in the Interest of M.Y.G., C.R.J., N.R., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00298-CV
IN THE INTEREST OF M.Y.G., C.R.J., N.R., CHILDREN
On Appeal from the 64th District Court
Castro County, Texas
Trial Court No. A9422-1201, Honorable Robert W. Kinkaid Jr., Presiding
January 31, 2014
OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
In this accelerated appeal, Amber and Carl1 appeal an order terminating their
respective parental rights to the children. Amber appeals as to all of the listed children
and Carl appeals as to M.Y.G. and C.R.J. The father of N.R. has not appealed the trial
court‘s ruling.
Amber and Carl each contest the legal and factual sufficiency of the evidence to
support the trial court‘s judgment terminating their respective parental rights for
knowingly placing or knowingly allowing the children to remain in conditions or
1
Amber and Carl are pseudonyms for the appealing parents and will be referred
to by these names throughout.
surroundings that endangered their physical or emotional well-being. TEX. FAM. CODE.
ANN. § 161.001(1)(D) (West Supp. 2013).2 Likewise, each contest the legal and factual
sufficiency of the evidence to support the trial court‘s judgment terminating their
respective parental rights for engaging in conduct or knowingly placing the children with
persons who engaged in conduct that endangers the physical or emotional well-being of
the children. § 161.001(1)(E). Finally, each contends that the evidence is legally and
factually insufficient to support the trial court‘s judgment that termination was in the best
interest of the children. § 161.001(2).
Separately, Carl contends that the evidence was legally and factually insufficient
to support his termination for his knowingly engaging in conduct that resulted in his
conviction for an offense and confinement or imprisonment and inability to care for the
children for not less than two years from the date of filing of the petition. §
161.001(1)(Q). Additionally, Carl contends that section 161.001(1)(Q) is constitutionally
invalid on its face and as applied in this case.
We will affirm the judgment of the trial court as to both Amber and Carl.
Factual and Procedural Background
On January 7, 2012, law enforcement officers raided the home of Amber and
Carl. During the raid, marijuana, cocaine, hydrocodone and drug paraphernalia were
found in the home. Both Amber and Carl were arrested. The children were all present
in the home when the raid occurred and their parents were arrested.
2
Further reference to the Texas Family Code will be by reference to ―section
____‖ or ―§ ____.‖
2
As a result of the drug raid, the Texas Department of Family and Protective
Services (Department) opened a negligent supervision file regarding the children.
Assigned to investigate this file was investigator Mario Moreno. During his
investigation, Moreno confirmed from Amber and Carl that the children were present at
the time of the drug raid. Although Amber and Carl refused to admit to possession of
the drugs found at the home, both admitted to smoking marijuana the day before the
raid. Eventually, only Carl was charged as a result of the drug raid. However, as a
result of the drug raid, the Department filed a petition for temporary conservatorship and
for termination of Amber and Carl‘s parental rights. Subsequently, Moreno developed a
joint service plan for Amber and Carl. Amber and Carl each reviewed the plan and, at
that time, neither was incarcerated. The plan had specific items that both Amber and
Carl were required to complete, maintain, or refrain from doing.
The file on the children was then placed in the hands of a Department
conservatorship worker, Kristen McClure, to complete. Initially, the children were
placed with their paternal grandmother. However, the children were again removed
when in August of 2012, the Department learned that the grandmother had simply
returned the children to Amber and Carl. This action was in contravention of the order
of the trial court that Amber and Carl not have unsupervised visitation with the children.
Prior to the Department finding out that the children were back with Amber and Carl,
neither Amber nor Carl had advised the Department of this fact; in fact, the record
reflects that Amber advised that the children were not living in the marital home.
In October of 2012, Amber and Carl‘s home was again the scene of a drug raid.
There were four individuals arrested in the home at that time. Those arrested were the
3
relatives of Carl: Ruben, Ishmael, Sr., Ishmael, Jr., and Frank. The drugs seized were
methamphetamine, cocaine, and marijuana. Neither Amber nor Carl was arrested or
charged as a result of this drug bust.
