### 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. 03-12-00147- CV

Angel Nuyen, 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 B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 248 ,916 -B , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Ang el Nuy en appea ls from a final order terminating her pare ntal rig hts to her infant child, E.N. On appea l, Nuy en asser ts that the evidenc e is leg ally and fac tually insufficient to support termination. We will affirm the ter mination order.

BACK GR OUND Nuy en g ave birth to E.N. on Marc h 10, 2011. Four day s later, the Texas Depa rtment of Fa mily and Protective Service s (the Depa rtment) filed a petition seeking to terminate her pare ntal rig hts, along with those of two alterna tive alleg ed fathe rs, J ustin Ellebrac ht and Eric M’Sadoques. 1 At the time of E.N.’s birth, three ot h er ch i l dren of Nuy en had alre ady been remove d by the

After pater

nity testing det er m i ned Ellebrac ht to be the child’s biologica l fathe r, the 1 Depa rtment dismiss ed its claim ag ainst M’Sadoques. Ellebrac ht ultimately executed an aff idavit of voluntary relinquishment of par ental rig hts, and his rig hts are not a t issue on appea l.Depa

rt m ent upon finding s of “reason to believe” that she had sexually abused one of t he children and neg lectfully

supervised a ll three. I n its original pe tition, t he De partment a sserted tha t Nuy en committed a number of acts or omissions war

ranting termination of the pare nt-child rela tionship. At trial, the Depa rtment proce eded on two theories, arg uing that Nuy en had (1) “construc tively abandone d the child who has been in the perma

nent or temporar

y manag ing conser

vatorship of [t he Depa

rtment] for not less than six months, a

nd, (i) [t he Depa

rtment] has made rea sonable e ffor ts to return the child to the pare nt; (ii) the pare nt has not reg ularly visited or maintained signific ant contac t with the child; and (iii) the pare nt has demonstrate d an inabili ty to provide the child with a safe envir onment,” see Tex. Fam. Code Ann. § 161.001(1)( N) (West Supp. 2011); and (2) “fa iled to c omply with the provisions of a court order that specific ally established the actions nec essar y for the pare nt to obtain the return of the child who has been in the perma nent or temporar

y manag ing co n s e rvatorship of [t he Depa rtment] for not less than nine months as a result of the child’s remova l from the pare nt under chapte r 262 for the abuse or neg lect of the child,” see id . § 161.001(1)( O) (West Supp. 2011).

A bench trial was held befor e associate judge Charles Van Orde n. See id

. § 201.005 (West 2008) (g overning ref err al of case s to associate judge s). We will detail the evidenc e prese nted at trial as it become s relev an t to our analy sis of Nuy en’s appellate issues. At the conclusion of evidenc e, the trial court found by clea r and convincing evidenc e that the Depa rtment had established both g rounds and that termination would be in E.N.’s best interest. The trial court issued a proposed order terminating Nuy en’s pare ntal rig hts. The district court adopted the trial court’s proposal, and signe d a final order terminating Nuy en’s pare ntal rig hts and naming the Depa rtment as E.N.’s sole manag ing c onserva tor. This appea l followed. 2ANALYSIS I n her sole issue, Nuy en asser ts that the evidenc e was leg ally and fac tually ins u f f ic ie n t to support the trial court’ s findings unde rly ing its termination orde r. 2

Stand ard and s cope of review

A court may terminate pare ntal rig hts based on finding s by clea r and convincing evidenc e that (1) an y of sever al alterna te statutory bases for termination exis t; and (2) that termination is in the best interest of the child. See id

. § 161.001; Holley v. Adams , 544 S.W .2d 367, 370-72 (Tex. 1976). Clear and convincing eviden ce i s t h at “mea sure or deg ree of proof that will produce in the m ind of the trier of fa ct a f

irm belief or conviction as to the t ruth of t he allegations soug ht to be established.” T ex. Fam. Code Ann. § 101.007 (West 2008).

