in the Interest of A.Y.W., a Child ( 2015 )

Opinion filed December 17, 2015
In The
Eleventh Court of Appeals
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No. 11-15-00145-CV
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IN THE INTEREST OF A.Y.W., A CHILD
On Appeal from the 318th District Court
Midland County, Texas
Trial Court Cause No. FM 57,408
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
the parents of A.Y.W. The father timely appealed; the mother did not file an
appeal. On appeal, the father presents six issues in which he challenges the
sufficiency of the evidence. We affirm.
Termination Standards and Findings
Termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015). 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)–(T) and that termination is in the best interest of the child. FAM.
§ 161.001(b). In this case, the trial court found that Appellant committed five of
the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N),
(O), and (Q). Appellant does not challenge the findings made pursuant to
subsections (N), (O), and (Q). Accordingly, we need not address Appellant’s first
four issues, in which he challenges the findings made pursuant to subsections (D)
and (E) because any one of the three unchallenged findings is sufficient to support
termination as long as termination is in the child’s best interest. See id.
§ 161.001(b). The trial court found that termination is in the child’s best interest.
See id. § 161.001(b)(2).
Analysis as to Best Interest
Appellant challenges the best interest finding in his fifth and sixth issues.
He asserts that the evidence presented at trial was legally and factually insufficient
to establish by clear and convincing evidence that termination of his parental rights
would be in A.Y.W.’s best interest. 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
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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.
The Department of Family and Protective Services became involved with
the child in this case when they received a report of neglectful supervision by the
mother shortly after the child’s birth. The mother has a history of severe mental
illness. The Department removed the child from the hospital when the child was
two days old. At that time, the mother had nowhere to take the child when she left
the hospital. The mother lived with her brother, and he did not want the mother to
bring the child to his residence. The mother was unable to provide the Department
with the name of anyone other than Appellant who could possibly keep the child.
When the Department’s investigator contacted Appellant about picking the
child up from the hospital, Appellant told the investigator that he was going to
prison. At that time, Appellant was on trial for the offense of aggravated sexual
assault. He was convicted of the lesser included offense of sexual assault, and his
punishment was assessed at confinement for a term of fifteen years. The child was
removed from the parents’ care on the same day that Appellant was sentenced to
imprisonment for fifteen years.
Appellant was incarcerated and therefore unable to care for the child. He
testified at trial, “My plans are when I get out of incarceration, which I’m working
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on, I’m planning to do what I’m supposed to do to take care of my child.”
Appellant, however, failed to provide the Department with any information
regarding a suitable placement for the child until two days before the termination
hearing resumed—when his attorney provided the Department with a telephone
number for Appellant’s brother. Given the untimeliness of Appellant’s suggested
placement, the Department was unable to determine whether Appellant’s brother
was a suitable placement or would even consider taking the child. At the time of
trial, Appellant had not complied with the trial court’s orders and had not
completed the parenting packet or the “NA, AA packet” that the Department had
sent him. Additionally, Appellant had not visited or “done anything” for an older
child that he fathered with the mother; that child had “always” lived with a relative
of the mother.
At the time of the termination hearing in this case, A.Y.W. was one year old
and, thus, could not verbally express her desires. The evidence showed that she
resided in a foster home that was a safe and appropriate placement. The child had
been in that same foster home since she was two days old. The Department’s
conservatorship worker in this case testified that the child had bonded with her
foster family and that the foster family wanted to adopt the child. The
Department’s plan for the child was for her to be adopted by her foster parents. At
the time of the hearing, no family member or relative had contacted the
Department about possible placement of the child. The child’s guardian ad litem
informed the trial court that he believed termination of both parents’ rights would
be in the best interest of the child “so that [the child] can reach permanency
through adoption in her current placement.”
The foster father testified that the child has a heart murmur but has “done
very well” in the foster parents’ household. He said that the child is “very happy”
and has bonded with him and his wife, and he points out that they are the only
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parents the child has ever known. The foster father testified that he and his wife
are able to meet all of the child’s needs and that they would like to adopt the child.
He believed that adoption would be in the child’s best interest.
Based upon the Holley factors and the evidence in the record, we cannot
hold that the trial court’s best interest finding is not supported by clear and
convincing evidence. See Holley, 544 S.W.2d at 371–72. The trial court could
reasonably have formed a firm belief or conviction that it would be in the child’s
best interest for Appellant’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 finding. Appellant’s fifth and sixth issues are overruled.
This Court’s Ruling
We affirm the trial court’s order of termination.
JOHN M. BAILEY
JUSTICE
December 17, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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