On November 8, 2012, Carl entered a plea of guilty to possession of a controlled
substance, charges that arose in the January drug raid, and was sentenced to serve a
term of confinement of eight years in the Institutional Division of the Texas Department
of Criminal Justice. Carl was incarcerated at the time of the trial.
On March 28, 2013, after Amber had made significant progress on her service
plan, the children were returned to her as part of a monitored return. However, the
children were quickly removed and placed back in foster care. The return of the
children to foster care was precipitated by a shoplifting incident at the Dollar General
Store in Dimmitt, Texas. While Amber had two of the children with her, she was seen
inside Dollar General in the general accompaniment of Ishmael, Ruben, and another
person, all three of whom were involved in shoplifting from the store. Ishmael and
Ruben are two of the individuals arrested in the second drug bust at Amber‘s home. No
charges were filed against Amber; however, she did receive a criminal trespass notice.
This incident occurred on March 27, 2013; however, the Department did not learn of this
incident until April 5, 2013, after the children had been returned for a monitored return.
The record reflects that Amber never notified the Department of the incident at the
Dollar General Store.
In a visit to Amber‘s home shortly after the incident at Dollar General, McClure
discovered two people living in the home who were not approved to be living there.
4
According to McClure, when the children were returned to Amber‘s care, Amber agreed
that no other individuals would live in the home. At that same visit, Amber advised
McClure that all three children were with her but, when confronted with the fact that this
was not true, Amber simply said she lied because she was afraid it would look bad.
Based upon the continued association with individuals who were involved with
criminal activity and Amber‘s own dishonesty with the Department, the Department
removed the children and Amber was required to begin counseling again with Sonya
Higgins. The new requirement for counseling was to be eight sessions. In the final
analysis, Amber only attended two of the eight sessions. Amber‘s excuse for her non-
attendance at the counseling sessions was that she lacked any transportation.
The trial court heard the testimony of the Department‘s witnesses and that of
Amber. At the conclusion of the testimony, the trial court found that Amber and Carl
had committed the predicate acts alleged against them and that termination of their
respective parental rights was in the best interest of the children. Accordingly, the trial
court entered an order terminating the parental rights of Amber and Carl, and this
appeal ensued.
The issues presented by the appeals of Amber and Carl deal with the sufficiency
of the evidence, legally and factually, to support either the predicate acts alleged by the
Department and the best interest finding by the trial court. Additionally, Carl contends
that the section 161.001(1)(Q) is constitutionally invalid on its face and as applied to
him. Disagreeing with Amber and Carl‘s positions, we will affirm the judgment of the
trial court.
5
Standard of Review
The natural right existing between parents and their children is of constitutional
dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating
this natural right is complete, final, irrevocable, and divests for all time that natural right
as well as all legal rights, privileges, duties, and powers between the parent and child
except for the child‘s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
The Texas Family Code permits a court to terminate the parent-child relationship
if the petitioner establishes (1) one or more acts or omissions enumerated under section
161.001(1), and (2) that termination of the parent-child relationship is in the best interest
of the child. § 161.001. Though evidence may be relevant to both elements, each
element must be proved, and proof of one does not relieve the burden of proving the
other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best interest
of the child must be proved, only one statutory ground is required to terminate parental
rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore,
we will affirm the trial court‘s order of termination if legally and factually sufficient
evidence supports any one of the grounds found in the termination order, provided the
record shows that it was also in the best interest of the child for the parent‘s rights to be
terminated. See id.
6
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2008). ―‗Clear and convincing
evidence‘ means 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.‖ § 101.007 (West 2008). This standard, which focuses on whether a
reasonable jury could form a firm belief or conviction, retains the deference a reviewing
court must have for the factfinder‘s role. In re C.H., 89 S.W.3d at 26.
