G.L.C. and R.R. v. Department of Family and Protective Services

Opinion issued March 1, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00387-CV

———————————

In re DC, KR, CR, RR, JC, MR, and JR

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Case No. 09CP0047

MEMORANDUM OPINION

After the mother

voluntarily terminated her parental rights to her eight children, the trial

court entered an order involuntarily terminating the parental rights of the

children’s fathers. In this appeal, we

consider (1) whether one of the fathers was properly served with citation

before the trial, and (2) whether there was legally and factually sufficient

evidence (a) to terminate the fathers’ parental rights under section 161.001 of

the Texas Family Code, and (b) whether such termination was in the best interest

of the children. We affirm.

BACKGROUND

Lauren [1] is the mother of eight

children. Her eldest son, Derek, was

born when she was a juvenile living with her parents in Florida. Derek’s father is deceased, thus, Derek is not

involved in this appeal.

While she was living with her parents, Lauren had a relationship with

Gary, and in 1997, she gave birth to Darren, Gary’s son. Darren tested positive for cocaine at birth,

and HRS, the Florida equivalent of the Department of Family and Protective

Services [“DFPS or the Department”] became involved. Gary has never sought

custody, provided support, or been involved with raising Darren at all. Lauren testified that Gary was abusive, that

he had been convicted of committing a lewd, lascivious, or indecent act on a

child, his younger cousin, and that he had been sentenced to 6 years’

confinement and required to register as a sex offender. The record also shows a 2009 conviction for possession

of cocaine.

Lauren soon became involved with Raymond, and in 1999, gave birth to

his daughter, Kasey. When Kasey was born, Lauren was in rehab, so Kasey was in

a foster home for four months. When

Kasey was returned to Lauren, Raymond supported them financially and was

involved in their lives. In 2000, Lauren and Raymond had a second daughter,

Caitlyn. Lauren and Raymond were married

in April 2001.

In 2002, Lauren and Raymond had a son, Raymond, Jr. Lauren testified that Raymond began physically

abusing her when Kasey was born, and that at some point she got tired of it and

moved back in with her mother. During

this time period, Lauren reconciled with Gary for a brief time, and soon

thereafter gave birth to Gary’s second son, Jason, in 2005. Again, Gary has neither provided support nor

maintained any contact with either of his sons beyond asking how they were

doing whenever he happened to see Lauren.

The reconciliation with Gary did not last long, and Lauren soon

returned to Raymond. In 2007, Lauren and

Raymond had another daughter, Mary.

The record shows that Raymond had multiple convictions in Florida for

domestic violence assault and domestic violence battery. Also, Lauren had petitioned for and received

a protective order from a Florida court.

Lauren testified that Raymond had broken her wrist, stabbed her with a

screwdriver, and beaten her repeatedly.

She had also seen him hit Darren in the head with a broomstick, and

several staples were required to close the wound. Raymond often told Lauren that if she left

him, he would kill her and her children.

Lauren testified that Raymond’s abuse finally stopped when he was

deported to Honduras. Before he was

deported, Raymond told Lauren to take the kids and go to Texas and he would

come there as well. Raymond also told

Lauren to contact his aunt, Aurelia, who lived in Texas. Lauren called Aurelia, who met them at the

bus stop. However, when Aurelia realized

that there were seven children, three of whom did not belong to Raymond, she

told Lauren that she could not move in with her.

Lauren then stayed with the children at the Star of Hope Mission in

Houston for four months, before moving to Galveston in the spring of 2008 to

look for work. While in Galveston,

Lauren and the children stayed at a shelter, where they met Ms. Goins, a

vice-principal at the local high school who volunteered at the shelter at

night. During that time, Ms. Goins would

help Lauren, who was pregnant, by taking some of the children with her on

occasion. Lauren also let Ms. Goins’

adult daughter, Dana, take Jason to live with her because Jason, who was

18-months-old at the time, was being physically abused by his older siblings.

Lauren gave birth to her fifth child with Raymond, James, in August

2008, and two weeks later Hurricane Ike hit the island. Ms. Goins took the children, including the

two-week-old infant, home with her and they rode out the storm in her home. Lauren was not with them because she had been

flown by Life Flight to Austin because of post-partum hemorrhaging.

Soon, Ms. Goins and the children were able to evacuate to Ms. Goins’

sister’s house in LaMarque, where they stayed for two and a half weeks. Ms. Goins eventually called the Department

because she was not able to keep the children, as she too had been left

homeless by the storm.

The children were split up and went to several different foster homes,

before being reunited with Lauren in Galveston in January 2009. Ms. Goins and her daughter, Dana, continued

to visit the children while they were in foster care.

Lauren eventually received money from DEHAB, an organization that

helped those displaced by the hurricane.

She sent $1500 of this money to Raymond in Honduras because he said that

he was going to come join them, despite the fact that he had been

deported. Lauren testified that, all

together, she had sent Raymond approximately $3000. Raymond knew that his children had been

living in shelters, but he never sent any money to Lauren to help support his

family.

