in the Interest of B.J.L., a Child ( 2015 )

Opinion filed May 7, 2015
In The
Eleventh Court of Appeals
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No. 11-14-00300-CV
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IN THE INTEREST OF B.J.L., A CHILD
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-3347-PC
MEMORANDUM O PI NI O N
This is an appeal from an order terminating the parental rights of the mother
and father of B.J.L. The mother timely filed an appeal. In one issue on appeal, she
challenges the legal and factual sufficiency of the evidence to support termination.
We affirm.
Termination Findings and Standards
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
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 mother had committed four of the
acts listed in Section 161.001(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found that the mother had knowingly placed or knowingly
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allowed the child to remain in conditions or surroundings that endangered the child’s
physical or emotional well-being; that the mother 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 mother had constructively
abandoned the child; and that the mother had failed to comply with the provisions
of a court order that specifically established the actions necessary for her 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 parent for abuse or neglect. The trial court
also found, pursuant to Section 161.001(2), that termination of the mother’s parental
rights would be in the best interest of the child. The mother challenges each of the
trial court’s findings in her sole issue on appeal.
Evidence Presented
The record shows that the Department first became involved with the family
when the child was seven months old. While in his mother’s care, the child suffered
third-degree burns all over his body when the mother spilled a hot pot of Ramen
noodles. As a result of this incident, the father was given sole managing
conservatorship of the child, and the mother was granted possessory conservatorship
with supervised visitation. In October 2013, when the child was two years old, the
Department again became involved with the family. The police were called to the
father’s residence after the father brandished a weapon, took the child into a
bedroom, and threatened to shoot himself. Law enforcement notified the
Department. The Department’s investigator, Cyndi Perez, testified that she arrived
at the house while the police were still there. Perez was concerned for the child’s
safety. She observed lots of drugs and weapons in the home and garage. The drugs
included cocaine, methamphetamine, and numerous types of pills. Perez also
observed rotten food, razor blades, and broken glass in the home and garage. B.J.L.
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was extremely hyper and was running around like he “couldn’t control his
movements.” Perez testified that drugs and weapons were accessible to the child
and that the father “was making” methamphetamine. A police officer also noted the
presence of a large amount of drugs, including cocaine and methamphetamine that
were contained in “numerous different packaging,” and of various loaded guns.
Results of a subsequent hair follicle test conducted on the child came back positive
for cocaine and methamphetamine.
The child was removed and subsequently placed with a paternal aunt. Perez
testified that the child was not placed with the mother based upon various concerns,
including the prior court order that required the mother’s visits with the child to be
supervised. Perez was also concerned about the mother’s mental health. During the
mother’s interview with Perez, the mother at times would turn her head and talk as
if she were carrying on a conversation with somebody else, but there was nobody
else there except for the mother and Perez. The mother did not comprehend the
questions asked by Perez regarding supervised visitation. She misinformed the
Department about her employment, and she did not have stable housing.
The mother’s main concern at the time of her interview with Perez seemed to
be about the father, not about B.J.L. A licensed professional counselor who assessed
the mother and had four other sessions with the mother described the mother’s
overall attitude as lackadaisical. The counselor testified that the mother had a history
of poor judgment and poor impulse control. This history was exemplified by the
mother’s criminal history, which included two convictions for theft, a conviction for
forgery by passing, a conviction for credit card abuse, and an incarceration for
domestic violence. The mother was incarcerated at the time of trial. Additionally,
the mother told the counselor that both physical and emotional abuse were present
throughout the entire relationship between the mother and the father. The mother
was aware of the father’s drug use and irresponsible behavior.
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The trial court ordered the mother to participate in various services that were
necessary for her to obtain the return of her child. The evidence at trial showed that
the mother did not complete the court-ordered services and, thus, failed to comply
with the trial court’s order. The mother failed to complete counseling, failed to
maintain stable housing, failed to maintain stable employment, and failed to
complete the Safe Place program.
The Department’s goal for the child was termination of the parental rights of
both parents and adoption by a relative. The conservatorship caseworker, the
paternal aunt, and a Department supervisor testified that termination of the mother’s
parental rights would be in the best interest of the child. The child’s guardian ad
litem agreed that termination of the mother’s parental rights would be in the child’s
best interest. The paternal aunt, with whom the child had been placed, had a close
bond with the child and wanted to adopt him. The paternal aunt’s home was stable,
and the Department agreed that the child should remain with the paternal aunt on a
permanent basis. During the mother’s visits with the child, it was observed that the
child did not have a bond with his mother, that he was attached to his aunt, and that
he wanted to be with his aunt.
Analysis
The record contains clear and convincing evidence that the mother failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the child who had been in the
conservatorship of the Department for more than nine months and had been removed
due to abuse or neglect. The mother asserts on appeal that she completed many
services prior to her incarceration and that the child was removed due to the father’s
abuse or neglect, not the mother’s, because the father had custody of the child at the
time of removal.
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The evidence is undisputed that the mother failed to complete counseling,
complete the Safe Place program, maintain stable housing, or maintain stable
employment as required by her family service plan and ordered by the trial court.
Section 161.001(1)(O) does not “make a provision for excuses” for the 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). Clear and
convincing evidence also reflected that the child had been removed due to abuse or
neglect and that the child had been in the care of the Department for well over nine
months. Furthermore, even though the child was not removed from the mother’s
home and was not removed as a result of allegations of abuse or neglect made
specifically against the mother, the mother was still required to comply with
subsection (O). In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.]
2012, no pet.). The parent who fails to comply with a court order as required by
subsection (O) need not be the same person whose abuse or neglect triggered the
child’s removal. In re D.R.J., 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013,
no pet.). Consequently, we hold that the evidence is legally and factually sufficient
to support the trial court’s finding under Section 161.001(1)(O).
Because a finding that a parent committed one of the acts listed in
Section 161.001(1)(A)–(T) is all that is required and because we have held that the
evidence is sufficient to support the trial court’s finding under subsection (O), we
need not address the mother’s complaints in which she challenges the findings made
pursuant to subsection (D), (E), and (N). See TEX. R. APP. P. 47.1.
The mother also challenges the finding that termination of her rights would be
in the best interest of her child. We hold that, based on clear and convincing 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
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in the best interest of the child. See Holley, 544 S.W.2d at 371–72. Upon
considering the record as it relates to the desires of the child, as shown through the
lack of bonding with the mother and the observations made at visitation; 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 mother
and the person seeking to adopt the child; the plans for the child by the Department;
the instability of the mother’s home; the stability of the child’s placement; the
mother’s mental health issues; the mother’s criminal history; and the acts and
omissions indicating that the parent-child relationship was not a proper one, 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 child. See id. The mother’s sole issue on
appeal is overruled.
This Court’s Ruling
We affirm the trial court’s order of termination.
JOHN M. BAILEY
JUSTICE
May 7, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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