Opinion filed September 2, 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 00 296

- CV

__________ IN THE INTEREST OF J.M.D. , A CHILD

On Appeal from the 318 th District Court

Midland County, Texas

Trial Court Cause No. FM 47,895

M E M O R A N D U M O P I N I O N
This is an accelerated appeal of the trial court’s order terminating parental rights. We affirm. I. Background Facts Appellant is the father of J.M.D. C

. R

. is the mother of J.M.D. and M.L.R. 1 M.L.R. was removed from C .R. ’s care when she and a ppellant le ft M.L.R. in a motel by herself while they
went to Odessa

. M.L.R. was ten years old at the time. On the way to Odess a, appellant was stopped by police and was arrested for an expired driver’s license. C .R. was later arrested for child endangerment. J.M.D. was born while C .R. was incarcerated , and she was placed in the custody of the Texas Department of Family and Protective Services

. J.M.D. was placed in foster

1 D

. M

. M

. is the father of M.L.R. and his rights were terminated, but he is not appealing that order and is not a party to this appeal. C .R. ’s rights were terminated as to both J.M.D. and M.L.R. She also is n ot a party to this appeal.2

care with Lee and Laronda Shirley three days after she was born

. J.M.D. was sixteen months old
at the time of trial. The Department filed a Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting Parent

- Child Relationship. In the petition, the Department alleged seven acts or omissions as the basis for terminating a ppellant ’ s parental rights to J.M.D. T he
trial court held a bench trial pertaining to the termination. At the conclusion of the trial, the court
found that termination of appellant’s parental rights was in the best interest of J.M.D. and that appellant had:

8.2.1

. 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;

8.2.2

. constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the child to the father ; (2) the father has not regularly visited or maintained sig nificant contact with the child; and (3) the father has demon strated an inability to provide the c hild with a safe environment;
8.2.3. 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 con servatorship 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.

II. Issues on Appeal Appellant asserts that the tr ial court ’ s order finding that he has endangered J.M.D. , constructively abandoned J.M.D. , or acted in violation of the c ourt’s orders was not supported by legally and factually sufficient evidence. Appellant also asserts that the trial court’s finding tha t termination was in J

. M

. D

. ’s best interest was un substantiated by clear and convincing evidence.
III. S tandard 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). 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 289, 292 ( Tex. App.

— East land 2006, no pet.).3

To determine if the evidence is legally sufficient , 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 w as 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.

— Eastland 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).
To determine if the evidence is factually sufficient, 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.
I V

. Grounds for Termination A court may order the termination of the parent

- child relationship if it finds by clear and convincing evidence that a parent has engage d in conduct or knowingly placed the child with a person who engaged in conduct which endanger ed the physical or emotional well

- being of the
child. T EX

. F AM

. C ODE

. A NN

. § 161.001(1)(E) (Vernon Supp. 2009 ). Endanger means to expose to loss or injury or to jeopardize a child ’ s emotional or physical health. Doyle v. Tex. Dep ’ t of Protective & Regulatory Servs.
, 16 S.W.3d 390, 394 (Tex. App.

— El 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. Id.
T he 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

. , 7

28 S.W.2d 73, 83

- 84 (Tex. App.

— Dallas 1987, writ ref = d n.r.e.). T he
conduct to be ex amined includes what the parent did both before and after the child was born. Dupree v. Tex

. Dep ’ t of Protective and Regulatory Servs

. , 907 S.W.2d 81, 84 (Tex. App.

— Dallas 1995, no writ ). Additionally, termination 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.

— Eastland 1999, no pet.). Imprisonment is a4

fac tor to consider on the issue of endangerment. Tex

. Dep ’ t of Human Ser v s

. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). However, imprisonment by itself it is not enough to constitute engaging in conduct that endangers the emotional or physical well

- being of t he child

. Id. at 533

- 34; In re M.D.S. , 1 S.W.3d 190, 199 (Tex. App.

— Amarillo 1999, no pet.). On the other hand, if the evidence, which includes imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well

- bei ng of the child, a finding of endangerment is supportable. Boyd , 727 S.W.2d at 533

- 34; In re M .D.S ., 1 S.W.3d at 199. Co nduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well

- being of
a child. In re A.J.H , 205 S.W.3d 79, 81 (Tex. App.

