Opinion filed February 5 , 201 5



### In The 

# Eleventh Court of Appeals

___ __ _____ No. 11

- 1 4

- 00 1 5 4

- C V

__________ IN THE INTEREST OF A.S. AND B.S

. , CHILD REN

On Appeal from the 244 th District Court
Ector County, Texas
Trial Court Cause No. C

- 5379

- AD

M E M O R A N D U M O P I N I O N This appeal stems from an order in which the trial court denied a request to terminate the parental rights of Appellee, the biological father of A.S. and B.S.
The children’s mother (Tiffany) and her husband, who together had filed a petition for termination and adoption, appeal

. In its order, the trial court rul ed that Appellant s had not proven by clear and convincing evidence that termination
would be in the child ren’s best interest. We affirm.2 Issues Appellants present seven issue s for review. However, we need only address
the final three issues as those are dispositive of the appeal

. 1 See T EX

. R.
A PP

. P. 47.1. In their fifth and sixth issues, Appellants challenge the legal and factual sufficiency of the evidence to support the trial court’s finding that termination of Appellee’s parental rights would not be in the best interest of A.S.
and B.S. In their seventh issue, Appellants complain that the trial court abused its discretion in refusing to interview A.S. and B.S. in chambers. Denial of Petition to Terminat e T he relationship existing between a parent and a child is of such importance
that it is considered to be of constitutional dimension. Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). T ermination of parental rights must be supported by clear and convincing evidence. T EX

. F AM

. C ODE A NN

. § 161.001 ( West 201 4 ). 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. F AM

. § 161.001. In th e present case, the trial court did not make any ruling or finding as to whether Appellee had committed any of the acts listed in Section 161.001(1). The trial court made only

on e finding: that Appellants failed to prove by clear and convincing evidence that
termin ation would be in the child ren ’ s best interest. See id. § 161.001(2). 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 th e child, (2) the emotional and physical

1 In their first four issues, Appellants assert that the evidence was legally and factually sufficient to support finding s under Section 161.001(1)(E) and (Q) of the Family Code. See T EX

. F AM

. C ODE A NN

. § 161.001(1) (West 2014). In its order, the trial court did no t rule on or address Section 161.001(1).3 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 t hat 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 tha t termination is
in the child’s best interest. C.J.O. , 325 S.W.3d at 266. When a parent whose rights have been terminated appeals and challenges the legal sufficiency of the evidence , we review all of the evidence in the light most
favorable to the find ing 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). In that same scenario, when addressing the factual sufficiency o f the evidence, 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).
In this cas e, however, the appeal is not from an order of termination but from an order denying a petition for termination

. Appellants , as the petitioners at trial, had the burden of proof at trial

. Thus, t hey had the burden of establishing by clear and convincing evidence that termination of Appellee’s parental rights w ould
be in the best interest of A.S. and B.S

. See In re A.L.D.H. , 373 S.W.3d 187, 192 (Tex. App.

— Amarillo 2012, pet. denied) ; see also Burns v . Burns , 434 S.W.3d 223, 227 (Tex. App.

— Houston [1st Dist.] 2014, no pet.).4 When a n appellant attacks the legal sufficiency of an adverse finding on an
issue on which the appellant had the burden of proof, the appellant must demonstrate on appeal that th e evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (citing Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989) ). Thus, to prevail on their legal sufficien cy challenge, Appellants must show that the
evidence at trial established as a matter of law , or conclusively established, that it would be in the best interest of A.S. and B.S. to terminate Appellee’s parental rights. See Dow Chem. , 46 S.W.3d at 241; A.L.D.H. , 373 S.W.3d at 192

. W hen an appellant challenges the factual sufficiency of the evidence to support a finding on an issue on which t he appellant bore the burden of proof at trial, the appellat e court must consider and weigh all of the evidence a nd
, generally, can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust

. Dow Chem. , 46 S.W.3d at 242. However, when the appeal is
from t he denial of a petition to terminate parental rights

— where the burden of proof at trial i s proof by clear and convincing evidence instead of proof by a preponderance of the evidence
, we review the entire record and must “ determine
whether the trial court ’ s failure to form a firm conviction or belief that a parent ’ s rights must be terminated is contrary to the overwhelming weight of the evidence and clearly wrong. ” Burns , 434 S.W.3d at 227. The court in A.L.D.H. stated that,
when the appellant is challengi ng the trial court’s finding that termination is not in a child’s best interest, the appellate court “ must review the evidence to ascertain if
the evidence was of such a character that it ha d to produce in the mind of the
f

actfinder a firm belief or convic tion that termination was in the best interest of the
child

. ” A.L.D.H. , 373 S.W.3d at 193. Additionally, we note that we are not to reweigh the evidence or judge the credibility of the witnesses and that we must5 defer to the trial court’s credibility det erminations as long as those determinations
are not unreasonable. J.P.B. , 180 S.W.3d at 573.
The record in this case shows that Appellee and his children had a wonderful relationship until June 5, 2012, when Appellee committed an act that detrimentally
affected his children. At that time, Appellee’s daughter, A.S. , was twelve years old
and his son, B.S. , was ten years old

. On June 5, 2012, Appellee, who was suffering from severe depression, threatened to commit suicide. Appellee sent Tiffany a text indicating his intent to kill himself, and Tiffany called the police and requested that the police condu ct a welfare check on App ellee. When the police arrived at Appellee’ s home, Appellee “slammed the door in their face and then
fired t wo shots out of his back door.” After a two

- hour standoff, Appellee texted Tiffany to tell her that he would kill himself outside so as not to mak e a mess inside the house and to ask her to promise him that she wou ld take care of their
children. Appellee then came out of the house with a gun
, was shot by the police
, and was taken into custody

