in the Interest of R.R., Jr. E.R.R. E.B.R. And J.S.R., Children

Opinion filed August 28, 2015
In The
Eleventh Court of Appeals
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No. 11-15-00041-CV
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IN THE INTEREST OF R.R., JR.; E.R.R.; E.B.R.; AND J.S.R.,
CHILDREN
On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 14-02-16759
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of R.R., Jr.; E.R.R.; E.B.R.; and J.S.R. and appointed
the Department of Family and Protective Services to be the permanent managing
conservator of each of the children. The mother appeals. We affirm.
I. Issues Presented
The mother presents four issues on appeal. In her first two issues, she
challenges the sufficiency of the evidence to support the trial court’s finding that the
termination of her parental rights is in the best interest of the children. See TEX.
FAM. CODE ANN. § 161.001(2) (West 2014).1 In her third and fourth issues, she
challenges the sufficiency of the evidence to support the trial court’s finding that the
termination of the father’s parental rights is in the best interest of the children.
See id.
II. Termination Findings and Standards
As the mother is the sole appellant in this appeal, we will limit our discussion
of the findings and evidence to those that concern the mother. The termination of
parental rights must be supported by clear and convincing evidence. Id. § 161.001.
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(1)(A)–(T) and that termination is in the best interest
of the child. FAM. § 161.001.
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
1
We note that the legislature has recently amended Section 161.001 such that the text of
Section 161.001 is now contained in Section 161.001(b). See Act of Mar. 30, 2015, 84th Leg., R.S., S.B.
219, art. 1, § 1.078 (West) (to be codified as an amendment to TEX. FAM. CODE ANN. § 161.001) (effective
Apr. 2, 2015). In this opinion, we refer to the section as it was numbered at the time of trial and as reflected
in the trial court’s order of termination.
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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 the mother had committed four of the
acts listed in Section 161.001(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found that the mother had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the physical or emotional well-being of the children; engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children; constructively
abandoned the children; and failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of the
children, who had been in the managing conservatorship of the Department for not
less than nine months as a result of the children’s removal from the parent for abuse
and neglect. The mother does not challenge any of these findings. The trial court
also found, pursuant to Section 161.001(2), that termination of the mother’s parental
rights would be in the best interest of the children.
III. Evidence at Trial
The record shows that the Department became involved with the children,
who range in age from three to ten years old, in November of 2013 for the current
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case. Mayra Ruiz, an investigator with the Department, went to the children’s
maternal grandmother’s home, where the children were residing. Ruiz testified that
the home was inappropriate for the children because “[t]here was no proper sleeping
arrangement for all of the children,” “[t]here was not enough food supply for
everyone living there,” and “[t]here was holes in the walls, on the floors, and the
house was not kept up.” The Department found the mother “reason to believe of
neglectful supervision for allowing her children to be there.” The Department made
a finding that the home was not appropriate and, with the mother’s help, placed the
children in a voluntary placement with their paternal aunt and uncle.
Ruiz could only contact the mother, who had left the children at the maternal
grandmother’s home, by telephone for about the first month of her investigation.
Ruiz requested that the mother take a urinalysis drug test, which the mother did not
complete because she arrived at the drug testing site “shortly before they were going
to close.” Ruiz requested that the mother return for a hair follicle test, but the mother
never returned. Ruiz testified that, when she met with the mother during her
investigation, the mother had admitted to using “methamphetamines, marijuana, and
ice” for about two months and that she had used “ice” “two times per week.” Ruiz
testified that the mother also admitted that she had used drugs in the home at least
three times with the children present.
Ruiz testified to the mother’s criminal history. The mother had received a
deferred adjudication “for abandonment/endangerment of a child” for an occurrence
in 2010 when a drug raid was conducted at the parents’ home. E.B.R., who was the
youngest child at that time, tested positive for cocaine when the raid occurred. The
mother had a hearing scheduled regarding her probation, and she testified that she
had been incarcerated for five months during the pendency of the termination
proceeding. The father testified that the mother had been arrested for burglary of a
habitation in 2010. The Department was involved with the children at the time of
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the raid in 2010 and also in 2005, but Ruiz testified that the 2005 investigation could
not be completed because the mother “relocated and was not able to be found.”