— Fort Worth 2006, no pet.). Appellant was incarcerated at the time of trial and for a large portion of the case

. He was
arrested in Odessa for driving with an expired driver ’ s license in March of 2008. In May 2008, one month after J.M.D.’s birth, appellant was arrested in Sweetwater for unauthorized use of a
motor vehicle and was in jail until September 2008

. In February 2009, appellant pleaded guilty
to unauthorized use of a motor vehicle and received a fifteen

- mo nth sentence . Appellant testified that he has spent “quite a bit” of his life in jail. He has a criminal history in Kentucky for theft, theft by deception, and forgery by passing. Appellant has been arrested in Texas for driving with an expired driver ’ s license and unauthorized use of a motor vehicle. Appellant
testified that he has “had about eight or ten expired licenses. ” Jerry Watts testified that he is an assistant jail administrator and jail sergeant for the Nolan County s herriff’s office. He t estified that appellant was in the Nolan C ounty j ail from May 2008 to September 2008. Watts testified that
, while appellant was in jail
, he received disciplinary lockdown for disrespect of staff, terroristic threat, fire in his cell
, and violent
behavior. Watts testified that appellant became angry when he was unable to control the
situation in his environment and would break into a rage. Appellant tes tified that
, when he was not incarcerated
, he was in continuous contact with the Department

. He testified that he signed a service plan while he was in prison and that he was aware that the Department was requesting that he participate in certain services offered by the Department

. Appellant was not incarcerated from September 2008 through February 2009. During that time period, he failed to participate in any of the services offered by the Department

. Appellant stated that he failed to perform any services because he was not required to do them
until after taking a DNA test to confirm paternity. A ppellant’s DNA sample was taken on November 18, 2009
, and the results were returned January 28, 2010. However, once the DNA

test confirmed that appellant was J.M.D. ’s father, he still did not initiate services. Appellant was5

sign ed up to take a parenting class but he refused to take it because he did not know what it was
for. Appellant testified that he did not think that he needed to take a parenting class. Appellant had not taken a parenting class at the time of trial but his name was on a waiting list

. Appellant
admitted he w as not be able to take care of J.M.D. at the time of trial. He further testified that he
ha d not provided any financial support for J.M.D. and that he was behind in child support for h is
other children.
Joanna P etrov testified that she is a supervisor for the Department. She testified that appellant signed a service plan and the services were explained to him by a caseworker. She further testified that appellant only completed one of the services in his plan
, t he parenting packet. Petrov stated that appellant’s own actions delayed the DNA test because a ppellant did not give the Department a proper address where he could be served. Appellant gave the address of Joe Cook Small Engine Repair out of Odessa

. W hen someone from the Department tried to serve appellant, they were told that appellant did not work there. Appellant testified that officially he did not work there because he did not have a valid driver’s license. Petrov testified that appellant had listed his address a s “ general delivery ” in Sweetwater, Texas. In order for the Department to order a DNA test
, appellant had to provide a physical address. Petrov testified that appellant did not provide locating information even though he was asked numerous times. Petrov also testified that appellant’s conduct endangered J.M.D. She testified that appellant repeatedly made bad choices that put him in prison. Because of these choices
, appellant w as not able to provide J.M.D. with a safe and stable environment.
Mallori Mang us testified that she is a licensed professional counselor in private practice
who contracts with Hope for Tomorrow to provide counseling to children. She was qualified as

an ex pert witness by the trial court. She testified that she began seeing M.L.R. as a patient in July 2009. Mangus testified that M.L.R. made an outcry of sexual abuse against appellant. She
also testified that M.L.R. expressed feeling s of anger and hatred t oward her mother an d appellant. M angus testified that M.L.R. told her that her mother and appellant used drugs in
front of her

. Illegal drug use and sexual abuse are conduct that endangers a child’s physical and
emotional well

- being. In re L.C , 145 S.W. 3d 790, 795 (Tex. App.

— Texarkana 2004, no pet.);
In re D.C. , 128 S.W.3d 707, 716 (Tex. App.

— Fort Worth 2004, no pet.). Evidence of abuse of one child is sufficient to support a finding of endangerment to another child, even when the child
is unborn at the time of the abuse. In re King , 15 S.W.3d 272, 276 (Tex. A pp.