. As a result of the June 5, 2012 incident, Appellee
sub sequently pleaded guilty to four counts of aggravated assault on a public

servant an d received a ten

- year sentence. Prior to the June 5 incident, Appellee and Tiffany had joint custody of the
children . The couple had divorced in 2008, and they agreed to an even split in custody ; t he children spent every other week with Appellee. Appellee was a loving, nurturing, hands

- on father prior to the June 5 incident. By all accounts, Appellee loved his children and they loved him; Tiffany agreed at trial that the children still love Appellee and that Appellee still loves them. After the June 5 incident, the children suffered emoti onally and required counseling. The children have had limited contact with Appellee since his arrest: a few p hone calls and several le tters. At the time of trial, A.S. was fourteen years
old
, and B.S. was twelve years old. T he y had stopped writing Appellee and did not6 want to have any contact with him. The children had bonded with their stepfather
and asked to be adopted by him. A.S. and B.S. told Tiffany that they “don’t want [Appellee] to be their dad, they want [thei r stepfather] to be their dad.” Tiffany testified that she believed it would be in the children’s best interest for Appellee’s parental rights to be terminated a nd for the children to be adopted by their stepfather. Appellee, who testified at trial by telephone, disagreed with Tiffany’s assessment; he did not believe that terminating his parental rights would be i n the
children’s best interest. He explained that he knew he had hurt the children by his actions on June 5, 2012. He understood that they were mad at him and believed that “a large part of that healing, the only way it’s going to come, is by resuming a relationship with” Appellee so that they can wor k t hrough the process together. Appellee had spent twelve years with A.S. and ten years with B.S. prior to his incarceration and testified that, during that time, he and the children had a strong
bond. Appellee’s mother and one of his friends also testified about the strong bond
that the children had had with Appellee. Appellee offered into evidence two letters from A.S. to Appellee and one
letter from B.S. to Appellee. In a letter written on March 10, 2013, A.S. expressed her anger with Appellee and stated , “I love you and all, but I am still mad at you for not being strong enough to overcome the devil’s power. I hope that one day I will calm down and let you see me again .” B.S. wrote in a letter that was postmarked November 5, 2012, that he was sorry and that, if he had known Appellee was so depressed, he would h ave gotten help. B.S. also promised to “lose more weight” and stated, “You were a great d ad, both of us love you a lot.” The attorney ad litem for the children informed the trial court that she h ad “had an opportunity to visit firsthand” with the children and “to be in their home,
watch their interaction with their mothe r and [stepfather].” The attorney ad litem7 believed that termination of Appellee’s parental rights would be in the best interest
of the children. She informed the trial court that the children were bright, intelligent, and articulate ; that the y kn e w what they want ed ; and that they had not
been coerced or coached. The attorney ad litem explained the harm that the
children had suff ered as a result of Appellee’s actions on June 5, 2012, including being in the press, losing friends, losing a church home, having to change schools, and knowing that their father wanted to kill himself. According to the attorney ad litem, the children do not want to have any contact with Appellee, and they are trying to forgive Appellee and move forward with “a father [their stepfather] and
with their mother who ma kes them feel safe and secure.”
B ased upon the evidence in the record and the Holley factors
, we cannot hold that Appellants established as a matter of law, or conclusively established, that it would be in the best interest of A.S. and B.S. to terminate Appellee’s parental rights . Nor can we hold that the trial court ’ s failure to form a f irm

con viction or belief that Appellee’ s rights must be terminated wa s contrary to the overwhelming weight of the evidence and clearly wrong or that the evidence was
of such a character that it ha d to produce in the mind of the factfinder a firm belief
or convict ion that termination was i n the best interest of A.S. and B.S. Even Tiffany admitted at trial that the issue of termination was not a “[r]ight and wrong, black and white” situation and that there were “shades of g ray” with respect to the
issue. W e overru le Appellants’ fifth and sixth issue s

. Refusal to Interview Children In their seventh issue, Appellants assert that the trial court abused its discretion by refusing to interview the children in chambers as requested by Appellants. Appellants rely upon Section 153.009 of the Family Code as support
for their contention

. See F AM

. § 153.009. Section 153.009 provides in part as follows:8 (a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem fo r the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 year s of age to determine the child’ s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. The court may also interview a child in chambers on the court ’ s own motion for a purpose specified by this subsection. (b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or t he attorney ad litem for the child or on the court ’ s own motion, the court may interview the child in chambers to determine the child ’ s wishes as to possession, access, or any other issue in the suit affecting the parent

- child relationship. (c) Interviewin g a child does not diminish the discretion of the court in determining the best interests of the child.
The record shows that Appellants requested that the trial court confer with the
children because the children wanted to speak to the court . The trial c ourt refused
to interview the children because the court could not find “any authority” to do so in a termination proceeding

. Even if the trial court abused its discretion in refusing to interview the children, we cannot hold that the error, if any, const itutes reversible error. Both Tiffany and the children’s attorney ad litem expressed the children’ s desires to the trial court, and those desires were for the trial court to terminate Appellee’s parental rights and to permit their stepfather to adopt them

. Furthermore, Appellants made no offer of proof as to what the children would have said if they had been interviewed by the trial court. For these reasons , we cannot hold that the error, if any, in refusing to interview the children in chambers probably caused the rendition of an improper judgment or probably prevented Appellants from properly presenting their case on appeal

. See T EX

. R. A PP

. P. 44.1(a). Appellants’ seventh
issue on appeal is overruled.9 This Court’s Ruling
We affirm t he order of the trial court

.

J OHN M. BAILEY
JUSTICE

February 5, 2015 Panel consists of: Wright, C.J., Willson , J. , and Bailey, J.