Opinion filed January 30, 2014

In The

Eleventh Court of Appeals __________

No. 11-13-00239-CV

__________

IN THE INTEREST OF A.M. AND M.V.M., CHILDREN

On Appeal from the County Court at Law

Ector County, Texas

Trial Court Cause No. CC-3143-PC

M E M O R A N D U M O P I N I O N

This is an appeal from an order terminating the parental rights of the mother

and fathers of V.E., A.M., E.M., and M.V.M. The mother voluntarily relinquished 

her parental rights. The father of A.M. and M.V.M. appeals the termination of his 

rights and, in three issues on appeal, challenges the legal and factual sufficiency of 

the evidence to support termination.1 We affirm.

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Neither the mother nor the other fathers filed a notice of appeal.
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I. Termination Standards

The termination of parental rights must be supported by clear and 

convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To 

determine 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 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. FAM. § 161.001. 

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 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 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 parentchild 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 
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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. 

II. Trial Court’s Findings

In this case, the trial court found that the father had committed two of the 

acts listed in Section 161.001(1)—those found in subsections (D) and (E). 

Specifically, the trial court found that the father had placed or allowed the children 

to remain in conditions or surroundings that endangered their physical or emotional 

well-being and that he 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. The trial court also found, pursuant to Section 161.001(2), 

that termination of the father’s parental rights would be in the best interest of the 

children. 

III. Evidence at Trial

The record shows that the Department of Family and Protective Services 

removed eight-year-old A.M. and five-year-old M.V.M. from the parents’ care in 

January 2012. The children were removed from their mother’s home despite the 

Department’s previous attempts to help the family. The record shows that the

conditions of the home in which the children lived were deplorable, disgusting, and 

unfit and constituted a health hazard for the children. The Department’s 

conservatorship caseworker, Courtney Reese, testified that some of the concerning

conditions of the home were the following: no insulation in the walls, holes in the 

walls, no windows, doors that would not lock, no food, no electricity, no running 

water, no working toilet, trash everywhere, a roach infestation, and a foul odor. 

The children were dirty, were infested with lice, and had ringworms.

The mother and the children left the mother’s home and went to stay with a 

person who had been approved by the Department and the trial court. Not long 

thereafter, the children were removed and placed with the father’s sister. They 
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remained there for a week or two until the sister requested that the children be 

removed because she was receiving threatening phone calls. The children then 

went to High Sky Children’s Ranch for a while and were ultimately placed in a 

foster home.

At the time of the final hearing, the children had been in the same foster 

home for over a year and, according to Reese, had “improved so much” during that 

time. Reese testified that the children were doing very well in their foster home,

had a more positive outlook, and were now “‘A’ honor roll” students. Prior to 

being placed in foster care, A.M. had problems in school and had been held back 

due to lack of attendance. A.M. now “walks with her head high in the air because 

she’s clean,” “feels pretty,” and “doesn’t have bugs in her hair anymore.”

According to Reese, the children want to continue living with their current 

foster parents; the children were emotionally traumatized and anxious about the 

court proceeding. Both children have expressed that they do not want to go with 

their father and that they do not want to be separated from their half-siblings (who 

also live in the foster parents’ home). Reese believed that it would be in the 

children’s best interest for the father’s parental rights to be terminated and for the

children to be available for adoption. The foster parents had informed Reese that 

they were willing to keep A.M., M.V.M., and the mother’s other two children. The 

foster parents would provide a loving and nurturing home for the children and had 

services available to help them.

The father testified that, at the time of the final hearing, he had been indicted 

for the second-degree felony of attempted burglary of a habitation. He also had 

two prior convictions for burglary of a building and one for unauthorized use of a 

motor vehicle, and he had been to prison three times. The father testified that he 

was staying with his sister and that, at the time of the final hearing, he could not 

care for the children or provide them with a safe and stable home. The children 
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had not lived with the father but had stayed with him a few times. The father had 

lived in the mother’s house and was aware of the deplorable conditions of that 

house, which the father admitted was “not a safe house for kids.” He was also 

aware that the children “were out there running around in the street and stuff,” that 

the children needed clothes, and that the children “hadn’t been changed.” The 

father had a history of marihuana use and did not comply with the requirements of 

his court-ordered family service plan.

IV. Analysis and Conclusion

A. Acts of the Parent

The Department produced clear and convincing evidence from which the 

trial court could reasonably have formed a firm belief that the father had placed or 

allowed the children to remain in conditions or surroundings that endangered their 

physical or emotional well-being. The testimony showed that the conditions of the 

mother’s home endangered the children and also that the father was aware of the 

conditions of that home but allowed the children to remain there. Thus, we hold 

that the evidence is legally and factually sufficient to support the trial court’s 

finding under Section 161.001(1)(D), and we overrule the father’s first issue on 

appeal. Because a finding that a parent committed one of the acts listed in 

Section 161.001(1)(A)–(T) is all that is required under that statute, we need not 

address the father’s second issue in which he challenges the sufficiency of the 

evidence to support the trial court’s finding under Section 161.001(1)(E). See

TEX. R. APP. P. 47.1. 

B. Best Interest

We also hold that, based on the evidence presented at trial and the Holley

factors, the trial court could reasonably have formed a firm belief or conviction 

that termination of the father’s parental rights would be in the best interest of the 

children. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it 
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relates to the children’s relationships with the father and the foster parents, the 

emotional and physical needs of the children now and in the future, the desires of 

the children, the emotional and physical danger to the children now and in the 

future, the parental abilities of the father and of the foster parents, the conduct of 

the father, the programs available to assist the family, the plans for the children by 

the Department, the father’s criminal history and pending indictment, the stability 

of the children’s current placement, and the deplorable conditions of the home in 

which the father allowed the children to live, we hold that the evidence is both 

legally and factually sufficient to support the finding that termination of the 

father’s parental rights is in the best interest of the children. See id. The trial 

court’s finding as to best interest is supported by clear and convincing evidence. 

The father’s third issue on appeal is overruled. 

C. Additional Contention

In addition to the arguments set out in his three issues, the father argues that 

his constitutional rights were violated because the trial court did not appoint 

counsel to represent the father until April 16, 2013, approximately two months 

before the final hearing in this case. However, the father was employed and did 

not fill out an affidavit of indigence until April 16, 2013. The termination hearing 

was held on June 25, 2013, and the father was represented by appointed counsel at 

that hearing. The father did not complain at trial that the appointment of counsel 

was untimely and violated his constitutional rights. Therefore, the father did not 

preserve this contention for review. TEX. R. APP. P. 33.1. Furthermore, under the 

circumstances of this case, we do not agree with the father’s contention that his 

rights were violated by the trial court’s failure to appoint an attorney earlier in the 

case. See In re M.J.M.L., 31 S.W.3d 347, 353–55 (Tex. App.—San Antonio 2000, 

pet. denied). We note that, by statute, an indigent parent who responds in 

opposition to a termination case is entitled to have an attorney ad litem appointed 
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to represent the parent; however, before the trial court can conduct a hearing to 

determine the parent’s indigence, the parent must file an affidavit of indigence. 

TEX. FAM. CODE ANN. § 107.013(a), (d) (West Supp. 2013); TEX. R. CIV. P. 145(b). 

V. This Court’s Ruling

We affirm the trial court’s order of termination. 

MIKE WILLSON

JUSTICE

January 30, 2014

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.