in the Interest of J.Z.S., a Child ( 2020 )

Affirmed and Memorandum Opinion filed February 20, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00755-CV
IN THE INTEREST OF J.Z.S.
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2018-04196J
MEMORANDUM OPINION
Appellant T.Z.M. (“Mother”) appeals the trial court’s final order of
termination of her parental rights to her child J.Z.S. (“John”).1 The trial court
terminated Mother’s parental rights on the predicate grounds of endangerment,
execution of an irrevocable affidavit of voluntary relinquishment of parental rights,
and failure to comply with the service plan for reunification. See Tex. Fam. Code
1
We use pseudonyms or initials to refer to the child, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
Ann. § 161.001(b)(1)(E), (K), and (O). The trial court also determined that
termination of Mother’s parental rights was in John’s best interest. See Tex. Fam.
Code Ann. § 161.001(b)(2). Mother challenges the legal and factual sufficiency of
the evidence to support the trial court’s finding on the predicate ground of
endangerment and the best interest finding. We affirm.
BACKGROUND
The Department of Family and Protective Services (the “Department”) filed
an Original Petition for Protection of a Child on August 22, 2018 and sought sole
managing conservatorship and the termination of Mother’s and Father’s parental
rights with respect to John (who was about one year old at the time). The
Department attached the affidavit of Annabel Gonzalez (a Department
investigator) to its original petition.
The affidavit reflects that the Department received a report of neglectful
supervision on August 14, 2018, which stated that John was riding in a car with his
Father when the police stopped the car based on a suspicion the car was stolen.2
Father was arrested at the time because he had “outstanding warrants.” The
affidavit reflects that Mother was in jail on a criminal trespass charge at the time of
Father’s arrest and was released from jail two days later. At the time, Mother was
six months pregnant with Father’s second child, and Mother admitted “she might
test positive for marijuana.”
Gonzalez averred in the affidavit that she conducted an investigation and
concluded that Mother and Father were “unwilling[ ] to cooperate with the ongoing
investigation” and unable “to provide a safe and stable environment.” She also
said Father appeared “to be under the influence at the time of interview,” and that
2
Auto theft charges were never filed against Father.
2
Mother’s admission “to smoking marijuana places the child at imminent risk of
harm.”
The trial court granted the Department’s request and placed John in the
Department’s temporary conservatorship on August 22, 2018. That same day,
Mother was ordered to submit to drug testing but refused. John was initially
placed with relatives, but he was then moved to a foster home.
The trial court held an adversarial hearing on September 5, 2018, at which
Mother did not appear. After the hearing, the court signed a temporary order and
found that (1) there was a continuing danger to John’s health and safety; and (2)
despite the Department’s “reasonable efforts to eliminate the need for [John]’s
removal,” allowing John to be in his parents’ care was contrary to his welfare. In
the order, the trial court (1) appointed the Department to be John’s temporary
managing conservator pending a final hearing; and (2) ordered Mother and Father
to “comply with each requirement set out in the Department’s original, or any
amended, service plan during the pendency of this suit.” Mother signed the family
service plan on September 19, 2018.
The trial court held a status hearing on October 17, 2018, at which Mother
appeared through her attorney. The court signed an order (1) finding, among other
things, that the Department’s service plan was reasonable and that Mother and
Father reviewed and understood the plan; and (2) approving and incorporating the
plan into the “order of this Court.”
The trial court held a permanency hearing on January 30, 2019, at which
Mother appeared in person and through her attorney. The court signed an order
following the hearing, which reflected the court (1) reviewed the service plan,
permanency progress reports, and other submitted information concerning John’s
safety and well-being; (2) evaluated Mother’s and Father’s compliance with
3
temporary orders and the service plan; (3) found Mother and Father failed to
demonstrate adequate and appropriate compliance with the service plan; (4) found
that neither parent is “willing and able” to provide John with a safe environment;
and (5) ordered that Mother’s visits with John be bi-weekly and supervised at the
Department’s office. On the day of the permanency hearing, Mother submitted to
drug testing; the results showed she tested positive for amphetamine,
methamphetamine, and cocaine.
Another permanency hearing was held on May 8, 2019, at which Mother
appeared through her attorney. The trial court signed an almost identical order to
the one it signed at the previous permanency hearing, except that it stated
“visitation for Mother shall increase if her 5-8-19 drug test is negative.” Mother
refused to provide a urine sample for testing, but she provided a hair sample.