Lauren and the children were first given an apartment in the Victorian

condos, but they were soon evicted because Lauren ran up a $1000 phone bill

calling Honduras and her oldest son, Derek, punched holes in the walls. Ms. Goins then went to DEHAB and helped

Lauren to get a placement in a five bedroom historic Victorian house. The Department bought the family air

mattresses, but Lauren rented out the extra rooms and air mattresses to

vagrants and made the children sleep together in an unair-conditioned,

unfurnished room.

The Department became involved with the children at this point because

7-year-old Jason was discovered wandering around at a local restaurant alone,

looking for his mother. As a result of

the Department’s investigation, a safety plan was put into place that prevented

Lauren’s newest boyfriend, Carlos, from having any contact with her. Carlos was

abusive, he drank and used drugs, and there were allegations that he was

teaching the children how to steal. Lauren

was caught deliberately violating the safety plan, and the Department took

custody of the children.

At the time of trial, Lauren’s oldest son, Derek, had been placed in a

group home and was doing well. Darren,

was in a foster home, which he liked.

However, Darren has issues with acting out sexually with younger

children and would likely be removed from this placement. He did not want to be placed with relatives

in Florida. The three girls, Kasey,

Caitlyn, and Mary, had been placed with Ms. Goins. They were doing well in school and had

perfect attendance. Ms. Goins testified

that she would like to adopt all three girls if possible. Raymond, Jr. was initially placed in Florida

with his grandfather, along with Derek and Darren. When Derek and Darren were returned to Texas

because their grandfather was unable to control them, Raymond Jr. remained in

Florida with his grandfather. When the

grandfather died, Raymond Jr. was placed with a relative of his grandfather, and

he has done well in that placement.

Jason has been placed with Ms. Goins’ daughter, Dana, with whom he had

lived for several years, even before CPS became involved. Dana testified that Jason is doing well and

that she would like to adopt him if possible.

The infant, James, was initially placed in a foster home, in which he

seemed very non-responsive. He has,

however, been moved to a new foster home and is doing much better. When his family last visited he was active,

responsive, and showed much improvement.

RETURN OF

SERVICE

In his first issue on appeal, Raymond

contends the trial court “erred in allowing [DFPS] to proceed with the case . .

. when at the time the case was called for trial on December 10, 2010 . . .

there was no evidence in the court’s file that proper service had been effected

upon [him].” Specifically, Raymond argues that on the date the case was called

for trial, the return of service on file with the court had not been translated

from Spanish to English and did not comply with Tex. R. Civ. P. 105 [2]

because it shows that the process server both received and delivered the

citation at the same time—a physical impossibility. DFPS responds that the return of service was

properly amended before judgment.

Relevant Facts

This suit was filed on June 22,

2009. The Department sought custody and

identified Raymond as the father of several of the children. In the petition, Raymond’s address was listed

as “unknown.” An order for protection of

a child in an emergency was signed that same day. The order assigned Raymond appointed counsel,

Christine Mangle, who appeared on Raymond’s behalf during the pretrial

proceedings. At a Permanency hearing on April 13, 2010, the Court noted that

Raymond “is in Honduras and is not served.”

On November 3, 2010, a faxed copy of

return of service was filed in the trial court.

The return was in Spanish, and it showed that the process server had

served Raymond in Honduras. The return,

however, was defective, in that it showed that the process server, a Honduran

attorney, had both received and delivered the legal documents on October 8,

2011 at 7 a.m.

On December 3, 2010, the original of

the above-described faxed return of service was filed in the trial court. The document was still in Spanish, and the

return and delivery times were still the same.

On December 6, 2010, at a pretrial

conference, Raymond’s counsel pointed out to the trial court that the court

records did not conclusively establish service upon Raymond in Honduras. Counsel argued that to be admissible under

Texas Rule of Evidence 1009, foreign language documents had to be translated

into English, be accompanied by an affidavit from a qualified translator, and

be served upon all parties 45 days prior to trial. The trial court initially agreed, sustained

counsel’s objection, and ruled that DFPS could not proceed with the termination

suit against Raymond.

DFPS filed a motion to reconsider,

citing to the trial court cases that permit defective returns of service to be

freely amended anytime before judgment.

The trial court granted DFPS’s motion to reconsider, stating, “I’m going

to grant the motion to amend and order Ms. Gilmore to amend in due haste.”

The trial commenced on December 10,

2010, and resumed, then concluded on January 18, 2011. On that same day, the trial court entered an

order granting permission for DFPS to amend and correct the return of service

on Raymond.

On February 18, 2011, an amended

return of service was filed. The amended

service corrected the deficiencies complained of in the earlier return of service. Specifically, the return of service had been

translated into English and was accompanied by an affidavit from the qualified

translator. The amended return also

showed that the process server had received the legal documents on October 6,

2010, at 2 p.m. and served them on Raymond on October 8, 2010 at 7 a.m. The return of service by Leobildo Cabrera was

sworn to before a notary public, Mario Melgar Portillo.

The trial court’s final judgment

terminating Raymond’s parental rights was signed on April 26, 2011.

