Opinion filed July 18 , 2013



### In The 

# Eleventh Court of Appeals

___ __ _____ No. 11

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- 00 0 23

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__________ IN THE INTEREST OF K.D.R. , J R

. AND C. A.M. R. , CHILD REN

On Appeal from the 318 th District Court
Midland County, Texas
Trial Court Cause No. FM 48,337

M E M O R A N D U M O P I N I O N The trial court entered an order terminating the parental rights of both the
mother and the father of K.D.R., Jr. and C.A.M.R

. The moth er has filed a notice of appeal from the termination order

. We affirm.
The mother presents two issue s for review. In those issue s , she asserts that the evidence is legally and factually insufficient to support the finding that
termination is in the best interest of the children

. T ermination of parental rights must be supported by clear and convincing
evidence. T EX

. F AM

. C ODE A NN

. § 161.001 ( West Supp. 201 2 ). To determine on2 appeal if the evidence is legally sufficient in a parental termination case , we review
all of t he 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. F AM

. §
161.001. In this case, the trial court found that the mother committed four of the
acts listed in Section 161 .001(1). The trial court found that the mother had knowingly placed or knowingly allowed the child ren to remain in conditions or surroundings that endang ered the physical or emotional well

- being of the child ren , that the mother had engaged in conduct or knowingly placed the child ren with persons who engaged in conduct that endangered the child ren ’s physical or
emotional well

- being , that the mother had c ons tructively abandoned the child ren , and that the mother had failed to comply with the provisions of a court order stating the actions necessary for her to obtain the return of the child ren

. See id. § 161.001(1) (D), (E) , (N), (O)

. The mother does not challenge the finding s made pursuant to Section 161.001(1). Any one of t he se unchallenged finding s wa s sufficient to support termination as long as termination was shown to be in the
child ren ’s best interest. See id. § 161.001. The trial court also found that
termination was in the child ren ’ s best interest. See id. § 161.001(2). The trial court additionally determined that termination was proper pursuant to Section 161.004 of the Family Code, which sets out the requirements for3 termination when a request for termination has previously been denied by court
order

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. § 161.004 (West 2008). These requirements include a best interest finding. Id. § 161.004(a)(4). The question before us is whether the best interest finding i s supported by legally and factually sufficient evidence. 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

- exhaust ive 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
emotion al 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 o r 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 Department of F amily and Protective Services filed a petition in August
2008 to terminate p arental rights . In August 2009, the trial court entered an order denying the Department’s request to terminate the mother ’s parental rights ; the
trial court found that the mother had committed two of the acts listed in
Section 161.001(1) but that the Department had not proven by clear and convincing evidence that termination would be in the children’s best interest. At that time, the trial court appoint ed the Department as the chi ldren’s permanent managing conservator and the mother as a possessory conservator. In June 2012,4 the Department filed an amended petition to modify the prior order and terminate
the mother’s parental rights. The record shows that the Department had been involved with the mother
and her children since K.D.R., Jr. and C.A.M.R. were infants. The intakes related to the environment they were living in, the relationships that the mother was in, domestic violence, neglectful supervision, and inappropriate peopl e being around the children (including one man who sexually abused the children). At the time of the final hearing in this case, K.D.R., Jr. was fourteen years old, and C.A.M.R. was eleven

. They had been placed in the foster home of P.B. in August 2008, and they
remained there at the time of the hearing in January 2013. The Department repeatedly offer ed the mother services
, and she repeatedly
refused to let the Department help her

. The mother did not comply with numerous provisions of her service plan. T he mother failed to participate in family counseling , failed to complete individual counseling, failed to complete a domestic violence program, was inconsistent in attending visitati on with the children , and did not have appropriate housing for her children. The mother refused the Department’s offer to get her into a facility to help her develop life skills and informed the Department that she did not want to participate in the court

