Opinion filed December 18 , 2014



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 1 4

- 00 1 74

- C V

__________


### IN THE INTEREST OF M.C .C. AND S.E .C. , CHILD REN

On Appeal from the 29 th District Court Palo Pinto County, Texas Trial Court Cause No. C45365

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 parent s of M. C. C. and S.E .C

. The children’s mother filed a
notice of appeal. 1 We affirm

. In three issues on appeal, t he mother challenges the legal and factual sufficiency of the evidence to support the termination of her rights. The standards of review with respect to these issues are well settled. The termination 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 if the evidence is legally sufficient in a

1 The children’s father voluntarily relinquished his parental rig hts and did not file an appeal.2 parental termination case, we review all of the evidence in the light m ost 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 g ive 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, t he trial court found , pursuant to Section 161.001(2), that termination of the mother’s parental rights would be in the best interest of the
children and that the mother had committed three of the acts listed in Section 161.001(1)

— those found in subsections (D), (E), and (O). Specifically, the trial
court found that the mother had knowingly plac ed or allow ed the child ren to remain in conditions or surroundings that endanger ed the ir physical or emotional
well

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

being, and had failed to comply with the necessary provisions of a cour t order. See
id. § 161.001(1)(D), (E), (O). The mother challenges the sufficiency of the evidence as to subsections (D) and (E) and as to the best interest finding. Because we hold that the evidence is sufficient to support the trial court’s finding s under Section 161.001(1)(E) and (O), we do not address the mother’s first issue relating
to S ection 161.001(1)(D). See T EX

. R. A PP

. P. 47.1. In her second issue, the mother challenges the legal and factual sufficiency of the evidence to support the finding that she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the3 children’s physical or emotional well

- being. See F AM

. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the 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 c onscious 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 record shows that M.C.C. was born in 2002 and that S.E.C. was born in
2003. T he Department of Family and Protective Services originally be came involved with the mother and her children in 200 4 when the children were young. The removal relevant to the present case occurred in May 2013 after the mother
was arrested. The investigator testified that, at the time of the 2013 removal, M.C.C. had missed forty

- one days of school and S.E.C. had missed twenty

- seven. The Department’s investigator testified that there were reports of drug use and lots
of “traffic” in and out of the mother’s residence. The investigator went to the jail
to talk with the mother. The mother was fidgety and incoherent, and she tested positive for m ethamphetamine and amphetamine. When the investigator asked about the children, the mother said that “ t he black market must have taken ” them

. The mother al so said that “the jail must have poisoned ” her because she had not
used methamphetamine for nine years. The mother had “a very long drug history,” and most of her history with the De partment was related to “drug use.” The
mother later admitted that she h ad us ed methamphetamine during the three months prior to her May 2013 arrest. Sometime after being released from jail, the mother4 went to a schedule d visitation with the children. The investigator observed that the mother was incoherent during that visit ation and that the childr en pulled away
from the mother. The mother tested positiv e for methamphetamine that day.
A licensed professional counselor worked with the children during this case.
The counselor testified that both children had behavioral iss ues that were probably caused by their environment while in the mother’s care , including the mother’s drug use and neglect. The children reported that they were left for periods of time without any supervision, that the mother was very volatile and had lo ts of mood swings, that she had angry fits in which she yelled and threw things, and that there were times when the mother was seemingly under the influence of s omething and was incapacitated. When the children began counseling, they exhibited the
followi ng: anxiety, anger, shutdown behavior, def iant behavior, and mood swings.
M.C.C. ’s diagnosis included depression , and S.E.C.’s diagnosis included ADHD

. W e hold that there was clear and convincing evidence from which the trial court could reasonably have formed a firm belief that the mother engaged in
conduct that endangered the children’s physical or emotional well

- being. See
F AM

. § 161.001(1)(E). The mo ther’s second issue is overruled.
Moreover , on appeal, the mother fails to challenge the trial court’s finding
that t he mother failed to comply with the provisions of a court order establish ing the actions necessary for he r to obtain the return of her ch ildren

. See id. § 161.001(1)(O). 2 T he unchallenged finding under subsection ( O ) is sufficient to support termination of the mother ’ s parental rights as long as termination was
shown to be in the children ’ s best interest. See id. § 161.001.