Amendment of Citation

Texas procedural law and constitutional

due process require that a defendant be served, waive service, or voluntarily

appear before judgment may be rendered. See Tex. R. Civ. P. 124; Peralta v. Heights Med. Ctr., Inc,

485 U.S. 80 , 84–87, 108 S. Ct. 896 , 898–900 (1988); Kao Holdings, L.P. v.

Young, 261 S.W.3d 60 , 61–62 (Tex. 2008). “A trial court has ‘no more solemn

judicial obligation than that of seeing that no litigant is unjustly saddled

with a judgment in the absence of notice and a hearing.’” Marrot Commc’ns,

Inc. v. Town & Country P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied) (quoting Finlay v. Jones, 435 S.W.2d 136 ,

138–39 (Tex. 1968)).

“[I]n

order for a default judgment to be properly rendered, the record must

affirmatively show, at the time the

default judgment is entered, either an appearance by the defendant,

proper service of citation on the defendant, or a written memorandum of

waiver.” Id. at 378; see also Mapco, Inc. v. Carter, 817 S.W.2d

686, 687 (Tex. 1991). “Actual notice to a defendant, without proper service, is

not sufficient to convey upon the court jurisdiction to render default judgment

against him.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).

There are no presumptions in favor of valid issuance,

service, and return of citation in an attack on a default judgment on direct

appeal. See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690

S.W.2d 884, 885 (Tex. 1985). “Strict compliance with the Rules of Civil

Procedure relating to the issuance of citation, the manner and mode of service,

and the return of process is necessary to sustain a default judgment . . . .” Laidlaw

Waste Sys., Inc. v. Wallace, 944 S.W.2d 72 , 73–74 (Tex. App.—Waco 1997,

writ denied) (citing Primate Constr., 884 S.W.2d 151, 152 (Tex. 1994); Wilson

v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990 );

McKanna v. Edgar , 388 S.W.2d 927, 929 (Tex. 1965); Armstrong v. Minshew , 768 S.W.2d 883, 884 (Tex. App.—Dallas 1989,

no writ)). In this case, Raymond

challenges the sufficiency of the return of process.

Rule 108a, which

governs service of process in foreign countries, provides that “[p]roof of

service may be made as prescribed by the law of the foreign country, by order

of the court, by Rule 107, or by a method provided in any applicable treaty or

convention.” Tex. R. Civ. P.

108a. Rule 107 provides, in pertinent part, “The return

of the officer or authorized person executing the citation shall be endorsed on

or attached to the same; it shall state when the citation was served and the

manner of service and be signed by the officer officially or by the authorized

person.” Tex. R. Civ. P. 107. “The return of citation by an authorized

person shall be verified.” Id . Additionally, “[t]he officer or authorized person to whom

process is delivered shall endorse thereon the day and hour on which he

received it[.]” Tex. R. Civ. P.

105.

Here, the issue is whether the proof

of service, i.e., the return, complied with Rules 105 and 107, and, if it did

not, whether the trial court properly allowed it to be amended. Raymond argues that the return shows either that it

did not comply with Rule 107 because it did not properly state when the

citation was served, or it did not comply with Rule 105 because it did not

properly state when it was received.

Because the return shows the same day and time for both receipt and

service, Raymond contends one must be wrong, thus invalidating the return.

DFPS argues that even if the November

3, 2010 return of service was defective, it was corrected when the trial court

permitted DFPS to amend the return. We

agree.

Rule 118 of the Texas Rules of Civil Procedure provides:

At any time

in its discretion and upon such notice and on such terms as it deems just, the

court may allow any process or proof of service thereof to be amended,

unless it clearly appears that material prejudice would result to the

substantial rights of the party against whom the process issued.

Tex. R. Civ. P. 118 (emphasis added).

Rule 118 of the Texas Rules of Civil Procedure provides for

the amendment of the return to show the true facts of service. Primate

Constr. Co., 884 S.W.2d at 153 ; Higginbotham v. General Life & Acc.

Ins. Co., 796 S.W.2d 695 , 696–97 (Tex. 1990); London v. Chandler,

406 S.W.2d 203, 204 (Tex. 1966). If the facts recited in the officer’s return,

pre-printed or otherwise, are incorrect and do not reflect proper service, then

the plaintiff should move to amend the return. Primate Constr. Co., 884

S.W.2d at 153 . The Texas Supreme Court

has even held that the trial court may enter a postjudgment order granting

amendment of a return of citation pursuant to rule 118

during its plenary power. Higginbotham , 796 S.W.2d at 696–97.

Here, the return was amended prior to

the entry of judgment, and there is no requirement that it be amended before

proceeding to trial. The amended return

corrects the problems with Rule 105 and 107 by clarifying that the process

server received the document on October 6, 2010, at 2 p.m. and served it on Raymond

on October 8, 2010 at 7 a.m.

Raymond, however, also complains that the initial return

was in Spanish, and because it was not translated into English until after

trial, it violated Rule of Evidence 1009, which requires that all foreign

documents to be admitted at trial must be translated 45 days before trial and

be accompanied by an affidavit from a qualified translator. Tex. R. Evid. 1009(a)

However, rule 1009 is a rule of evidence governing the

admission of foreign documents of trial.

Raymond has cited no cases in which rule 1009 requires the translation

of foreign returns of service into English, or that such a translation could

not be done in an amended return while the trial court still had plenary

power. We have found no authority

holding that rule 1009 trumps rule 118, which permits amended returns of

service “[a]t any time.” Tex. R. Civ. P.

