in the Interest of S.L.W., a Child , 529 S.W.3d 601 ( 2017 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00062-CV
IN THE INTEREST OF S.L.W., A CHILD
On Appeal from the County Court at Law No. 1
Gregg County, Texas
Trial Court No. 2015-2179-CCL1
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
OPINION
On November 23, 2015, in the County Court at Law No. 2 of Gregg County, Texas (CCL2),
the Department of Family and Protective Services (Department) filed a petition to terminate Allen
and Alice’s parental rights to their daughter, Sally. 1 On May 1, 2017, the County Court at Law
No. 1 of Gregg County, Texas (CCL1), entered an order terminating Mother’s and Father’s
parental rights to Sally and naming the Department as Sally’s permanent managing conservator.
On appeal, both parties initially argue that the CCL1 lacked jurisdiction over this dispute.
In addition, Allen argues that the trial court erred in finding that (1) Allen engaged in conduct or
knowingly placed Sally with persons who engaged in conduct which endangered her physical or
emotional well-being, (2) Allen failed to comply with the provisions of a court order that
established the actions necessary for him to obtain Sally’s return after she was left in
conservatorship of the Department for not less than nine months as a result of her removal for
abuse or neglect, (3) termination of Allen’s parental rights was in Sally’s best interest, and
(4) Sally’s foster parents’ petition for intervention should not be struck. See TEX. FAM. CODE ANN.
§161.001(b)(1)(E), (O), (2) (West Supp. 2016). Alice argues that the judge of the CCL2 erred in
signing the final order before counsel had an opportunity to object to her assignment to this case
by the Honorable Mary Murphy, the presiding judge of the First Administrative Judicial Region
of Texas.2
1
We assign pseudonyms to the parties involved in order to protect the identity of the child. See TEX. R. APP. P. 9.8.
2
Alice does not challenge the trial court’s determination that grounds existed to terminate her parental rights or that
termination of her parental rights was in Sally’s best interest.
2
We find that (1) the CCL1 had jurisdiction over the Department’s petition, (2) termination
of Allen’s parental rights to Sally was supported by legally and factually sufficient evidence,
(3) the trial court did not abuse its discretion in failing to strike the foster parent’s petition in
intervention, and (4) Alice did not preserve any complaint about Judge Simpson hearing this case.
Accordingly, we affirm the trial court’s judgment.
I. The CCL1 Had Jurisdiction Pursuant to a Proper Transfer from the CCL2
When the Department initially filed its petition in the CCL2, the case was docketed under
cause number 2015-2179-CCL2. On December 10, 2015, the judge of the CCL2 made a docket
sheet entry stating that the case had been transferred to the CCL1. The CCL2 also notified the
parties that a status hearing would be held in connection with a new cause number, 2015-2179-
CCL1, in the CCL1. From that point on, the judge of the CCL1 presided over status and
permanency hearings.
Prior to the expiration of the one-year deadline to commence trial on the merits under
Section 263.401 of the Texas Family Code, the CCL1 entered an order extending the deadline by
180 days to May 27, 2017. See TEX. FAM. CODE ANN. § 263.401(b) (West Supp. 2016). Confusion
arose during the pendency of the case because (a) parties continued to file documents in the CCL2
case, (b) parties filed documents in the CCL1 using the CCL2 cause number, and (c) the CCL1
issued orders using the CCL2 caption and cause number. To ease the confusion, Sally’s foster
parents, who had intervened in the suit, filed a motion in the CCL2 to transfer the case to the CCL1.
Their motion was filed on March 17, 2017, which was well after the one-year deadline, but before
the expiration of the 180-day extension that had already been granted by the CCL1. Following a
3
hearing, on April 4, 2017, the CCL2 entered a written order transferring the case to the CCL1.
After a trial on the merits, the CCL1 entered an order terminating Allen and Alice’s parental rights
to Sally.
