### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00710- CV

K. L. M ., Appellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NO. C-1 2-0 051- CP S, H ONO RAB LE JAY K . WEATH ERB Y , JUDGE P RESIDING

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

I n A p ril 2 0 1 2 , th e D e p a

r tm e nt o f F a

mily and Protective Service s took conser vato r s h ip of K.L .M.’s children, J .L .C. and A.A.C., J r., afte r lear ning that the children’ s half-sibling , A.H., had died while in the car e of the children’ s fathe r, A.A.C., with whom K.L .M. and the children resided. 1
After a four- day trial in September 2 0 1 3, the jury found that K.L .M. had endang ere d J .L .C. and A.A.C., J r., and f

ailed to comply

with the provisions of a cour t order se tting out ac tions necessa ry for her to reg ain custody ; the jury also found that termination was in the children’ s best interest. See
Tex. Fam. Code §§ 161.001(1)( E), (O), .001(2). On appea l, K.L .M. challenges only the leg al

The children’ s fathe r was indicted for murder of A.H., pleade d g uilty to the lesser char g e 1 of injury to a chi l d , and was sentenc ed to 30 y ear s’ imprisonment. He signe d an aff idavit of relinquishment of his pare ntal rig hts to J .L .C. and A.A.C., J r., and the issue of his pare ntal rig hts was sever ed fr om this case.sufficie ncy of t he evidence supporting the fi n d i n g that termination is in J .L .C.’s and A.A.C., J r.’s

best interest. We af

firm the trial c ourt’s dec ree of termination.

DISCUSSIO N
I n a termi n at i on case , we consider whether the Depa rtment proved, by clea

r and convincing ev i dence , that the pare nt eng ag ed in conduct that is g rounds for termination and that termination is in the children’ s best interest. See id. § 161.001; In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002). I n the present case , the onl y appellate cha l l en ge i s t o t he lega l sufficie ncy of t he evidence supporting the b est -intere st finding

. I n a lega l-sufficie ncy challeng e, we view the evidenc e in the light most favor able to the jury ’s verdic t, assuming that the jury resolved disputed fac ts in favor of its finding when rea sonable to do so, and considering undisputed evidenc e that does not support the jury ’s finding s. See In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002). We defe r to the jury ’s cre dibilit y deter minations and rea sonable resolution of fac tual disputes. See In re J.P.B. , 180 S.W .3d 570, 573 (Tex. 2005). When deciding the best-intere st issue, we consider the Holley v. Adams fac tors, keeping in mind that the list is not e x haustive and that not a ll of the fac tors must be proven. C.H. , 89 S.W .3d at 27; see H

olley v. A dams , 544 S.W .2d 367, 371-72 (Te x . 1976). At trial, the jury

hear d evidenc e of the following : 2

` • J

. L

. C

. wants to live with her foster mother, whom she ref ers to as “Mom.” J

. L

. C

. stated t hat her foster family loves her, takes care of her, a nd treats her well. J .L .C.

The facts are known to the parties, and we therefore will not rec ite them in detail i n this 2 opinion. See Tex. R. App. P. 47.1 (appe llate court opinions should be as “brie f as prac ticable” ), 47.4 (memora

ndum opinions should be “no longe r than nece ssary to advise the parties of the court’s decision and the basic re asons for it”)

. 2stated that she would not want to see K.L .M. or K.L .M.’s mother even if she wer e to

rema in living with her f

oster fa mily

.

• K.L .M. allowed the children to live with A .A.C., who used drug s in the ir prese nce, took them with him when he was transac ting drug deals, and was continually violent toward K.L .M. for a period of at least five y ear s. There was evidenc e prese nted that A.A.C. repeat ed l y committed serious acts of violence ag ainst K.L .M. in the children’ s prese nce, and K.L .M. acknow ledg ed that J .L .C. was traumatized by what she had witnessed. K.L .M. admitted that A.A.C. s u p p o rt ed them by selling drug s, and that she kne w about it and assisted him in drugdeals.

