in the Interest of L.R.R., a Child ( 2018 )

Opinion filed January 19, 2018
In The
Eleventh Court of Appeals
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No. 11-17-00200-CV
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IN THE INTEREST OF L.R.R., A CHILD
On Appeal from the County Court at Law
Midland County, Texas
Trial Court Cause No. FM 60,640
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
the mother and the father of L.R.R. Both parents appeal. On appeal, each parent
challenges the sufficiency of the evidence to support the trial court’s findings in
support of termination. We affirm.
The father presents five issues, and the mother presents eight issues. All
thirteen issues involve a challenge to the legal or factual sufficiency of the evidence
to support the trial court’s findings. Termination of parental rights must be
supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b)
(West Supp. 2017). To determine on appeal if the evidence is legally sufficient in a
parental termination case, we review all of the evidence in the light most favorable
to the finding and determine whether a rational trier of fact could have formed a firm
belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). To determine if the evidence is factually sufficient, we give due deference to
the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations against
the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental
rights, it must be shown by clear and convincing evidence that the parent has
committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. FAM. § 161.001(b).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
In this case, the trial court found that the father had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O)—
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and that the mother had committed three of the acts listed in Section 161.001(b)(1)—
those found in subsections (D), (E), and (O). Specifically, the trial court found that
each parent had knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endangered the child’s physical or emotional well-
being; that each parent had engaged in conduct or knowingly placed the child with
persons who engaged in conduct that endangered the child’s physical or emotional
well-being; that the father had constructively abandoned the child; and that each
parent had failed to comply with the provisions of a court order that specifically
established the actions necessary to obtain the return of the child, who had been in
the managing conservatorship of the Department of Family and Protective Services
for not less than nine months as a result of the child’s removal from the parents for
abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of both parents’ parental rights would be in the best interest of the child.
The parents challenge each of these findings.
The record shows that the Department initially became involved with L.R.R.
shortly after she was born. The Department was involved with the family again
when L.R.R. was eleven months old. At that time, police found the mother passed
out in a vehicle with L.R.R. in the back seat. The mother stated that the father had
injected her with heroin. Then, when L.R.R. was three years old, the Department
became involved a third time and removed L.R.R. from her parents’ care after the
mother was again arrested for driving while intoxicated with a child passenger. The
mother, who used inhalants (specifically, “air dusters”) on a daily basis, had inhaled
an air duster while driving with L.R.R. in the vehicle. The mother lost consciousness
and crashed into a grocery store. The mother was later convicted for this offense
and also for the prior incident in which she drove while intoxicated with L.R.R. in
the vehicle. The mother had an extensive history of drug abuse, including inhalants,
heroin, marihuana, methadone, and Xanax; she also had a criminal history. The
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mother was incarcerated throughout the termination proceedings and had had no
visitation with L.R.R. during that time. Additionally, the mother did not complete
the court-ordered family services.
The father used heroin and had an extensive history of drug use. At the time
of removal, the father was incarcerated. At the time of the final hearing, the father
resided at a halfway house in Midland. He did not visit L.R.R. while this case was
pending and did not complete the court-ordered family services.
After L.R.R. was removed, she was inappropriately touching both herself and
another child. L.R.R. explained that her “old Mommy” (the mother involved in this
termination) had taught her how to touch herself and said that it was okay for her to
do so. In therapy, L.R.R. disclosed that both the mother and the father had touched
her private areas. Both parents testified at trial and denied these allegations.
Although L.R.R. was originally placed in foster care, she was placed with
maternal cousins about eight months prior to the date of the final hearing. L.R.R.
has thrived in the home of her maternal cousins, and she remained in their home at
the time of trial. The maternal cousins have a safe and stable home, are bonded with
L.R.R., and wish to adopt L.R.R. The maternal cousins are committed to L.R.R. and
to her therapy. The Department’s goal for L.R.R. is termination of both parents’
parental rights and eventual adoption by the maternal cousins. The conservatorship
caseworker and the child’s attorney ad litem believed that termination of the
mother’s and the father’s parental rights would be in L.R.R.’s best interest.
The record contains clear and convincing evidence that both parents had
engaged in conduct that endangered L.R.R.’s physical or emotional well-being and
that both parents had failed to comply with the provisions of a court order that
specifically established the actions necessary for them to obtain the return of
L.R.R.—as required to support findings under Section 161.001(b)(1)(E) and (O).
Under subsection (E), the relevant inquiry is whether evidence exists that the
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endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.). The offending conduct does not need to be
directed at the child, nor does the child actually have to suffer an injury. In re J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009).
The evidence at trial revealed that the parents used drugs together, that the
mother was first arrested for driving while intoxicated with L.R.R. in the vehicle in
2014 after the father injected the mother with heroin, and that the mother was again
arrested in 2016 for driving while intoxicated with L.R.R. in the vehicle after she
crashed into a grocery store. The mother was found passed out in the vehicle on
both of these occasions. Additionally, the evidence was undisputed that the parents
did not fully comply with their court-ordered family service plan. We hold that the
evidence is legally and factually sufficient to support the findings as to each parent
under subsections (E) and (O). Accordingly, we overrule the father’s second and
fourth issues and the mother’s fifth, sixth, seventh, and eighth issues. Because it
must be shown that a parent has committed only one of the acts listed in
Section 161.001(b)(1)(A)–(U), we need not reach the merits of the father’s first and
third issues or the mother’s third and fourth issues. See TEX. R. APP. P. 47.1.
In the father’s fifth issue and the mother’s first and second issues, they
challenge the legal and factual sufficiency of the evidence in support of the trial
court’s best interest findings. Based upon the Holley factors and the evidence in the
record, we cannot hold that the trial court’s best interest findings are not supported
by clear and convincing evidence. See Holley, 544 S.W.2d at 371–72. Considering
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the evidence of the emotional and physical needs of the child now and in the future,
the emotional and physical danger to the child now and in the future, the parental
abilities of the placement, the plans for the placement to adopt the child, the stability
of the placement’s home, and the parents’ drug use and criminal histories
(particularly both parents’ responsibility with respect to the mother driving under
the influence while L.R.R. was in the vehicle), we conclude that the trial court could
reasonably have formed a firm belief or conviction that it would be in L.R.R.’s best
interest for her mother’s and her father’s parental rights to be terminated. We hold
that the evidence is both legally and factually sufficient to support the trial court’s
best interest findings. Accordingly, we overrule the father’s fifth issue and the
mother’s first and second issues.
We affirm the trial court’s order of termination.
MIKE WILLSON
JUSTICE
January 19, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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