Allen filed a motion for new trial and argued (among other things) that the CCL1 lacked
jurisdiction to decide the case. Specifically, Allen argued (a) that the one-year deadline passed,
(b) that the CCL2’s transfer order was signed after the expiration of the one-year deadline, and
(c) therefore, that the CCL1 had no jurisdiction to enter its prior order extending the deadline by
an additional 180 days. Because Section 263.401(a) of the Texas Family Code requires dismissal
of cases unless a trial court commences trial on the merits within the one-year deadline or unless
a proper extension is made, Allen argued that the Department’s petition should have been
dismissed. On appeal, Allen raises these same arguments.
The Texas Supreme Court has explained that “although subsection 263.401(a) provides for
what is called the ‘one-year dismissal date’ and subsection 263.401(b) provides for a 180-day
extension of that one-year dismissal date (if the trial court finds that certain circumstances exist),
nothing in the language of section 263.401 indicates that these deadlines are jurisdictional.” In re
Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). In issuing its opinion, the
Texas Supreme Court noted that Section 263.401 “merely states that the trial court ‘shall dismiss
the suit’ and ‘may not retain the suit on the court’s docket’ when the deadlines expire.” Id. (quoting
TEX. FAM. CODE ANN. § 263.401(a), (b)). Section 263.402 of the Texas Family Code specifically
states,
A party to a suit under this chapter who fails to make a timely motion to dismiss
the suit under this subchapter waives the right to object to the court’s failure to
4
dismiss the suit. A motion to dismiss under this subsection is timely if the motion
is made before the trial on the merits commences.
TEX. FAM. CODE ANN. § 263.402 (West 2014). No motion to dismiss was filed prior to the entry
of the final order on the merits, and, in any event, the Texas Supreme Court has decided that the
“deadlines are [not] jurisdictional.” Id.3
Moreover, Allen’s argument that the CCL1 lacked jurisdiction in this case until the CCL2
entered its formal transfer order on April 4, 2017, also fails. The docket sheet stated that the judge
of the CCL2 had already transferred the case to the CCL1 on December 10, 2015. Allen argues
that Rule 330(e) of the Texas Rules of Civil Procedure does not permit the exchanges of benches
in this case.4 We agree. The authority for the exchange of benches in this case was provided under
Section 74.121(a) of the Texas Government Code, which states,
3
The parties also argue that the CCL2 had continuing, exclusive jurisdiction in this matter. “[A] court acquires
continuing, exclusive jurisdiction . . . in connection with a child on the rendition of a final order.” TEX. FAM. CODE
ANN. § 155.001(a) (West Supp. 2016). “Unless a final order has been rendered by a court of continuing, exclusive
jurisdiction, a subsequent suit shall be commenced as an original proceeding.” TEX. FAM. CODE ANN. § 155.001(d)
(West Supp. 2016). The appellate record in this case demonstrates that no other court had entered a final order in a
suit-affecting the parent-child relationship with respect to Sally. Thus, prior to the entry of the order of termination
of Allen’s and Alice’s parental rights, no other court had continuing, exclusive jurisdiction.
4
Rule 330(e) states,
Where in such county there are two or more district courts having civil jurisdiction, the judges of
such courts may, in their discretion, exchange benches or districts from time to time, and may
transfer cases and other proceedings from one court to another, and any of them may in his own
courtroom try and determine any case or proceeding pending in another court without having the
case transferred, or may sit in any other of said courts and there hear and determine any case there
pending, and every judgment and order shall be entered in the minutes of the court in which the case
is pending and at the time the judgment or order is rendered, and two (2) or more judges may try
different cases in the same court at the same time, and each may occupy his own courtroom or the
room of any other court. The judge of any such court may issue restraining orders and injunctions
returnable to any other judge or court, and any judge may transfer any case or proceeding pending
in his court to any other of said courts, and the judge of any court to which a case or proceeding is
transferred shall receive and try the same, and in turn shall have power in his discretion to transfer
5
The judges of constitutional county courts, statutory county courts, justice courts,
and small claims courts in a county may transfer cases to and from the dockets of
their respective courts, except that a case may not be transferred from one court to
another without the consent of the judge of the court to which it is transferred and
may not be transferred unless it is within the jurisdiction of the court to which it is
transferred. The judges of those courts within a county may exchange benches and
courtrooms with each other so that if one is absent, disabled, or disqualified, the
other may hold court for him without the necessity of transferring the case. Either
judge may hear all or any part of a case pending in court and may rule and enter
orders on and continue, determine, or render judgment on all or any part of the case
without the necessity of transferring it to his own docket. . . .