118.

Further, we note that, even if applicable, rule 1009

provides that “[t]he court, upon motion of any party and for good cause shown,

may enlarge or shorten the time limits set forth in this Rule.” Tex. R. Evid. 1009(f).

Because the amended return, which was filed after trial but

before judgment, corrected the only defects of which Raymond complained, we

conclude that the trial court had jurisdiction to enter judgment against

Raymond because he had been personally served.

We overrule Raymond’s first issue on appeal.

SUFFICIENCY

OF THE EVIDENCE TO SUPPORT TERMINATION

In their remaining issues on appeal, Raymond and Gary contend there was

legally and factually insufficient evidence to terminate their parental rights

under section 161.001 of the Texas Family Code, or that such terminations would

be in the best interest of the children.

Tex. Fam. Code Ann. § 161.001 (Vernon 2011).

Standard of Review

A parent’s right to

“the companionship, care, custody, and management” of his children is a

constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745 , 758–59, 102 S. Ct. 1388, 1397 (1982) (internal

citation omitted). The United States Supreme Court has emphasized that “the

interest of parents in the care, custody, and control of their children is

perhaps the oldest of the fundamental liberty interests recognized by this

Court.” Troxel v. Granville, 530 U.S. 57, 65 , 120 S. Ct. 2054, 2060

(2000). Likewise, the Texas Supreme Court has also concluded that “[t]his

natural parental right” is “essential,” “a basic civil right of man,” and “far

more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651 , 92 S. Ct. 1208,

1212 (1976)). Consequently, termination proceedings should be strictly

scrutinized. Id.

Because

termination “is complete, final, irrevocable, and divests for all time that

natural right . . . , the evidence in support of termination must be clear and

convincing before a court may involuntarily terminate a parent's rights.” Id.

(citing Santosky , 455 U.S. at 747–48, 102 S. Ct. at 1391–92; Richardson

v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). Clear and convincing evidence

is “the 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.” Tex. Fam.Code Ann.

§ 101.007 (Vernon 2008); In re

J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is

“clear and convincing,” the Texas Supreme Court has held that the traditional

legal and factual standards of review are inadequate. In re J.F.C., 96

S.W.3d at 264–66.

In

conducting a legal-sufficiency review in a parental-rights termination case, we must determine whether the evidence,

viewed in the light most favorable to the finding, is such that the fact finder

could reasonably have formed a firm belief or conviction about the truth of the

matter on which DFPS bore the burden of proof. See id. at 266 . In

viewing the evidence in the light most favorable to the finding, we “must

assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so,” and we “should disregard all evidence that

a reasonable factfinder could have disbelieved or found to have been

incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In

re J.F.C., 96 S.W.3d at 266 ).

In conducting a factual-sufficiency

review in a termination-of- parental-rights case, we must determine

whether, considering the entire record, including both evidence supporting and

evidence contradicting the finding, a fact finder reasonably could have formed

a firm conviction or belief about the truth of the matter on which the State

bore the burden of proof. In re C.H.,

89 S.W.3d 17, 25 (Tex. 2002). We should consider whether the disputed evidence

is such that a reasonable fact finder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266 . “If,

in light of the entire record, the disputed evidence that a reasonable fact

finder could not have credited in favor of the finding is so significant that a

fact finder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105,

108 (Tex. 2006) (quoting In re J.F.C. ,

96 S.W.3d 256, 266 (Tex. 2002)).

In proceedings to terminate the parent-child relationship

brought under section 161.001, DFPS must establish, by clear and convincing

evidence, one or more of the acts or omissions enumerated under subsection (1)

of section 161.001 and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon

Supp. 2011). Both elements must be established, and termination may not be

based solely on the best interest of the child as determined by the trier of

fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

“Only one predicate finding under section 161.001(1) is necessary to support a

judgment of termination when there is also a finding that termination is in the

child's best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Endangerment

In Raymond’s second issue and Gary’s

second and third issues, appellants argue that the evidence is legally and

factually insufficient to support termination of their parental rights under Texas Family

Code sections 161.001(1)(D) and (E).

A trial court only

needs to make one finding of parental misconduct under section 161.001(1) of

the Family Code. In re A.V., 113 S.W.3d at 362 . Section 161.001(1)(D)

provides that a “court may order termination of the parent-child relationship if

the court finds by clear and convincing evidence . . . that the parent has . . .

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

surroundings which endanger the physical or emotional well-being of the child. .

. .” Tex. Fam. Code Ann. §

161.001(1)(D). Section 161.001(1)(E) provides that a court may order

termination if it finds by clear and convincing evidence that the parent has

“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.” Id

. § 161.001(1)(E).

“‘To endanger’ means to expose a child

to loss or injury or to jeopardize a child’s emotional or physical health.” Jordan

v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet.

denied); see also In re T.N., 180 S.W.3d 376 , 383 (Tex. App.—Amarillo 2005, no

pet.) (citing In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Boyd,

727 S.W.2d at 533 )). A child is endangered when the environment creates a

potential for danger that the parent is aware of but disregards. Jordan,

325 S.W.3d at 721 ; In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth

2009, no pet.). Subsection (D) requires a showing that the environment in which

the child is placed posed a danger to the child’s physical or emotional health,

and it permits termination based on a single act or omission by the parent. In

re L.C., 145 S.W.3d 790 , 795–96 (Tex. App.—Texarkana 2004, no pet.); see

Jordan, 325 S.W.3d at 721 .