I n a leg al sufficie ncy revie w of a finding terminating paren t al ri ghts, an appellate court revie ws all the ev i d en ce i n t h e light most favor able to the finding to deter mine whether

a rea sonable trier of fac t could have fo rm ed a firm belief or conviction that its finding was true. In re J.F.C. , 96 S.W .3d 2 56, 266 (Tex. 2002). To g ive appropr iate defe renc e to the fac tfinder’ s conclusions and t h e ro l e o f a court conducting a leg al sufficie ncy revie w, a revie wing court must

assume that the fac tfinder resolved disputed fac ts in fa v or of its finding if a rea sonable fac tfinder could do so. Id

. An appellate court disreg ards all evidenc e that a rea sonable fac tfinder could have disbelieved or f

ound to have be en incr edible. Id

.

I n her brief, Nuy en also complains of two asser ted “proc edura l err ors which d i d not 2 aff ect the termination of Appellant’s pare ntal rig hts,” but these are mere ly “noted, and not arg ued.” As Nuy en has not prese nted arg ument in support of these complaints, we will not addre ss them. See Tex. R. App. P . 38.1(i). 3I n a fac tual sufficie ncy revie w of a finding terminating pare ntal rig hts, the inquiry is

whether the evidenc e is such that a fac tfinder could rea sonably form a firm belief or conviction about the truth of the State’s alleg ations. Id

. A revie wing court must g ive due consideration to evidenc e that the fac tfinder could rea sonably have found to be clea r and convincing

. Id

. A revie wing court should consid er whether disputed evidenc e is such that a rea sonable fac tfinder could not have resolved that disputed evidenc e in favor of its finding

. Id

. I f, in light of the entire rec ord, the disputed evidenc e that a r easona ble fa ctfinder

could not have c redited in fa vor of the finding is so signific ant that a f

actf inder c ould not reasona

bly have f

ormed a firm belief

or convic tion, then the evidenc e is fac tually

insufficient. Id

.
Term ination grounds

As previously noted, the trial court found that two statutory g rounds for termination

wer e established by clea r and convincing evidenc e. First, it found that Nuy en constructively abandone d E.N. under sect i o n 1 6 1

. 001(1)( N). Second, the court found that Nuy en had failed to comply with the provisions of her court-or dere d service plan under section 161.001(1) (O). When termination is ba sed on multiple gr ounds under section 161.001(1), as it wa s here , we must a ffirm the termination order if th e ev i d en ce i s sufficie nt to support any one of the g rounds found by the di strict court. See In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003). Be cause the court’s finding s reg arding constructive abandonme nt are dispositi ve, we confine our analy sis to th e e v id e n c e materia l to that statutory

g round. See Tex. R. App. P . 47.1. I n order to prove constructive abandonme nt, the Depa rtment must establish by clea r and convincing evidenc e that (1) it had a perma nent or temporar

y manag ing conser

vatorship of the

4child for at least six months; (2) it made rea sonable eff orts to r eturn the child to Nuy en; (3) Nuy en did not reg ularl y v i sit or maintain signific ant contac t with the child; and (4) Nuy en demonstrated

an inability to pr ovide the child with a safe environment. Tex. Fam. Code. Ann. § 161.001(1)( N); In re M.R.J.M

. , 2 8 0 S

. W

. 3 d 4 9 4, 505 (Tex. App.—For t Worth 2009, no pet.)

. Nuy en does not dispute the first element. She contends, howeve r, that the evide n ce i s leg ally and fac tually insufficient to support the thre e re maining e lements. We disag ree . “Reasonable efforts” Nuy en arg ues that the Depa rtment prese nted leg ally and fa ct u all y insufficient evidenc e to establish by clea r and convincing evidenc e that the Depa rtment made rea sonable eff orts to return E.N. “other than prepa ration of a service plan; sever al unanswe red phone calls; one day trip to Rusk, and one or two courte sy visits.” Howeve r, “[t] he State’s prepa ration and administration of

a service plan for the pare nt constitutes evidenc e that the State made rea sonable eff orts to return the child to the pare nt.” In re M .R.J.M. , 280 S.W .3d at 505. Nuy en’s service plan, which was in evidenc e, require d her to “provide and maintain

a safe , clean an d ap propriate home

. . . fre e of any health hazards throug hout the case ,” “to allow

announce d or unannounce d home visits by the Depa rtment,” to pa

y child support if order ed by the court, and “[i] f not court-or dere d

. . . to assist in supporting his [si c] children” in way s “not limit ed to monetary assistance .” Nuy en was also require d to “par ticipate in supervised visits with [E.N.] ,” and to “ca ll the worke r, as applicable , 24 hours in advanc e if she cannot come to a visit.” Her plan

war ned that “[v] isitation will be rea ssessed if there are multipl e absenc es.” Nuy en was also require d to “contac t the case worke r by phone, letter

or ema il every

two wee ks about her sta

tus.”

