O pinion filed May 23, 2019



### In The 

# Eleventh Court of Appeals

___ ___ ____ No. 11

- 1 8

- 00 335

- C V

____ __ ____ IN THE INTEREST OF A. W. , A C HILD

On Appeal from the 326th District Court Taylor County, Texas Trial Court Cause No. 8 68 3

- CX

M E M O R A N D U M O P I N I O N This is an appeal from an order in which the trial court terminat ed the parental rights of the mother and the father of A

. W. The mother filed a notice of appeal. In two issues on appeal, she challenges the sufficiency of the evidence to support the termination of her parental rights

. We affirm

. Termination 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 8 ). To determine on appeal 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 beli ef or conviction that its finding2 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 reasonab ly 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 t he 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 Appellant had committed one of the acts
listed in Section 161.001 (b) (1)

— th at found in subsection (O). Specifically, the trial
court found that Appellant had failed to comply with the provisions of a court order that specifically established the actions necessary for h er to obtain the return of the3 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 for abuse or neglect

. The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant ’s parental rights would be in
the best interest o f the child.
In h er second issue, Appellant challenges the legal and factual sufficiency of the evidence with respect to the trial court ’ s finding under subsection (O). The
record shows that the Department became involved with A. W. ’ s family when she

was twelve years old. At that time, A.W. ’ s younger sister, A.T., was critically ill and
was admitted to the P ICU a t Cook Children ’ s Medical Center . A.T. had Type 1 diabetes, and the mother was not providing appropriate care for A.T., despite having
been instructed on how to do so. F amily based safety services w ere instituted
, but
concerns about A.T. ’ s blood sugar continued, as did concerns about A.T. missing school, missing appointments at Cook, and running out of syringes. The next month,
A.T. was removed from Appellant ’ s care. At the time of her removal, A.T. tested positive for amphetamine, methamphetamine, and cocaine. After A.T. ’ s positive drug test, A.W. was also removed from Appellant ’ s care. The record indicates that a family service plan was prep ared and made an
order of the trial court. The uncontroverted evidence reflects that Appellant failed to comply with some of the provisions of h er service plan. She did not obtain or maintain employment during the eighteen months that this case was pendi ng. And,

m ost notably, Appellant continued to test positive for methamphetamine , including a hair follicle test that was conducted five weeks prior to t rial

. Approximately one year after A.W. was removed, but w hile th e case was still pending in the trial court
, Appellant was a passenger in a vehicle that was stopped after leaving a known drug location. Appellant had narcotics hidden in her undergarments and was arrested. About two weeks prior to the final hearing on4 termination, Appellant p leaded guilty to the second

- degree felony offense of possession of methamphetamine. Pursuant to a plea bargain agreement, Appellant ’ s
ten

- year sentence was suspended, and she was placed on community supervision for ten years. After her arrest, Appellant r eceived inpatient treatment for her admitted drug
addiction. Appellant, however, failed to timely sign up for outpatient treatment as required when she was released from inpatient treatment. Additionally, Appellant continued to have various unapproved pe ople in and out of her apartment , including a man named Byron that was living in Appellant ’ s apartment wh en A.W. and A.T.
went there for a Christmas visit. Appellant later admitted that Byron was one of her drug dealers. While this case was pending, poli ce were called to Appellant ’ s address
numerous times , and a t least one “ violent episode ” occurred there . The violent episode caused Appellant to go to the “ Noah Project. ” 1 Appellant testified at trial that she had sought and received treatment for her disease/addiction, that she was no longer doing drugs, and that her sobriety date was May 18, 2018

— approximately three and one

- half months prior to trial but more than
fourteen months after A.W. was removed from A ppellant ’ s care

. A ppellant acknowledged that it took her a long time to admit that she had a drug problem and to seek help for it. She indicated that she was still seeing a counselor and that the appointments with the counselor were helpful . Appellant di d not want her parental rights to be terminated. The Department ’ s goal with respect to A. W. was for her parents ’ parental rights to be terminated and , ultimately, for A.W. to be adopt ed. The conservatorship

case worker for the Department believed that
, although it would be traumatic at first,

1 We note that the Noah Project is a facility for victims of family violence and sexual assault. http://noahproject.org/

.5 it would be good for A.W. in the long run for the trial court to terminate Appellant ’ s parental rights. The guardian ad litem expressed great concern over returning A.W. to Appellant. There was no dispute that A. W

. was bonded with Appellant

. A few weeks before trial, A.W. indicated that she did not want her mother ’ s parental rights to be
terminated but that she wished t o be placed in the home of one of her friend s. By
the time of trial, A.W. and A.T. had been pla ced in a n adoptive home ; however, they had only been in that home for thirty days. Therefore, it was not yet known if th e foster parents in the adoptive home intended to adopt A.W. and A.T. The foster parents indicated that “ they are in it for the long run ” and “ would not discharge these girls no matter what. ” The trial judge conferred with A.W. in chambers prior to announcing his decision in this cause. Neither t he substance of that conversation
nor A.W. ’ s desire at the time of trial appear s in the appellate record. The record contains clear and convincing evidence to support the trial court’s finding under S ection 161.001(b)(1) (O)

. Based on the evidence in this case, t he trial court could reasonably have formed a firm belief or conviction that Appellant failed

to comply with the provisions of h er court

- ordered family service plan , which specifically established the actions necessary for h er to obtain the return of A. W. , a child who had been in the managing conservatorship of the Department for not less
than nine months as a result of he r removal from Appellant for abuse or neglect

. Appellant did not present any evidence that s he was unable to comply with certain provision s of h er family service plan and had made a good faith effort to comply
with th os e particular provisions. See F AM

. § 161.001(d). Consequently, we hold that the evidence is sufficient to support the trial court’s finding . W e overrule Appellant ’s second issue.
In h er first issue, Appellant challenges the legal and factual sufficiency of the evidence to support the trial court ’ s finding that termination of h er parental rights is6 in A.W. ’ s best interest. B ased upon the Holley factors and the evidence in the record
, as set forth above , we cannot hold that th e trial court’s best interest finding is not supported by clear and convincing evidence

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

– 72. We acknowledge A.W.’s previously expressed desire that her mother ’s parental rights not be terminated ; however, c onsidering A.W.’s desire to be placed with a friend instead of with Appellant, A.W.’s emotional and physical needs
, Appellant’s parental abilities, the danger to A.W. if returned to Appellant’s care, Appellant ’s
continued use of methamphetamine for well over one year after her children were
removed
, Appellant’s failure to enroll in outpatient drug treatment, Appellant ’s unstable employment
, and the Department’s plans for A. W. , t he trial court could reasonably have formed a firm belief or conviction that it would be in A. W. ’s best
interest for her mot her ’s parental rights to be terminated. We hold that t he evidence
is both legally and factually sufficient to support the trial court’s best interest finding. Accordingly, we overrule Appellant’s first issue.
This Court’s Ruling
We affirm t he trial court’s order of termination.

JIM R. WRIGHT
SENIOR CHIEF JUSTICE

Ma y 23, 2019 Panel consists of: Bailey, C. J. , Stretcher, J., and Wright, S.C.J. 2
Willson, J., not participating.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.