in the Interest of M.S., a Child ( 2018 )

Opinion filed January 5, 2018
In The
Eleventh Court of Appeals
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No. 11-17-00201-CV
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IN THE INTEREST OF M.S., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8412-CX
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
the mother and the father of M.S. Both parents appeal. On appeal, they present four
issues challenging the sufficiency of the evidence. We affirm.
Appellants challenge the legal and factual sufficiency of the evidence to
support the trial court’s findings in support of termination. 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 Appellants 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
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conduct or knowingly placed the child with persons who engaged in conduct that
endangered the child’s physical or emotional well-being; 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 Appellants’ parental rights would be in the best interest of the child.
Appellants challenge each of these findings.
The record shows that M.S. was an infant when the Department became
involved in this case. At that time, M.S. had been hospitalized and was being treated
for seizures. One of the attending nurses testified that M.S. was dirty and irritable,
had a urinary tract infection, and was not being fed properly. The nurse also had
concerns about the parents’ cleanliness. The family’s room at the hospital became
infested with roaches, and a nurse observed roaches on M.S.’s bottle and clothing.
At the hospital, the mother had nothing to do with M.S.; instead, the mother just
slept. The parents were improperly mixing the formula—using double the amount
of water—and feeding M.S. while she was lying in the crib—propping the bottle in
the crib. The nurses instructed the parents not to prop the bottle in the crib because
M.S. could choke and die. Despite these instructions, the father continued to prop
the bottle in the crib when feeding M.S. at the hospital. The treating physician
informed the parents that the improper preparation of the formula could cause M.S.
to suffer from seizures, brain damage, or death. He also informed them about the
dangers of propping bottles. However, the parents did not heed the doctor’s
instructions.
A Department investigator and a Family Based Safety Services specialist
visited the family at the hospital. They had concerns about the father’s mental health
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and the mother’s lack of interaction with M.S. The father admitted that he had
sexually abused his little sister when he was young. The mother and the father
testified at trial that the father watched “porn” while he bathed M.S. The mother and
the father also testified that the father had forced the mother to have intercourse.
Additionally, the mother’s brother lived in the home with Appellants and M.S.; that
brother had sexually abused the mother when they were younger.
During a visit to Appellants’ home, the investigator determined that the home
was not a safe environment for M.S. The house smelled of cat urine. There were
two cats, two dogs, multiple piles of cat feces, dog urine everywhere, trash
everywhere, mold in the bathroom, swarming gnats, and roaches everywhere. The
refrigerator was dirty, moldy, and roach-infested. The house was also infested with
fleas. The conservatorship worker testified that Appellants’ house “was one of the
worst homes that [she had] seen.” The conservatorship worker also testified that, at
the time of the final hearing, the parents had only partially complied with the
requirements of the court-ordered family service plan.
Sometime after M.S. was removed from Appellants’ care, she was placed with
a paternal relative. The placement expressed concerns about the father’s mental
health and “porn” issues, including “incest-type porn.”
M.S. was healthy and appeared to be doing well in the placement’s care. The
placement expressed a desire to adopt M.S. Although there was evidence that
Appellants love M.S. and that, during the nine days prior to the final hearing, they
had made great strides to improve the conditions of their home, there was also
evidence that M.S. and the placement had developed a very strong bond, that the
placement provided an appropriate home for M.S., and that M.S. is happy in the
placement’s home. The conservatorship caseworker and the placement believed that
termination of both parents’ parental rights would be in M.S.’s best interest.
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The record contains clear and convincing evidence that Appellants had
knowingly placed or knowingly allowed M.S. to remain in conditions or
surroundings that endangered her physical or emotional well-being, that Appellants
had engaged in conduct that endangered M.S.’s physical or emotional well-being,
and that Appellants had failed to comply with the provisions of a court order that
specifically established the actions necessary for them to obtain the return of M.S.—
as required to support findings under Section 161.001(b)(1)(D), (E), and (O). Under
subsection (D), we examine evidence related to the environment of the child to
determine if the environment was the source of endangerment to the child’s physical
or emotional well-being. In re D.T., 34 S.W.3d 625, 632 (Tex. App.—Fort Worth
2000, pet. denied). Under subsection (E), the relevant inquiry is whether evidence
exists that the 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 at 634; 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, at the time of removal, the parents’ home
was unsanitary and unsafe and that the parents endangered M.S. by their conduct
regarding the preparation and propping of her bottles. This conduct continued even
after the parents were informed of the dangers related thereto. 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
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sufficient to support the findings as to each parent under subsections (D), (E), and
(O). Accordingly, we overrule Appellants’ first, second, and third issues.
In their final issue, Appellants challenge the 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 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, the deplorable conditions of the
parents’ home, the parents’ continued improper feeding of M.S., the father’s sexual
proclivities, the mother’s continued relationship with the father in light of those
proclivities, and the presence in their home of a second sexual offender, we conclude
that the trial court could reasonably have formed a firm belief or conviction that it
would be in M.S.’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 Appellants’
fourth issue.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
January 5, 2018 SENIOR CHIEF JUSTICE
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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