Results showed she tested positive for methamphetamine.
The Department filed a permanency report with the court in July 2019, in
which it provided details about John as well as Mother’s progress regarding the
requirements of her family service plan. Among other things, the report states:
• John was placed with his maternal aunt in February 2019, but the
“placement broke down” in April 2019 and John had to be returned to
the Department because Mother and Father harassed the aunt;
• Mother failed to avoid criminal activity, was arrested on October 12,
2018, and was “out on bond for Burglary of Habitation;”
• Mother completed her psychosocial evaluation on January 22, 2019;
• Mother failed to complete her psychological evaluation;
• Mother attended substance abuse therapy sessions;
4
• Mother tested positive for amphetamine and methamphetamine on
January 4, 2019;
• Mother tested positive for cocaine, amphetamine, methamphetamine,
and benzoylecgonine on January 28, 2019;
• Mother tested positive for cocaine and methamphetamine on January
30, 2019;
• Mother was required to test for drugs but did not test on February 7,
2019, February 13, 2019, and March 14, 2019;
• Mother tested negative for drugs on March 26, 2019;
• Mother was required to test for drugs but did not test on April 17,
2019;
• Mother tested positive for methamphetamine on May 8 and 15, 2019;
• Mother was required to test for drugs but did not test on May 21,
2019, and June 10, 2019; and
• Mother failed to maintain stable housing and employment.
The trial court held a bench trial on August 22, 2019. The Department’s
caseworker Angelia Debose testified at trial. She stated that John lived in foster
care and the placement met his emotional and physical needs. John had no special
needs and the Department’s goal was for John to be adopted by Mother’s brother,
who had no criminal or Child Protective Services (CPS) history. A home study
was ordered so that Mother’s brother could adopt John and Mother’s new baby,
who was the subject of a show cause hearing in Montgomery County.
Debose testified that when the Department first received a report of
neglectful supervision, Mother was in jail and John was initially placed with his
5
great-grandmother. She also testified that the Department had to remove John
from the great-grandmother’s home because Mother and Father tried to “get the
child” and “cause[d] confusion in the family.” The court thereafter granted the
Department temporary managing conservatorship at the September 5, 2018
adversary hearing and then approved a family service plan for Mother. Debose
also testified about the tasks Mother was required to accomplish under the service
plan (including (1) avoiding criminal activity, (2) completing a psychosocial and
psychological evaluation, (3) following the recommendations from those
assessments, (4) completing a substance abuse assessment, (5) submitting to
random drug screening, (6) completing parenting classes, and (7) maintaining
stable housing and stable employment).
Debose further testified that Mother failed to comply with several of the
provisions under the plan. Although Mother completed the psychosocial
assessment, she failed to complete the psychological evaluation. The paperwork
for Mother’s psychological evaluation expired because Mother was arrested in
October 2018 for allegedly criminally trespassing. After Mother was released
from jail, Debose again sent paperwork to the facility but “they could not get ahold
of mom.” Debose also gave Mother the phone number of the facility three months
before trial, but Mother failed to complete the evaluation.
Debose also testified that Mother participated in some family and individual
therapy sessions but failed to complete individual substance abuse therapy sessions
and was discharged for lack of attendance. When Debose tried to get Mother to
attend another facility for therapy, Mother told Debose “she was not able to go
because she was working.” Debose acknowledged that Mother “recently” sent her
a document “relating to enrollment” in an inpatient drug treatment program, but
Debose testified she was not “aware of” whether Mother was “attempting now to
6
get herself enrolled in an inpatient treatment.”
Debose further stated that Mother was arrested for allegedly criminally
trespassing in October 2018 and in August 2019, despite being required to avoid
criminal activity under her plan. Debose testified that Mother claimed the October
criminal trespass charges against her would be dropped but her case “kept
resetting.” According to Debose, Mother also failed to maintain stable
employment and housing. The last information she received from Mother
regarding her housing was “a snapshot of a motel on 45 that she was staying in
temporarily until her apartment [became] ready”, which Mother claimed would be
in July 2019.
Further, Debose testified that Mother had not maintained a drug-free
lifestyle as required by her plan and failed to submit to drug testing since May 15,
2019 (when she tested positive for methamphetamines). Debose testified that over
the course of this case, Mother failed to submit to ten court-ordered drug tests and
that the Department treats “a no show for a court ordered drug test” as a positive
drug test. However, Debose acknowledged that Mother told her she could not
“make it” to drug testing “because of transportation or work issues.”