In reviewing the legal sufficiency of the evidence supporting an order terminating
parental rights, we look at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or
conviction as to the truth of the allegations sought to be established. See In re J.F.C.,
96 S.W.3d at 266. ―To give appropriate deference to the factfinder‘s conclusions and
the role of a court conducting a legal sufficiency review, looking at the evidence in the
light most favorable to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could
do so.‖ Id. In other words, we will disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a termination
order, we determine ―whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction about the truth of the [Department]‘s allegations.‖ In re
C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed
evidence is such that a reasonable factfinder could not have resolved the disputed
7
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. ―If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction, then the evidence is factually insufficient.‖ Id.
Applicable Law and Analysis
Predicate Acts
The trial court found that the evidence supported termination of Amber‘s and
Carl‘s parental rights based upon subsection (D)‘s endangering environment or
conditions and subsection (E)‘s endangering conduct. See § 161.001(1)(D), (E).
Evidence concerning subsections (D)‘s and (E)‘s statutory grounds for termination is
interrelated; therefore, we will consolidate our review of the evidence supporting these
grounds.3 See In re N.K., 399 S.W.3d 322, 329 (Tex. App.—Amarillo 2013, no pet.); In
re I.G., 383 S.W.3d 763, 770 n.6 (Tex. App.—Amarillo 2012, no pet.). Endangerment of
the child‘s physical or emotional well-being is an element of both subsections (D) and
(E). See § 161.001(1)(D), (E); see also In re N.K., 399 S.W.3d at 329–30.
―[E]ndanger‖ means ―to expose to loss or injury; to jeopardize.‖ Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although ―‗endanger‘ means
3
Indeed, this Court has observed the interrelated nature of evidence that could
support these two statutory grounds for termination: ―Although the focus of subsection
(D) is on the child‘s living environment and not on the parent‘s conduct, parental
conduct may produce an endangering ‗environment.‘‖ In re D.R.J., No. 07-08-00410-
CV, 2009 Tex. App. LEXIS 5231, at *7 (Tex. App.—Amarillo July 8, 2009, pet. denied)
(mem. op.) (citing In re D.T., 34 S.W.3d 625, 633 (Tex.App.—Fort Worth 2000, pet.
denied)). That is not to say, however, that the two subsections require the same
evidence. See In re U.P., 105 S.W.3d 222, 236 n.7 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (discussing the distinctions between subsections (D) and (E)).
8
more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal
family environment, it is not necessary that the conduct be directed at the child or that
the child actually suffers injury.‖ Id.; see In re P.E.W., 105 S.W.3d 771, 777 (Tex.
App.—Amarillo 2003, no pet.) (observing that child ―need not develop or succumb to a
malady‖ in order to prove endangering conditions). In our review, we not only look at
evidence regarding the parent‘s active conduct, but we also consider evidence showing
the parent‘s omissions or failures to act. In re A.B., 125 S.W.3d 769, 777 (Tex. App.—
Texarkana 2003, pet. denied). The Texas Supreme Court has reiterated that
endangering conduct is not limited to actions directed toward the child: ―It necessarily
follows that the endangering conduct may include the parent‘s actions before the child‘s
birth, while the parent had custody of older children, including evidence of drug usage.‖
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see In re T.N., 180 S.W.3d 376, 383
(Tex. App.—Amarillo 2005, no pet.)
Analysis of Carl‘s Arguments
Carl‘s position on appeal seems to be that the evidence does not show any direct
harm to the children and, thus, the Department has not proved endangerment. This
coupled with the fact that Carl has made significant strides in his efforts to provide
supervision and a safe environment for the children prior to his incarceration means that
the Department has not met its burden of proving the predicate behavior by clear and
convincing evidence. See In re J.F.C., 96 S.W.3d at 263; see § 161.206(a) (West
2008).