Inappropriate,

abusive, or unlawful conduct by persons who live in the child’s home or with

whom the child is compelled to associate on a regular basis in his home is a

part of the “conditions or surroundings” of the child’s home under section

161.001(1)(D). Jordan, 325 S.W.3d at 721 ; In re M.R.J.M., 280

S.W.3d at 502 . Thus, although the focus of subsection (D) is on the child’s

living environment and not on the parent’s conduct, parental conduct may

produce an endangering environment. See Jordan, 325 S.W.3d at 721 . For

example, abusive or violent conduct by a parent or other resident of the child’s

home, as well as illegal drug use and drug-related criminal activity, support a

conclusion that the children’s surroundings endanger their physical or

emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth

2003, no pet.).

“Under subsection (E), the relevant inquiry is whether

evidence exists that the endangerment of the child’s physical well-being was the

direct result of the parent’s conduct, including acts, omissions, or failures

to act.” Id.; see also Jordan, 325 S.W.3d at 723 (“The relevant inquiry

is whether evidence exists that a parental course of conduct endangered the

child’s physical or emotional well-being.”). Termination under Subsection E

must be based on more than a single act or omission—the evidence must

demonstrate a voluntary, deliberate, and conscious course of conduct by the

parent. Jordan, 325 S.W.3d at 723 ; In re J.T.G., 121 S.W.3d at 125 .

“Although ‘endanger’ means more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal environment, it is not necessary that

the conduct be directed at the child or that the child actually suffers

injury.” In re T.N., 180 S.W.3d at 383 (citing In re M.C., 917

S.W.2d at 269 ); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)

(holding that endangering conduct is not limited to actions directed toward

child); Jordan, 325 S.W.3d at 723 (holding that danger to child need not

be established as independent proposition and may be inferred from parental

misconduct even if conduct is not directed at child and child suffers no actual

injury). As a general rule, subjecting a child to a life of uncertainty and instability

endangers the child’s physical and emotional well-being. See In re S.D.,

980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); see also

Jordan, 325 S.W.3d at 724 (“Abusive and violent criminal conduct by a

parent can produce an environment that endangers the well-being of a child.”).

Danger to the child’s well-being may be

inferred from parental misconduct alone, and courts may look at parental

conduct both before and after the child’s birth. See Boyd, 727 S.W.2d at

533–34; In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no

pet.).

Because the evidence concerning these two statutory grounds

for termination is interrelated, we consolidate our examination of it. See

In re J.T.G., 121 S.W.3d at 126 (citing In re S.D., 980 S.W.2d at

762 and In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ

denied) (recognizing link between parent’s conduct and child’s conditions and

surroundings)).

Endangerment

by Raymond

Raymond argues that because he had been deported by the time

DFPS took possession of the children, he could not have knowingly endangered

them. Essentially, he argues, “how can

he be held responsible for the conduct of his wife a year [after he was

deported].” DFPS responds that his

course of conduct leading to his deportation created the dangerous conditions

that endangered his children’s physical or emotional well-being. We agree with DFPS.

The record shows that, while living with Lauren and the

children in Florida, Raymond was convicted multiple times of domestic assault

and battery. Danger to the child’s well-being may be inferred from parental

misconduct alone, and courts may look at parental conduct both before and after

the child’s birth. See Boyd, 727 S.W.2d at 533 .

Lauren testified that

Raymond broke her wrist, stabbed her with a screwdriver, and repeatedly beat

her during the time they were together, and that the abuse continued until

Raymond was deported. Raymond also hit Darren in the head with a broom,

requiring several staples to close the wound. See Jordan, 325 S.W.3d at

724 (“Abusive and violent criminal conduct by a parent can produce an

environment that endangers the well-being of a child.”); In re B.R. , 950 S.W.2d 113, 119 (Tex. App.—El Paso. 1997, no writ)

(holding violent conduct directed at the other parent may be sufficient to

demonstrate course of conduct under Subsection E).

The record also shows that Raymond’s arrests and convictions

eventually led to his deportation.

Deportation, like incarceration, is a consequence of an action, and like

incarceration, deportation alone cannot establish a course of conduct

endangering a child. See In re E.N.C., No. 06-10-00131-CV, 2011

WL 3570316, at *11 (Tex. App.—Texarkana Aug. 16, 2001, pet. filed) (analogizing

deportation to imprisonment). However,

deportation, like imprisonment, is a factor that is properly considered when

assessing endangerment. See Perez v. Tex. Dep’t of Protective &

Regulatory Servs. , 148 S.W.3d 427, 437 (Tex. App.—El Paso 2004, no

pet.). A deported parent, like an

incarcerated parent, is absent from the child’s daily life and unable to

provide support. See In re S.M.L., 171 S.W.3d 472, 479

(Tex. App.—Houston [14th Dist.] 2005, no

pet.). A parent who repeatedly commits criminal acts subjects himself to the

possibility of deportation and negatively impacts a child’s living environment

and emotional well-being. See i d. Generally,

conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. In

re K.R.L., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).