The court admitted several exhibits3 into evidence which confirmed that
with the exception of a negative March 26, 2019 test, Mother tested positive for (at
least) methamphetamine every time she submitted to testing. Debose testified that
“Methamphetamines is a real hard drug to get off of. And mom needs to
understand that she needs to be drug free in order to take care of a two year old
3
The trial court admitted National Screening Center records, Debose’s permanency
report, and Traci Jensen’s child advocate report. These exhibits contained evidence of when (1)
Mother failed to submit to drug testing and (2) Mother tested positive and the drugs for which
she tested positive.
7
child. They constantly need attention.”
Regarding Mother’s supervised visits with John, Debose stated that Mother
and John appeared to be bonded and the visits “were going fine” until June when
Mother started “showing up to the visits with her daughter unsupervised.” Debose
was also concerned about Mother’s last visit in July because Mother called the
police stating John “was being medically neglected and it looked as if the
caregivers were not feeding him.” According to Debose, “Mom was stating that
the child came into care on a breathing machine”, but “the doctor’s notes show that
[John] didn’t come into care with breathing problems or asthma.”
Debose testified that while she did not observe a “lack of ability to parent”
during the supervised visits with John, she believed that “continuous criminal
activity and multiple arrests would demonstrate an inability to parent the child
safely.” Debose opined that John’s “parents have a lifestyle that is not appropriate
for raising young children.” Debose further opined that Mother has not benefitted
from therapy sessions because, “[e]ven when she was actively engaging in the
therapy sessions, . . . she has not shown that she can stay drug free.” According to
Debose, the Department believed Mother’s failure “to remain drug free and
[engagement] in a drug lifestyle” endangered the physical health and safety of
John.
Child advocate Traci Jensen also testified at trial. She briefly summarized
the content of her report and echoed concerns similar to those expressed by
Debose. Jensen was concerned about the lack of information Mother provided to
her regarding housing and employment. She was also concerned about Mother’s
drug use and positive test results. Jensen acknowledged Mother and John
“appeared bonded” and their interaction during visits was “appropriate.”
Nonetheless, she opined that parental rights to John should be terminated because
8
of the “contact with the police, and drug history, and [sic] continued throughout the
duration of this case.”
During Jensen’s testimony, Mother’s attorney asked for a brief recess during
which Mother and Father each executed an irrevocable affidavit of voluntary
relinquishment of parental rights to the Department; Mother’s attorney then asked
the trial court to accept the irrevocable affidavits. The Department stated that,
although it was not opposed to parental termination based on the affidavits, it
would still pursue termination based on grounds of endangerment and failure to
comply with the service plan for reunification.
Mother’s testimony at trial revealed her understanding that by signing the
affidavit, she freely and voluntarily gave up all of her rights to John. Mother
testified she gave up her rights because she believed “it’s the best thing to do
today.” Mother asked the court to accept her affidavit and the court admitted it
into evidence. Mother also asked the court to terminate her parental rights solely
based on her execution of the irrevocable affidavit.
Mother testified she was 22 years old at the time of trial, that she had given
birth to John and one other child, and that she had failed to complete her family
service plan. She further acknowledged having a drug problem and battling drugs
for “about a year and a half.” Mother claimed she recently enrolled in a drug
treatment program but admitted previously relapsing when she attempted drug
treatment. Mother admitted she had used methamphetamines for “about a year”
and last used the drug in July 2019 (one month before the trial).
When asked whether she agreed that the lifestyle she and Father had lived
was not conducive to raising a small child, Mother responded: “It’s not conducive
to raising a small child, but it is to raising children eventually, I mean. Hey, I’m
asking you guys for help. We came as a family now to ask you guys for help so . .
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. . It’s possible.” Mother disagreed that returning John to her “as of today” would
be unsafe.
Father also testified that (1) he voluntarily signed the irrevocable affidavit of
relinquishment, (2) he did not “participate in this case”, and (3) he “did not
participate in any of the services offered” to him (even though he “had chances” to
participate). Father testified that he and Mother had been in a relationship for over
three years and the two were also parents to a baby girl who “as of today is subject
to another CPS case in Montgomery County.” Evidence of Father’s numerous
convictions was admitted at trial, including a conviction for endangering a child,
two DWI convictions, several convictions for possession and delivery of a
controlled substance, and two criminal trespass convictions. Further, evidence was
introduced that Father was “currently also facing a felony for burglary of a
habitation.”