9
However, Carl‘s position simply ignores certain facts. First, Carl minimizes the
effect of his conviction for possession of a controlled substance. The record further
reflects that the children were present in the home when a drug raid occurred and Carl
was arrested and that marijuana and cocaine were found in the home. Even after his
arrest for possession of controlled substances, Carl had his family in the home when
several members were in possession of various controlled substances. We know this to
be because the record reflects that a second drug raid on Carl‘s home resulted in the
arrest of several members of his family for various drug offenses. Even if we assume
that Carl is correct and the record shows no actual injury to any child, this is of no avail
to him. The law does not require that a child suffer actual injury; rather, it is enough
when the parental conduct produces an endangering environment. See In re D.R.J.,
2009 Tex. App. LEXIS 5231, at *8. In fact, a parent‘s abuse of drugs while having
custody of children supports termination under section 161.001(1)(E). See In re J.O.A.,
283 S.W.3d at 346. Additionally, unlawful conduct by persons who live with the child or
with whom the child must associate on a regular basis is a part of the child‘s conditions
or surroundings for purposes of section 161.001(1)(D). See In re C.L.S.E.H., No. 02-
10-00475-CV, 2011 Tex. App. LEXIS 6853, at *11 (Tex. App.—Fort Worth, no pet.)
(mem. op.) (citing In re D.T., 34 S.W.3d at 632).
Thus, the record demonstrates that Carl was not providing proper supervision or
a safe environment for the children. Therefore, the trier of fact could form a firm belief
or conviction that Carl‘s parenting fostered an endangering environment and he allowed
or took part in endangering conduct. In re J.F.C., 96 S.W.3d at 266. Accordingly,
10
Carl‘s issues regarding the legal and factual sufficiency of the evidence to support
termination under section 161.001(1)(D) and (E) are overruled.
Carl contends that he had made substantial progress on his ability to provide a
safe environment for the children prior to his incarceration. While it is true that Carl did
many of the tasks required of him by the court, another fact is equally true. Carl does
not contend he completed the plan, and the Department does not allege failure to
complete the plan as a predicate ground for termination of Carl‘s parental rights. It was
up to the trier of fact to weigh this fact of Carl‘s efforts in deciding whether to terminate
his parental rights. It should be remembered that had the Department alleged section
161.001(1)(O) as a ground for termination partial compliance is not sufficient to defeat
such an allegation. In re I.G., 383 S.W.3d at 771.
Because only one of the statutory predicate grounds for termination need be
proved to support a termination order, we do not reach Carl‘s issue regarding section
161.001(1)(Q). See In re A.V., 113 S.W.3d at 361. Accordingly, we express no opinion
regarding Carl‘s issue on that subject.
Analysis of Amber‘s Arguments
Our review of the record reveals that the facts regarding the two drug raids which
were discussed under the section of this opinion regarding Carl are applicable to Amber
with the exception that the individuals arrested at the time of the second raid were Carl‘s
relatives and not Amber‘s. That factual distinction aside, we are still faced with the
children residing in a home where drugs were apparently routinely present.
11
In addition to those facts, the trial court had before it testimony that directly
implicated whether Amber could or would change her method of parenting to provide for
more suitable supervision and direction of the children so as to eliminate the
endangering aspects of the home life. Specifically at issue are two incidents that either
occurred shortly after the Department allowed the children to return to Amber under a
monitored return or the Department found out about shortly after the monitored return.
The incident at the Dollar General Store occurred before the monitored return,
but the Department did not find out about it until after the monitored return. Amber
contends that she did not participate in the shoplifting at the Dollar General Store and
did not know about it. However, it is worth observing that the individuals who were
directly involved in the incident were some of the same individuals who were arrested at
the time of the second drug raid. Amber‘s testimony was not that she was not at the
Dollar General when the shoplifting took place, but rather, she did not participate in or
know about it. In connection with investigating the shoplifting incident, the Department
went to Amber‘s residence to visit with her about it and discovered that two people were
living in the home with Amber of whom the Department had no knowledge and not
approved to be there. This was in violation of the Department‘s agreement with Amber
that no other individuals would be living in the home. Further, at that same meeting
Amber was asked where the children were, and she advised the Department
caseworker that all three were at home when, in fact, M.Y.G. was not at home. These
incidents reflect upon the credibility of Amber‘s testimony before the trial court.