Finally, we note that, since his deportation, Raymond has

made no attempts to remain in contact with his children, nor has he provided

them any support. In fact, the record

shows that Raymond was having Lauren send money to him in Honduras, even though

he knew that his children had been living in shelters. See In

re V.V. , 349 S.W.3d 548, 557 (Tex. App.—Houston [1st Dist.] 2010, pet.

denied) (holding evidence of incarceration, abuse of mother, and failure to

contact or support child sufficient to show that father engaged in course of

conduct that endangered child).

Viewing the evidence of repeated acts of domestic violence,

resulting in convictions and, ultimately, deportation, along with evidence of

failure to contact or support the children, in the light most favorable to the

verdict, the trial court could reasonably have formed a firm belief or

conviction that Raymond engaged in a course of conduct and placed or allowed

the children to remain in conditions that endangered their physical or

emotional well-being. Also, considering

the entire record, including both evidence supporting and evidence

contradicting the finding, the trial court could have formed a firm conviction

or belief that Raymond engaged in a course of conduct and placed or allowed the

children to remain in conditions that endangered their physical or emotional

well-being.

Accordingly, we overrule Raymond’s second issue on appeal.

Endangerment

by Gary

Gary argues that his “strongest argument is that he did not

know and was not aware of the environment being endangering to his

children.” He argues that he had no

knowledge that Lauren had taken their children to Texas, and that he could not

be responsible for the conditions in which they lived while there. DFPS argues that Gary’s own course of conduct

caused the uncertainty and instability in the childrens’ lives. We agree with DFPS.

The evidence shows that when Darren was born, he tested

positive for cocaine. Gary was not

involved in Darren’s life at all at the time, and custody was given to Lauren’s

parents. Gary never sought any custodial

rights, nor did he ever provide any support. Gary has never been involved with

either of his children at all, other than asking how they were doing whenever

he happened to see Lauren. Lauren also

testified that Gary abused her physically and mentally when they were “around

each other.” See In re B.R. , 950 S.W.2d at 119 (holding violent conduct directed

at the other parent may be sufficient to demonstrate course of conduct under

Subsection E).

There was evidence in the record that Gary had been

convicted in February 2000 of committing a lewd, lascivious or indecent act

upon a child, and that he received a six year sentence. He was also required to

register as a sex offender. Lauren testified that Gary had molested his cousin

and sister. There was also evidence of a

2009 conviction for possession of cocaine.

At the time of trial, Gary was still in prison for this crime and had no

known release date. Imprisonment of the

parent is a factor to consider on the issue of endangerment. Boyd, 727

S.W.2d at 533 . However, imprisonment by itself is not

enough to constitute engaging in conduct that endangers the emotional or

physical well-being of the child. Boyd , 727 S.W.2d at 533–34. On the

other hand, if the evidence, which includes imprisonment,

shows a course of conduct that has the effect of endangering the physical or

emotional well-being of the child, a finding of endangerment is supportable. Boyd ,

727 S.W.2d at 533–34. Conduct that subjects a child to a life of uncertainty

and instability endangers the physical and emotional well-being of a child. In re K.R.L., 129 S.W.3d at 739 .

Lauren also testified that Gary was aware that Raymond was

abusing her. She testified that one day

she had Caitlyn with her, and they had dropped off one of the boys at school

when she saw Gary. Gary inquired about

his son, when Raymond arrived and got angry when he saw Lauren and Gary

talking. Raymond pulled Lauren’s arm

into the car and attempted to drive away, breaking her arm. Gary witnessed this abuse, but never

attempted to have his children removed from Raymond’s home. See In re J.M.M., 80 S.W.3d 232 ,

241–42 (Tex. App.—Fort Worth 2002, pet. denied) (holding evidence legally and

factually sufficient under sections D and E to terminate mother’s parental

rights based in part on evidence that mother placed children with physically

abusive father). Here, Gary allowed his

children to be raised by a man he knew was abusive.

Viewing the evidence of abuse towards Lauren, repeat

convictions and imprisonments for sexual abuse of a child, then selling

cocaine, permitting his children to be raised by an abusive father, along with

evidence of failure to contact or support the children, in the light most

favorable to the verdict, the trial court could reasonably have formed a firm

belief or conviction that Gary engaged in a course of conduct and placed or allowed

his children to remain in conditions that endangered their physical or

emotional well-being. Also, considering

the entire record, including both evidence supporting and evidence

contradicting the finding, the trial court could have formed a firm conviction

or belief that Gary engaged in a course of conduct and placed or allowed the

children to remain in conditions that endangered their physical or emotional

well-being.

Accordingly, we overrule Gary’s second and third issues on

appeal.

In light of our finding that the evidence was legally and

factually sufficient to support termination of Raymond’s and Gary’s parental

rights under sections 161.001(1)(D) and (E), we need not address whether the

evidence is sufficient to support termination under other sections of the

statute. See In re A.V., 113 S.W.3d at 362 (“Only one predicate

finding under section 161.001(1) is necessary to support a judgment of termination

when there is also a finding that termination is in the child's best interest.”).