— Texarkana 2000, pet. den ied ).6

Appellant denie d ever sexually abusing M.L.R. He testified that he ha d “ a pretty good idea” as to why M.L.R. would make those accusations. He notes that Mangus never reported the sexual abuse allegation to the authoritie s . She assume d that the Department had notified the
authorities

. Appellant further notes that the State did not file charges of sexual abuse against appellant and that M.L.R. was not interviewed by the child advocacy center. Mangus testified
that she did not believe M.L.R. had been coached and that her story had been consistent throughout her sessions. T he trial court conferred with M.L.R. in chambers and was able to observe her demeanor and appearance and determine her credibility. Applying the standards set out above
, we find that the evidence is legally and factually sufficient to support the trial court’s finding of endangerment under Section 161. 0 01 (1) (E). Appellant was incarcerated at the time of trial and during most of the course of this case. He
admitted that it wa s his fault that he was in jail
, that he continually drove without a valid driver’s
license
, and that he knew he might be arrested. The trial court could have also considered the allegations of sexual abuse and drug use

. The trial court is the judge of the witnesses ’ credibility. It could have resolved the conflict ing evidence in favor of Mangus and M.L.R. ’s testimony and chosen to disbelieve the testimony of appellant. Because there i s legally and factually sufficient evidence of endangerment and because o nly one finding alleged under Section 161.001(1) is necessary to establish grounds for termination
, In re D.M ., 58 S.W.3d 801, 813 (Tex. App.

— Fort Worth 2001, no pet.)
, w e do not need to discuss the other findings the trial court made as ground s for termination. We overrule appellant ’s first issue on appeal.
V. Best Interest of a Child In parent

- child termination proceedings, there is a strong presumption that the child ’ s best interest is usually served by keeping h im with his natural parents. In re D.M. , 58 S.W.3d at 814; In re K.C.M ., 4 S.W.3d 392, 393

- 95 (Tex. App.

— Houston [1st Dist.] 1999, pet. denied)

. Best interest does not require proof of any unique set of factors. Holley v. Adams , 544 S.W.2d 367, 372 (Tex. 1976). However, t he Texas Supreme Court has recognized several factors to consider in determining whether termination is in a child ’ s best interest. Id. These include: (1) the desires of the child; (2) the emotional and phys ical 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 those individuals to promote the be st interest of the child; (6) the plans for the child by these individuals or 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 the existing parent

- child relationsh ip is not proper; and7

(9) any excuse for the acts or omissions of the parent. Id

. at 371

- 72. This list of factors is not exhaustive, and no single consideration is controlling. In re D.M. , 58 S.W.3d at 814.
A. The Desires of the Child

. The emotional bond between the child and the parent may be considered when determining the best interest of the child. In re C.N.S ., 105 S.W.3d 104, 106 (Tex. App.

— Waco 2003, no pet.). When the child is too young to express a preference , other evidence regarding the
child ’s current placement is relevant. See In re M.D.S ., 1 S.W.3d at 200 (evidence that child acknowledge d her foster parent as her mother and was well

- adjusted and happy in her foster
home was sufficient to find in favor of the Department on this factor) . Appellant has never seen
J.M.D. and has not established an emotional bond. At the time of trial, J.M.D. was sixteen
months old and had lived with the Shirleys s ince she was three days old. Petrov testified that
J.M.D. thinks that the Shirleys are her parents and that they are the only family she knows.
B. T he E motional and P hysical N eeds and the E

motional and P hysical D anger to the Child N ow and in the F uture

. A parent’s inability to provide adequate care for the child, lack of parenting skills, poor judgment
, and repeated instance s of immoral conduct can be considered when looking at the best
interest of a child. In re C.A.J

. , 122 S.W.3d 888, 893 (Tex. App.

— Fort Worth 2003, no pe t.). Appellant testified that he was convicted of passing bad checks, theft by forgery
, and theft by deception . He was also serving prison time for unauthorized use of a motor vehicle at the time
of trial. Appellant has used poor judgment in the past an d repeatedly acted immorally. Appellant has not provided any evidence as to how his conduct will change if able to maintain his parental rights to J.M.D. Appellant testified that he did not believe that he needed to take a parenting class and that he did not believe that it was emotionally damaging to a child for a parent to be in and out of prison. Appellant also testified that as of the date of trial
, he w as not able to provide a home for J.M.D. An inference may be made that a parent’s past inability to provide for a child’s physical and emotional needs may indicate an inability to provide for those
needs in the future. D.O. v. Tex

. Dep ’ t of Human Servs

. , 851 S.W.2d 351, 356 (Tex. App.

