COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-140-CV

IN THE INTEREST OF B.J.,

A CHILD

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FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant J.J. appeals from the termination of her parental rights to her

daughter B.J. In twelve issues, Appellant contends that the evidence is legally and

factually insufficient to support termination, challenges the appointment of the Texas

Department of Family and Protective Services (TDFPS) as Permanent Managing

Conservator (PMC), and contends that subsections (b) and (i) of section 263.405 of

the family code are unconstitutional. Because we hold that the evidence is legally

and factually sufficient to support termination and that Appellant has not shown that

1 See Tex. R. App. P. 47.4.
the challenged statutory provisions have harmed her, we affirm the trial court’s judgment.

The trial court found by clear and convincing evidence that Appellant had (1)

knowingly placed or knowingly allowed the child to remain in conditions or

surroundings that endanger her physical or emotional well-being and (2) engaged

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

endangers the child’s physical or emotional well-being.

2 The trial court also found

that termination of the parent-child relationship would be in the child’s best interest.

3

In her first, second, third, and fourth issues, Appellant contends that the

evidence is legally and factually insufficient to support the endangerment findings.

As we have explained in a similar case,

Endangerment means to expose to loss or injury, to jeopardize.

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

it finds by clear and convincing evidence that the parent has knowingly

placed or knowingly allowed the child to remain in conditions or

surroundings that endanger the physical or emotional well-being of the

child. Under subsection (D), it is necessary to examine evidence

related to the environment of the child to determine if the environment

was the source of endangerment to the child’s physical or emotional

well-being. Conduct of a parent in the home can create an environment

that endangers the physical and emotional well-being of a child.

. . . . Under subsection (E), the relevant injury 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. Termination under

subsection (E) must be based on more than a single act or omission;

2 See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 2009).

3 See id. § 161.001(2).

2
a voluntary, deliberate, and conscious course of conduct by the parent

is required.

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. 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. . . . A parent’s decision to

engage in illegal drug use during the pendency of a termination suit,

when the parent is at risk of losing a child, supports a finding that the

parent engaged in conduct that endangered the child’s physical or

emotional well-being. Thus, parental and caregiver illegal drug use

supports the conclusion that the children’s surroundings endanger their

physical or emotional well-being. A factfinder may also reasonably infer

from a parent’s failure to attend scheduled drug screenings that the

parent was avoiding testing because the parent was using drugs. As

a general rule, conduct that subjects a child to a life of uncertainty and

instability endangers the child’s physical and emotional well-being.

Because the evidence pertaining to subsections 161.001(1)(D)

and (E) is interrelated, we conduct a consolidated review.

4

The trial court heard the following evidence. Darlene Pile, an investigator for

Child Protective Services (CPS), visited Appellant’s apartment in response to a

report of physical neglect when B.J. was eleven months old. Pile described the

report:

[T]he persons were concerned concerning [B.J.]’s appearance. There

was comments that her head was dirty, her nails were dirty, the child

wasn’t—was unkept [sic]. The—she had gone to a sitter, I guess, and

the child was only provided with a sippy cup, ramen noodles, size 4

diapers, when she only wore a size 2 diaper. The child was just unkept

[sic]. She was a loner. She didn’t want to play.

4 In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4–5 (Tex.

App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted); see also In

re J.O.A., 283 S.W.3d 336, 345–46 (Tex. 2009).

3
When Pile investigated at the sitter’s house, the sitter had already bathed B.J., but

Pile noted that the sippy cup was dirty and contained only about an inch of fluid and

that Appellant had not left any milk or clean clothes for B.J. Pile reported that

although Appellant, B.J., and their apartment were clean when she later visited

Appellant, no food appropriate for an eleven-month-old was available in the home.

Pile testified that when asked why there was no milk, Appellant claimed that B.J. was

lactose intolerant. Pile also testified that Appellant told her that she did not need

WIC because B.J. did not drink milk. Appellant testified that she never told anyone

that B.J. was lactose intolerant but that she did tell CPS that B.J. did not like white

milk.

B.J. was admitted into Cook Children’s Hospital on January 24, 2008, one

week before her first birthday. Hospital personnel noticed that when they arrived,

both Appellant and B.J. had hygiene issues. B.J.’s blanket was filthy, and the

crevices in her sippy cup contained dirt.

B.J. was diagnosed with cellulitis and failure to thrive. Even with an armboard

attached for an IV, B.J. weighed only 16 pounds and 7.3 ounces, the minimum for

what doctors would have expected for a seven-month-old. She was below the fifth

percentile for weight of babies in her age group in the United States. There was

evidence that Appellant informed medical personnel that B.J. was a picky eater,

refusing milk and “other things which most children like.”