Father testified he did not think Mother “even knew about
[methamphetamines] until she met” him. Although he denied introducing Mother
to the drugs, he acknowledged he was friends with people who used drugs and
Mother “became familiar with drugs in the course of her relationship with” him.
Father stated: “I feel like this is my fault, my responsibility.” Father also
“agree[d] that methamphetamines is [sic] a controlled substance and a very
dangerous drug.”
The trial court signed a Decree for Termination on September 3, 2019 that
terminated Mother’s and Father’s parental rights to John on the predicate grounds
of (1) endangerment, (2) execution of an irrevocable affidavit of voluntary
relinquishment of parental rights, and (3) failure to comply with the service plan.
The trial court also determined that termination of Mother’s and Father’s parental
rights was in John’s best interest. Mother filed a timely appeal.
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ANALYSIS
I. Standard of Review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Although parental rights are of constitutional magnitude, they are not absolute. In
re A.C., 560 S.W.3d 624, 629 (Tex. 2018); In re C.H., 89 S.W.3d 17, 26 (Tex.
2002) (“Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that right.”).
Because of the severity and permanency of terminating the parental
relationship, Texas law requires clear and convincing evidence to support a
termination order. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d
256, 265-66 (Tex. 2002). “Clear and convincing evidence” is defined as “the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.”
Tex. Fam. Code Ann. § 101.007; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per
curiam). This heightened evidentiary burden at trial results in a heightened
standard of review on appeal in parental termination cases. See N.G., 577 S.W.3d
at 235.
In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, the petitioner must establish, by clear
and convincing evidence, one or more acts or omissions enumerated under section
161.001(b)(1) and that termination is in the best interest of the child under
subsection (b)(2). Tex. Fam. Code Ann. § 161.001; In re J.L., 163 S.W.3d 79, 84
(Tex. 2005).
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In reviewing legal sufficiency of the evidence in a parental termination case,
we must consider all evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009).
In reviewing the factual sufficiency of the evidence under the clear and
convincing burden, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. A.C., 560 S.W.3d at 631.
“‘If, in light of the entire record, the disputed evidence that a reasonable fact finder
could not have credited in favor of the finding is so significant that a fact finder
could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.’” J.O.A., 283 S.W.3d at 345 (quoting J.F.C., 96 S.W.3d at
266).
II. Endangerment Finding
Although the trial court terminated Mother’s parental rights on three
separate grounds, in her first issue Mother only challenges the legal and factual
sufficiency of the evidence to support the trial court’s endangerment finding under
section 161.001(b)(1)(E).
Only one predicate finding under section 161.001(b)(1) of the Family Code
is necessary to support a judgment of termination when there also is a finding that
termination is in the child’s best interest. See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003). However, due process requires that when a parent has raised the issue
of insufficiency of the evidence to support the trial court’s findings under section
161.001(b)(1)(D) or (E) of the Family Code, an appellate court must address one of
those endangerment findings to ensure a meaningful appeal. N.G., 577 S.W.3d at
235; In re P.W., 579 S.W.3d 713, 720 (Tex. App.—Houston [14th Dist.] 2019, no
12
pet.). Due process and due-course-of-law requirements also mandate that an
appellate court detail its analysis for an appeal of termination of parental rights
under section 161.001(b)(1)(D) or (E) of the Family Code. P.W., 579 S.W.3d at
720. Because Mother challenges the trial court’s finding of endangerment under
section 161.001(b)(1)(E), we address the trial court’s endangerment finding.
The trial court may terminate parental rights under section 161.001(b)(1)(E)
if it finds by clear and convincing evidence that the parent has “engaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child.” Tex. Fam. Code
Ann. § 161.001(b)(1)(E). The relevant inquiry is whether evidence exists that the
endangerment of the child’s physical and emotional well-being was the direct
result of the parent’s conduct, including acts, omissions, or failure to act. In re
S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Children are endangered when their environment creates a potential for
danger of which the parent is aware but disregards. S.M.L., 171 S.W.3d at 477.
Termination under subsection (E) must be based on more than a single act or
omission — the evidence must demonstrate a voluntary, deliberate, and conscious
course of conduct by the parent. In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—
Houston [14th Dist.] 2009, no pet.).