5T h e D e p a r tm e n t’ s s o le w it

n e s s , Cathy Rothas, a conser vatorship worke r, testified that Nuy en had failed to complete the service plan. Rothas believed, and Nuy en’s testimony confirme d, that Nu y en wa s aware of the Depa rtment’s intention to “see k termination and allow the child to be adopted” i f s h e did not comply with her service plan. Acc ording to Rothas, Nuy en never

ca lled her during the eig ht months that Rothas serve d as her case worke r, and only once i n i t i at ed communication to set up a visit. Rothas claimed that her sole contac t with Nuy en came during her visits with E.N., and “other than that, with the exception of one day when she returne d sever al text s. No contac t.” Rothas asser ted that Nuy en h a d n o t satisfied the visitation require ments of her service plan. Over a period of eleve n months, Rothas claimed that Nuy en visited E.N. five times for a total of approximately eig ht hours. Two of the visits occur red during Nuy en’s schedule d court hear ings

on April 28, 2011 and J uly 21, 2011. Nuy en visited E.N. twice at the CPS office on May 27, 2011 and June 3, 2011, and “wa s a no show” f or anothe r scheduled vi sit in Aug ust. Nuy en told Rothas that she m issed the appointment bec ause “ her br other had a flat tire and was waiting for money .” Her last visit was on September 21, 2011. Rothas stated that Nuy en offe red no explanation as to why she di d not visit more. Rothas testified t o the i mportance for infants to have “consi s t en t co n t act” with their car eg ivers for “bonding purposes primarily so that the child bonds to their car eg iver and the ca reg iver bonds to the child.” Acc ording to Rothas, in October 2011, she text ed Nuy en to let her know the court was holding a hear ing reg arding visitation rig hts. She rec eived no response . When Nuy en did not attend, the court postponed the hear ing for one wee k. At the termination hear ing, Nuy en claimed that she missed the first visitation hear ing “bec ause the radia tor on the Oldsmobile was cra cked,” and she 6had no way of fix ing it. Nuy en acknow ledg ed sending and rec eiving text s to Rothas about missing

the hear ing in the morning

. The Depa rtment’s attorney noted an additional text Rothas sent Nuy en in the afte rnoon stating, “The judge schedule d a hear ing next wee k at 1:30 t o re view visitation.” Nuy en claimed that she never rec eived that text

. Rothas claimed t h at s h e informed Nuy en of the

resc heduled date, but Nuy en ag ain failed to appea r, prompting the court to abate her visitation rig hts. Acc ording to Rothas, she left a messag e for Nuy en, informing her that the court had abate d her visitation rig hts “until she could come to court and tell [t he J udg e] why she didn’t come to c ourt.” When Nuy en did not respond, Rothas cla imed, she texted her and the n sent her a letter. Ag ain, s h e cl ai m ed t hat s he “did not hear any thing.” Nuy en claimed that she was unawa re of the second hear ing, that she did not have a phone, and that she could not g et in co n t ac t wi th Rothas. Nuy en asser

ted that afte r she lear

ned about her abate d visitation rig hts throug h her thera pist, she tried to se t up a confe renc e call with Rothas throug h the thera pist. She claimed that she had no idea the purpose of the hear ing was to revie w her visitation rig hts. She also claimed that she tried to pass a messag e to Rothas throug h a courte sy worke r who visited her house, but never hear d back from the worke r. At the time of tria l, Nuy en had not se en E.N. in four and a ha lf months. Nuy en admitted that she could have called Rothas more often, but explained that she “didn’t have acc ess t o a phone all the t ime.” Nuy en testi fied that her phone wa s shut off multiple times for non-pay

ment, and then stolen by Geor g e Holcomb, h er former roommate. M’Sadoques claims that he saw Nuy en initiate phone calls to the Depa rtment “onc e o r t wi ce a wee k at least if not more,” b u t he did not stay to listen beca use i t was a “per sonal matter.” Nuy en ex plained why she wa s not more per sistent in attempting to contac t the Depa rtment:

7A: They should be g etting my messag e and should g et back to me

. Be fore in a previous case I had called [t he case worke r] on many occa sions and I g ot told that she didn’t

. . . need to know my exact moves, which was her exact words to me. Q: But this wasn’t the w orker in y our pre vious case. A: She was the one at the beg inning of the ca se whe n I

was with— Q: All rig ht. Well, have y ou tried to make contac t with Mr. L o ckett, the children’ s g uardia

n ad litem at the pre sent? A: No

. . . . [W ]i th ever y thing that had happene d I d i d n ’t h ave Mr. L ockett’s number, and my mother was actua lly try ing to g et Mr. L ockett’s number and couldn’t g et ahold of [Rothas] or any body else in that matter.

Rothas als o did not believe that Nuy en had the ability to provide E.N. with a safe environment. At the time of E.N.’s birth, Nuy en lived in Rusk with M’Sadoques and Holcomb, who Rothas c laimed killed his own fathe r-in-la w in r etaliation afte r the father-in- law killed H olcomb’s wife. I n October 2011, police wer e called to Nuy en’s house beca use of a fig ht betwee n Nuy en and Holcomb. After the fig ht, Nuy en testified that she obtained a protec tive order ag ainst Holcomb, and she has not voluntarily

allowed him bac k in the hous e si nce. Howeve r, she c laimed that she we nt to stay with a frie nd in Dallas because she was afra id Holcomb m ight return. S he cla imed that he did in fac t return, brea

king into her house and vandalizing her proper ty

. Nuy en believed that she did

ever y thing she could to g et Holcomb out of her life, but admitted that she was not sure of his curr ent wher eabouts, that she had not seen or hear d from him since the last incident at her hou s e, t h at he

rema ined a da

ng er to he r, and tha

t he could be a

dang er to E.N. Simi larly , M’Sadoques was arr ested for disorderl y co n d uct following a fig ht with Nuy en . Nu y en and M’Sadoques both attempted to downplay this arr est, explaining it beg an as

8an arg ument about chore s in a g roce ry store parking lot. M’Sadoques admitted to g rabbing Nuy en,

but claimed that it was not in a “violent way .” When a by stander repor ted the fig ht, police arr ested M’Sadoq u es b ec ause, acc ording to Nuy en, they had a “no toleranc e policy .” Nuy en pawne d her laptop to bail him out of jail. She claimed that this was the only instance of violence betwee n them.

Rothas testified that, aside from visitation and maintaining a safe and appropr iate home, Nuy en complied with her service plan. Nuy en and M’Sadoques testified that they believed Nuy en had “d o n e every

thing that was asked of her.” Rothas detailed her numerous attempts to contac t Nuy en and Nuy en’s failure to respond, as well as Nuy en’s loss of her visitation rig hts. Reg arding her home, which we discuss in gre at er d etail below, Nuy en acknow ledg ed that her house had been vandalized by Holcomb, that she was unawa re of his curr ent wher eabouts, and that he cou ld be a dang er to E.N. if she wer e returne d. We conclude there was leg ally and fac tually sufficie nt evidence that the Depa rtment made r easona

ble ef forts to retur

n E.N. to Nuy en. “Regular visit

ation” Nuy en next arg ues that sh e re g ularly visited E.N. until her visitations rig hts

wer e abate d by the co u rt o n Oc t o ber 20, 2011. The trial court hear d evidenc e that in the first elev en months of her life, Nuy en visited E.N. five times for a total of approximately eig ht hours. Two of those visits coincided with court hear ings. Nuy en explained that, prior to October 20, 2011, she would have visited more, but she had fi n an ci al difficulties and problems with transporta tion. Whil e she m i s s ed a v i s i t and a hear ing beca use of car problems, M’Sadoques testified that he and Nuy en wer e able to bor row car s on at least two separ ate occa sions to trave l to D allas to attend

a wedding and visit a doctor. Fur ther, Nuy en claims that she did not call her case worke r more

