In re E.T., 02-22-00299-CV

CourtCourt of Appeals of Texas
Writing for the CourtBonnie Sudderth, Chief Justice
PartiesIn the Interest of E.T., a Child
Docket Number02-22-00299-CV
Decision Date23 November 2022

In the Interest of E.T., a Child

No. 02-22-00299-CV

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022


On Appeal from the 322nd District Court Tarrant County, Texas Trial Court No. 322-699128-21

Before Sudderth, C.J.; Wallach and Walker, JJ.

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MEMORANDUM OPINION

Bonnie Sudderth, Chief Justice

Appellant J.T. (Father) appeals the termination of his parental rights to his daughter, E.T. (Emily).[1] The termination was premised on the trial court's findings that (1) Father had violated three of the statutory predicate grounds listed in Texas Family Code Section 161.001(b)(1), including the conduct-based endangerment ground; and (2) termination was in Emily's best interest. See Tex. Fam. Code Ann. § 161.001(b). Father challenges the sufficiency of the trial court's predicate findings as well as its best interest finding. Because we conclude that there is sufficient evidence (1) of the conduct-based endangerment predicate finding and (2) that termination was in Emily's best interest, we will affirm.

I. Background

Father and M.M. (Mother) had two children: H.T. (Holly) in 2019 and Emily in early 2021.[2] Before Emily was born, Mother's eight other children lived in the home with her and Father as well. See N.H., 2022 WL 4374638, at *1-3 (discussing factual history in Holly's termination appeal). But due to drug and domestic-abuse

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concerns, the Department of Family and Protective Services removed Holly and Mother's other children in July 2020.[3] See id. at *3.

Then, in April 2021, when Emily was not quite one month old, Mother gave Emily "two to three tablespoons of Benadryl."[4] Although Mother told the doctors that she had administered the Benadryl "to help with [an] allergic rash" that Emily was experiencing,[5] she admitted that she was "tired and overwhelmed on that day" and was taking prescription pain medication so she "didn't actually pay attention" to the Benadryl dosage. Within hours of taking the Benadryl, Emily vomited and, in Mother's words, "had a bad reaction to it." Father and Mother took Emily to the

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emergency room,[6] and she was admitted into the intensive care unit and stayed there for several days.

Later that month, Emily was removed,[7] and soon thereafter, her hair-strand drug test came back positive for amphetamine and methamphetamine.[8] See N.H., 2022 WL 4374638, at *4.

After Emily's removal, the trial court entered temporary orders that required Father to comply with the Department's service plan as a condition of Emily's return. Father's service plan required him to complete, among other things, individual counseling, a psychological evaluation, drug testing, and a domestic-violence-prevention program. Father's caseworker testified that Father made "some progress" on his service plan, including attending the domestic-violence-prevention program.

Meanwhile, Holly's termination case proceeded to trial, and in May 2022, Father's parental rights to Holly were terminated for conduct-based and environment-based endangerment.[9] See id. at *1, 6, 11-12, 14.

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Emily's termination case went to trial approximately one month after Holly's, and a transcript of Holly's trial was admitted into evidence at Emily's trial with no objection from Father's counsel.[10] As we noted in our review of Holly's case, the record reflects "that [Father] ha[d] a continuing pattern of domestic violence and criminal activity." Id. at *14. In addition to the transcript from Holly's trial, the Department offered other evidence of Father's concerning behavior, including evidence that Father had tested positive for drugs after Emily was removed and evidence that Father had lived with Mother in violation of his felony bond for a significant portion of Emily's case.

After hearing the evidence, the trial court found that Father had (1) "knowingly placed or knowingly allowed [Emily] to remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of the child, pursuant to § 161.00l(b)(1)(D), Texas Family Code," (2) "engaged in conduct or knowingly placed [Emily] with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child, pursuant to § 161.00l(b)(1)(E), Texas Family Code," and (3) "had his parent-child relationship terminated with respect to another child based on a finding that the [F]ather's conduct was in violation of § 161.00l(b)(1)(D) or

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(E), Texas Family Code . . . pursuant to § 161.00l(b)(1)(M), Texas Family Code." Based on these findings, together with a finding that termination was in Emily's best interest, see Tex. Fam. Code Ann. § 161.001(b)(2), the trial court terminated Father's parent-child relationship with Emily.[11]

