in the Interest of D.E.R., T.M.A., S.N.H. and T.W.H., Children ( 2014 )


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  • Opinion filed June 5, 2014
    In The
    Eleventh Court of Appeals
    __________
    No. 11-13-00372-CV
    __________
    IN THE INTEREST OF D.E.R., T.M.A., S.N.H., AND T.W.H.,
    CHILDREN
    On Appeal from the 29th District Court
    Palo Pinto County, Texas
    Trial Court Cause No. C45088
    MEMORAND UM OPI NI ON
    This is an appeal from an order of termination involving the parents of
    D.E.R., T.M.A., S.N.H., and T.W.H., the children. The trial court terminated the
    parental rights of the mother as to all four children and the parental rights of the
    fathers of D.E.R., S.N.H., and T.W.H. The mother appeals, as does the father of
    S.N.H. and T.W.H. 1 We affirm.
    1
    Because the fathers of D.E.R. and T.M.A. have not appealed, we refer to the father of S.N.H. and
    T.W.H. as “the father” in this opinion. We note that the parental rights of T.M.A.’s father were not
    terminated and that he was appointed to be T.M.A.’s managing conservator.
    The mother presents two issues on appeal. In those issues, she challenges
    the legal and factual sufficiency of the evidence to support termination and the trial
    court’s finding 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
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    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 parents had each committed three
    of the acts listed in Section 161.001(1). The trial court found that the mother had
    committed acts found in subsections (D), (E), and (O) and that the father had
    committed acts found in subsections (D), (E), and (P). Specifically, the trial court
    found that both parents 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 both parents 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; 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 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; and that the father (a) used a controlled substance in a manner
    that endangered the children and (b) either failed to complete a substance abuse
    treatment program or continued to abuse a controlled substance after completing a
    substance abuse treatment program. 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 2013 showed that the
    children—who at the time of the hearing were ages twelve, nine, six, and two—
    3
    had been removed from the parents on November 28, 2012.                    When the
    Department’s investigator arrived on that date, police were searching the residence
    where the mother and the father lived with all four children. The father was not
    present at the time and refused to come home; the mother was arrested for
    possession of a controlled substance. An investigator for the Department testified
    that, inside the residence, there were “pills” within the children’s reach and that
    “dangerous” construction equipment, including a saw, was found in one child’s
    bedroom. The mother tested positive for methamphetamine on that date. Another
    Department investigator testified that the police had received information
    concerning illegal drug trafficking at the parents’ residence. The mother said she
    was unaware of any drug trafficking but was aware of the presence of the
    hydrocodone pills for which she had no prescription. A tablet that appeared to be a
    drug ledger was also found in the residence; it was in the mother’s handwriting.
    The mother admitted that the handwriting was hers, but she stated that she had
    “written as instructed” by the father.
    The Department’s caseworker, Melanie Scott, testified that the mother was
    addicted to drugs and “couldn’t get honest.” The mother continued to test positive
    for drugs after completing a twelve-step program. According to Scott, the mother
    was not very cooperative with the Department but did complete some, but not all,
    of her family service plan. The mother visited the children regularly when she was
    not incarcerated, but little bonding or nurturing occurred during those visits. After
    visitation with the mother, D.E.R. was often angry, upset, and physically sick.
    D.E.R. did not understand why she was in the Department’s care, and she accused
    Scott one time of trying to tear up D.E.R.’s family. The record does not show
    whether D.E.R.’s anxiety eased after the visitations ceased when the mother was
    sent to prison, nor does the record reflect the desires of the children.
    4
    At the time of trial, the mother and the father were incarcerated. The mother
    was in prison for tampering with a government document; she had been
    incarcerated since July 2013 and expected to be released on September 27, 2014.
    The father had been in prison since March 2013 for violating his parole. Scott
    testified that the parents were unable to maintain appropriate housing for a six-
    month period and that the mother was unable to provide the children with a safe
    environment. The Department attempted a reunification, but the parents were
    unable to reduce the risk to the children. Scott also testified that a home study of
    the children’s maternal grandmother did not go well and showed no stability.
    The mother testified that she had completed some of the court-ordered
    services, such as a parenting class, a domestic violence class, a values clarification
    class, a twelve-step program, and some counseling sessions. The mother testified
    that she did not test positive for drugs after May 13, 2013, when she completed her
    twelve-step program. She also testified that she was enrolled in a vocational class
    in prison to become an electrician and a cognitive class to change “criminal mind
    thinking.” The mother admitted making some mistakes but did not want her
    parental rights terminated. She testified that she thought her children would be
    emotionally harmed if her rights were terminated.
    Scott testified that termination of the mother’s parental rights would be in
    the children’s best interest. Scott testified that the children need stability; that
    T.M.A.’s father has provided a loving, stable home for her with a good support
    system; that T.M.A. has done very well in her father’s care; and that the father’s
    cousin wants to adopt the other three children. At the time of trial, the Department
    had just completed a home study for an adoptive placement of D.E.R., S.N.H., and
    T.W.H. with the father’s cousin and the cousin’s husband, whom Scott described as
    an older, stable, loving, and nurturing couple.
    5
    We hold that there was clear and convincing evidence from which the trial
    court could reasonably have formed a firm belief that both parents (1) knowingly
    placed or knowingly allowed the children to remain in conditions or surroundings
    that endangered their physical or emotional well-being or (2) engaged in conduct
    or knowingly placed the children with persons who engaged in conduct that
    endangered the physical or emotional well-being of the children.                  FAM.
    § 161.001(1)(D), (E).
    Under subsection (D), we examine evidence related to the environment of
    the children to determine if the environment was the source of endangerment to the
    children’s physical or emotional well-being. In re D.T., 
    34 S.W.3d 625
    , 630 (Tex.
    App.—Fort Worth 2000, pet. denied). Under subsection (E), the relevant inquiry is
    whether evidence exists that the endangerment of the children’s well-being was the
    direct result of the parents’ 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).
    In this case, there was evidence that the children were exposed to dangerous
    equipment and drugs inside their home. Thus, a finding under subsection (D) was
    supported because the children’s environment was the source of danger. With
    respect to subsection (E), the evidence showed that the parents used drugs and
    were involved in drug trafficking. Such acts constituted conduct that endangered
    the children. The evidence is legally and factually sufficient to support the trial
    court’s findings as to the mother and the father under Section 161.001(1)(D) and
    6
    Section 161.001(1)(E). 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 parents’ 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 desires of the children; 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, T.M.A.’s father, and the couple seeking to adopt the other
    three children; 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 acts and omissions indicating that the parent-child relationship was not a proper
    one; the dangers associated with the parents’ home; and both parents’ continued
    drug use, 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.
    June 5, 2014                                              JIM R. WRIGHT
    Panel consists of: Wright, C.J.,                          CHIEF JUSTICE
    Willson, J., and Bailey, J.
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