9fre quently , or at all, beca use she “didn’t have acc ess to a phone all the time.” M’Sadoques testified, howeve r, that he spoke via phone with Nuy en “eve ry few day s” from ear ly September throug h ear ly November

while he wa s awa

y for his job. Nuy en maintains that the four and a half months during which she failed to maintain any contac t wi t h E

. N. ca n n o t be counted ag ainst her beca use the court had abate d her visitation rig hts. I n support, Nuy en relies on In re D.T. , in which th e appellate court found no evidenc e of constructive abandonme nt though the pare nt had not been able to visi t h er ch i l d during her period of incar cer ation per depar tment policy

. 34 S.W .3d 625, 633 (Tex. App.—For t Worth 2000, pet. denied)

. Evidence demonstrated that the pare nt wrote or called her case worke r at least

seven tim es o v er a period of as many months while she was incar cer ated to inquire how the child was doing, ask for pictures of him, and reque st visits wi t h him. Id

. at 629. Under these circ umstances, the court conclude d the pare nt at lea s t a ttempted to visit reg ularly or maintain signific ant contac t with the child. Id . at 633.

We consider the prese nt case clos er t o t he Houston Court of Appea ls’s holding in Quiroz v. Departme nt of Family and Protective Servic es , No. 01-08-00548- CV, 2009 WL 961935, at *6-7 (Tex. App.—Houston [1st Dist.] Apr. 9, 2009, no pet.) (mem. op.). I n that case , the pare nt made a simil ar arg ument that, for purposes of constructive abandonme n t , the court should not consider time when a court order was in place preve nting visitation. Id

. The district c ourt order ed

no contac t betwee n the par ent and c hild “until such tim e as [the par ent’s] other two children were broug ht i nto [t he Depa

rtment’s] custody ,” beca

use the Depa

rtment had been unable to locate the children. Id

. at *6. This condition did not mean the pare nt could not see her child “base d on fac tors

10bey ond her control.” Id

. I nstead, “by the very nature of the order ,” the pare nt “only had to come to

court in orde r to have the orde r lifted.” Id

.

Simi larly , Nuy en lost her visitation rig hts beca use of her failure to appea

r at two court hear ings conce rning her visitation rig hts. Rothas claimed that she informed Nuy en that her visitation rig hts wer e abate d “until she could come to court” and explain why she missed her hear ings. After lear ning that her vis i t at i o n ri gh t s had been abate d, Nuy en claimed that she tried to set up a confe renc e call with Rothas throug h her thera pist and pass a messag e to Rothas throug h a courte sy worke r, but Rothas testified that she hear d no response from Nuy en. We conclude the evidenc e was leg ally and fac tually sufficie nt for the fac tfinder to deter mine that Nuy en failed to reg ularly visit or maintain signific ant contac t with E.N.

Inabil ity to provide safe

environm ent Finally , Nuy en contends that there is n o c o mp e te n t e v id e nce that Nuy en was unable to provide E.N. with a safe environment. I n addition to the previously discussed testimony conce rning Nuy en’s violent encounte rs with M’Sadoques and Holcomb, the court hear d testi m o ny reg arding Nuy en’s curr ent living conditions. Rothas visited Nuy en’s home on November 17, 2011 with E.N.’s g uardia n ad litem, Michae l L ockett, beca use they “hadn’ t hear d from [Nuy en] in a very long time.” When they arr ived, Rothas claimed that Nuy en’s home was in “an extreme case of disrepair ; two dog s chaine d up out fr o n t with a littl e bit of water ; some animals cag ed in the side y ard; trash around the home.” Acc ording to Rothas, she sent a text to Nuy en that they wer e coming to the house. Nuy en quickly replied that “she was not home. S he wa s in Dallas for a wedding ; and that she just g ot her phone back. And said that

. . . she would meet with [t hem] the next day

. . . one town

11over from Rusk.” Rothas stated that this was “the first time that [Nuy en had] replied to a text from

