Opinion filed September 29 , 2017



### In The 

# Eleventh Court of Appeals

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### No. 11

- 1 7

- 00 0 8 4

- C V

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### IN THE INTEREST OF C.P
. , A CHILD

On Appeal from the 3 5 th District Court Brown County, Texas Trial Court Cause No. CV 16

- 02

- 042

M E M O R A N D U M O P I N I O N The trial court entered an order in which it terminat ed the parental rights of the mother and the father of C.P

. The mot her a ppeal s
. On appeal, she presents one evidentiary issue and four sufficiency issues

. We affirm. In her first issue, Appellant asserts that the trial court abused its discretion when it took judicial notice of the a ffidavit in support of removal, which was attached to the original petition filed by the Department of Family and Protective Services

. The record from the termination hearing reflects that the Department requested the trial court to “take judicial notice of all of the information contained in the court file, but specifically the affidavit that is attached to the original petition.”2

T he tr ial court stated that it would take judicial notice of the court’s file and of all the p r ior hearings. Appellant did not object to the Department’s request or to the trial court’s taking of judicial notice. Because Appellant did not object at trial, she did not preserve her complain t for appellate review. See T EX

. R. A PP

. P . 33.1; In re Estate of Downing , 461 S.W.3d 231, 240 (Tex. App.

— El Paso 2015, no pet.); In re M.W. , 959 S.W.2d 661, 664 (Tex. App.

— Tyler 1997, writ denied). Appellant’s first issue is overruled. In her next four issues, Appellant challenges the legal and factual sufficiency of the evidence to support the trial court’s findings in support of termination. T ermination of parental rights must be supported by clear and convincing evidenc e. T EX

. F AM

. C ODE A NN

. § 161.001 (b) ( West Supp. 201 6 ). 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 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. , 8 9 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 (b) (1)(A )

– ( T) 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 an alysis. 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 the3

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 seekin g custody, (7) the stability of the home or proposed placement, (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. Add itionally, 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 26 6. In this case, the trial court found that Appellant committ ed three of the acts listed in Section 161 .001 (b) (1)

— those found in subsections (D), (E), and (O)

. Specifically, the trial court found that Appellant had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangere d the child’s physical or emotional well

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

- being; and that Appellant had failed to comply wi th the provisions of a court order that specifically established the actions necessary for h er to obtain the return of the 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 of the child. Appellant ch allenges each of these findings

. The record shows that the Department became involved with C.P. and her family in 2014 when C.P. was three years old. C.P. is a special needs child with serious medical concerns. C.P. has been diagnosed with myotonic muscular4

dystrophy, fluid on the brain, tendon tightness in her legs, and respiratory problems. She also has a G

- b utton through which she is fed. Prior to removal, the parents were offered services by the Department to help them parent C.P. These services included a home h ealth nurse for several hours every day over a period of one and one

- half
years. The Department ultimately removed C.P. from Appellant’s care. The conservatorship case worker t estified at the final hearing that Appellant d id not understand the severity of C.P.’s medical condition , that Appellant wa s not capable of meeting C.P.’s needs, and that C.P. would be in danger if returned to Appellant. A member of Appellant’s family also expressed concerns that App ellant cannot take care of C.P. C.P. missed many doctor’s appointments while in Appellant’s care. Additionally, when the nurse was away , Appellant failed to properly take care of C.P. The conservatorship case worker testified about one occasion w hen the nurse returned from vacation: C.P. was filthy and had lice; her diaper was not being changed; and feedings had been missed

. At times, Appellant lived with people that smoked in the home even though C.P. cannot tolerate smoke. At some point while this case was pending, Appellant “took off ” with a boyfriend and left C.P. with C.P.’s father even though the Department had told Appellant not to leave C.P. with her father because he did not properly take care of C.P

. Appellant moved numerous times while this case was pending. Appellant , who ha s a limited mental capacity , was unable to read the parenting packet, and even when the parenting packet was read to her by her therapist, Appellant was unable to comprehend what she was being told by her therapist. Like C.P., Appellant suffers from myoto nic muscular dystrophy

. The record reflects that Appellant did not attend the final hearing and that, at two previous hearings, Appellant appeared at the courthouse and suffered from some sort of seizure or5

intense panic attack. On both occasions, EMS to ok Appellant to the hospital. The trial judge expressed his concern about these episodes and about the potential danger to C.P. if she were returned to Appellant

. T he record from the final hearing revealed that a seizure medication had been prescribed f o r Appellant; however, Appellant refused to take it , insisting that she did not have seizures

. At the time of trial, C.P. lived in a medical foster home and wa s doing well there. C.P.’s foster mother was a nurse , and all of C.P.’s needs were being met in the care of the foster parents

. The foster parents expressed a desire to care for C.P. long

- term and to adopt her at some point in the future. The conservatorship caseworker believed that termination of Appellant’s parental rights wo uld be in C.P.’s best interest. The record contains clear and convincing evidence that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child’s physical or emotional well

- being

— as required to support a findi ng under Section 161.001(b)(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 conscious 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 revealed numerous instances in which Appellant endangered C.P., such as miss ing many doctor’s appointments, inappropriately fe e d ing or otherwise6

tak ing care of C.P. , l iv ing with someone who smoked in the home , and refusing to take her seizure medication

. W e hold that t he evidence is legally and factually sufficient to support th e findin g under subsection (E) , and w e overrule Appellant’ s third issue

. Because it must be show n that the parent has committed only one of the acts listed in Section 161.001 (b) (1)(A)

– (T) , we need not reach the merits of Appellant ’s second and four th issues

. See T EX

. R. A PP

. P. 47.1. In her final issue, Appellant challenges the sufficiency of the evidence in support of the trial court’s best interest finding. B ased upon the Holley factors and the evidence in the record , we cannot hold that the trial court’s best interest finding is not supported by clear and conv incing evidence

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

– 72. T he trial court could reasonably have formed a firm belief or conviction that it would be in C.P .’s best interest for her mo ther ’s parental rights to be terminated

. The evidence at trial showed that Appellant was not capable of meeting C.P.’s needs. C.P. i s in a saf

e, appropriate placement in a medical foster home with foster parents who want to provide long

- term care for C.P. and eventually adopt her. We hold that
t he evidence i s both legally and fa ctually sufficient to support the trial court’s best interest finding

. We overrule Appellant’s fifth issue

. We affirm the trial court’s order of termination

.

JIM R. WRIGHT CHIEF JUSTICE September 29 , 2017 Panel consists of: Wright, C.J., Willson , J. , and Bailey, J.