TEX. GOV’T CODE ANN. § 74.121 (West 2013). No motion or hearing is necessary to transfer a
case pursuant to Section 74.121 of the Texas Government Code. See Davis v. Davis, No. 13-01-
707-CV, 2003 WL 21355239, at *1 (Tex. App.—Corpus Christi June 12, 2003, no pet.) (mem.
op.). Thus, we find that the case was properly transferred to the CLL1 on December 10, 2015.
II. Sufficient Evidence Supports Termination of Allen’s Parental Rights
A. Standard of Review
We strictly scrutinize termination proceedings in favor of the parent. In re S.K.A., 236
S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (citing Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985)). To terminate an individual’s parental rights to his child, clear and convincing
evidence must show: (1) that the parent has engaged in one of the statutory grounds for termination
and (2) that termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b)(1) (West
Supp. 2016); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012); In re C.H., 89 S.W.3d 17, 23 (Tex.
any such case to any other of said courts and any other judge may in his courtroom try any case
pending in any other of such courts.
TEX. R. CIV. P. 330.
6
2002). The clear and convincing burden of proof has been defined as “that measure or degree of
proof which 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.” C.H., 89 S.W.3d at 23; see TEX. FAM. CODE ANN.
§ 101.007 (West 2014). Due process demands this heightened standard. E.N.C., 384 S.W.3d at
802 (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)).
In a legal sufficiency review, termination findings are given appropriate deference. See
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Smith v. Tex. Dep’t of Protective & Regulatory
Servs., 160 S.W.3d 673, 679 (Tex. App.—Austin 2005, no pet.). In such cases, we consider all
the evidence in the light most favorable to the findings to determine whether the fact-finder could
reasonably have formed a firm belief or conviction that the grounds for termination were proven.
E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no
pet.). We assume that the disputed facts were resolved in favor of the findings if a reasonable fact-
finder could do so. E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180
S.W.3d at 573. Conversely, we disregard evidence that a fact-finder may have reasonably
disbelieved or testimony from witnesses whose credibility may reasonably be doubted. E.N.C.,
384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573.
“In our review of factual sufficiency, we give due consideration to evidence the trial court
could have reasonably found to be clear and convincing.” In re L.E.S., 471 S.W.3d 915, 920 (Tex.
App.—Texarkana 2015, no pet.) (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006)
(per curiam)). “We consider only that evidence the fact-finder reasonably could have found to be
7
clear and convincing and determine whether the evidence is such that a fact[-]finder could
reasonably form a firm belief or conviction about the truth of the . . . allegations.” Id. (internal
quotation marks omitted) (alteration and omission in original) (quoting H.R.M., 209 S.W.3d at
109; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); J.F.C., 96 S.W.3d at 264, 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.” Id. (quoting J.F.C., 96 S.W.3d at 266).
“[I]n making this determination, we must undertake an exacting review of the entire record with a
healthy regard for the constitutional interests at stake.” Id. (internal quotation marks omitted)
(alteration in original) (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)).
B. Sufficient Evidence Supported Ground E Finding Against Allen
Only one predicate finding under Section 161.001(b)(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); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana
2011, no pet.); In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). “If
multiple predicate grounds are found by the trial court, we will affirm based on any one ground
because only one is necessary for termination of parental rights.” K.W., 335 S.W.3d at 769
(quoting In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.)).
The trial court found that Allen knowingly engaged in conduct or knowingly placed Sally
with persons who engaged in conduct which endangered Sally’s physical or emotional well-being.