Although endangerment under subsection (E) often involves physical
endangerment, the statute does not require that the conduct be directed at a child or
that the child actually suffer physical injury; rather, the specific danger to the
child’s well-being may be inferred from the parent’s misconduct alone. See Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (“‘endanger’
means to expose to loss or injury; to jeopardize”). Incarceration of a parent alone
will not support termination, but evidence of past and continuing criminal conduct,
13
convictions, and imprisonment may support a finding of endangerment under
subsection (E). See C.A.B., 289 S.W.3d at 886.
Further, a factfinder reasonably can infer that a parent’s failure to submit to
court-ordered drug tests indicates the parent was avoiding testing because she was
using illegal drugs. In re V.A., 14-19-00590-CV, 2020 WL 355382, at *10 (Tex.
App.—Houston [14th Dist.] Jan. 17, 2020, no pet. h.); In re E.R.W., 528 S.W.3d
251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Moreover, indicia of
endangerment include an inability to maintain adequate or stable housing and
adequate or stable employment. In re T.S., No. 07-12-0283-CV, 2012 WL
4464302, at *1 (Tex. App.—Amarillo Sept. 27, 2012, no pet.) (mem. op.); see also
In re T.G.R.-M., 404 S.W.3d 7, 15-16 (Tex. App.—Houston [1st Dist.] 2013, no
pet.); In re R.M., No. 14-02-00221-CV, 2003 WL 253291, at *4 (Tex. App.—
Houston [14th Dist.] Feb. 6, 2003, no pet.) (mem. op.).
Here, the evidence is undisputed that Mother failed to maintain a drug-free
lifestyle throughout the proceedings. Mother tested positive for
methamphetamines every time she submitted to drug testing (except for one
negative drug test); she also tested positive for cocaine on two occasions. Mother
admitted to both having a drug problem and unsuccessfully battling her drug
problem for about a year and a half. She admitted taking methamphetamines just
weeks before trial. Mother also admitted her lifestyle is “not conducive to raising a
small child,” but denied that John would be unsafe with her.
Debose testified that methamphetamine is “a real hard drug to get off of,”
and opined that “being addicted to methamphetamines demonstrates an inability to
parent a child safely.” Debose also testified that Mother has not benefitted from
therapy sessions because, “[e]ven when she was actively engaging in the therapy
sessions, . . . she has not shown that she can stay drug free.” Debose stated that
14
Mother “needs to understand that she needs to be drug free in order to take care of
a two year old child. They constantly need attention.”
Evidence further showed that Mother was convicted of possession of
marijuana in 2016 and convicted of criminal trespass in May 2018. Mother failed
to avoid criminal activity as required by her family service plan because evidence
showed she was arrested for allegedly criminally trespassing in October 2018 and
shortly before trial in August 2019.
Moreover, Mother failed to maintain stable housing and employment. She
also continued to be in a relationship with Father, even though evidence showed
that (1) Father used drugs; (2) Mother “became familiar with drugs” while in a
relationship with Father; (3) Father had friends who used drugs in Mother’s and
Father’s company; and (4) Father had numerous drug-related convictions as well as
two DWI convictions, two criminal trespass convictions, a conviction for
endangering a child, and was “facing a felony for burglary of a habitation” at the
time of trial.
Mother asserts the evidence does not support the trial court’s endangerment
finding. In that regard, Mother claims that “[a]ll drug tests were completed well
after [John] was removed” from her so that “no evidence links the drug use to any
time that [she] was parenting” John. Although she admits that “continued illegal
drug use after a child’s removal is conduct jeopardizing parental rights and may
constitute endangering conduct,” she nonetheless asserts that a “parent who
relapses during recovery in a case where there is no link to drug use and any prior
endangering conduct cannot be assumed to be committing endangering conduct.”
Mother also argues that her limited criminal conduct and incarceration
weigh against a finding of endangerment. To support her contention, Mother cites
In re F.M.E.A.F., 572 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2019, pet.
15
denied), and argues that this court reversed the termination of parental rights when
“the mother’s trespass, theft and resisting arrest convictions were not the type from
which it can be inferred that the mother endangered the child.” However, Mother
oversimplifies and dilutes our findings in F.M.E.A.F.
There, we reviewed the trial court’s best interest finding and not a predicate
finding of endangerment under subsection (E). Id. at 731-34. Further, we
explained that, among several best interest factors weighing against parental
termination, there was a strong desire of the 16-year-old child to stay with her
mother.4 Id. at 732. And although we noted that the mother’s “theft, trespass, and
resisting arrest convictions are not the type from which it can be inferred that she
has endangered the [child]’s physical safety,” we emphasized that “unlike most
decisions upholding termination based on repeated criminal conduct,” there was no
evidence the mother had a substance abuse problem. Id. at 733.
