in the Interest of J.A.P. and J.E.P., III, Children

Opinion filed January 24, 2018
In The
Eleventh Court of Appeals
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No. 11-17-00204-CV
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IN THE INTEREST OF J.A.P. AND J.E.P., III, CHILDREN
On Appeal from the 446th District Court
Ector County, Texas
Trial Court Cause No. E-3549-PC
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
the mother and the father of J.A.P. and J.E.P., III. The father appeals. On appeal,
the father presents six issues in which he challenges the sufficiency of the evidence
to support the termination of his parental rights. We affirm.
Termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). To determine on
appeal 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)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b).
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 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 Appellant had committed three of the
acts listed in Section 161.001(b)(1)—those found in subsections (E), (N), and (O).
Specifically, the trial court found that Appellant had engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered
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the children’s physical or emotional well-being; that Appellant had constructively
abandoned the children; and that Appellant had failed to comply with the provisions
of a court order that specifically established the actions necessary 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. 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 children. In his third, fourth, fifth, and sixth
issues, Appellant challenges the legal and factual sufficiency of the evidence to
support the best interest finding and the findings under subsections (E) and (O).
Appellant, however, does not present any argument with respect to these four issues,
nor does he present any issue or argument challenging the sufficiency of the evidence
to support the trial court’s finding under subsection (N). “Only one predicate
finding” under Section 161.001(b)(1) is necessary. In re A.V., 113 S.W.3d 355, 362
(Tex. 2003). Accordingly, the unchallenged finding under Section 161.001(b)(1)(N)
is sufficient to support the termination of Appellant’s parental rights as long as
termination was shown to be in the children’s best interest. In re B.K.D., 131 S.W.3d
10, 16 (Tex. App.—Fort Worth 2003, pet. denied). Therefore, we need only address
Appellant’s challenges to the legal and factual sufficiency of the evidence with
respect to the trial court’s best interest finding, which Appellant presents in his first
and second issues. See TEX. R. APP. P. 47.1.
The record reflects that the final order of termination was issued after a
de novo hearing before the district judge. The parties called no witnesses to testify
at that hearing, and the district judge rendered judgment based upon the record from
the original termination hearing before the associate judge.
That record shows that the Department initially became involved in this case
when the children’s infant sister was fatally injured as a result of blunt force trauma
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to the head. At the time of the infant’s injury, the mother was responsible for their
care. Appellant was not present when the infant was harmed, and the children were
initially placed with him. However, the Department removed the children from
Appellant’s care because he was not meeting their medical needs and because he
was permitting the children to visit their mother, who had been charged with child
endangerment. The children were subsequently placed in various homes, and much
of the testimony from the hearing relates to these placements and to the Department’s
decisions related to placement.
With respect to Appellant, there was undisputed evidence that he had been in
and out of jail while this case was pending; that he did not complete his court-ordered
services; that he did not attend grief counseling; and that, at the time of the initial
termination hearing, he had not visited the children in several months. There was
also evidence that Appellant’s criminal history included, in chronological order,
possession of marihuana in a drug-free zone, reckless driving, possession of
marihuana, possession of a controlled substance, aggravated assault with a deadly
weapon, possession of marihuana, unauthorized use of a vehicle (two counts), and
aggravated robbery (three counts). The victim of the aggravated assault with a
deadly weapon, which occurred while the termination proceeding was pending, was
the children’s mother. Testimony indicated that, at the time of trial, Appellant could
not provide a safe and protective home for the children. A representative of the
Department testified that the children’s best interest would be served by the
termination of Appellant’s parental rights. The Department’s goal for the children
was termination of the parents’ rights and adoption by the placement family.
Although the children loved Appellant, they had not seen him in a long time.
Appellant testified in his own behalf at trial. He asked that the children be placed
with him or with members of his family. When asked about the offenses that were
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committed while this case was pending, Appellant invoked his rights under the Fifth
Amendment.
Based upon the Holley factors and the evidence in the record, we cannot hold
that the trial court’s best interest finding is not supported by clear and convincing
evidence. See Holley, 544 S.W.2d at 371–72. Considering the evidence of 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 placement, the plans for the placement to adopt the children, the stability of the
placement’s home, domestic violence between the parents, and Appellant’s criminal
history—which included multiple arrests while this case was pending, we conclude
that the trial court could reasonably have formed a firm belief or conviction that it
would be in the children’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. Accordingly, we overrule Appellant’s
first and second issues.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
January 24, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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