We examine this finding for legally and factually sufficient evidence. Despite the profound
8
constitutional interests at stake in a proceeding to terminate parental rights, “the rights of natural
parents are not absolute; protection of the child is paramount.” A.V., 113 S.W.3d at 361 (quoting
In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
“A child’s emotional and physical interests must not be sacrificed merely to preserve parental
rights.” In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89
S.W.3d at 26).
Under Ground E, the term endanger “means more than a threat of metaphysical injury or
potential ill effects of a less-than-ideal family environment.” In re Z.M., 456 S.W.3d 677, 686
(Tex. App.—Texarkana 2015, no pet.) (quoting E.N.C., 384 S.W.3d at 803). “It means to ‘expose
to loss or injury.’” Id. (quoting In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007,
no pet.)). Ground E “refers only to the parent’s conduct, as evidenced not only by the parent’s
acts, but also by the parent’s omissions or failures to act.” Id. (quoting N.S.G., 235 S.W.3d at 366–
67). “The conduct to be examined includes what the parent did both before and after the child was
born.” Id. (quoting N.S.G., 235 S.W.3d at 366–67). “To be relevant, the conduct does not have to
have been directed at the child, nor must actual harm result to the child from the conduct.” Id.
(quoting Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—
El Paso 2004, no pet.)). “However, termination under this ground ‘must be based on more than a
single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is
required.’” Id. (quoting Perez, 148 S.W.3d at 436).
9
1. The Evidence at Trial
Sally was born to Alice and Allen in September 2015. The family lived in Allen’s
residence, which was infested with fleas after Sally was brought home from the hospital.5 The
evidence at trial established that Alice was a drug user who could not overcome her addiction,
even after the Department filed this case in December 2015. Sally was removed from Alice and
Allen when she was eight weeks old.
Alma Gaviria, a Child Protective Services (CPS) caseworker, testified that in January 2016,
Alice admitted that she had relapsed and was again taking methamphetamine. Gaviria further
testified that Alice was also hooked on morphine and had overdosed on the drug on June 22, 2016.
According to Gaviria, in October 2016, Alice was living with Allen and again admitted that she
was on drugs. As a result of her addictions, Gaviria testified that Alice lacked basic parenting
skills.
Allen, who was still married to Alice at the time of trial, testified that she suffered from
hallucinations and had attempted to commit suicide several times. Allen testified that he could not
trust Alice with Sally and that he had “problems” keeping Sally away from Alice while she was
using methamphetamine. Caseworkers testified that they were concerned about Allen and Alice’s
relationship because Alice had again become pregnant with Allen’s child, was still using drugs,
and was living with Allen until a month before trial. Allen admitted that he was concerned that
Alice used methamphetamine during the pendency of this case while she was pregnant with his
child.
5
Allen resolved the flea problem and testified that Sally had never been bitten.
10
Yet, the fact that Allen had left Sally with Alice while she was using drugs was not the
only reason the trial court made a finding that Allen’s parental rights should be terminated under
Ground E. The evidence at trial established that Allen has bi-polar disorder and a lengthy history
of domestic abuse. In 2007, Allen punched Gloria Thomas in the eye, cut her cheek, and dragged
her from her car by her hair, knocking over her infant daughter, all while under the influence of
drugs. He was placed on community supervision for this family violence assault. In 2012, a trial
court entered a protective order against Allen in favor of his then-girlfriend. Around that time,
Allen entered a drug rehabilitation program, and the evidence established he remained sober since
then.
However, Allen’s sobriety did not extinguish his temper. On August 6, 2015, Allen was
convicted of family violence assault against Alice, who was pregnant with Sally, and he was
sentenced to community supervision for a period of fifteen months.6 Ocie Ellison, formerly a
caseworker with the Department, testified that Alice said Allen had tried to choke her while he
was holding Sally and threatened to beat her within an inch of her life. According to Ellison, the
Department arranged for Alice and Sally to go to the Highway 80 Rescue Mission, but Sally was
removed from Allen and Alice’s care when Alice had to be taken to the hospital by ambulance.
