminal history. Allen testi fied that Father was convicted of sexual assault of a child. Judgments of conviction against Father showed that he was previously convicted of two counts of failin g to register as a sex
o ffender, as we ll as two c o unts of unaut horized use of a motor vehicl e, one count of possession of cocaine, two counts of forgery, and several misdemeanor offenses.9

Father’s criminal history after B.B.’s birth was also significant. Jud gments of conviction introduced by the Departm e n t showed that Father pled guilty to , and was convicted of , two counts of possession of a penalty group 1 controlled substance and two counts of bail jumping and failure to appear
. Pursuant to a plea barg ain agreement with the State, on July 15, 2021, Fa t her received a sentence o f six years’ imprisonment for those offenses
. On July 26 , 2021, Father also pled guilty to theft of property valued at $750.00 or mor e , but less than $2,500.00 , and was inca rcerated for twelve months. Allen’s testimony, and an a d mitted judgment of conviction, sh owed that Father was convicte d of family violence assault on July 29 after he pled guilty to the offense. After hearing this evidence, the trial co urt found that Father had engaged in conduct that endangered B.B.’s phys i c al or emotional well

- being. C. Su fficient Evidence Supported th e Ground E Finding The evidence at trial focused on Father’s drug u se and incarceration. “Drug use and its effect on a parent’s life and his ability to parent may establish an endangering cour se of conduct.” In re J.L.B. , 34 9 S.W.3d at 848 (quoting In re N.S.G
. , 235 S.W.3d at 368) ; see In re J.O.A. , 283 S.W.3d 336, 345 n.4 (Tex. 2009); In re S.N. , 272 S.W.3d 45, 52 (Tex. App.

— Waco 2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as
co nduct which will support an af firmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child. ”). Also, “imprisonment is certainly a factor to be considered by the trial c o ur t on the issue of endangerment ” under Ground E. In re N.S.G
. , 235 S.W.3d at 367 (quoting Boyd , 727 S.W.2d at 533). This is because “ [a] parent’s10

criminal history

— taking into account the nature of the crimes, th e duration of incarceration, and whether a p attern of escalating, repeated convictions exists

— can support a fin ding of endangerment.” In re J.F
. - G
. , 627 S.W.3d 304, 313 (Tex. 2021). The evidence at trial showed that, after B.B.’s birth, Father admitted t hat he used methamphetamine daily
. “ ‘ Beca us e it exposes the child t o the possibility that the parent may be impa ired or imprisoned, illegal drug use may support termination un der’ Ground E.” In re H.M.J. , No. 06

- 18

- 00009

- CV, 2018 WL 3028980, at *5 (Tex. A pp.
— Texarkana June 19, 2018, no p et.) (me m. op.) (quoting In re A.L
. , No. 06

- 14

- 00050

- CV, 2014 WL 5204888, at *7 (Tex. App.

— Texarkana Oct. 8, 2014, no pet.) (mem. op.) (quotin g Walker , 312 S.W.3d at 617) )
. Here, Father was convicted after B.B.’s birth for possessing controlled substances whi le M ot her was pregnant wi th B.B. , including just nine days before B.B.’ s birth. “A parent’s failure to remain drug

- free while under the Department’s supervision will support a finding of endangering conduct under [Ground] (E) even if there is no direct e v idenc e that the parent’s drug use actually injured the child.” In re H.M.J. , 2018 WL 3028980, at *5 (quoting In re J.A.W. , No. 02

- 0 8

- 215

- CV, 2009 WL 579287, at *4 (Tex. App.