4
Dr. Kevin Wylie, B.J.’s attending physician at Cook Children’s Hospital,

testified that B.J.’s failure to thrive was most likely caused by undernourishment and

malnutrition. Importantly, the doctor made clear in his testimony that the problem

was not just that Appellant was giving B.J. inappropriate food. He stated that B.J.

had been “getting insufficient food” and “insufficient caloric intake” and that the most

important part of solving B.J.’s problem was just “[f]eeding her.” Her low weight

placed her at risk for developmental problems. Further, at the hospital, B.J. was

observed not to be a picky eater, drank milk with no problem, and began gaining

weight. Dr. Wylie testified that she ate “more than what would be expected for her

weight.”

Dr. Wylie was concerned that Appellant could not adequately care for B.J.

because of the medical history Appellant provided, which showed that B.J. was two

sets of immunizations behind schedule; B.J.’s poor hygiene and low weight upon

arrival; Appellant’s interactions in the hospital; and the fact that B.J. thrived in the

hospital.

There was evidence that Appellant was not taking her bipolar medication

regularly. Dr. Wylie testified that his notes indicated that Appellant had told the

nurses that she could not pay for her bipolar medicine, but they observed that she

purchased Starbucks products frequently. Appellant testified that she took her

medication regularly but admitted to not taking it for “a couple of weeks” in 2008

when she did not have it.

5
Dr. Wylie testified that Appellant was inexplicably belligerent and

confrontational at the hospital. He stated that his impression was that her regard for

B.J.’s health was not where it would be for the average patient, and that his baseline

was pretty low. As an example, he testified that she got upset when she was told

that B.J. would have to stay in the hospital longer, not because of any concern for

B.J. but because Appellant wanted to go home. Appellant admitted at trial that B.J.

had been two sets of immunizations behind, that is, the baby had no immunizations

or checkups between the ages of two weeks and four months, because Appellant

was working and did not have time to get B.J. timely medical care.

While B.J. was in the hospital, medical staff explained the long-term

ramifications of inadequate nutrition to Appellant; however, she continued to provide

inappropriate nutrition to B.J. by giving the child soft drinks, chips, and other junk

food. Furthermore, there was evidence that Appellant, who was a certified nursing

assistant at the time, had attempted to remove B.J.’s IV to change her diaper without

consulting any of the hospital staff. Appellant denied in her testimony that she had

attempted to remove the IV and testified that she had helped a nurse unhook or

disconnect it when the nurse was changing out the IV.

Dr. Wylie recommended placing B.J. upon discharge where CPS could be

sure that she would get food to confirm that her problem was lack of appropriate

nutrition instead of an obscure medical problem. B.J. was placed in foster care upon

her discharge from the hospital. She gained about eleven and a half ounces within

6
a week, and by the time she saw a pediatrician two months after her hospitalization,

she weighed twenty pounds and was back on a normal growth curve. Her

pediatrician opined that she had made a “dramatic improvement.” At her last

checkup before trial, B.J. weighed 24.8 pounds.

The foster mother testified that B.J. ate peas and drank milk the night she

arrived. In describing B.J.’s initial appearance, the foster mother testified,

She came to me reminding me so much of my daughter that I

went to Latvia for. . . . She had that orphanage look, which is a very

blank, very sad, very lonely look. And I could put her down and blow on

her belly and tickle her and she didn’t respond.

She never cried for food. I had to put her on a—just—you eat

breakfast; you eat snack; you eat lunch; you eat snack; you eat dinner;

you get your bottle; you drink it; you go to bed. It took a while before

she actually knew to cry for any type of food or ask for it. The day she

first started asking for food, I was so excited, I called my husband up at

work.

During the pendency of the case, Appellant committed the state jail felony

offense of theft of a vehicle. She pled guilty to the offense and was placed on

deferred adjudication community supervision. At the time of the termination trial,

Appellant was still on deferred adjudication community supervision but had been

threatened with revocation unless she completed drug treatment. She had been

discharged from drug treatment in December 2008 for noncompliance.

Appellant admitted that she had used marijuana on and off since she was

fourteen years old. She admitted to smoking marijuana during both of her

pregnancies and during the pendency of both the CPS case and her deferred

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adjudication community supervision, violating the terms of her community

supervision. She tested positive for marijuana on three separate

occasions—December 22, 2008, February 26, 2009, and March 27, 2009. She

refused to take a urine test for CPS in March 2009 but testified that she had smoked

marijuana less than a month before trial.

Applying the appropriate standard for reviewing the legal sufficiency of the

evidence,

5 we hold that, based upon our review of the record, the evidence is legally

sufficient to support the trial court’s endangerment findings regarding Appellant

under subsections (D) and (E). Further, applying the appropriate standard for

reviewing the factual sufficiency of the evidence,

6 we hold that, based upon our

review of the record, the evidence is factually sufficient to support those findings.

We overrule Appellant’s first, second, third, and fourth issues.

Along with a best interest finding, a finding of only one ground alleged under

section 161.001(1) is sufficient to support a judgment of termination.

7 We therefore

do not reach Appellant’s fifth and sixth issues.

8

5 See In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005).

6 See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89 S.W.3d

17, 28 (Tex. 2002).