On March 28, 2016, police went to Allen’s house to investigate reports of domestic violence
against Alice. During the pendency of this case, Alice kept returning to Allen. Gaviria was
concerned because she believed Alice was a “trigger” for Allen’s violent behavior, but that the
6
Allen’s community supervision officer testified that he had been placed on community supervision twice before for
assault.
11
couple was still married. Kelsey Drennan, a CPS investigator, testified that there were indications
that Allen was not taking his medications as prescribed.
Allen was provided with counseling services and completed a Batterer’s Intervention
Prevention Program (BIPP) on August 22, 2016. Yet, there was some evidence that even after
completing BIPP, Allen assaulted Alice again. Erik Cunningham, an officer with the Longview
Police Department, testified that Alice came into the police department on October 23, 2016, to
report that Allen had choked her. Cunningham testified that Alice had injuries indicating that she
had been choked. Laroyce Johnson, an officer with the Longview Police Department, was
dispatched to arrest Allen. According to Johnson, Allen admitted that he had “made a mistake,”
“messed up,” and put his hands on Alice. Johnson arrested Allen when he “started to give off a
little aggression.” As a result of that arrest, the State filed a motion to revoke Allen’s community
supervision, but it was modified instead.
Allen testified that he was still on community supervision, admitted that he had assaulted
Alice while she was pregnant, and agreed that witnessing domestic violence could have a negative
emotional effect on Sally. Allen testified that he received carbamazepine and Abilify to treat his
bipolar disorder and had plans to divorce Alice. Allen also testified that he loved Sally, and the
evidence at trial demonstrated that he was completing his family service plan, completed parenting
classes, was in counseling, regularly attended visitation with Sally, and was generally doing well
prior to the October assault.
Psychologist Donald Eugene Winstead, III, prepared a psychological evaluation for Allen
at the Department’s request. Winstead administered the Coolidge Assessment Battery, an
12
instrument used to assess emotional and personality functions, and described Allen as “faking good
. . . to present himself in an overly positive light.” According to Winstead, Allen suffered abuse
and neglect as a child and had “significant personality impairment[s],” like “antisocial and
schizoid” personality issues, paranoid traits, and apathetic features, all of which could result in
Allen having unstable relationships. Winstead also testified that Allen had a social anxiety
disorder and “was generally unhappy with his life, possibly suffering some low-grade depression.”
Although Winstead “ha[d] no direct evidence that [Allen] ha[d] ever neglected his children,” he
testified that being subjected to family violence poses danger to a child’s emotional well-being.
He explained that a parent’s “ability to teach a child how to manage and regulate emotion is
impaired” when a caregiver is suffering a significant emotional issue.
Locke Curfman, a licensed professional counselor, testified that Allen was “in counseling
every time the doors were opened and he was scheduled, and he was making an attempt to improve
himself.” However, due to the October assault, Allen’s treatment plan was temporarily ceased.
Curfman opined that Allen’s violent behavior might continue and that witnessing domestic
violence is damaging to a child’s well-being.
2. Analysis
The evidence at trial established that Allen was aware of Alice’s mental health and drug
history, but had nevertheless left Sally in her care as an infant. Allen himself admitted that he had
a hard time keeping Sally away from Alice while she was using methamphetamine. Although
Sally was in their care for only eight weeks, the evidence showed that Allen had knowingly left
13
Sally with Alice, a person who engaged in conduct which endangered Sally’s physical or emotional
well-being.