2 We note that the record supports the finding under subsection (O) because, although the mother had completed most of the required services, she had not yet obtained stable housing as required by the trial court’s order and the family service plan. We note also that the statute does not “make a provision for excuses” for the parent’s failure to comply with the court

- ordered services. In re J.S. , 291 S.W.3d 60, 67 (Tex. App.

— Eastland 2009, no pet.) (quoting In re T.N.F. , 205 S.W.3d 625, 631 (Tex. App.

— Waco 2006, pet. denied)).5 In he r third issue, t he mother challenges the best interest finding. She argu es that the evidence is legally and factually insufficient to support the trial court’s finding as to best interest. With respect to the best interest of a child, no unique set
of fact ors 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 the 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
indi viduals 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 placemen t, (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 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.
A t the time of the final hearing, the termination proceeding had been pending for about one year
, and during that ti me period, the children’s behaviors had significantly improved

. The children were placed with the same foster parents
with whom they had been placed during a previous removal. The children loved the foster parents and were very bonded with them. The fos ter parents offered a stable home, a consistent environm ent, and appropriate parenting. In contrast, t h e mother had no stable housing, had a long history of drug use, had a history wi th the Department, had demonstrated that she was unable or unwilling to provide an appropriate environment for he r children, and had returned to methamphetamine use despite having previously been through the serv ices offered by the Department.6 The Department’s goal for the children was termination of the parents’ rights
and a doption by the foster parents with whom the children had been placed

. The children’s counselor and the Department’s conservatorship caseworker both
testified that termination of the mother’s righ ts and adoption by the foster parents would be in the best in terest of the children. T he children’s guardian ad litem also recommended that the mother’s parental rights be terminated and that the trial
court consider adoption by the foster parents

. The guardian ad litem noted that the
mothe r had been through services before but that she was still unab le to provide for
the children. Sh e also noted on the record that, during the previous removal, the children’s mental and physical well

- being had improved but that they “extremely regressed” af ter being returned to the mother. The conservatorship caseworker testifie d that the children w ere not bonded
with the mother. She also testified that, although the children love their biological parents and would like to have some contact with them in th e future, the children wished to remain with the current foster parents and be adopted by them. The
counselor testified that M.C.C. ideally would like for the mother and father to get back together, for the children to move back in with them, and for “eve rybody [ to ] live in a happy home.” S.E.C. ideally would like to go live with his father, whom he sees as a “play buddy.” According to the counselor, the children recognized that
their idealistic desires were not realistic possibilities, and each of the c hildren expressed , as their second choice, a desire to remain with their current foster parents and be adopted by th em. The counselor testified that the children love d their foster parents but that they want ed to continue to have some type of contact
with their biological parents. The mother did not want her pa rental rights to be terminated. She testified that she had worked hard to complete the required services and that she was now equipped to be a better parent

. She also testified that, while this ca se was pending
,7 she was diagnosed “ as bipolar ” and that she was currently taking medication s fo r that condition. According to the mother, the medications were working well. The mother also testified that she was on a waiting list for an apartment and had been promised “a two

- week wait” about one week prior to trial. Based on the evidence presented at trial with respect to the desires of the children, the emotional and physical needs of the child ren , the emotional and physical danger to the child ren , the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best
interest of the child ren , the plans for the child ren by these individuals and by the Department , the stability of the home or prop osed placement, the acts or omissions
of the mother with respect to the children , and any excuse for the acts or omissions
of the mother , the trial court could reasonably have formed a firm belief or
conviction that termination of the mother’s parental rig hts would be in the best
interest of each of the children

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

– 72. We cannot hold that the finding as to best interest is not supported by clear and convincing
evidence. Because t he evidence is both legally and factually suffic ient to support the finding that termination of the mother’s rights would be in the children’s best
interest , we overrule the mother’s third issue

. We affirm t he trial court’s order of termination.

JIM R. WRIGHT
CHIEF JUSTICE

December 18 , 2014
Panel consists of: Wright, C.J., Willson , J. , and Bailey, J.