- ordered
services and did not want help with housing. The Department’s caseworker testified that t he children ha ve behavior issues that probably stem from previous abuse and neglect, but that they a re doing well in
their foster home. The children’s behav ior issues are being addressed in therapy. The therapist favor ed terminating the parents’ rights and continu ing the children’s placement in their current foster home. The Department’s caseworker also believed
that
, even though the children did not want t heir mother’s parental rights to be terminated, termination would be in the children’s best interest . He testified that the children’s behavior was getting worse because “they’re just off in limbo with5 everything right now and . . . by terminating their r ights they will be able to move
on.” At some visitations, the mother made promises to the children that she did not or could not keep. The children’s hopes that their mother would be able to be a parent like their foster mother are unrealistic because th e mother “is incapable of being that kind of mother.” When the mother fails to show up for visitations, the
children a re sad and become “very angry.” The Department’s conservatorship supervisor, Adriana Mendoza, had worked with the children for four year s and had previously been the ir caseworker

. She thought highly of and had affection for the children. Mendoza opined that termination of parental rights would be in the best interest of the children because “they need a sense of closure” and because “it is paramount to emotional abuse, what’s going on with these boys right now.” She explained that “ they essentially have the promises that their mother dangled in front of them only for her to disappear again, over and over and over again.” The hope that the mother is goi ng to change “is killing them.”
Mendoza testified that the children are happy in their placement with P.B.; that they are involved in extracurricular activities; but that, when their problematic behaviors are being discussed, the children’ s “faces close off” and they ask questions like, “Why can’t their mom be there for them?” She testified that
various actions of the mother “devastate them.” K.D.R., Jr. and C.A.M.R. were aware that the mother quit coming to visits when their younger half

- siblings were placed with relatives and th e case was closed as to them

. 1 K.D.R., Jr. and C.A.M.R. were also aware that their mother did not consistently visit them and said she could not afford to come see them, yet the mother could afford to throw two
h uge birthday parties at Chuck E

. Cheese ’s for one of the children’s half

- siblings

.

1 We note that, when the Department originally filed this case in 2008, all four of the mother’s children were removed. In 2009, the two younger children were permanently placed with relatives, and the Department was dismissed as a party with respect to the two younger children.6 P.B., the children’s foster mother, testified that the children had lived with her for four years and four months. P.B. testified that both of the children have
Tourette’s syndrome and ADHD and that she got them started on medication after they moved into her home

. She could see a major improvement in them, and “it was pretty smooth sailing for a while.” P.B. testified that the children are happy in her home, that they ar e part of her family, and that the children “are welcome to stay with us until they age out of care or stay with us and keep going to college.” P.B. thought that, at the time of the hearing, the situation with parental rights and
the mother’s visitation wa s a problem and caused “behavior problems at school and at home trying to get negative atten tion and acting out.” According to P.B., it is not only what occurs during the visits that the mother does attend
, but also the inconsistency of her being in and out of their lives
, that causes the problems with
the children’s behavior. Since July 2009, the mother had attended only eighteen of
the 158 visitations that she could have had with K.D.R., Jr. and C.A.M.R. Using a calendar that she keeps and makes notes on, P.B. correlated the mother’s
visitations with the children’s problematic behavior

. P.B. said that t he recent visits
had caused setbacks in their behavior. The children are very angry and do not
underst and why their mother does not care enough or try hard enough. P.B.
testified that the children love their mother and would love to be with her but that they do not want to live like they did when they lived with their mother. P.B.
testified that she beli eved that termination of the mother’s parental rights would be
i n the children’s best interest. The CASA advocate for the children, who had been on this case for four years, also recommended that the mother’s parental rights be terminated and thought that it would be in the children’s best interest to do so. She testified, “I don’t believe that it is in their best interest to keep this roller coaster of anticipation, disappointment.” The record shows that the trial court conferred with7 the children in cha mbers. The trial court’s conversation with the childr en was apparently not recorded. Even though t he mother knew that this case had been set for a final hearing on termination of her parental rights to K.D.R., Jr. and C.A.M.R. , t he mother failed to appea r at the hearing

. We note that s he was, h owever, represented by counsel.
B ased upon the evidence in the record
, we cannot hold that the trial court’s best interest finding is not supported by clear and convincing evidence; t he trial
court could reasonably have formed a firm belief or conviction that it would be in
the best interest of both K.D.R., Jr. and C.A.M.R. for the mother ’s parental rights
to be terminated

. T he evidence is both legally and factually sufficient to support
the best interest finding

. We overrule the mother ’s first and second issue s

. We affirm t he trial court’s order of terminat ion

.

MIKE WILLSON
JUSTICE

July 18, 2013 Panel consists of: Wright, C.J., McCall, J., and Willson , J.