The evidence at trial also established that Allen had a history of domestic violence against
Alice. “A fact-finder ‘can consider the history of abuse between the mother and the father for
purposes of subsection[] . . . (E), even if the children are not always present.’” Z.M., 456 S.W.3d
at 686 (quoting In re A.V.M., No. 13-12-00684-CV, 2013 WL 1932887, at *5 (Tex. App.—Corpus
Christi May 9, 2013, pet. denied) (mem. op.)). While he knew that Alice was pregnant with Sally,
Allen assaulted Alice. After Sally was born, Alice reported that Allen had choked her while he
was holding the child. Even after Sally was removed from the home, reports of domestic violence
continued, and there was some evidence that Allen assaulted Sally during the pendency of the case
in October 2016. Although Allen was continued on community supervision, charges for the
October assault were still pending at the time of trial.7
Allen points to evidence demonstrating that he had completed almost all of his family
service plan, had never missed a visitation with Sally, had maintained stable employment as a
barber, and was making progress with his individual counseling.8 Caseworkers also testified that
Allen was doing well and that his home was always an appropriate one. Allen completed alcohol
7
“[I]ntentional criminal activity which expose[s] the parent to incarceration is relevant evidence tending to establish a
course of conduct endangering the emotional and physical well-being of the child.” In re A.L., No. 06-14-00050-CV,
2014 WL 5204888, at *7 (Tex. App.—Texarkana Oct. 8, 2014, no pet.) (mem. op.) (quoting In re A.W.T., 61 S.W.3d
87, 89 (Tex. App.—Amarillo 2001, no pet.) (per curiam)).
8
As of August 25, 2016, the trial court found that Allen had complied with all requirements of the family service plan.
However, on January 27, 2017, the trial court ruled that Allen was no longer in compliance.
14
and substance abuse assessments and always tested negative for drugs during the pendency of the
case. Allen testified that he loved Sally and maintained that he had never harmed the child.
Yet, in termination cases, “[w]hen there is conflicting evidence, it is the province of the
trier of fact to resolve such conflicts.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.
2005)). Based on all of the evidence introduced in this case, we conclude that a rational fact-finder
could readily have reached the necessary firm conviction or belief that Allen engaged in conduct
or knowingly placed Sally with persons who engaged in conduct that endangered her physical or
emotional well-being. Accordingly, we find the evidence both legally and factually sufficient to
support the trial court’s finding of a statutory ground of termination and overrule Allen’s second
point of error.
C. Sufficient Evidence Supported the Best-Interest Findings
We next turn to Allen’s challenge to the trial court’s best-interest finding. “There is a
strong presumption that keeping a child with a parent is in the child’s best interest.” In re J.A.S.,
Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet.
denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)).
“Termination ‘can never be justified without the most solid and substantial reasons.’” In re N.L.D.,
412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543
S.W.2d 349, 352 (Tex. 1976)).
In determining the best interests of the child, courts consider the following Holley factors:
(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
15
future, (4) the parental abilities of the individuals seeking custody, (5) the programs
available to assist these individuals, (6) the plans for the child by these individuals,
(7) the stability of the home, (8) the acts or omissions of the parent that may indicate
the existing parent-child relationship is not a proper one, and (9) any excuse for the
acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see E.N.C., 384
S.W.3d at 807; see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2016). It is not necessary
to prove all of these factors as a condition precedent to parental-rights termination. C.H., 89
S.W.3d at 27; N.L.D., 412 S.W.3d at 819. Evidence relating to a single factor may suffice in a
particular situation to support a finding that termination of parental rights is in the best interests of
the child. In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.). Further, when
considering the child’s best interest, we may take into account a parent’s continuing criminal
history, past performance, and poor judgment. See C.H., 89 S.W.3d at 28; In re C.A.J., 122 S.W.3d
888, 893 (Tex. App.—Fort Worth 2003, no pet.).
Sally was nineteen months old at the time of trial.9 Alice’s first child, Sally’s half-brother,
was previously adopted by Sally’s foster parents, Barbara and Chester Mooney. When Sally was
removed from Alice and Allen, they requested that she be placed with the Mooneys, who also had
another son. The Mooneys and Gaviria testified that Sally was a happy, generally healthy baby
who had bonded with the entire family. Barbara did note that Sally has ptosis in her left eye, had
a medical procedure scheduled to alleviate her drooping eyelid, and had to have tubes put in her
9
Because she was too young to express her wishes, we find the first Holley factor to be neutral. See In re X.L.R., 461
S.W.3d 633, 640 (Tex. App.—Texarkana 2015, no pet.) (citing E.N.C., 384 S.W.3d at 808).
