In re D.L.

• Docket Number: 10-23-00374-CV
• Decision Date: 25 April 2024
• Parties: IN THE INTEREST OF D.L. AND D.L., CHILDREN
• Court: Texas Court of Appeals

1

IN THE INTEREST OF D.L. AND D.L., CHILDREN

No. 10-23-00374-CV

Court of Appeals of Texas, Tenth District

April 25, 2024

From the 77th District Court Limestone County, Texas Trial Court No. CPS-401-A

Before Chief Justice Gray, Justice Johnson, and Justice Smith

MEMORANDUM OPINION

STEVE SMITH JUSTICE

Following a bench trial, Mother appeals the order terminating her parental rights to D.L.-1 and D.L.-2, and Father appeals the order terminating his parental rights to D.L.-2.^[1] Mother and Father both challenge the legal and factual sufficiency of the evidence to support their respective predicate grounds for termination and that termination was in the best interest of the children.

2

Background

Mother has three biological children - D.J., D.L.-1, and D.L.-2. Mother's rights to D.J. were terminated in a separate proceeding. Regarding D.L.-1 and D.L.-2, based on another prior case with the Department of Family and Protective Services ("the Department"), W.M. was named the permanent managing conservator of the children and Mother was named their possessory conservator with supervised visitation. Less than a year after Mother was restricted to supervised visits, the Department learned that Mother was having extensive unsupervised contact with both children, including that the children were living with Mother and her boyfriend, "David," in an apartment where marijuana and drug paraphernalia were found by the Mexia Police Department. The Department filed its petition for conservatorship and termination of parental rights of Mother as to D.L.-1 and D.L.-2, and Father as to D.L.-2.

Standards of Review

The standards of review for legal and factual sufficiency in cases involving the termination of parental rights are well established and will not be repeated here. See In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002); see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.-Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021). If multiple predicate violations are found by the factfinder, we will affirm based on any one finding because only one finding is necessary for termination of parental rights when there is also a finding that termination is in the child's best interest.

3

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.- Waco 2019, pet. denied). But if one of the predicate grounds is based on endangerment under Subsection D or E, we are required to fully address that ground, if presented on appeal, based on future collateral consequences of such a finding. See In re N.G., 577 S.W.3d 230, 234-37 (Tex. 2019). We give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge of the credibility of the witness and the weight to give their testimony. Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.-Houston [1st Dist.] 2010, pet. denied).

Predicate Grounds

Mother contends that her predicate findings under Texas Family Code Sections 161.001(b)(1)(D), 161.001(b)(1)(E), and 161.001(b)(1)(M) are not supported by legally and factually sufficient evidence. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (b)(1)(E), (b)(1)(M). Father asserts that his predicate findings under Texas Family Code Sections 161.001(b)(1)(E) and 161.001(b)(1)(Q) are not supported by legally and factually sufficient evidence. Id. at §§ 161.001(b)(1)(E), (b)(1)(Q).

Applicable Law

Termination under both Subsections D and E require proof of endangerment, which means to expose the child to loss or injury, to jeopardize. Tex. Dep't. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The endangerment analysis under

4

Subsection D focuses on evidence relating to the child's environment to determine if the environment was a source of endangerment to the child's physical or emotional well-being. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.-Fort Worth 2009, no pet.). The relevant inquiry under Subsection E is whether sufficient evidence exists that the endangerment of the child's well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. In re E.M., 494 S.W.3d 209, 222 (Tex. App.- Waco 2015, pet. denied). The factfinder may consider conduct that occurred before and after the child's birth, in the child's presence and outside the child's presence, and before and after removal by the Department. See J.O.A., 283 S.W.3d at 345. Additionally, a parent's past endangering conduct may create an inference that the parent's past conduct may recur and further jeopardize the child's present or future physical or emotional well-being. J.S.S., 594 S.W.3d at 505.

Mother's Predicate Findings

Subsection D

A child is endangered when the environment creates a potential for danger which the parent is aware of but consciously disregards. See Interest of S.R., 452 S.W.3d 351, 360 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). The trial court noted the harmful environment created by Mother and David's drug use in the home. Mother's chronic marijuana use is a primary reason for the Department's involvement in her life for the last several years. Mother admitted at trial that she kept her marijuana in the home and

5

would smoke it on the porch, though she stored it in a cabinet so the children were less likely to access it. Mother also admitted that she knew David would often use methamphetamine in their apartment, even while the children were home. She testified that David would be "cooped up" in the children's room smoking methamphetamine "mostly all night," though he would not use the drug directly in front of her or the children. Mother described how she learned to tell when David had been smoking methamphetamine in the apartment based on the presence of a towel under the children's bedroom door, open windows, and the "different smell" in the apartment. She explained that she would argue with David about finding his drug paraphernalia in the apartment and in her car. Based on Mother's testimony, she knowingly allowed her children to be exposed to methamphetamine for approximately two months before she moved them out of the apartment. Shortly after removal, D.L.-1 tested positive for methamphetamine, and Mother tested positive for methamphetamine and marijuana.

The trial court also expressed concern over persistent domestic violence in the home. Abusive conduct by a person who lives in the child's home or with whom the child is compelled to associate on a regular basis in the home is part of the "conditions and surroundings" of the child's home. Jordan, 325 S.W.3d at 721. A parent's failure to remove herself and her children from a physically violent or abusive relationship may support a finding of endangerment. In re G.M., 649 S.W.3d 801, 809 (Tex. App.-El Paso 2022, no pet.). Evidence developed at trial established a cycle of abuse and reconciliation

6

between David and Mother. David received a four-year prison sentence for assaulting Mother in 2020, which she testified was based on David dragging her by her hair. After this assault, Mother reconciled with David. Mother testified that David was "very, very abusive" to her and would become "real violent" when he smoked methamphetamine. While Mother testified that David would not assault her in front...