In the Interest of D.T.

JOHN HILL, Justice,

concurring (Retired).

I concur in the result only because, while I agree with the majority that the evidence is factually insufficient to support the trial court’s finding that termination of Appellant’s p'arental rights is in the best interest of the child, I disagree with the majority’s conclusion that the evidence is factually insufficient to support the trial court’s finding that Appellant engaged in conduct that endangered the physical and emotional well-being of the child.

The majority agrees that the evidence is legally sufficient to support the finding that Appellant engaged in conduct that endangered the physical and emotional well-being of D.T., but finds that the evidence is factually insufficient to support the finding. As I understand the evidence, Appellant, prior to the birth of D.T., fled the State of Montana in order to avoid prosecution for bad checks and to escape an abusive husband. In doing so, she left behind two children who ultimately ended up in the care of her mother. When asked by a child investigator for the Texas Department of Protective and Regulatory Services (TDPRS) why she had not contacted the children, she testified that it was because they were better off in foster care. She testified that there is an outstanding warrant out for her arrest in Montana as a result of bail revocation. She also acknowledged that there is a pending charge in that state for bad checks.

Appellant was arrested in February 1998, shortly after D.T.’s birth in August 1997. In January 1999, at the time of the trial of this termination proceeding, Appellant was in state jail following her conviction for a state jail felony in Texas. She was expecting to be released in August 1999. She acknowledged having been con *643 victed of a felony involving bad checks in Utah. She said that some of her out-of-state cases might be four or five years old. Appellant testified that she had been told that there might be arrest warrants out for her in five different states. She indicated that those arrest warrants were based upon her conduct, that she knew there would be a possibility of her going to jail, that if she went to jail she would not be able to parent her child, and that she engaged in a continuing course of conduct of writing bad checks or engaging in an activity that might get her arrested.

In holding the evidence is factually insufficient to support the trial court’s finding that Appellant engaged in conduct endangering the physical and emotional well-being of D.T., the majority relies upon testimony indicating that D.T. was in good health and had not been abused, that Appellant was taking good care of D.T. before her arrest and was doing the best she could while incarcerated to indicate her interest in D.T., that the only reason for emergency removal of D.T. when Appellant was initially arrested was because she could not make bail, that the Appellant contacted the TDPRS after she was arrested to ensure D.T.’s safety, that she complied as fully as possible with the goals and objectives required of her by the Department, and that her conviction was not for - a crime from which, in and of itself, physical or emotional harm to the child might be inferred.

The majority relies in part upon a law review article from the Seton Hall Law Review, authored by Steven Fleischer. In that article, Fleischer states that, while the psychological effects of parental incarceration on children vary greatly from child to child, parental incarceration can have a pronounced negative effect on a child and may temporarily or permanently affect the child’s development and future relationships. Steven Fleischer, Termination of Parental Rights: An Additional Sentence for Incarcerated Parents, 29 Seton Hall L.Rev. 312, 321 (1998). It is undisputed that Appellant engaged in a pattern of criminal conduct over a lengthy period of time that ultimately resulted in imprisonment for over a year and a half. It appears that there is a reasonable possibility of more incarceration to come. Therefore, it is my opinion that the evidence is undisputed that Appellant engaged in conduct that endangered the physical and emotional well-being of her child.

The remaining issue is whether termination of the parent-child relationship is in D.T.’s best interest. I believe all the evidence the majority relies upon in holding that the evidence is factually insufficient to support the trial court’s finding on the endangerment issue is relevant to the best interest issue. However, the evidence does not contradict the undisputed testimony that shows Appellant engaged in conduct that endangered the physical and emotional well-being of D.T. Evidence that D.T. did not actually suffer injury is not inconsistent with the finding. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). Evidence that Appellant is a loving mother who cares about her child is not inconsistent with the finding because loving mothers can, and Appellant did, engage in conduct that endangers the child. The potential harm to D.T. comes from her course of conduct and the resulting imprisonment. While the nature of a course of conduct, in and of itself, may sometimes support termination, the fact that the conduct, in and of itself, does not pose such a danger does not keep the conduct from posing a danger when coupled with the imprisonment that results from such conduct. Because the evidence relied upon by the majority does not contradict the undisputed evidence the majority found to be legally sufficient to support the trial court’s finding on the endangerment issue, I believe the majority is in error in holding the evidence factually insufficient to support the finding on endangerment.