16
ears. Other than that, nothing established that Sally’s emotional and physical needs differed in any
respect to that of other children.10
The evidence at trial demonstrated that Allen had engaged in family violence assault with
his paramours several times over the course of years. He had assaulted Alice once while she was
pregnant with Sally, once while she was pregnant with Sally’s sibling, and once while actually
holding Sally. Several witnesses (including Allen) admitted that Sally could suffer emotionally if
she witnessed domestic violence. The evidence at trial had also established that Alice had moved
away from Allen’s home several times during the pendency of this case, but had been allowed to
return. The couple were still married at the time of trial, and Alice had lived with Allen as recently
as a month before trial. Counselors testified that there was a risk that Allen could again commit
an act of violence. The trial court, as fact-finder, could reasonably infer that there was a great
likelihood that Allen and Alice’s past patterns would resume in the future and could present a
danger to Sally’s emotional well-being if Allen’s parental rights were not terminated. We find the
third Holley factor weighs in favor of terminating Allen’s parental rights.
The Mooneys, who had intervened in these proceedings, testified that they wanted to adopt
Sally. Barbara opined that due to the strong bond between Sally and the Mooneys, it would be
detrimental to Sally to remove her from their home. Allen agreed that the Mooneys were providing
good care for Sally and that she may have bonded with them. Although Allen had completed
10
“A parent’s rights cannot be terminated based on poverty without a showing that the poverty has endangered the
child.” See In re E.W., 494 S.W.3d 287, 300–01 n.13 (Tex. App.—Texarkana 2015, no pet.). The evidence established
that Allen had maintained regular employment and appropriate housing and, although there was evidence Allen had
difficulty paying some fees, the evidence did not establish, by clear and convincing evidence, that Sally’s needs would
go unmet if she were to reside with Allen.
17
parenting class and engaged in regular visitation with Sally and no witness testified that he had a
lack of parental skills, the evidence at trial showed that Allen had failed to protect Sally while
Alice used methamphetamine in her presence. This fact, coupled with evidence that Allen had
choked Alice while holding Sally, supplied enough evidence for a fact-finder to determine that
Allen’s parental abilities were lacking. We find the fourth Holley factor against Allen.
Next, the Department had provided many programs to assist Allen. However, after
completing BIPP, Allen assaulted Alice. Allen’s community supervision officer testified that
BIPP was the most advanced program for batterers and that there were no other more advanced
services to offer to Allen. We find that the fifth Holley factor weights in favor of terminating
Allen’s parental rights.
As for plans to take care of Sally, the Mooneys testified that Barbara was a stay-at-home
mother and planned to take care of Sally full time. They had a four bedroom home and were in a
secure position to take care of Sally financially. Gaviria testified that the Mooneys’ home was a
safe one. On the other hand, when asked how he planned to take care of Sally while at work, Allen
testified that he could “make a few phone calls” to friends. That answer could have led a fact-
finder to conclude that Allen had no concrete plan for childcare. Gaviria testified that while there
was no evidence that Allen’s home was inappropriate, Allen’s home was not a safe and stable
home as a result of his violent behavior towards others. We find the sixth and seventh Holley
factors against Allen.
Allen’s history of domestic violence, failure to protect Sally from Alice, and failure in the
past to secure a drug-free environment for the child indicated that Allen’s existing parent-child
18
relationship was not an appropriate one. After Sally was removed from his home, Allen continued
to assault Alice, even though he knew she was pregnant with another child. His counseling was
placed on hold until he could “get some of the other things under control,” and he failed to pay for
child support although ordered to do so. Allen did not seem to have any excuses for his acts or
omissions involving domestic violence. We find that the last two Holley factors weigh in favor of
terminating Allen’s parental rights.
