in the Interest of A.S., a Child

Opinion filed March 31, 2017
In The
Eleventh Court of Appeals
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No. 11-16-00293-CV
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IN THE INTEREST OF A.S., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8024-CX
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
the parents of A.S. Both parents appeal; each presents a single issue challenging the
sufficiency of the evidence as to the child’s best interest. We affirm.
Termination Standards and Findings
Termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). 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). 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.
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). In this case, the trial court found that the mother committed four
of the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N),
and (O)—and that the father committed two of those acts—those found in
subsections (N) and (O). The trial court also found that termination of each parent’s
rights would be in the child’s best interest. See id. § 161.001(b)(2). On appeal,
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neither parent challenges the findings made pursuant to Section 161.001(b)(1);
however, both parents challenge the best interest findings.
Evidence and Analysis: Best Interest
The parents assert that the evidence presented at trial was insufficient to
establish by clear and convincing evidence that termination of their parental rights
would be in A.S.’s best interest and that the best interest of A.S. would be served by
appointing the parents as possessory conservators. We disagree.
The record shows that the Department of Family and Protective Services
removed A.S. from the parents based upon domestic violence committed by the
father against the mother and the parents’ use of drugs while A.S. was in their care.
Both parents were arrested while the Department was at the parents’ hotel room
investigating the initial intake. A.S. was less than three months old at that time, and
she was placed with her maternal great aunt.
The mother, who had a history with the Department, partially complied with
her court-ordered family service plan, and the Department attempted a monitored
return to the mother. The monitored return, however, was unsuccessful, and the
child was returned to the great aunt after less than three weeks. The monitored return
ended when the mother left A.S. with the mother’s grandmother and explained that
she “just couldn’t do it anymore.” The mother’s drug use obviously interfered with
her ability to take care of A.S.; the mother admitted that she continued to abuse
methamphetamine, although she testified that her drug of choice was cocaine. As a
result of her continued methamphetamine use, the mother’s visitations were
suspended sometime after the unsuccessful monitored return. The mother agreed
that, at the time of trial, A.S. was where she needed to be because the mother was
not a good candidate to be a parent to A.S. at that time, but the mother did not want
her rights to be terminated as she hoped to find an answer for her drug problem in
the future.
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The evidence at trial shows that the father tested positive for
methamphetamine at the time of the removal and while this case was pending. A
police officer who was present at the time of the removal and arrested the father for
assault family violence testified that the father appeared to be “loaded on
methamphetamine.” The father did not comply with his court-ordered family service
plan, was in and out of jail during these proceedings, and did not maintain contact
with the Department. The father did not regularly visit the child; he may have
attended “a couple” of visits early on in this case. The father was incarcerated at the
time of the final hearing and did not testify at trial.
A.S. had lived with her maternal great aunt for nearly all of her life; the mother
and A.S. had even lived with the great aunt upon being released from the hospital
after A.S. was born. According to the Department’s supervisor, the great aunt went
“above and beyond” in this case and tried to help the mother become the parent that
she needed to be. The great aunt even moved to Abilene and bought a house so that
the mother would not have to travel as far to see the child and to otherwise try to
help the mother. Ultimately, though, the great aunt feared that the mother’s
“continuous use of drugs” rendered her incapable of being a safe caregiver for A.S.
The great aunt believed that termination of the parents’ rights would be in the child’s
best interest, but she also said that, if in the future the parents were “in the right
place” and had turned their lives around, she might be willing to allow them to have
some sort of relationship with A.S. The great aunt had a safe, stable, and loving
home and desired to adopt A.S. A.S. was bonded to the great aunt and her family.
A.S. was doing well in the great aunt’s care and was developmentally on target.
The case supervisor for the Department believed that termination of the
parents’ rights and adoption by the great aunt would be in A.S.’s best interest. The
Department’s goal for A.S. was for her to be adopted by her great aunt. The child’s
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guardian ad litem agreed that termination of the parents’ rights was in A.S.’s best
interest.
We do not agree with the parents’ contention that the evidence was
insufficient to show that termination of the parents’ rights would be in A.S.’s best
interest, nor do we agree with their assertion that A.S.’s best interest would be served
by appointing the parents as possessory conservators. A factfinder may infer from
a parent’s past inability to meet a child’s physical and emotional needs an inability
or unwillingness to meet a child’s needs in the future. In re J.D., 436 S.W.3d 105,
118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Additionally, a factfinder may
infer that past conduct endangering the well-being of a child may recur in the future
if the child is returned to the parent. Id. The parents had endangered A.S.’s well-
being and had not demonstrated an ability to meet the child’s needs in the future.
At the time of the termination hearing, A.S. was eighteen months old and,
thus, could not verbally express her desires. “When children are too young to
express their desires, the fact finder may consider that the children have bonded with
the foster family, are well-cared for by them, and have spent minimal time with a
parent.” Id. The evidence in this case did not indicate a strong bond between the
parents and A.S. The father had constructively abandoned A.S., and the mother’s
visitations had been suspended due to her drug use. A.S. had lived with her great
aunt for all but two months of her life. A.S. was very bonded to the great aunt’s
family, and the great aunt was committed to adopting A.S., keeping her safe, and
providing her with permanency. The need for permanency is a paramount
consideration for a child’s present and future physical and emotional needs, and the
goal of establishing a stable, permanent home for a child is a compelling government
interest. Id.
Based upon the Holley factors and the evidence in the record, we cannot hold
that the trial court’s best interest findings are not supported by clear and convincing
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evidence. See Holley, 544 S.W.2d at 371–72. The trial court could reasonably have
formed a firm belief or conviction that it would be in the child’s best interest for the
mother’s and the father’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
findings. We overrule the sole issue presented by the mother and the sole issue
presented by the father in this appeal.
This Court’s Ruling
We affirm the trial court’s order of termination.
MIKE WILLSON
JUSTICE
March 31, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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