In contrast, the evidence in this case establishes, among other things, that
Mother (1) was convicted of possession of marijuana in 2016 (in addition to being
convicted of criminal trespass in 2018); (2) admitted having “a drug problem” and
battling drugs for “about a year and a half”; (3) tested positive to at least
methamphetamines throughout this proceeding (except for one negative drug test);
and (4) continued to associate with Father who used drugs and had numerous drug-
related convictions.
Under the applicable standards of review, we conclude the evidence is
legally and factually sufficient to support the trial court’s finding that Mother
4
Additionally, the Department stated that the child ran track for school, made As and Bs,
and planned to go to college, evidencing a lack of endangerment in general despite the other
factors present therein. F.M.E.A.F., 572 S.W.3d at 730.
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endangered John as described in subsection (E). See V.A., 2020 WL 355382, at
*10; In re R.E.T.R., No. 14-13-00640-CV, 2013 WL 6506689, at *4-6 (Tex.
App.—Houston [14th Dist.] Dec. 10, 2013, no pet.) (mem. op.); In re T.G.R.-M.,
404 S.W.3d at 15-16; R.M., 2003 WL 253291, at *4. Accordingly, we overrule
Mother’s first issue.
III. Best Interest
In her second issue, Mother contends the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights was in the best interest of John.
The best interest analysis typically focuses on the child rather than the
parent, and the factfinder may consider the following non-exclusive factors (known
as the Holley5 factors) to determine the best interest of a child: (1) the desires of
the child; (2) the physical and emotional needs of the child now and in the future;
(3) the physical and emotional danger to the child now and in the future; (4) the
parental abilities of the persons seeking custody; (5) the programs available to
assist those persons seeking custody in promoting the best interest of the child; (6)
the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and (9)
any excuse for the parent’s acts or omissions. In re J.J.L., 578 S.W.3d 601, 610
(Tex. App.—Houston [14th Dist.] 2019, no pet.).
However, the Texas Supreme Court has held that a statutorily compliant
affidavit of voluntary relinquishment is ordinarily sufficient and provides ample
evidence to support a best interest finding under the clear and convincing evidence
5
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
17
standard. A.C., 560 S.W.3d at 633-34; In re K.S.L., 538 S.W.3d 107, 111-12 (Tex.
2017). The supreme court has also held that although a compliant affidavit of
relinquishment is “[n]ot necessarily conclusive on the [best interest] matter,” it is
“certainly ample to clear the elevated evidentiary threshold.” See A.C., 560
S.W.3d at 634. The court explained:
[E]ven under a clear-and-convincing standard, we think in the
ordinary case a sworn, voluntary, and knowing relinquishment of
parental rights, where the parent expressly attests that termination is in
the child’s best interest, would satisfy a requirement that the trial
court’s best-interest finding be supported under this higher standard of
proof. . . . A parent’s willingness to voluntarily give up her child,
and to swear affirmatively that this is in her child’s best interest, is
sufficient, absent unusual or extenuating circumstances, to produce a
firm belief or conviction that the child’s best interest is served by
termination.
Id. (quoting K.S.L., 538 S.W.3d at 112).
Here, Mother executed a sworn, irrevocable affidavit of voluntary
relinquishment of parental rights. She testified that she understood “what’s
contained in the document” and that the affidavit is irrevocable. She testified that
she voluntarily and freely gave up her parental rights to John, she agreed it was in
John’s best interest to do so, and she did not oppose admission of the affidavit into
evidence. She also never sought to withdraw the affidavit.
Mother makes no argument on appeal that this case presents “unusual or
extenuating circumstances” nor does the record before us support such an
argument. Thus, we conclude the statutorily compliant affidavit constitutes clear
and convincing evidence that termination of Mother’s parental rights was in the
child’s best interest. See A.C., 560 S.W.3d at 633-34; K.S.L., 538 S.W.3d at 111-
12; In re D.L.A., No. 04-18-00182-CV, 2018 WL 4412506, at *8 (Tex. App.—San
Antonio Sept. 18, 2018, pet. denied); see also In re A.G.C., 279 S.W.3d 441, 452-
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53 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Accordingly, we overrule
Mother’s second issue.
CONCLUSION
We affirm the trial court’s Decree for Termination.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
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