[R othas] in m onths.” Rothas also noted that the date was a Thursday , an unusual we dding da y . When questioned why she was able to attend a wedding in Dallas, but not visit E.N., Nuy en explained that she had “other transporta tion” to the wedding , M’Sadoques was out of town, and people did not want her to stay at the house a lone for f

ear that Holcomb might brea k in ag ain. She claimed that the mess in the y ard was the result of Holcomb’s vandalism, which appea rs to have

occur red in mid-to-late October 2011. The mess was still there on November 17, 2011 when Rothas and L ockett visited, but Nuy en claimed that it had since been clea ned up. Additionally , M’Sadoques

asser ted, contra

ry to Nuy en’s testimony , that he and Nuy en wer e at a doctor’s appointment in Dallas when Rothas a

nd L ockett visited. He further claimed that they borrowe d a car for the trip beca use their ca r wa s not working

. He also claimed that he drove Nuy en to the wedding in Dallas, also in a borr owed c ar, but wa s unable to identify the date of

the wedding trip. Ro t has asser

ted that she saw Nuy en’s car in the drivewa y and believed Nuy en

was home. Acc ording to Rothas, she and L ockett knocked on the d o o r an d waited for “15 or 20 minutes,” but no one answe red. She claimed that they returne d an hour later , but a g ain, no one

answe red the door. Rothas took pictures of Nuy en’s home, which wer e admitted into evidenc e. Rothas admitt ed that she had never been inside Nuy en’s house. Rothas also claimed that Nuy en would not let a courte sy worke r i n s i d e t h e house when she visited. Nuy en denied this point, testify ing that she allowed a courte sy worke r in her house, and that a second worke r visited but did not ask t o come insi de. R othas also indicated that case worke rs vi sited the hous e in October 2011

as part of another CPS ref err al and repor

ted the house was “unsuitable.” Rothas claimed that Nuy en

never contac ted Rothas to schedule a nother visit to her house.

12Whil e Nuy en disputed some points of Rothas’s acc ount, the fac tfinder was entitled

to disbelieve Nuy en’s explanatio n s , p articularly in light of the appar ent inconsistencies betwee n Nuy en’s and M’Sadoques’s telling of cer tain events. After revie wing the rec ord, we are satisfied that there was suff

icient evidenc e to conc lude Nuy en fa iled to provide a sa fe e nvironment for E.N

. This and other evidenc e would allow a rea sonable fac tfinder to form a firm belief or conviction that Nuy en constructively abandone d her child. We conclude that the above evidenc e is leg ally and fa ctually

sufficie nt to support an aff irmative finding under se ction 161.001(1)( N).

Best intere st We must also deter mine whether the evidenc e is sufficie nt to support a finding that termination of Nuy en’s pare ntal rig hts was in the best interest of the child. See Holley , 544 S.W .2d at 371. The best interest of the child is assessed using a non-e x haustive list of fac tors. Id . at 372. These fac tors include the child’s wishes, the child’s emotional and p h y s i ca l n eeds now and in the future, emotional or phy sical dang er to the child now and in the future, the pare nting abilities of the party seeking custody , p ro gra m s available to help that party , plans for the child by the party seeking custody , the stability of the proposed place ment, the pare n t ’s conduct indicating that the pare nt-child rela tionship is improper, and any excuses for the pare nt’s conduct. Id

. The Depa rtment need not pr ove all of the Holley fac tors as a “ condition pr ece dent” to te rmination, and the absenc e of some fac tors does not bar the fac tfinder from finding b y clea r and convincing evidenc e that termination is in a chil d ’s best interest. In re C.H. , 89 S.W .3d 17, 27 (Tex. 2002). No one fac tor is controlling , and the fac ts of a case m ay m ea n t h at evidenc e of one fac tor is sufficie nt to support a finding t hat t ermination i s in the child’s best interest. In re J.O.C. , 47 S.W .3d 108, 115

13(Tex. App.—Waco 2001, no pet.). Permane nce is of para mount importance in considering a child’s prese nt and future emotional and phy sical needs. Dupree v. Texas Dep’ t of Protective & Regulatory Servs. , 907 S.W .2d 81, 87 (Tex. App.—Dallas 1995, no writ ). A pare nt’s statutorily offe nsive conduct is often intertwined with the best-intere st deter minati o n . Ho r vatich v. Texas Dep’ t of Protective & Regulatory Serv s. , 78 S.W .3d 594, 601 (Tex. App.—Austin 2002, no pet.). I n addition to the above evidenc e reg arding Nuy en’s conduct, the court hear d the following evidenc e reg arding the best-intere st deter mination. Acc ording to Rothas, on Aug ust 27, 2009, one of Nuy en’s three older children, L .N., made a re p o rt o f s ex u al abuse by her car eg iver J ohn Mills. After investiga tion, Rothas claimed that the Depa rtment place d L

