1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO. 09-16-00385-CV



### ____________________

IN THE INTEREST OF C.N., C.N. and L.N.

___________________ __________________ __________________ _________________ On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV1306622

___________________ __________________ __________________ _________________ MEMORANDUM OPINION Appellants S.N. (Mother) and C.N. (Fath er) appeal from the trial court’s order terminating their parental rights to their minor childr en, C.N., C.N., and
L.N. 1 The trial court ordered termination after finding by clear and convincing evidence that termination of the parental rights of Mother and Father was in the best interest of the children and that Moth er and Father violated subsections (D), (E), and (O) of section 161.001( b)(1) of the Texas Family Code. See Tex. Fam.

1 To protect the identity of the minors, we have not used the names of the children, parents, or other family members. See Tex. R. App. P. 9.8(a), (b).2 Code Ann. § 161.001(b)(1) , (2) (West Supp. 2016). 2 In four issues, Mother and Father challenge the legal and factual su fficiency of the evid ence to support the trial court’s termination findings. We affirm the trial court’s judgment. Parental rights can be terminated upon proof by clear and convincing evidence that the parent has committed an act prohibited by s ection 161.001(b)(1) of the Texas Family Code, a nd termination is in the best interest of the child. Id. ; see In re J.O.A ., 283 S.W.3d 336, 344 (Tex. 2009); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). Due to the severity and perman ency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. See In re J.F.C ., 96 S.W.3d 256, 263–64 (Tex. 2002). “Clear and convincing evidence” means “the measure or degree of proof that will produce in the mind of the trier of fact a firm beli ef or conviction as to the truth of the allegations sought to be established. ” Tex. Fam. Code Ann. § 101.007 (West 2014). This is an intermediate standa rd and falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard in criminal proceedings. State v. Addington , 588 S.W.2d 569, 570 (Tex. 1979); In re
D.T. , 34 S.W.3d 625, 630 (Tex. App.—Fort Wo rth 2000, pet. denied) (op. on