BEST INTEREST OF THE CHILDREN

In Gary’s seventh issue and Raymond’s third issue, appellants

argue that the evidence is legally and factually insufficient to support the

trial court’s finding that termination of their parental rights was in the best

interest of their children.

There is a strong presumption that the best interest of the

child will be served by preserving the parent-child relationship. In re. R.R.,

209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Prompt and permanent placement of

the child in a safe environment is also presumed to be in the child’s best

interest. Tex. Fam. Code Ann. §

263.307(a) (Vernon 2008). Among others, the following factors should be

considered in evaluating the parent’s willingness and ability to provide the

child with a safe environment: the child’s age and physical and mental

vulnerabilities; the frequency and nature of out-of-home placements; the willingness

and ability of the child’s family to seek out, accept, and complete counseling

services and to cooperate with and facilitate an appropriate agency’s close

supervision; and whether an adequate social support system consisting of an

extended family and friends is available to the child. Id. § 263.307(b).

The Texas Supreme Court has set out some additional factors

that courts can consider when determining the best interest of the child,

including: (1) the desires of the child; (2) the emotional and physical 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 these individuals to

promote the best 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

that the existing parent-child relationship is not a proper one; and (9) any

excuse for the acts or omissions of the parent. Holley v. Adams, 544

S.W.2d 367 , 371–72 (Tex. 1976). This is not an exhaustive list, and a court

need not have evidence of every element listed in order to make a valid finding

as to the child’s best interest, especially when there is undisputed evidence

that the parental relationship endangered the child. In re C.H., 89

S.W.3d 17, 27 (Tex. 2002). While no one factor is controlling, analysis of a

single factor may be adequate in a particular factual situation to support a

finding that termination is in the best interest of the child. See In re

A.P., 184 S.W.3d 410 , 414–15 (Tex. App.—Dallas 2006, no pet.) (citing In

re C.H ., 89 S.W.3d at 27 ).

Best Interest of

Raymond’s Children—Kasey, Caitlyn, Raymond, Jr., Mary, and James

Raymond argues that termination was

not in the best interest of his children because “DFPS, at best, was

lackadaisical in placing the children with family members” in violation of Tex. Fam. Code

Ann. § 262.114 (Vernon

Supp. 2010). Specifically, Raymond argues that his aunt, Aurelia, testified

that she would be willing to take all eight children, but that DFPS never

conducted a home study regarding placement with her. There was evidence that Aurelia missed her

meeting with DFPS because of a conflicting court date, and that her daughter

called repeatedly to reschedule the meeting, but DFPS never did so.

In contrast, DFPS employee A. Snoke,

testified that Aurelia wanted to see pictur es of the children so that she could “pick and choose which

children she wanted.” However, Aurelia

did not show up for the meeting. CASA

representative Cheatham, who spoke Spanish, called Aurelia several times

thereafter to reschedule the meeting, but Aurelia never returned the calls, so

DFPS quit trying to contact her. Several

months later, Aurelia’s daughter called to try and reschedule the meeting, but

DFPS made the decision not to proceed with a home study because the final

termination hearing was too close.

Raymond argues that, because no home study was ever done

regarding a possible placement with Aurelia, termination would not be in the

best interest of his children. However,

courts have held that the failure to conduct or obtain a home study pursuant to

section 262.114 is not a bar to termination. In re G.B. II , No. 10-10-00244-CV, 2011 WL 2151283, at *1 (Tex. App.—Waco June 1, 2001, no pet.); Frank

R. v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00436-CV,

2010 WL 1507832 , at *2–3 (Tex. App.—Austin April 13, 2010, no pet.); In the

Interest of J.F., No. 02–08–00183–CV, 2007 WL 2963690 , *6–8 (Tex. App.—Fort

Worth Oct. 11, 2007, pet. denied); In the Interest of C.C., No. 02-04-00206-CV,

2005 WL 1244672 , *6–7 (Tex. App.—Fort Worth May 26, 2005, no pet.).

Because the lack of a home study is not outcome

determinative, we consider other factors in determining whether termination was

in the children’s best interest. First,

we note that there was evidence that, despite her testimony to the contrary,

Aurelia did not want all of the children.

In fact, Aurelia turned away the entire family when Lauren called from

the bus station because she did not know about the three children who had not

been fathered by Raymond. She allowed

the entire family to live in a shelter and provided only $50 dollars toward

their support, even though she knew they were living in a shelter. There was also evidence from which the trial

court have concluded that Aurelia did not cooperate with DFPS because, after

missing her scheduled appointment, she did not return their numerous calls. There was no evidence that the children knew

Aurelia or wanted to live with her. From

this evidence, the trial court could have concluded that placement with Aurelia

would not be in the best interest of the children.

The trial court also could have

considered Raymond’s abuse of Lauren and Darren, as well the fact that Raymond

did not contact or support his children after being deported as evidence that

“the existing parent-child relationship is not a proper one.” Holly , 544 S.W.2d at 271–72. And, when

he did live with the children, Raymond allowed the boys to do whatever they

wanted, but he mentally abused the girls by being very controlling, not

allowing them to have friends, and limiting their role in the family to cooking

and cleaning.