. N. , an d Nu y en’s two other children, with a g randpa rent. Shortly there afte r, Rothas asser ted t h at t h e grandpa

rent decide d she could not h an d l e the children, and the Depa rtment place d the children in foster car e. Rothas claimed that Nuy en was in California at the t i m e an d u n ab l e to provide the children with

a safe home. Whil e in foster car e, L .N. made an o u t cr y o f sexual abuse ag ainst Nuy en. Rothas testified that the Depa

rtment made a finding of “re ason to believe” that Nuy en had, in fac t, sexually abused L .N. I n total, Rothas claimed that Nuy en has been involved in six differ ent CPS case s with “seve ral re ason to believe ” finding s impli cating Nuy en in abuse or neg lect of he r childre n.

Acc ording ly , Rothas testified, E.N. was re m o v ed at birth and place d with a foster family , the Holl ingsw orths. Rothas claimed that E.N. has spent all but “[o] ne or two day s” of her life with them. The Depa rtment plans for the Hollingswor ths to adopt E.N. Rothas believed the Depa rtment’s plan to keep E.N. with the Hollingswor ths “would provide [E.N.] with the stability she needs now and in the future.” Rothas claimed that she had visited the Hollingswor t h s’ home fre quently , that they have no other children, and that E.N. appea red comforta

ble wi t h her 14fost er family and they with her. Rothas stated that she had no doubt that E.N. was bon d ed t o t h e

Hollingswor

ths. Rothas ag ree d that it would be “an absolute trau ma ” to r emove E.N. from their car e. Nuy en admitted that her pare ntal ri g hts to her other children wer e terminated, but denied the sexual abuse alleg ations ag ainst her. She did not know if E.N. was being “we ll taken car e of” by her new foster family beca use she claimed that she was unable to speak with the car eg ivers. She did not believe that terminati o n o f her pare ntal rig hts was in E.N.’s best interests. Nuy en believed that it would be possible for her to be attache d to E.N. and E.N. to her. She felt that she was “phy sically and mentally able to provide for the child’s needs.” She stated, “I ’ve tried and I miss my daug hter very deeply ; and I ’ve done ever y thing I can. And sometimes it fee ls that I ’m hitting a brick wall, and I have tried, and I just want to be hear d sometimes.” M’Sadoques t es t i fi ed that he had

never seen Nuy en be abusive with E.N. or any other children, that he did not doubt that Nuy en would like E.N. bac k, and that ther e would be no da ng er to E.N. if

she we re r eturne d to Nuy en. We conclude that the above evidenc e is leg ally and fac tually sufficie nt to support the finding that termination was in E.N.’s best interest. The court hear d evidenc e that E.N. has bonded with her foste r fa

mily , with whom she has lived for all but a few day s of her life. Rothas testified to the foster family ’s ability to provide E.N. with a stable environment. She also t es t i fi ed t o the importance for infants to have “consistent contac t” with their car eg ivers in order to bond. The court hear d evidenc e that Nuy en made minimal eff orts to acc omplish such bonding. And, as we have alre ady explained, the court hear d considera ble evidenc e reg arding Nuy en’s inability to provi d e E.N. with a safe home. The evidence disputing t he fin d i n g t h at termination was in E.N.’s best interest consisted primarily

of Nuy en deny ing or offe ring excuses for the alleg ations ag ainst her, r estating her belief that she had done all that was asked of her, and expressing her love for E.N. Giving due 15consideration to the above evidenc e that the fac tfinder could rea sonably have found to be clea r and convincing , we cannot say that the disputed evidenc e rende rs the evidenc e supportin g the bestinterest finding leg ally

or fa ctually

insufficient. The evidenc e was leg ally and fac tually sufficie nt to support termination of Nuy en’s pare ntal rig hts. W e over

rule he r sole issue.

CONCLUSION We affir m the termination order

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Jul y

25, 2012

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