7 In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.).

8 See Tex. R. App. P. 47.1.

8
In her seventh and eighth issues, Appellant contends that the evidence is

legally and factually insufficient to support the trial court’s finding that termination of

Appellant’s parental rights is in B.J.’s best interest. In addition to the above

evidence, there was also evidence that Appellant failed to satisfy several

requirements set forth in her CPS family service plan. Specifically, she failed to go

to personal individual counseling; failed to follow through with drug assessment; and

refused to take a drug test.

Additionally, instead of attending parenting classes set out in her service plan,

Appellant opted to take parenting classes from Safe Haven. However, she was

unable to provide documentation of attendance or completion upon request. After

taking parenting classes, she refused to change B.J.’s wet diaper during a CPS visit,

indicating an inability to appropriately parent the child. Also during visitation,

Appellant spoke inappropriately to the child, both speaking to her as she would an

adult and becoming overly frustrated with the child. Appellant did not visit B.J. as

often as she was allowed. In fact, she only visited her daughter seventeen times out

of thirty-two opportunities given to her by CPS. In October 2008, she failed to visit

her daughter at all. Appellant testified that she missed visits to meet other service

plan requirements, such as working and attending MHMR appointments, and

because of transportation issues.

Appellant was unable to maintain stable housing throughout the duration of

the case. From August 1, 2008, to the time of trial, Appellant resided at at least

9
seven different places, including a shelter. At trial, she resided in a rented home

with a friend. Appellant’s name was not on the lease, which had expired.

Appellant was also unable to maintain stable employment throughout the

duration of the case. From August 2008 to February 2009, Appellant had six

different jobs.

Appellant testified that B.J. hugs her, calls her Mama, and is sad at the end

of visits. She also testified that her present residence was safe and child-friendly

and that she would not smoke marijuana again. She insisted that she was not an

addict and that smoking marijuana was a choice. She did not believe that her

parental rights should be terminated because of “four pounds.”

The CPS caseworker testified that termination of Appellant’s parental rights

would be in B.J.’s best interest because

[Appellant] has not shown any significant stability during this case. She

seems to believe that she hasn’t done anything wrong. She—she

doesn’t feel that she needs the medical treatment. She doesn’t feel

that her child was being neglected, and she feels that her child should

be returned to her. And she just hasn’t acknowledged her part in this

case.

The evidence showed that Appellant’s father had custody of her son, whom

she had not seen for more than a year at the time the CPS case began, but the

grandfather did not want to be considered as a potential placement for B.J. The

foster mother, on the other hand, testified that she loves B.J. and wants to adopt her,

10
and that she and her husband, children, and parents are all bonded to B.J. When

describing B.J.’s transformation from the time she arrived, the foster mother testified,

She’s gone from that to this little girl that has a mind of her own

and tells you what she thinks and speaks and loves her siblings and

loves us and we love her and she’s happy and she giggles and you can

tickle her and you can play with her; and that blank look, that

orphanage look, is gone.

The CPS caseworker testified that B.J. was thriving and happy in the foster

home and very bonded. B.J. talks a lot, runs and plays, and is learning a lot. She

calls the foster parents Mom and Dad and looks to them as her parents. TDFPS’s

plan at trial was for B.J. to be adopted by her foster parents if her birth parents’ rights

were terminated.

Applying the appropriate standards of review, we hold that the evidence is

legally

9

and factually

10

sufficient to support the best interest finding, and we overrule

Appellant’s seventh and eighth issues.

In her ninth and tenth issues, Appellant contends that if we reverse the

termination order based on insufficient evidence, we should also reverse the

appointment of TDFPS as PMC on the same grounds. Because we hold that the

9 See Tex. Fam. Code Ann. § 263.307(a), (b) (Vernon 2008); In re R.R., 209

S.W.3d 112, 116 (Tex. 2006); J.P.B., 180 S.W.3d at 573–74; Holley v. Adams, 544

S.W.2d 367, 371–72 (Tex. 1976).

10 See Tex. Fam. Code Ann. § 263.307(a), (b); R.R., 209 S.W.3d at 116;

H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d at 371–72.

11
evidence is legally and factually sufficient to support the termination of Appellant’s

parental rights, we overrule her ninth and tenth issues.

In her eleventh and twelfth issues, Appellant contends that subsections (b)

and (i) of section 263.405 of the family code are unconstitutional. But Appellant filed

a timely statement of issues and motion for new trial and directs this court to no

injury she suffered as a result of the subsections complained of. Accordingly,

Appellant has not shown that the subsections are facially unconstitutional or

unconstitutional as applied to her.

11 We therefore overrule her eleventh and twelfth

issues.

Having overruled Appellant’s twelve issues, we affirm the trial court’s

judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MEIER, JJ.

DELIVERED: April 15, 2010

11 See City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 240–41

(Tex. 2001) (providing requirements of successful facial challenge); Tex. Workers’

Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995) (providing

requirements of successful “as applied” challenge).

12