II. Discussion

To terminate a parent-child relationship, the Department must prove two elements by clear and convincing evidence: (1) that the parent's actions satisfy at least one statutory predicate ground listed in Family Code Section 161.001(b)(1) and (2) that termination is in the child's best interest. Id. §§ 161.001(b)(1), (2), 161.206(a), (a-1); In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Father challenges the legal and factual sufficiency of the trial court's three predicate findings along with that of its best interest finding. But "'[t]o affirm a termination judgment on appeal, a court need uphold only one [predicate] termination ground' plus the best interest finding." In re A.N., No. 02-22-00036-CV, 2022 WL 2071966, at *2 (Tex. App.-Fort Worth June 9, 2022, pet. denied) (mem. op.) (quoting In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)); see In re M.P., 639 S.W.3d 700, 702 (Tex. 2022). Therefore, we need address only two findings: (1) the trial court's predicate finding that Father engaged in an endangering course of conduct under

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Section 161.001(b)(1)(E) of the Family Code,[12] and (2) the trial court's best interest finding. Tex. Fam. Code Ann. § 161.001(b)(1)(E), (b)(2).

A. Standard of Review

When reviewing the sufficiency of clear-and-convincing termination findings,[13] we must determine whether a reasonable factfinder could have formed a firm belief or conviction that the challenged findings were true. In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Both legal and factual sufficiency turn on this question; the distinction between the two sufficiency analyses "lies in the extent to which disputed evidence contrary to a finding may be considered." In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

In our legal sufficiency analysis, we view the evidence "in the light most favorable to the finding," assuming that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so and disregarding all evidence that a reasonable factfinder could have disbelieved. Z.N., 602 S.W.3d at 545; see A.C., 560 S.W.3d at 630-31. "Factual sufficiency, in comparison, requires

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weighing disputed evidence contrary to the finding against all the evidence favoring the finding" to determine if "in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." A.C., 560 S.W.3d at 631; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) ("When the factual sufficiency of the evidence is challenged, only then is disputed or conflicting evidence under review.").

The two sufficiency determinations overlap in many respects; if the evidence is factually sufficient, it is necessarily legally sufficient. In re A.S., No. 02-16-00076-CV, 2016 WL 3364838, at *7 (Tex. App.-Fort Worth June 16, 2016, no pet.) (mem. op.). Because Father challenges both factual and legal sufficiency, we will conduct a consolidated review.

B. Conduct-Based Endangerment

Father challenges the legal and factual sufficiency of the trial court's conduct-based endangerment finding under Subsection (E). See Tex. Fam. Code Ann. § 161.001(b)(1)(E).

1. The Law on Conduct-Based Endangerment

Parental rights may be terminated based on a predicate finding under Subsection (E) if the trial court concludes that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers

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the physical or emotional well-being of the child."[14] Id. This requires a "voluntary, deliberate, and conscious course of conduct" rather than "a single act or omission." A.O., 2022 WL 1257384, at *9 (first quoting In re J.B., No. 02-21-00239-CV, 2021 WL 6144074, at *21 (Tex. App.-Fort Worth Dec. 30, 2021, no pet.) (mem. op.); and then quoting In re B.K, No. 02-21-00175-CV, 2021 WL 5848769, at *4 (Tex. App.-Fort Worth Dec. 9, 2021, pet. denied) (mem. op.)). The evidence of a parent's endangering course of conduct "is not limited to actions directed towards the child"-the trial court may consider actions before the child's birth and actions while the child is not in the parent's presence because all such actions may "create an inference that similar conduct could recur and further jeopardize a child's well-being." A.O., 2022 WL 1257384, at *9 (first quoting J.F.-G., 627 S.W.3d at 315 n.43; and then quoting In re M.W., No. 02-21-00146-CV, 2021 WL 3679247, at *4 (Tex. App.-Fort Worth Aug. 19, 2021, pet. denied) (mem. op.)); see J.O.A., 283 S.W.3d at 345.

2. Application: Father's Endangering Conduct

Here, there is evidence that Father engaged in a course of conduct involving (1) abuse, (2) disregard for the law, and (3) drugs.

As we noted in In re N.H., the record reflects that Father engaged in a pattern of domestic violence:

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• In late 2018, while Mother was pregnant with Holly, Father assaulted Mother. He was convicted of assault family violence for his actions. Tex. Penal Code Ann. § 22.01(a)(1).
• In May 2019, while Mother was still pregnant with Holly,
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