Opinion filed May 7, 2015



### In The 

# Eleventh Court of Appeals

___ __ _____ No. 11

- 1 4

- 00 3 08

- C V

__________ IN THE INTEREST OF S.P. AND H.P

. , CHILD REN

On Appeal from the 3 18th District Court Midland County, Texas Trial Court Cause No. FM 5 6,186

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 father of S.P. and H.P

. The moth er appeal s and, in a single issue on appeal, challenges the legal and factual sufficiency of the evidence to support the finding that termination of her parental rights is in the best interest of the children

. We affirm.
I. Termination
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 determine on appeal2

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 sufficie nt, 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 ter minate 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 two 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 endangered the ir physical or e motional well

- being and 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.
See id. § 161.001(1) (D), (E). The mother does not challen ge the sufficien cy of the
evidence to support either of these finding s

. The trial court also found that
termination was in the child ren ’ s best interest , a finding that is challenged by the
mother

. See id. § 161.001(2)

. II. Analysis: Best Interest The question before us is whether the best interest finding is 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.

— Eas tland 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.3

1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physi cal 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 bes t 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 relati onship 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 record shows that the removal in this case stemmed from an injury to H.P. that occurred on June 24, 2013, when he was less than nine months old . A detective with the Midland Police Department responded to a call of an unconscious child at an apartment. The child was taken to the emergency room, and the detective talked to the mother at the hospital. T he mother was the only adult present when H .P. was injured. H.P.’s sister, S.P., who was not yet two years old, may also have been present

. The mother said that H.P. was jumping on a futon , that she heard a noise,
and that she turned around and saw H.P. hit his head on the futon, which was metal. When the detective informed the mother that her story was not consistent with the severe injury sustained by H.P., the mother told the detective that she “shook the child one time hard” that day. The mother later denied that she had shaken H.P. and
told her counselor that the doctors “made all this up.” At the time of t he hearing on termination, a felony criminal case was pending against the mother. Consequently, when the mother was called to testify, she invoked her Fifth Amendment right and
did not a nswer any que stions regarding H.P.’s injury.4

While in the mother’s care, H.P. suffered a subdural hematoma that required surgery to evacuate blood and place a shunt for drainage. A significant amount of force was required for the type of injury suffered by H.P. A medical doctor who specialized in child

- abuse pediatrics testified that the mother’s story was not
believable . According to the doctor, the type of injury suffered by H.P. could have been caused by shaking him , and he would have become symptoma tic immediately

. H.P.’s symptoms as the hospital included seizures, loss of consciousness, subdural hemorrhage, and retinal hemorrhage. The doctor testified that r etinal h emorrhage is associated with a head injury caused by being crushed or shaken. T he t ype of severe injury suffered by H.P. can lead to future developmental delays, cerebral palsy, and paralysis. The Department of Family and Protective Services removed the children after H.P. was injured. While in the Department’s care, it was discovered that S.P. had a genetic disorder and was autistic. Both children were placed in a licensed therapeutic foster home and were doing well there. At the time of trial, S.P. was almost three years old and spoke no words. S.P. s creamed and made squealing noises, which seemed to bother H.P. While in foster care, S.P. and H.P. have received therapy and have been treated by specialists

— care that they were not receiving while with their parents. For six months after his injury, H. P. did not have much use of his left side. He was also developmentally delayed, but he no longer
suffered from seizures. The Department’s goal for the children was termination of the parents’ rights and adoption by a non

- relative. The current foster par ents had agreed to keep the children and help transition them to an adoptive home. The licensed professional counselor who counseled the mother had “a big concern” about returning the
children to the mother. The Department’s caseworker testified that the mother lacked the necessary skills to parent the children, who are both special needs5

children. The mother refused to take her medications and lacked a support system. Furthermore, H.P. was severely injured while in his mother’s care. The CASA
volunteer recommended that the parental rights of both parents be terminated. She noted the parents’ unstable housing, the mother’s refusal to take her medication, the special needs of the children, and the need for stability as reasons for her
recommendation. Th e child ren expressed no vocal desires.
B ased upon the evidence in the record and the Holley factors
, 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 children for the mother ’s parental rights
to be terminated

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

– 72

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

. We overrule the mother ’s
sole issue.
II I. This Court’s Ruling
We affirm t he trial court’s order of terminat ion

.

MIKE WILLSON
JUSTICE

May 7, 2015 Panel consists of: Wright, C.J., Willson , J. , and Bailey, J.