— Fort Worth Mar. 5, 2009, no pet.) (per curiam) (mem. op.) (citing Vas que z v. Tex
. Dep’ t of Protective & Re gul
. Servs. , 190 S.W.3 d 189, 196 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied)). Four days after B.B.’s birth, and one day after the Department’s petition was filed, Father tested positive for methamphetamine and a mphetamine. His ad mitted daily h abit reasonably led the fa ct
- finder to conclude that he would not be responsible enough to care for B.B.11

An offense committed by a parent before the birth of the parent’s child “can be a relevant factor in establishing an endangering cours e of conduct.” I n re E.N.C
. , 384 S.W.3d at 804

– 05. Also, conduct that demonstrates “[d]omestic violence, want of self

- control, and propensity for violence may be considered as evidence of endangerment
. ” In re J.A.W
. , No. 06

- 09

- 00068

- CV , 2010 WL 12 3 6432, a t *4 (Tex. App.

— Texarkana Apr. 1, 2010, p et. denied); see E.E. v. Tex. Dep’t of Fam
. & Protective Servs
. , 598 S.W.3 d 389, 405 (Tex. App.

— Austin 2020, no pet.). The evidence showed that Father had a l engthy criminal history before B.B .’s birth , inc l uding
s exual assault of a child and, more rece ntly, family violence assault
. In addition to committing criminal offenses before B.B.’s birth, Father committed the offense of bail jumping after B.B.’s birt h. His pleas of guilty on July 1 5, 2 6 , and 2 9 , 2 0 21, t o several offenses committed after B.B.’s birth led to Father’s impris onment for up to six years. Father ’ s imprisonment removed his ability to parent newborn B.B. and ex posed her to the loss of
a caretaker, subjecting he r to a life of unc ertainty an d inst ab i lity if Father’s paren tal rights we re not terminated. An examination of all of Father’s criminal offenses showed that Father engaged in more serious crimes as time passed, received his heaviest sentence after B.B.’s b irth, and reported t h at he w a s a ga ng member. Des pite that evi dence, Father argues that it is insufficient because he was “incarcerated for practically all of the Child’s life.” That fact, however, weighs against Father because a fact

finder m ay “infer that a pa rent’s lack of cont a ct wit h the child and absence from the chi ld’s life endangers the child’s emotional well

- being.” E.E
. , 598 S.W.3d at 405

– 06; In re U.P
. , 105 S.W.3d 222, 236 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied) , overrul ed in part on12

other g rounds by In re L
. C.L. , 599 S.W.3d 79, 85 (Tex. App.

— Houston [14 th Dist. ] 2020, pet . denied ) (concluding that parent’s criminal conduct, which resulted in the parent’s impriso nment and absence from child’s life, created an “emotional vacuum” in the child ’ s lif e that enda n gered t h e child ’ s well

- being). A long history of irresponsible choices is probative evidence that a parent has engaged in conduct that has endangered a child. See In re J.O.A
. , 283 S.W.3d at 346. From the above

recited evid ence, we find that the trial c ourt co u l d have formed a firm be lief or conviction that Father’s life choices, including his pattern of knowingly engaging in illegal activity, left him unable to care for B.B. and constituted a pattern of conduct inconsistent with the very ide a of child r earing. Because the record firm ly established tha t Father engaged in conduct that endangered B.B.’s physical and emotional well

- being , we find that legally and factually sufficient evidence supported the trial court’s finding under Ground E. 4 IV. Conclus i on We a ffirm the trial court’s judgment.

Cha rles van Cleef Justice Date Submitted: October 10, 2022 Date Decided: October 19 , 2022

4 Since there was sufficient evidence supporti ng the tr ial court’s finding under Groun ds Q and E , we nee d no t review its findings under the remaining grounds. See J.T. v. Tex. Dep’t of Fam
. & Protective Servs
. , No. 03

- 21

- 00070

- CV, 2021 WL 2672 055, at *9 (Tex. App.

— Austin June 30, 2021, no pet.) (me m. op.); In re M.F. , No. 14

- 19

- 00964

- CV, 2 020 WL 2 832 1 66, at *8 (Tex. App.

— Houston [14th Dist.] May 28, 2020, pet. denied) (mem. op.).