Remembering that the trial court was acting as the factfinder and, as such, is the sole
judge of the credibility of the witnesses and the weight to be given their testimony, these
12
incidents of less-than-truthful statements by Amber undercut her allegations of no
knowledge about the events at the Dollar General Store. See City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005).
In the final analysis, we are faced with a situation regarding Amber where drugs
are in the home and drug usage occurs when the children are in the home. Despite
contending that she has changed and those influences are no longer present, Amber
continues to associate with the same people who provided the impetus for the second
drug raid. Although she claims no knowledge of or participation in the shoplifting, the
trial court has heard testimony about Amber‘s less-than-truthful dealings with the
Department. Under this factual scenario, the trial court could have chosen to believe
the Department‘s version of the events and totally discounted Amber. See id. In so
doing, the factfinder could have formed a firm belief or conviction that Amber created an
endangering environment and engaged in endangering conduct. In re J.F.C., 96
S.W.3d at 266. Accordingly, Amber‘s issues regarding the legal and factual sufficiency
of the evidence to support termination under section 161.001(1)(D) and (E) are
overruled.
Best Interest of the Children
There is a strong presumption that a child‘s interest is best served by preserving
the conservatorship of the parents; however, clear and convincing evidence to the
contrary may overcome that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(per curiam). The Texas Supreme Court has recognized a non-exhaustive list of factors
that are pertinent to the inquiry whether termination of parental rights is in the best
13
interest of the child: (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
which 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. See Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976); see also § 263.307 (West 2008) (providing extensive list of
factors that may be considered in determining child‘s best interest). In examining the
best interest of the child, we may consider evidence that was also probative of the
predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest
determination may rely on direct or circumstantial evidence, subjective facts, and the
totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.).
The Department need not prove all nine Holley factors, and the absence of
evidence relevant to some of those factors does not bar a finding that termination is in
the child‘s best interest, especially in the face of undisputed evidence that the parental
relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley
factor is controlling, and evidence of one factor may be sufficient to support a finding
that termination is in the child‘s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex.
App.—Dallas 2006, no pet.) The evidence supporting the predicate grounds for
termination may also be used to support a finding that the best interest of the children
14
warrants termination of the parent-child relationship. In re D.S., 333 S.W.3d 379, 384
(Tex. App.—Amarillo 2011, no pet.).
Analysis
Before beginning the analysis, a recounting of the testimony needs to be set forth
as it impacts the best interest of the children. The record before this Court is one of
drug possession, drug dealing, and drug usage by Carl, with Amber‘s knowledge and
participation in at least the drug usage. All of this occurred in the home with the children
present. Subsequently, Carl‘s family was in the home when another drug raid ensued,
again with the children apparently present. After the children were removed to the
paternal grandmother, she turned them back over to the parents who knew they were
not to have unsupervised visitation or custody of the children as per their agreement
with the Department. Yet, no effort was made to advise the Department of this
development.
Carl was subsequently sent to ID-TDCJ for eight years and will have no
meaningful contact with the children during that period. The caseworker testified that,
although Carl took steps to complete the family plan prior to incarceration, he has not
been able to complete any further services. Additionally, and probably more
importantly, Carl has not made any efforts to make any arrangements for the care of the
children should they be returned to the family. Instead, Carl has apparently left all of
these arrangements up to Amber.
