in the Interest of J.M., a Child

Opinion filed September 22, 2016
In The
Eleventh Court of Appeals
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No. 11-16-00092-CV
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IN THE INTEREST OF J.M., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8031-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of J.M. The mother timely filed a notice of appeal;
the father did not appeal. On appeal, the mother presents three issues in which she
challenges the legal and factual sufficiency of the evidence. We affirm.
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). 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(b)(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001(b).
After the final hearing in this case, the trial court found that Appellant had
committed two of the acts listed in Section 161.001(b)(1)—those found in
subsections (N) and (O). Specifically, the trial court found that Appellant had
engaged in conduct or knowingly placed the child with persons who engaged in
conduct that endangered the physical or emotional well-being of the child, that
Appellant had constructively abandoned the child, and that Appellant 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(b)(2), that
termination of Appellant’s parental rights would be in the best interest of the child.
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
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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.
II. Evidence at Trial
The record shows that the Department originally removed J.M. in October
2013 when he was seven years old. At that time, Appellant was incarcerated; she
had been convicted of the offense of aggravated assault around November 2012.
Appellant left J.M. and her other two children in the care of the children’s elderly
grandparents, but after J.M. set their home on fire and exhibited other defiant
behaviors, the grandparents could no longer care for the children. J.M. and his
siblings went to live at Hendrick Home for Children, but J.M. was asked to leave
because of his behavioral issues after he destroyed property, smeared feces on the
wall, disobeyed the rules, and failed to get along with his peers. Consequently, the
Department took custody of J.M. He was initially admitted to Abilene Behavioral
Health and, in December 2013, was placed at New Horizons Ranch, where he
remained at the time of trial. J.M. was diagnosed with various disorders, including
mood disorder, ADHD, and oppositional defiant disorder.
Appellant was released on parole for a period of time in 2014, and she visited
J.M. at New Horizons. However, after several visits, New Horizons refused to
supervise any future visits and would not permit Appellant to return to New
Horizons because Appellant had been “very combative with staff, very
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argumentative” during the visits at New Horizons. Appellant’s behavior during
visitation was problematic for J.M., and it became apparent that visits with his
mother were not in J.M.’s best interest.
Due to the statutory deadline in this type of proceeding, the trial court
dismissed the initial termination proceeding, and the Department refiled it in April
2015. The final hearing was held in March 2016. While the refiled cause was
pending, Appellant was incarcerated three times for parole violations and spent three
months in confinement each time. Thus, Appellant was confined for nine of the
eleven months that this case was pending. The Department’s caseworker testified
that Appellant did not comply with her family service plan and that Appellant did
not send any letters to J.M. According to the caseworker, the last contact that
Appellant had with J.M. was in October 2014.
On the other hand, Appellant testified that she sent letters to J.M. and that,
every time she gets released, she has tried to visit J.M. and arrange for the classes
that she needs to take to comply with her service plan. Appellant testified that she
gets “the runaround” from the Department and that she has completed as many of
the services in her service plan as she could. A supervisor for the Department
testified about the services that the Department attempted to arrange for the mother
during this case. However, Appellant kept getting rearrested due to her parole
violations, which inhibited the provision of services.
The caseworker and her supervisor both testified that it would be in J.M.’s
best interest for Appellant’s parental rights to be terminated. The caseworker
testified that J.M.’s behavior improved at New Horizons. Although he initially
struggled, by the time of trial, he no longer had aggressive outbursts, had been able
to form significant relationships with the staff, got along better with his peers, and
seldom acted out in defiance. The staff at New Horizons believe that J.M. is
adoptable, and the Department’s goal for him is unrelated adoption. The record
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contains no evidence related to the desires of the child, but after discussions with
J.M., his counselors thought that he was emotionally ready for adoption. The
supervisor testified that, at the time of trial, a prospective adoptive family had been
located and that J.M. was ready to be adopted.
III. Analysis
Appellant argues in her first issue on appeal that the evidence is insufficient
with respect to subsection (N) because the Department failed to present clear and
convincing evidence that she constructively abandoned the child. Under subsection
(N), a parent constructively abandons a child if the child has been in the permanent
or temporary managing conservatorship of the Department for at least six months, if
the Department has made reasonable efforts to return the child to the parent, if the
parent has not regularly visited or maintained significant contact with the child, and
if the parent has demonstrated an inability to provide the child with a safe
environment. Appellant argues that, because the service plan was filed in the first
cause and was not refiled in the second cause, no service plan existed and no
reasonable efforts were made to return J.M. to her. Appellant also argues that the
Department did not allow her to visit J.M.
The Department presented clear and convincing evidence as to each of the
elements under subsection (N). It was undisputed that J.M. had been in the care of
the Department for well over six months. Furthermore, the record shows that the
trial court specifically approved the service plan from the first cause and made it an
order of the court in the second cause. Appellant testified that she had been given
the service plan and knew what she was supposed to do to comply. The Department
made reasonable efforts to engage Appellant in her service plan so that J.M. could
be returned to her, but Appellant’s actions caused her to be incarcerated and then,
after her release on parole, to be rearrested three times for parole violations while
the second cause was pending. Appellant did not comply with her service plan
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despite having an extended period of time to do so. Additionally, Appellant last saw
J.M. in October 2014, and according to the Department’s witnesses, Appellant did
not even send letters to him. Appellant’s visitations with J.M. were terminated
because of Appellant’s behavior during visitation at New Horizons and because she
kept violating her parole and getting arrested. At no point after the initial removal
was Appellant able to provide a safe, stable environment for J.M. Additionally,
J.M.’s father, Hendrick Home for Children, and Appellant’s parents were not viable
options to provide J.M. with a safe, stable environment. We overrule Appellant’s
first issue.
Because we find the evidence sufficient to support termination of Appellant’s
parental rights under subsection (N), we need not reach her second issue in which
she challenges the sufficiency of the evidence to support termination under
subsection (O). See TEX. R. APP. P. 47.1. A finding that a parent committed any
one of the acts under Section 161.001(b)(1)(A)–(T) is sufficient to support
termination as long as termination is in the child’s best interest.
In Appellant’s third issue, she challenges the trial court’s finding that
termination of her parental rights would be in the best interest of the child. We note
that the trier of fact is the sole judge of the credibility of the witnesses at trial and
that we are not at liberty to disturb the determinations of the trier of fact as long as
those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573.
Based upon the Holley factors and the evidence in the record, we cannot hold
that the best interest finding is not supported by clear and convincing evidence. See
Holley, 544 S.W.2d at 371–72. From the evidence at trial with respect to J.M.’s
emotional and physical needs, the parental abilities of those involved, the programs
available to assist with J.M.’s care, the Department’s plan for J.M., the stability of
that plan, the instability of Appellant’s home, the acts or omissions of Appellant, and
her excuses for those acts and omissions, the trier of fact could reasonably have
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formed a firm belief or conviction that it would be in J.M.’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 third issue is overruled.
IV. This Court’s Ruling
We affirm the trial court’s order of termination.
MIKE WILLSON
JUSTICE
September 22, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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