in the Interest A.L.D., C.D., Children ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00226-CV
IN THE INTEREST OF A.L.D., C.D., CHILDREN
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 9674-L1, Honorable Jack M. Graham, Presiding
September 10, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
J.N. appeals the termination of his parental rights to his son C.D.1 In doing so,
he contends the evidence is legally and factually insufficient to support the statutory
grounds for termination and that termination is in the best interest of the child. We
affirm the order.
The pertinent standard of review is discussed in In re C.H., 89 S.W.3d 17, 25
(Tex. 2002). Though a trial court may base its decision to terminate on multiple
statutory grounds, sufficient evidence of only one ground is necessary to support
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J.N. is not the father of A.L.D. The parental rights of the mother of the two children were also
terminated, but she has not appealed.
termination. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet.
denied).
Statutory Grounds
One ground upon which termination was sought and granted was that J.N. had
his parental rights terminated with respect to another child based on a finding that his
conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of
the law of another state.2 See TEX. FAM. CODE ANN. § 161.001(1)(M) (West 2014)
(stating that parental rights may be terminated if the parent “had his or her parent-child
relationship terminated with respect to another child based on a finding that the parent's
conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of
the law of another state”). A certified copy of an order in Cause No. 4900-L1 in the
County Court of Law of Randall County terminating J.N.’s parental rights to his older
son on April 21, 2008 was entered into evidence. That order showed that the grounds
of termination included Paragraphs (D) and (E).
J.N. argues that the prior order was “too remote to the present proceeding” to
warrant termination “without evidence of probable repetition of the prior offending acts.”
In support of that argument, he cites to a discussion of “remote acts” in Wetzel v.
Wetzel, 715 S.W.2d 387, 390 (Tex. App.—Dallas 1986, no writ), In re S.A.P., 169
S.W.3d 685, 704 (Tex. App.—Waco 2005, no pet.), and V.W. v. Tex. Dep’t of Human
Servs., 810 S.W.2d 744, 751 (Tex. App.—Dallas 1991), rev’d on other grounds, 817
S.W.2d 62 (Tex. 1991). Those cases did not deal with termination under Paragraph
(M).
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The trial court found that J.N. violated Paragraphs (D), (E), (M), (N), and (O) of § 161.001(1) of
the Family Code.
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Furthermore, the statute itself does not specify any kind of time period within which the
prior order must have been rendered. And, we lack the authority to sua sponte add to
or amend the legislative writing.
Third, J.N. did not make the argument to the trial court. Even constitutional
claims can be waived, and J.N. did so here by not raising it below. In re L.M.I., 119
S.W.3d 707, 711 (Tex. 2003).
Finally, the record contains the very evidence of repetition that appellant
demands, that is, evidence of current endangerment. It illustrates that 1) J.N. admitted
to current marijuana use, 2) he continued to allow his child to reside with the child’s
mother even though he knew she used drugs and he had used drugs with her, 3) the
child tested positive for methamphetamine at the time of his removal from his mother’s
care, 4) J.N. refused to submit to drug testing during the entire time the child was in the
custody of the State (except for one test in July 2013 at which time he tested positive for
marijuana and methamphetamine), 5) he had engaged in domestic violence with the
child’s mother, 6) he had refused to allow caseworkers to see the inside of his
residence, and 7) he had a criminal history of assaults, unauthorized use of a motor
vehicle, possession of marijuana, criminal mischief, and a domestic assault in August
2012 after removal of the child. This evidence would support a finding that J.N. violated
Paragraph (E). See Avery v. State, 963 S.W.2d 550, 552-53 (Tex. App.—Houston [1st
Dist.] 1997, no writ) (holding that when a parent challenged termination under
Paragraph (M), the court could conclude from the parent’s criminal conduct before and
after the child’s birth and continued drug use that her problems with crime and drugs still
existed). There is clear and convincing evidence that J.N. violated Paragraph (M).
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Best Interest of the Child
In determining the best interest of the child, we look at indicia known as the
Holley factors. They include, among other things, 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 those individuals to
promote the best interest of the child, 6) the plans for the child by those individuals or by
the agency seeking custody, 7) the stability of the home, 8) the acts or omissions of the
parent indicating that the existing parent/child relationship is not a proper one, and 9)
any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
372 (Tex. 1976); In re P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.—Amarillo 2003, no
pet.). It is not necessary that each factor favor termination, In re P.E.W., 105 S.W.3d at
790, and the list is not exhaustive. In re C.J.F.,134 S.W.3d 343, 354 (Tex. App.—
Amarillo 2003, pet. denied).
The evidence illustrating that termination was in the best interest of this four-
year-old child includes the circumstances itemized above and establishing the statutory
ground warranting termination. To that, we had testimony from a psychologist who 1)
examined and described J.N. as defensive and unwilling to acknowledge weaknesses
or problems, 2) said J.N. did not consider his marijuana use a problem, 3) stated that
though J.N.’s only income was a monthly social security payment of $700 a month and
he had no transportation, J.N. did not see any weaknesses in his ability to provide for a
preschool child, and 4) opined it would be inappropriate for him to have custody
because J.N. claimed to have bipolar disorder and Tourette’s syndrome.
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Additionally, a licensed counselor testified that J.N. 1) said he planned to keep on
using marijuana, 2) took no responsibility for the involvement of the State in the custody
of his child and blamed the child’s mother, 3) believed all his criminal convictions were
minor, 4) did not want to visit his child until he had complete custody, 5) admitted his
home was messy and cluttered, and 6) did not respond to counseling and should not
have custody. Other evidence revealed that: J.N. never had visitation with his child
after removal from the home because J.N. refused drug screening; the child initially had
developmental delays including unintelligible speech and was timid but at the time of
trial was developmentally on target, social, happy, and bonded to his caregiver; the child
perceives his foster home to be his only home and refuses to discuss his biological
parents; the child lives in a home with his half-sister and half-brother; the child would be
adversely affected by visitation with his biological parents as indicated by his anxiety
and aggression after visitation with his paternal grandmother; the foster parent wants to
adopt the child; and J.N. admitted the child was not safe with his mother but took no
action to make other arrangements for the child. This is clear and convincing evidence
from which a fact finder could determine that termination was in the best interest of the
child.
Accordingly, the order of termination is affirmed.
Per Curiam
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