There was evidence that Raymond’s relationship with his

children was non-existent at the time of trial.

Even though not prohibited from doing so by his deporation, Raymond had

made no effort to remain in contact with his children. And, not only did Raymond not provide any

support for his children, he in fact took money from them when he had Lauren

send him $3000 in Honduras, even though he knew his children had been living in

shelters. There is also no evidence in

the record of any excuse for Raymond’s acts or omissions. Id.

In considering future plans for the

children and the stability of their future homes, we note that Raymond provided

no plans for the children other than a possible placement with Aurelia, which

we have discussed. The fact remains,

however, that Raymond is prohibited from entering the country, and he did not

provide evidence about any plans to bring the children to live with him. Thus, reunification with his children seems

unlikely.

In contrast, Ms. Goins testified that

Kasey, Caitlyn, and Mary had been living with her since June 2009. When they first began living with Goins,

their grades and attendance at school were bad, but now they are on the honor

roll and have perfect attendance. Goins

testified that she would like to adopt the girls if possible, and she believes

the girls would like to live with her permanently. She has allowed and

encouraged the girls to remain in contact with their brothers, but does not

feel that they should all live together since the older brothers were often

violent and controlling, and Darren had shown some issues with acting out

sexually. Ms. Goins is an assistant

principal and testified that her salary would be sufficient to allow her to

raise and care for all three girls.

The record showed that Raymond, Jr.

had initially been placed with his maternal grandfather in Florida, but when

the grandfather died, Raymond Jr. went to live with his maternal

great-aunt. His CASA representative,

Cheatham, testified that Raymond, Jr. was doing well in this placement, and

that it would be in his best interest to remain in that placement.

James, the infant who was born right

before the hurricane, was in a foster home and was doing well. In an earlier placement, he had been

non-verbal and standoffish, but DFPS had recently put him in a new foster home

and he had shown much improvement. His

sisters had visited him and he had played with them and interacted with them in

a way that he had never done while in the previous placement. His CASA representative testified that he

seemed very happy in his new placement, and was receiving special education.

Considering these factors, we conclude

that legally and factually sufficient evidence supports the trial court’s

finding that termination was in the best interest of Kasey, Caitlyn, Mary,

Raymond Jr., and James.

Best

Interest of Gary’s Children—Darren and Jason

The record shows that Gary has never

had a role in his sons’ lives, and has been incarcerated for much of their

lives. He has never maintained any

contact with them or provided any form of support whatsoever. When Gary was in prison, Lauren sent him a

picture of his son, but Gary never responded.

Gary physically abused Lauren when they were together. He then allowed

his children to be raised by Raymond, even though he had witnessed Raymond

physically abusing Lauren. From this

evidence, the trial court could have concluded that a child in Gary’s custody

would face emotional and physical danger now or in the future. Gary offered no excuse for his behavior. Id.

Regarding plans for the childrens’

future placements, we note that a home study was done of Gary’s sister in

Florida. However, Darren did not want to

move to Florida, because he wanted to remain near his older brother, Derek, who

was in a group home in Texas.

At the time of trial, Darren was in a

foster home in Texas, where he was happy and had been doing well. However, there was evidence that Darren had

acted out in an inappropriately sexual manner, and likely would be moved in the

near future because his foster mother said that he would be unable to remain in

the current placement. However, there

was testimony that Darren should probably not be moved to Gary’s sister in

Florida because there was a younger child in the household, and there was a

concern that Darren would continue his sexually inappropriate behavior. Although there was no current placement plan

for Darren, his CASA representative testified that he should not be placed with

Gary because of Gary’s history of violence and criminal activity. There was also no evidence of when Gary would

be released from prison. While in DFPS’s custody, Darren was

receiving counseling and was doing better in a structured environment than he

had been before the department took custody.

Though he was still facing significant hurdles, the trial court could

have reasonably concluded that it was in Darren’s best interest to terminate Gary’s

parental rights.

Jason had been living with Ms. Goins’s

daughter, Dana, even before the department placed the children in its

custody. Dana took Jason with Lauren’s

consent when he was 18 months old because his older brothers had been abusing

him by choking him, slamming him on a bed, and tripping him on the floor. There was evidence that at the time of trial,

Jason was in pre-kindergarten, where he was doing well. Jason calls Dana “momma,” and Dana, a

third-grade teacher, testified that she would like to adopt Jason. Her goal for him was to be happy, to go to

college, and to be successful. In Dana’s

home, Jason would have significant contact with his sisters, who were being

raised by Dana’s mother.

Considering these factors, we conclude

that legally and factually sufficient evidence supports the trial court’s

finding that termination was in the best interest of Darren and Jason.

We overrule Gary’s seventh issue and

Raymond’s third issue.

CONCLUSION

We affirm the trial court’s decree terminating

Gary’s and Raymond’s parental rights.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

[1] For purposes of this opinion, both the

parents and the children will be referred to by aliases. See

Tex. R. App. P. 9.8.

[2]

Tex. R. Civ. P. 105 requires that the person serving process

“shall endorse thereon the day and hour which he received it, and shall execute

and return the same without delay.”