Regarding Amber, the record indicates a pattern of poor choices and less-than-
honest dealings with the Department. Initially, there was the aforementioned regaining
15
possession of the children from the paternal grandmother against the express directions
of the court and the Department. Next, the act of hiding this information does not speak
well for Amber. After that incident, she appeared to be completing the steps necessary
to regain custody of the children and, in fact, subsequently was allowed custody on a
monitored return. Yet, before the monitored return even took place, Amber was
involved in the shoplifting incident at Dollar General. Though Amber protests she knew
nothing about the shoplifting, the fact that those involved were the same family
members arrested in her home during the second drug raid brings in to question her
candor and her ability to make sound judgments. Additionally, again Amber failed to
apprise the Department of the incident at Dollar General. After this incident, the
children were again placed in the Department‘s care, and Amber was required to
reinitiate counseling. She was asked to attend eight sessions. The record establishes
that she attended only two sessions. Amber subsequently contended that she did not
attend the other sessions because she did not have transportation. Yet, during the time
she failed to attend counseling, Amber had requested her visitation with her children be
moved to another date so that it would not conflict with her counseling. In testimony at
the final hearing, Amber had only the most vague plans about moving to Lubbock to get
away from the negative past. However, she had made no inquiries about a job or a
place to live. The caseworker testified that the home Amber was living in was not clean
and did not have food to support Amber and three children. All of this brings the
stability of any arrangements Amber might claim to be making into serious question.
16
Desires of the Children
The desires of the children are the first Holley factor listed, and we shall consider
it first. The trial court heard testimony that the children want to return to their parents.
While we must certainly factor in the children‘s desires, those desires are not allowed to
overrule their physical safety and emotional health. See In re R.M., No. 07-12-00412-
CV, 2012 Tex. App. LEXIS 10239, at *19-20 (Tex. App.—Amarillo Dec. 12, 2012, no
pet.) (mem. op.) (citing In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana
2003, no pet.)). Thus, we will consider the children‘s request; however, such a request
militates only slightly against the trial court‘s best interest finding.
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 next two Holley factors will be considered together. As previously noted, the
evidence that proves the predicate acts may also be used to support the trial court‘s
best interest finding. In re D.S., 333 S.W.3d at 384. Further, a parent‘s future conduct
may be measured by his or her past conduct. Id. The record clearly supports that the
emotional and physical needs of the children were not being met in the past and, in fact,
those needs were in danger. The record further supports a conclusion that neither Carl
nor Amber have any definitive plans regarding the children in the future. Carl,
apparently because of his current incarceration status, has voiced no plans. Amber has
voiced only the most general and vague plans. The problem with accepting Amber‘s
vague plans at face value is that her conduct demonstrates an inability to follow through
with any plans or to stop the behaviors that have led to the current situation. It is
recognized that past behavior may be used to measure a parent‘s future conduct when
17
making a best interest determination. See In re D.S., 333 S.W.3d at 384. Therefore,
the emotional and physical needs in the past and the future and the emotional physical
danger in the past and the future strongly support termination as in the best interest of
the children. We are also reminded that it is up to the factfinder to resolve conflicts in
testimony. See In re J.F.C., 96 S.W.3d at 266. These two Holley factors are strongly
weighed in favor of the trial court‘s ruling regarding the best interest of the children.
Stability of the Home or Proposed Placement
The issue of the stability of Carl and Amber‘s home was thoroughly discussed in
the previous portion of this opinion. There is virtually no stability in the home of Carl
and Amber. The case worker testified that the only way to seek true permanency was
through adoption and that this should occur sooner rather than later. This, in turn,
supports a finding that the best interest of the children would be served by termination.
The Parties‘ Plans for the Children
Again, the record demonstrates that Carl has no real plans and that Amber‘s
plans are vague at best. Her fall back plan, obtaining a job at the cafeteria where the
children attend school, was at best illusory. Amber had not sought employment and did
not testify to any facts that she would be able to gain that employment. The
Department‘s plans were far more definite and more suitable to permanency for the
children. The Department had located two potential adoptive families who were
interested in adopting the children. This factor strongly supports that termination is in
the best interests of the children.
18
From a review of these Holley factors, it is clear that the trial court had sufficient
testimony and facts before it upon which to find by clear and convincing evidence that
termination was in the best interests of the children. In re J.F.C., 96 S.W.3d at 266.
Accordingly, Carl‘s and Amber‘s issues to the contrary are overruled.
Conclusion
Having overruled all of Carl‘s and Amber‘s issues regarding the sufficiency of the
evidence to support termination and the best interests of the children, we affirm the
judgment of the trial court.
Mackey K. Hancock
Justice
19