2 The Legislature amended section 161.001 of the Texas Family Code after this case was filed; however, we cite to the current version of the statute because the subsequent amendments do not aff ect our analysis in this appeal.3 reh’g). Therefore, the proof must be more than merely the gr eater weight of the credible evidence, but need not be unequivocal or undisputed. Addington , 588 S.W.2d at 570. This heightened burden of pr oof results in a heightened standard of review. In re J.F.C. , 96 S.W.3d at 265–66. In reviewing the legal sufficiency of the evidence in a parental termination case, we must consider all th e evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that its finding was true. In re J.O.A. , 283 S.W.3d at 344; In re J.F.C. , 96 S.W.3d at 266. We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder coul d have disbelieved. In re J.O.A. , 283 S.W.3d at 344 ; In
re J.F.C. , 96 S.W.3d at 266. Howeve r, we do not disregard undisputed facts that do not support the trial court’s finding. See In re J.O.A. , 283 S.W.3d at 344 ; In re
J.F.C. , 96 S.W.3d at 266. The factfinder is the “sole arbiter when assessing the credibility and demeanor of witnesses[.]” In re J.L. , 163 S.W.3d at 86–87. In reviewing the factual sufficiency of the evidence in a parental termination case, we “give due consideration to evid ence that the factfinder could reasonably have found to be cl ear and convincing.” In re J.F.C. , 96 S.W.3d at 266. We must determine “‘whether the evid ence is such that a factfinder could reasonably form a4 firm belief or conviction about the truth of the State’s allegations.’” Id . (quoting In
re C.H. , 89 S.W.3d 17, 25 (Tex. 2002)). “If, in light of the entire record, the disputed evidence that a reas onable factfinder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id . The factfinder is the sole arbiter when as sessing the credibility and demeanor of witnesses; therefore, we give due defere nce to the factfinder’s findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M. , 209 S.W.3d 105, 108-09 (Tex. 2006). Mother and Father challenge the le gal and factual su fficiency of the evidence to support the predicate termin ation grounds. The trial court found three predicate grounds for termination—subs ections (D), (E), and (O). Section 161.001(b)(1) provides in rele vant part that terminati on of parental rights is warranted if the trial court finds by clear and convincing evidence, in addition to the best interest finding, that the parent has: (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; (E) engaged in conduct or know ingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;5 . . . (O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has b een in the permanent or temporary managing conservatorship of the [Dep artment] for not less than nine months as a result of the child ’s removal from the parent under Chapter 262 for the abuse or neglect of the child[.] Tex. Fam. Code Ann. § 16 1.001(b)(1)(D), (E) and (O). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when the court also finds that termination is in the best interest of the child. In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003). Therefore, we will affirm the termination order if the evidence is both legally and factua lly sufficient to s upport any statutory ground upon which the trial court relied in terminating parental rights, and to support the best interest finding. See In re E.A.G. , 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied). Father argues there is insufficient evidence to support the trial court’s finding regarding subsection (O) becaus e the children were removed due to Mother’s conduct and not for any conduct of Father. “[T]he children need not be removed from the parent who failed to comply with the court order.” In re A.M.C. , No. 09-12-00314-CV, 2012 WL 6061031, at *6 (Tex. App.—Beaumont Dec. 6, 2012, no pet.) (mem. op.). The trial court took judicial notice of the file, which includes temporary orders for protection th at establish the children were removed6 due to abuse or neglect and court orders requiring that Father complete services. The service plan required that Fa ther complete a parenting class, be able to demonstrate parenting skills at visits , follow recommendations for counseling, submit to random drug testing, report cha nges of address, a nd provide proof of employment. Father concedes that the trial court’s temporary orders required that Father complete services, and he concedes that he failed to complete the family service plan. Mother argues that insufficient eviden ce supports the tr ial court’s finding regarding subsection (O) because she subs tantially complied w ith the court order that established the actions necessary for he r to obtain the return of the children. Her service plan included requirements that Mother attend all meetings and court hearings, visit the children, obtain em ployment and show that she can provide basic necessities and a stable home for th e children, and complete random drug testing. A brief monitored return of the child ren to Mother failed because Mother tested positive for methamphetamines, ther e was no food in the house, the children were not enrolled in school, the children had not obtained their medications, and people with criminal histories were staying in the home. The night before the trial, Mother told the caseworker that she was living in Huntsville in a purchased fifth wheel trailer and that she was working in an animal shelter for $48 per week, but7 Mother supplied no supporti ng documentation to verify her information and did not appear at the trial to support her statements. Mother argues there is some evidence that after the second removal, she obtained employment and housing and that she had no positive drug tests near the time of the trial. However, partial completion of the family service plan is not enough to avoid a finding under subsection (O). In re T.T. , 228 S.W.3d 312, 319–20 (Tex . App.