Opinion filed January 19 , 201 8



### In The 

# Eleventh Court of Appeals

___ __ ______ 

### No. 11

- 1 7

- 00 20 0

- C V

_____ _ _____ 

### IN THE INTEREST OF L.R.R

. , A CHILD

On Appeal from the County Court at Law Midland County, Texas Trial Court Cause No. FM 60 , 640

M E M O R A N D U M O P I N I O N The trial court entered an order in which it terminat ed the parental rights of the mother and the father of L.R.R

. Both parents a ppeal

. On appeal, each parent

c halleng es the sufficiency of the evidence to support the trial court’s findings in support of termination

. We affirm. The father presents five issues, and the mother presents eight issues. All thirteen issues involve a challenge to the legal or factual sufficiency of the evidence to support the trial court’s findings. T ermination of parental rights must be supported by clear and convincing evidence. T EX

. F AM

. C ODE A NN

. § 161.001 (b) ( West Supp. 201 7 ). To determine on appeal if the evidence is legally sufficient in a2

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 t he 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. F AM

. § 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 th e 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 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. In this case, the trial court found that the father had committed four of the acts listed in Section 161 .001 (b) (1)

— those found in subsections (D), (E), (N), and (O)

—3

and that the mot her had committed three of the acts listed in Section 161.001(b)(1)

— those found in subsections (D), (E), and (O). Specifically, the trial court found that each parent had knowingly placed or knowingly allowed the child to remain in conditions or surroundi ngs that endangered the child’s physical or emotional well

being; that each parent had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child’s physical or emotional well

- being; that the father had co nstructively abandoned the child ; and that each parent had failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of the child , 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 child’s removal from the parent s for abuse or neglect

. The trial court also found, pursuant to Section 161.001(b)(2), that termination of both parents ’ parental rights would be in the best interest of the child. The parents ch allenge each of these findings

. The record shows that the Department initially became involved with L.R.R. shortly after she was born

. The Department was involved with the family again when L.R.R. was eleven months old. At that time, police found the mother passed out in a vehicle with L.R.R. in the back seat . The mother stated that the father had injected her with heroin. The n , when L.R.R. was three years old, the Department became involv ed a third time and removed L.R.R. from her parents’ care after the mother was again arrested for driving while intoxicated with a child passenger. The mother, who us ed inhalants (specifically, “air dusters”) on a daily basis , had inhaled an air duster while driv ing with L.R.R. in the vehicle. The mother lost consciousness and crashed into a grocery store. The mother was later convicted for this offense and also for the prior incident in which she drove while intoxicated with L.R.R. in the vehicle. Th e mother had an extensive history of drug abuse, including inhalants, heroin, marihuana, methadone, and Xanax; she also had a criminal history

. The4

mother was incarcerated throughout the termination proceedings and had had no visit ation with L.R.R. during that time. Additionally, the mother did not complete the court

- ordered family services. The father used heroin and had an extensive history of drug use. At the time of removal, the father was incarcerated. At the time of the final hearing, the father

r esided at a halfway house in Midland. He did not visit L.R.R. while this case was pending and did not complete the court

- ordered family services. After L.R.R. was removed, she was inappropriately touching both herself and another child. L.R.R. explained that her “old Mommy” (the mother involved in this termination) had taught her how to touch herself and said tha t it was okay for her to do so. In therapy, L.R.R. disclosed that both the mother and the father had touched her private areas. Both parents te stified at trial and denied the se allegations. Although L.R.R. was originally placed in foster care , she was placed with maternal cousins about eight months prior to the date of the final hearing. L.R.R. has thrived in the home of her maternal cousins, an d she remained in their home at the time of trial. The maternal cousins have a safe and stable home, are bonded with L.R.R., and wish to adopt L.R.R. The maternal cousins are committed to L.R.R. and to her therapy. The Department’s goal for L.R.R. is te rmination of both parents’ parental rights and eventual ad option by the maternal cousins. The conservatorship caseworker and the child’s attorney ad litem believed that termination of the mother’s and the father’s parental rights woul d be in L.R.R.’s best interest. The record contains clear and convincing evidence that both parents had engaged in conduct that endangered L.R.R .’s physical or emotional well

- being and that both parents had failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of
L.R.R

. — as required to support finding s under Section 161.001(b)(1) (E) and ( O )

. Under subsection (E), the relevant inquiry is whether evidence exists that the5

endangerment of th e chil d’ s well

- being was the direct result of the parent’s conduct, including acts, omissions, or failures to act. In re D.O. , 338 S.W.3d 29, 33 (Tex. App.

— Eastland 2011, no pet.). Additionally, termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. In re D.T. , 34 S.W.3d 625, 634 (Tex. App.

— Fort Worth 2000, pet. denied) ; In re K.M.M. , 993 S.W.2d 225, 228 (Tex. App.

— Eastland 1999, no pet.). T he offending conduct does not need to be directed at the child, nor does the child actually have to suffer an injury. In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009). The evidence at trial revealed that the parents used drugs together, that the mother was first arrested for driving while intoxicated with L.R.R. in the vehicle in 2014 after the father injected the mother with heroin, and that the mother was again arrested in 2016 for driving while intoxic ated with L.R.R. in the vehicle after she crashed into a grocery store . The mother was found passed out in the vehicle on both of these occasions. Additionally, the evidence was undisputed that the parents did not fully comply with their court

- ordered fa mily service plan. W e hold that t he evidence is legally and factually sufficient to support th e findin g s as to each parent under subsection s (E) and (O). Accordingly, we over rule the father’s second and fourth issues and the mother’s fifth, sixth, sevent h, and eighth issue s

. Because it must be shown that a parent has committed only one of the acts listed in Section 161.001(b)(1)(A)

– ( U ), we need not reach the merits of the father’s first and third issues or the mother’s third and fourth issues. See T EX

. R. A PP

. P . 47.1.
In the father’s fifth issue and the mother’s first and second issues , the y challenge the legal and factual sufficiency of the evidence in support of the trial court’s best interest finding s

. B ased upon the Holley factors and the evidence in the record , we cannot hold that the trial court’s best interest finding s are not supported by clear and convincing evidence

. See Holley , 544 S.W.2d at 371

– 72. Considering6

the evidence of the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the placement , the plans for the placement to adopt the child , the stability of the placeme nt’s home , and the parents’ drug use and criminal histories (particularly both parents’ responsibility with respect to the mother driving under the influence while L.R.R. was in the vehicle), w e conclude that th e trial court could reasonably have formed a firm belief or conviction that it would be in L.R.R .’s best interest for her mo ther ’s and her father’s parental rights to be terminated

. We hold that t he evidence i s both legally and factually sufficient to support the trial court’s best interest finding s

. Accordingly, w e overrule the father’s fifth issue and the mother’s first and second issue s

. We affirm the trial court’s order of termination

.

MIKE WILLSON JUSTICE January 19 , 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 Ea stland, sitting by assignment.