in the Interest of E.N.A., A.A., J.J.P. and M.P., Children ( 2015 )

Opinion filed June 9, 2015
In The
Eleventh Court of Appeals
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No. 11-14-00345-CV
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IN THE INTEREST OF E.N.A., A.A., J.J.P., AND M.P.,
CHILDREN
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C45379
MEMORANDUM O PI NI O N
This is an appeal from an order in which the trial court terminated the parental
rights of the parents of E.N.A., A.A., J.J.P., and M.P., the children. The children’s
mother appeals, as does the father of J.J.P. and M.P.1 We affirm.
The mother presents two issues on appeal. In those issues, she challenges the
factual sufficiency of the evidence to support termination and the trial court’s finding
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We note that the father of E.N.A. and A.A. has not appealed. Therefore, for ease of reference, we
refer to the father of J.J.P. and M.P. as “the father” in this opinion.
as to best interest. The father presents one issue challenging the legal and factual
sufficiency of the evidence as to the findings regarding his conduct, but the father
does not challenge the trial court’s best interest finding.
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014). To determine 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(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001.
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
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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 parents had each committed two of
the acts listed in Section 161.001(1). The trial court found that the mother had
committed acts found in subsections (D) and (O) and that the father had committed
acts found in subsections (E) and (O). Specifically, the trial court found that the
mother had knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered the children’s physical or emotional
well-being; that the father had engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangered the children’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 the children, 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 children’s removal from the parents for abuse or neglect. The trial court
also found, pursuant to Section 161.001(2), that termination of the mother’s and the
father’s parental rights would be in the best interest of the children.
The evidence at the final hearing in November 2014 showed that the
children—who at the time of the hearing were ages five, four, almost three, and
almost two years old—had been removed from the parents in June 2013. The
removal occurred after both parents violated a safety plan that had recently been
imposed to protect the children. The safety plan resulted from an incident of
domestic violence by the father against the mother in the presence of the children.
The father was charged with assault causing bodily injury to a family member as a
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result of that incident. He later pleaded no contest to that charge and was placed on
community supervision.
At trial, the mother recanted much of what she had said about the father’s
domestic violence against her and against the children. However, evidence was
introduced regarding the mother’s previous statements about the father’s violence.
On the night of the original call in May 2013, Elizabeth Clement, an investigator for
the Department, visited with the mother and the children’s maternal grandmother.
She was informed that the father had been violent since January 2013. The father
had hit the mother and the children, including the baby, and the mother was scared
for her children. The investigator testified that the father had threatened to hurt and
kill the mother, the mother’s family, and the children. The mother indicated that she
was afraid to leave the father because he always threatened to physically harm her if
she left him. A safety plan was initiated in which the father was to have no contact
with the children, and the mother was to have supervised contact only. Both parents
violated the safety plan.
After removal, the trial court ordered the parents to perform certain acts and
to participate fully in the Department’s family service plan; the trial court’s order
indicated that the parents’ compliance would be necessary for them to obtain the
return of their children. Each parent partially complied with the trial court’s order
and the service plan. The mother completed much of her service plan, but she failed
to complete individual counseling and failed to participate fully in domestic violence
counseling. The father did not complete individual counseling or the batterer’s
intervention program, and he also failed to maintain stable housing. The children’s
conservatorship caseworker, Jana Slemmons, described the father as aggressive and
noncompliant.
Slemmons testified that the mother was not protective of the children and that
the mother had a hard time handling all four children at visitation when the father
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was not present. According to Slemmons, the mother wanted only three of the four
children. Slemmons was concerned that the mother continued to participate in a
loving and affectionate relationship with the father despite ongoing domestic
violence and the concern for the welfare of the children. Slemmons testified that the
mother’s ongoing relationship with the father, a relationship in which there were
significant issues of domestic violence, was harmful to the children and created a
safety risk for the children. The mother denied that she continued to maintain a
relationship with the father, but the Department presented evidence that indicated
that the parents maintained a relationship and that the father stayed at the mother’s
residence.
According to Slemmons, the children were placed in appropriate foster homes
where they were doing phenomenally, were thriving, were happy, and were
recovering from earlier problems. The older two children participated in therapy.
Both of the foster homes in which the children were placed were adoptive
placements. Slemmons believed that termination of the parents’ rights would be in
the best interest of the children. The parents did not agree that termination would be
in the children’s best interest.
We hold that there was clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that the parents failed to comply
with the provisions of a court order that specifically established the actions necessary
for them to obtain the return of the children. See FAM. § 161.001(1)(O).
Section 161.001(1)(O) does not “make a provision for excuses” for a parent’s failure
to comply with the court-ordered services. In re J.S., 291 S.W.3d 60, 67 (Tex.
App.—Eastland 2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex.
App.—Waco 2006, pet. denied)) (internal quotation marks omitted). Although the
parents did comply with some portions of the trial court’s order, the evidence, as
detailed above, was undisputed that both parents failed to comply with all of the
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provisions of the service plan as ordered by the trial court. Thus, there was clear and
convincing evidence that the parents failed to comply with the provisions of a court
order that specifically established the actions necessary for them to obtain the return
of the children.
Furthermore, the record shows that, at the time of the final hearing, the
children had been in the Department’s care for well over a year and that the children
had been removed from the parents’ care due to abuse or neglect. The Texas
Supreme Court has held that the language “abuse or neglect of the child” as used in
subsection (O) “necessarily includes the risks or threats of the environment in which
the child is placed.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). In E.C.R., the
court determined that “placing the child’s physical health or safety at substantial
risk” is sufficient to support a finding of “abuse or neglect.” Id. at 240.
Because a finding that a parent committed one of the acts listed in
Section 161.001(1)(A)–(T) is all that is required under that statute, we need not
address the parent’s remaining arguments regarding the sufficiency of the evidence
to support the trial court’s other findings under Section 161.001(1). See TEX. R.
APP. P. 47.1. The mother’s first issue and the father’s sole issue are overruled.
We also hold that, based on the evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction that
termination of the mother’s parental rights would be in the best interest of the
children. See Holley, 544 S.W.2d at 371–72. We cannot hold that the findings as to
best interest are not supported by clear and convincing evidence.
Upon considering the record as it relates to the emotional and physical needs
of the children now and in the future; the emotional and physical danger to the
children now and in the future; the parental abilities of the mother, the father, and
the foster parents; the plans for the children by the Department; the instability of the
parents’ home; the stability of the children’s placement and proposed placement; the
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acts and omissions indicating that the parent-child relationship was not a proper one;
the ongoing domestic violence between the parents, at least some of which occurred
in the children’s presence; the mother’s continued relationship with the father, a man
whom she had accused of abusing the children, and the mother’s permitting the
father to see the children in violation of a protective order, we hold that the evidence
is sufficient to support the finding that termination of the mother’s parental rights is
in the best interest of the children. See id. The mother’s second issue is overruled.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
CHIEF JUSTICE
June 9, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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