Based on the evidence presented at trial and an examination of the Holley factors, we
conclude that the trial court could have reasonably formed a firm belief or conviction that
termination of Allen’s parental rights to Sally was in her best interests. Therefore, we find there is
legally and factually sufficient evidence to support the trial court’s best-interest finding. We
overrule Allen’s third point of error.
III. The Trial Court Did Not Err in Failing to Strike the Mooneys’ Petition in Intervention
Finally, Allen argues that the trial court erred in failing to strike the Mooneys’ petition in
intervention. “Any party may intervene by filing a pleading, subject to being stricken out by the
court for sufficient cause on the motion of any party.” TEX. R. CIV. P. 60. We review a trial court’s
denial of a motion to strike intervention for an abuse of discretion. In re N.L.G., 238 S.W.3d 828,
829 (Tex. App.—Fort Worth 2007, no pet.) (per curiam). A trial court abuses its discretion if it
acts without reference to any guiding rules or principles. See id. at 829–30 (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). A trial court abuses its
discretion if it grants a petition in intervention when (1) the intervenors could not have brought the
same action, or any part thereof, in their own names; (2) the intervention would complicate the
19
case by an excessive multiplication of issues; and (3) the intervention is not almost essential to
effectively protect the intervenors’ interest. Guar. Fed. Sav. Bank v. Horseshoe Operating Co.,
793 S.W.2d 652, 657 (Tex. 1990).
Standing to sue is only conferred on “a person who is the foster parent of a child placed by
the Department of Family and Protective Services” after the child is placed “in the person’s home
for at least 12 months ending not more than 90 days preceding the date of the filing of the petition.”
TEX. FAM. CODE ANN. § 102.003(a)(12) (West 2014). Sally was placed in the Mooneys’ home on
January 12, 2016. On March 8, 2017, after Sally had been placed with them for one year, the
Mooneys filed a petition in intervention. Allen filed a motion to strike the petition in intervention
on April 12, 2017, and the motion was heard on the day of trial. Allen did not argue that the
Mooneys could not have brought the same action in their own name, that the intervention would
complicate the case, or that the intervention was not almost essential to protect their interests.
Instead, Allen argued only that the Mooneys’ petition was untimely filed. Yet, the Mooneys had
been involved in the case from the time the Department had filed its petition and had participated
in discovery and mediation efforts.
Under the circumstances presented to it at the hearing, and with the child’s best interests
in mind, we cannot say that the trial court abused its discretion by deciding to deny Allen’s motion
to strike the Mooneys’ intervention, which was heard right before trial. See In re N.L.G., 238
S.W.3d at 831; see also Spurck v. Tex. Dep’t of Family & Protective Servs., 396 S.W.3d 205, 218
(Tex. App.—Austin 2013, no pet.). Therefore, we overrule Allen’s last point of error.
20
IV. Alice Failed to Preserve Any Challenge to the Trial Judge
From the inception of this case, all hearings were held by the Honorable Rebecca Simpson,
the judge of the CLL1. During the pendency of the case, Judge Simpson retired. On May 8, 2017,
the Honorable Mary Murphy, presiding judge of the First Administrative Judicial Region, entered
an order of assignment for Judge Simpson to continue to hear this case. Alice complains that she
did not have the opportunity to object to Judge Simpson. The Department argues that Alice has
failed to preserve this issue for our review.
Because “[p]reservation of error is a systemic requirement on appeal,” we must first
address the Department’s contention. In re E.R.C., 496 S.W.3d 270, 276–77 (Tex. App.—
Texarkana 2016, pet. denied) (quoting Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App.
2009)). “[T]he rules governing error preservation must be followed in cases involving termination
of parental rights.” In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). Our appellate record
demonstrates that Alice failed to raise any complaint with regard to Judge Simpson’s assignment
or her ability to continue to hear this case. Simply put, Alice has failed to preserve her last point
of error for our review. It is overruled.
V. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: September 11, 2017
Date Decided: September 20, 2017
21