—Houston [14th Dist.] 2007, pet. denied). Sporadic inci dents of partial compliance with courtordered family service plans do not alter the undisputed fact that the parents violated many material provisions of the trial court’s orders. See In re J.F.C. , 96 S.W.3d at 278. Viewing all the evidence in the light most favorable to the trial court’s judgment and recognizing that the trial court, as the factfinder, is the sole arbiter of the witnesses’ credibility and demeanor, we hold there is clear and convincing evidence on which a reasonable factfinder could have formed a firm belief or conviction that Mother and Father failed to comply with the provisions of a court order that specifically established the ac tions necessary to obtain the children’s return. The disputed eviden ce that Mother obtained housing and employment is not so significant that the trial court, sitting as the factfinder, could not form a firm8 belief or conviction that Mother and Father failed to comply with the service plan. We overrule issue three. We need not address the sufficiency of the evidence to support a violation of subsections D or E. See In re D.S. , 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.) (“If multiple pr edicate grounds are found by the trial court, we will affirm based on any one grou nd because only one is nece ssary for termination of parental rights.”). Therefore, we dec line to address issues one and two. In issue four, Mother and Father contend that legally and factually insufficient evidence supports the trial cour t’s finding that termination is in the best interest of C.N., C.N., and L.N. They argue, “It is undi sputed that every child subject of this suit wants to be with their mother. Gran ted some with stipulations. However, the court did not give the mother or the father the opportunity to make a parenting decision with regards to th e wants and needs of the children.” In evaluating the best interest of the children, we focus, necessarily, on the children, not the parents. See In re R.F. , 115 S.W.3d 804, 812 (Tex. App.—Dallas 2003, no pet.). We consider a non-exhaustive list of factors: (1) desires of the children; (2) emotional and physical need s of the children now and in the future; (3) emotional and physical danger to th e children now and in the future; (4) parental abilities of the individuals seek ing custody; (5) programs available to9 assist these individuals to promote the best interest of the children; (6) plans for the children by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child rela tionship is improper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. Code Ann. § 26 3.307(b) (West Supp. 2016). In reviewing the trial court’s decision to term inate a parent’s relationship with a child, we consider that “there is a strong presump tion that the best interest of a child is served by keeping the child with a parent.” In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006). The party seeking termination need not prove that each Holley factor weighs in favor of termination. In re C.H. , 89 S.W.3d at 27. A trial court’s best interest finding “is not depe ndent upon, or equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such harm[,]” but rather it “is a term of art encompassing a much broader, facts-and-circumstances based evaluation that is accorded significant discretion.” In re Lee , 411 S.W.3d 445, 460 (Tex. 2013). In counseling, Mother rela ted that Father had an eight- or nine-year history of intense domestic violence. Father’s crim inal history included a conviction for a choking assault on Mother. In the past, the oldest child had been exposed to10 domestic abuse and drug use by his parents a nd told a counselor that Father beat Mother frequently. Evidently, Father’s plan for the child ren’s future was for the children to live with Mother. Mother’s physical abuse of their daughter triggered the initial removal of the children by the Department. The Department ’s attempt to return the children to Mother failed when she relapsed into ille gal drug use. When Mother’s community supervision terminated, she chose to b ecome noncompliant with her psychiatric medication. The children’s relatives we re unwilling to provide homes for the children if Mother and Father remain ed involved with the children. The oldest of the three children was twelve years old at the time of the trial. He had difficulty coping with parent al visits and, on the therapist’s recommendation, the trial court eventually ordered cessation of a ll parental visits with the children. He was intolerant of his father’s behavior . He only wanted to live with Mother if she was not with Fa ther, but Mother and Father had resumed their relationship. When a possible placeme nt with his grandmother did not work out, he indicated that unless a third party came forward to adopt him, he preferred to stay in the care and custody of the De partment until he aged out of the system. At the time of the trial, this child wa s in foster care in a safe and stable environment. His therapist attributed the child’s improved condition to having no11 contact with his parents, achieving comp liance with his medication, increased coping skills, and an improved family envi ronment. The Department’s plan was for him to remain in the current foster home while they continued to look for permanent adoptive placement. The ten-year-old middle child stated that she did not want to return to her parents as long as they are using illegal drugs. She was receiving specialized care for anger issues in a residential treatment facility at the time of the trial. She needs to learn coping skills and was repor tedly making very slow progress. The Department’s plan was for he r to remain in the facility with a goal of placement in a foster home by the next school year. The nine-year-old youngest child wanted to return to his parents. He had been in the same foster home for two years at the time of trial. He is very bonded, comfortable in his current placement and his fost er parent expressed a desire to adopt him. The Department’s plan was for adoption. As the factfinder, the trial court could give weight to Mother’s and Father’s long history of domestic violence, dr ug use, and irresponsible choices. See In re
J.O.A. , 283 S.W.3d at 346. The parents provide d no realistic alternative to the placements proposed by the Department. View ing the evidence in the light most favorable to the best interest finding, we conclude the trial court reasonably could12 have formed a firm belief or conviction that termination wa s in the best interest of the children. Based on our review of the en tire record, we further conclude that the trial court could have reasona bly formed a firm belief or conviction that it would be in the best interest of the children for Mother’s and Father’s parental rights to be terminated. The evidence is both legally a nd factually sufficient to support the best interest finding. We overrule issue four and we affirm the trial court’s judgment.
AFFIRMED.

_______ _________________________ CHARLES KREGER Justice Submitted on January 9, 2017 Opinion Delivered February 2, 2017 Before Kreger, Horton, and Johnson, JJ.