Ladonne Nighton, a conservatorship supervisor with the Department, testified
that the mother had been ordered to complete parenting classes, a drug and alcohol
assessment, a psychological evaluation, individual counseling, a Mental Health
Mental Retardation (MHMR) evaluation, and random drug screens. The mother
only submitted one sample for drug testing, which came back negative, but she failed
to submit to any other drug tests that the Department requested. The mother
completed the drug and alcohol assessment but did not complete any of the other
court-ordered services.
The mother testified that she did not have a phone or any way to communicate
with her children during the pendency of this case and that she did not have any form
of transportation. She had not had any face-to-face visits with her children in about
fourteen months, but she did say that she had called her children once or twice. The
mother acknowledged that it was not “best for [her] kids to come home with [her]”
at the time of trial because she was “waiting for a bed for rehab.” The mother said
that she “got addicted to drugs” after the father went to prison in 2013 but that she
never used drugs while the children were in the home. The mother agreed that the
children should not have to wait for her to “get [her] life together” and that having
no form of communication put the children in danger. The mother had no job and
was “staying with a man” for her housing. The father testified that he had heard
from his family that the mother had tried visiting the children but did not do so
because “she’s got a drug problem.”
The Department’s plans for the children included termination of the parents’
rights and adoption by the current relative placement. The aunt and uncle with whom
the children had been placed were agreeable to the Department’s plans. Nighton
testified that she believed the Department’s plans were in the best interest of the
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children because the children were in a safe, stable home where their needs were
being met by relatives that were willing to adopt the children. The children’s
attorney ad litem and their guardian ad litem (a CASA representative) both agreed
with the Department that termination and relative adoption was in the best interest
of the children.
IV. Analysis: Best Interest
A. Issues One and Two: The Mother’s Rights
In her first and second issues, the mother challenges the legal and factual
sufficiency of the evidence to support the trial court’s finding that terminating her
parental rights is in the best interest of the children. The mother argues that
appointment of the placement parents as permanent managing conservators and her
as a possessory conservator would have been in the best interest of the children. She
does not challenge the trial court’s findings under Section 161.001(1). We hold that,
based on clear and convincing evidence presented at trial and the Holley factors, the
trial court could reasonably have formed a firm belief or conviction that termination
of the mother’s parental rights would be in the best interest of the children.
See Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to 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 mother and the relatives with whom the children have been placed and who are
willing to adopt the children; the plans for the children by the Department; the
instability of the mother’s home; the stability of the children’s placement; and the
acts and omissions of the mother indicating that the parent-child relationship was
not a proper one, we hold that the evidence is legally and factually sufficient to
support the finding that termination of the mother’s parental rights is in the
children’s best interest. See id. We overrule the mother’s first and second issues.
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B. Issues Three and Four: The Father’s Rights
In the mother’s third and fourth issues, she challenges the legal and factual
sufficiency of the evidence to support the trial court’s finding that the termination of
the father’s parental rights is in the best interest of the children. The father did not
appeal the termination order. The Department contends that the mother cannot raise
an issue on appeal on behalf of the father. We agree that the mother has no standing
to complain of an error that did not harm her. The law is well established that a party
on appeal may not complain of errors that do not injuriously affect her or that merely
affect the rights of others. Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex.
2000); In re H.M.J.H., 209 S.W.3d 320, 321 (Tex. App.—Dallas 2006, no pet.); In
re D.C., 128 S.W.3d 707, 713 (Tex. App.—Fort Worth 2004, no pet.); In re P.R.,
994 S.W.2d 411, 416–17 (Tex. App.—Fort Worth 1999, pet. dism’d w.o.j.) (citing
Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150–51 (Tex. 1982)),
disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256, 267 (Tex. 2002).
The father did not appeal, and the mother has not demonstrated how she was harmed
by the termination of the father’s parental rights. In the absence of some justiciable
interest in the father’s rights, the mother cannot complain of the portion of the
termination order that relates to the father’s parental rights. See Torrington, 46
S.W.3d at 843. We overrule the mother’s third and fourth issues.
V. This Court’s Ruling
We affirm the order of the trial court.
MIKE WILLSON
August 28, 2015 JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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