— Austin 1993 , no writ). Appellant’s testimony gives every indicatio n that his previous conduct

w ould continue because he did not believe that it was harmful to J.M.D.
C. The Parental A bilities of the I ndividuals S eeking C ustody

. There is no evidence of appellant’s parental abilities because he has never seen J.M.D. Appellant refused to take the parenting class when offered to him initially and ha d not taken parenting class at the time of trial

. He also testified that he did not believe that he need ed to take8

a parenting class. Appellant has not provided any financial support for J

. M

. D

. and is behind in the child support owed for his other children.
Lee and Laronda Shirley are seeking to adopt J.M.D. and M.L.R. J.M.D. has lived with them since she was three days old. The Shirleys also have three older children and have made
J.M.D. and M.L.R. a part of their family. The Shirleys have extended family in their hometown
, and the girls are part of their family

. Both Petrov and the guardian ad litem, Barbara Whittaker,
testified that it would be in the chil dren’s best interest for the parents’ rights to be terminated and adopted by t he Shirleys.
D. Programs A vailable to A ssist I ndividuals to P romote the B est I nterest of the Child. Appellant has not taken part in any of the services provided by the Department and
, in
fact , saw the services as unnecessary. Appellant testified that he did not need to take a parenting
class and he did not need to attend counseling. The Shirleys have availed themselves o f the Department’s services. They have encourage d M.L.R. to attend counseling
, which has helped her develop a relationship with J.M.D. Laronda testified that
, in the beginning
, she was
dissatisfied with the level of care and supervision that the Department provided. However, now she feels like the Dep artment is doing everything that they are supposed to be doing. She also
testified that both J.M.D. and M.L.R. are receiving all the servic es that they need.
E. The P lans for the Child by the I ndividual s S eeking C ustody. Appellant testified that he w as not able to provide a home for J.M.D. at the time of trial
because he was incarcerated

. Appellant asked the court to place J.M.D. with his brother and
sister

- in

- law
, Tom and Connie Davis. The Davises initially only made plans to have J.M.D. in
their home. They completed a home study and added an extra room to their home for J.M.D. However, the Department did not recommend placement with the Davises. The Davises had no relationship with J.M.D. , and the Department was unable to confirm that a bedroom ha d be en added to the ir house for J.M.D. The Davises were willing to have M.L.R. live with them but expressed concerns because of the accusations M.L.R. made of sexual abuse. They also did not have a home study completed in regard to M.L.R. or a room prepared for her. Petrov testified that the Department believed that it would be in J.M.D. ’s and M.L.R’s best interest to place them together. Appellant testified that he did not believe that the children needed to stay together and did not feel that the sibling bond was important at all.9

F. The Stability of the Home or Proposed Placement

. The Shirleys are seeking to adopt both J.M.D. and M.L.R. J.M.D. and M.L.R. are considered part of the Shirleys ’ family . Whittaker testified that J.M.D. is thriving in her
environment. She further testified that J.M.D. and M.L.R. are bonded as sisters and that M.L.R. has made great improvem ents since being in the Shirley s ’ care. Petrov testified that t he bond
that a child forms with her primary caregive r in the first year of life is very important. She
further testified that
, when you remove a child from the pers on they have bonded with
, many children will develop an attachment disorder

. Petrov testified that
, when children remain with the foster paren ts from birth and are adopted, an attachment disorder typically does not become
an issue.
G. The Acts o r Omissions of the Parent and any E xcuses for the A cts or O missions. Appellant has been in jail over half his adult life. He has been in jail most of J.M.D. ’s life. He has not developed a bond with J.M.D. and has not even met her. Appellant testified that

t he Department told him that he could not have any contact with J. M.D. He testified that he was
unable to see J.M.D. ’s mother and J.M.D. at the hospital when she was born. The parties stipulated that C. R .’ s name was not on her hospital door when she delivered J.M.D. Appellant further testified that the Department did not offer him services until after he had taken a paternity test even though he acknowledged that he was J.M.D. ’s father from the beginning. While these excuses may explain why appellant was unable to develop a relationship with J.M.D. , they did

not accou nt for his course of conduct that has made him make poor decisions in his life and spend a great portion of it in jail. Looking at all the evidence and analyzing the above listed factors, we find that the trial court’s finding that termination was in J. M.D. ’s best interest was supported by clear and convincing evidence. We overrule appellant’s second issue on appeal.
VI. Conclusion We affirm the judgment of the trial court.

RICK STRANGE
JUSTICE September 2, 2010
Panel consists of: Wright, C.J., McCall, J., and Strange, J.