• J .L .C. and A.A.C., J r. had been left in A.A.C.’s car e during the time i m m ed iately prec eding the death of their half -sibling.

• K.L .M. testified t hat i t wa s dang erous for t he children to rema in in a “drug house” and for them to be driven in A.A.C.’s car while he was under the influence of drug s. She also testified that she and A. A. C

. en g ag ed in conduct that resulted in their arr ests, which also put the c hildren in dang er.

• Although K.L .M. completed many of the counseling and pare nting sessions, she continued to associate with at least one person who used drug s and was involved in a relationship involving domestic violence. Although K.L .M. denied being in a romantic relationship curr ently , when using soci al m ed i a she ref err ed to a man as her “ babe.”

• Although she did not articulate how, K.L .M. profe ssed that she would be a protec tive pare nt. Her testimony reg arding her plans for J .L .C. and A.A.C., J r., should they be returne d to her, was vague. Moreove r, K.L .M. testified that the apar tment she curr ently lives in doe s not pe rmit c hildren to live w ith he r. K.L .M. beg an full-time employ ment just one month befor e trial, and althoug h sh e gra duated from cosmetolog y school in A

pril 2013, she had y et to take the exam nece ssary to obtain a license

.

• J .L .C. and A. A. C, J r.’s foster family would like to adopt the children if K.L .M.’s pare ntal rig hts are te rminated.

• K.L .M. testified that if the children are returne d to her she plans to g et a bigg er apar tment but has not done any thing to initiate the application process.

3On appea l, K.L .M. acknow ledg es the sever ity in both the nature and d u ration of the dang erous

environm en t s h e exposed her children to while living with an abusive, violent drug deale r who ultimately was imprisoned afte r pleading g uilty to child endang erme nt beca use one of J .L .C.’s and A.A.C., J r.’s half-sibling s died while in his car e. She maintains, howeve r, that she is no longe r using

or selling drug s, has a safe place to live (albe it one in which her children would not be permitted to live), and is no longe r in an abusive relationship. K.L .M. testified that she suffe rs from depre ssion that has g one as high as “eig ht” on a scale of one to ten. The Depa rtment case worke r testified that the Depa rtment is conce rned that K.L

. M

. h as not been honest or compliant in perf orming her

re qu i re d service s and that K.L .M. has di sclaimed responsibilit y for the circ umstances resulting in the re moval of her

children.
We conclude that based on the evidenc e prese nted at trial, alo n g wi t h K.L .M.’s tendenc y to g ive inconsistent testimony , the jury co u l d have rea sonably formed a firm belief or conviction t hat t he termination of K.L .M’s pare ntal rig hts was in the childre n ’s b es t interest. See Holley , 544 S.W .2d at 372; L.Z. v. Texas Dep’ t of Family & Protective Servs. , No. 03-12-00113- CV,
2012 WL 3629435, at *10-11 (Tex. App.—Austin Aug

. 2 3 , 2 0 1 2 , n o pet.) (mem. op.) (father attempted to comply with service plan but did not complet e al l re q u i red tasks and had history of instabilit y , domestic viol en ce, and criminal activity , and Depa rtment planned to have child’s foster family adopt him); see also B

. D. H. v. Texas Dep’ t of Family & Protective Servs. , No. 03-13-00374- CV, 2013 WL 6002856, at *4 (Tex. App.—Austin Nov. 5, 2013, pet. filed) (mem. op.) (“[I ]n consider ing the best interests of the child, ‘evide nce of a rec ent turn-ar ound in be havior by the pare nt does not totally offse t evidenc e of a pattern of instabilit y and harmful behavior in the

4past.’” (quoting Smith v. Texas Dep’ t of Protective & Regulatory Servs. , 160 S.W .3d 673, 681 (Tex. App.—Austin 2005, no pet.)))

. We hold that the evidenc e is leg ally sufficie nt to support the jury ’s best-intere st finding.
CONCLUSION

We affir m the trial court’ s order

of termination.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Mar ch 13, 2014

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