in the Interest of M.W., a Child

Opinion filed October 25, 2018
In The
Eleventh Court of Appeals
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No. 11-18-00119-CV
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IN THE INTEREST OF A.W. AND A.W., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8677-CX
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No. 11-18-00120-CV
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IN THE INTEREST OF M.W., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8641-CX
MEMORANDUM OPINION
In separate causes that were joined for trial, the trial court terminated the
parental rights of the mother of A.W., A.W., and M.W. The trial court did not
terminate the parental rights of the children’s fathers. With respect to the oldest child
(Ar.W.), the trial court appointed that child’s father and the father’s girlfriend as joint
managing conservators. The trial court appointed the father of the younger two
children (Ah.W. and M.W.) to be their managing conservator. In each cause, the
mother filed a notice of appeal and presents a single issue in which she challenges
the sufficiency of the evidence in support of the trial court’s best interest finding.
We affirm.
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). 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)–(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
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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.
The trial court found that Appellant had committed the acts listed in
subsections (E) and (O) of Section 161.001(b)(1). Specifically, the trial court found
that Appellant had engaged in conduct or knowingly placed the children with
persons who engaged in conduct that endangered the children’s physical or
emotional well-being 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 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 their removal from the parent for abuse or neglect. Appellant does not
challenge these findings on appeal.
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.
Appellant’s arguments on appeal relate only to the findings made by the trial court
regarding the children’s best interest.
The Department became involved with Appellant when Ah.W. was born in
2015. At that time, Appellant tested positive for methamphetamine and Ah.W.
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tested positive for Klonopin. The Department initiated family services after Ah.W.’s
birth. Then, in 2017, when M.W. was born, both Appellant and M.W. tested positive
for methamphetamine and Klonopin. Appellant’s children were removed, and she
was ordered to participate in a family service plan. She did not comply with the
court-ordered service plan, and she continued to abuse drugs while this case was
pending. The most recent drug test prior to trial revealed that Appellant tested
positive “with high results” for methamphetamine, amphetamine, and cocaine.
Appellant admitted at trial that she had used methamphetamine while pregnant with
M.W. As a result of that drug use, M.W.’s health has suffered.
The record reflects that, despite her actions, Appellant did not want her
parental rights to be terminated; she asked for some sort of visitation and for more
time to “get [herself] together.” Appellant, however, did not even attempt to work
her services while these cases were pending.
Furthermore, Appellant has not raised any of the children at issue in this
appeal. Ar.W., who was twelve years old at the time of trial, has never primarily
lived with Appellant. Appellant had given Ar.W. to family members to raise.
Appellant testified at trial that she had not seen Ar.W. in over a year and that she
rarely talked to him on the phone. Appellant acknowledged that Ar.W.’s father and
the father’s girlfriend had “done a great job” with Ar.W. since he was placed in their
care.
By all accounts, each of the children had thrived in their placements while this
case was pending. Ah.W. and M.W. were placed with their father and were doing
well in his care. Ar.W. was placed with his father and his father’s girlfriend and was
doing well in their care. We note that the record reflects that the children’s fathers
and Ar.W.’s father’s girlfriend had put the interests of the children above their own
interests and, as stated by the trial court, had acted in a truly “extraordinary” manner
in this regard.
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The father of M.W. and Ah.W. testified that he believed termination of
Appellant’s parental rights would be in the best interest of M.W. and Ah.W. He
feared that, absent termination, M.W. and Ah.W. would be placed with Appellant if
something were to happen to him. Ar.W.’s father and the father’s girlfriend believed
that termination of Appellant’s parental rights would be in the best interest of Ar.W.
The children’s CASA volunteer also believed that termination of Appellant’s
parental rights would be in the best interest of each of the three children.
With respect to the desires of the children, we note that Ah.W. and M.W. were
too young to express their desires and that Ar.W. conferred with the trial court in
chambers. The transcription of that conference does not appear in the record, but
the trial court noted that it believed that Ar.W. loved Appellant but that Ar.W. was
also “disgusted at the same time.” Ar.W.’s father’s girlfriend acknowledged that
Ar.W. loved Appellant and Appellant’s mother and wanted to maintain a relationship
with them.
Based on the evidence presented at trial and in light of the Holley factors, the
trial court could reasonably have formed a firm belief or conviction that termination
of Appellant’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
Appellant and the placements, the plans for the children by the Department, the
stability of the children’s placements, Appellant’s continued drug use, Appellant’s
lack of contact with the children, and Appellant’s inability to care for the children,
we hold that the evidence is sufficient to support the findings that termination of
Appellant’s parental rights is in the best interest of each of her three children. See
id. Appellant’s sole issue in each appeal is overruled.
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We affirm the orders of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
October 25, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals1;
and Wright, S.C.J.2
Willson, J., not participating.
1
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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