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Smith v. Texas Department of Protective and Regulatory Services9/11/2003
girls would never have been allowed to return to school. And although Bobbie's exercise of poor judgment may have resulted in her two girls walking along a busy highway with a teenager, there is no evidence that Bobbie or her mother-in-law, Beulah, was aware of or approved of the occurrence and no evidence that the incident occurred again.
When this evidence is coupled, however, with the evidence demonstrating Bobbie's failure to ensure that her two older girls were attending school and both Bobbie's and Carlos's use of drugs and their resulting incarcerations, we cannot say that a reasonable fact finder could not have formed a firm belief or conviction that the children were endangered by the Smiths' conduct. Although both Bobbie and Carlos asserted that they never used drugs around the children, there is some evidence that Bobbie was under the influence of drugs when she left S.R.H. with Slaughter. Moreover, one parent's drug-related endangerment may be imputed to the other parent. Edwards v. Texas Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.--El Paso 1997, no pet.).
Further, Carlos's use of drugs resulted in his absence from the family, leaving the children in Bobbie's care. Imprisonment, standing alone, does not constitute "engaging in conduct which endangers the emotional or physical well-being of the child." It is a fact properly considered, however, on the issue of endangerment. Boyd, 727 S.W.2d at 533-34; In re D.T., 34 S.W.3d 625, 635-36 (Tex. App.--Fort Worth 2000, pet. denied); In re B.S.T., 977 S.W.2d at 485. The Department need not show incarceration was a result of a course of conduct endangering the child; it need only show incarceration was part of a course of conduct endangering the child. Thus, if the Department proves that incarceration was part of a course of conduct that has the effect of endangering the child, the requirement of subsection E is met. Boyd, 727 S.W.2d at 533-34. In this case, the evidence proves that Carlos's incarceration due to his drug use and Bobbie's drug use are part of a course of conduct endangering their children. See In re D.M., 58 S.W.3d at 813.
Failure to comply with court order
Although we have determined that factually sufficient evidence demonstrates that both Carlos and Bobbie engaged in a course of conduct endangering their children, we have also reviewed the evidence regarding the parents' compliance with the trial court's order. Section 161.001(1)(O) provides that the court may order termination if it finds by clear and convincing evidence that the parents failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less that nine months as a result of the child's removal from the parent under Chapter 262 [Procedures in Suit by Governmental Entity] for the abuse or neglect of the child.
Tex. Fam. Code Ann. § 161.001(1)(O). On March 9, 2001, following an adversary hearing the trial court signed temporary orders, which required the Smiths to comply with a number of provisions in order to obtain the return of their children. Among those provisions were the following: the parents were (1) to submit to a psychological evaluation, (2) to attend counseling sessions, (3) to attend and successfully complete parenting classes, (4) to submit to a drug and alcohol dependency assessment, including urinalysis testing, and (5) to submit to and successfully complete a substance abuse treatment program. The court also ordered paternity testing for S.R.H. On January
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