Opinion filed June 5 , 2014



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 3

- 00 372

- C V

__________ IN THE INTEREST OF D.E.R., T.M.A., S.N.H. , AND T.W. H. , CHILD REN

On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C 4 5088

M E M O R A N D U M O P I N I O N This is an appe al from an order of termination involving the p arent s of D.E.R., T.M.A., S.N.H., and T.W.H., the children. The trial court terminated the parental rights of the mother as to all four children and the parental rights of the fathers of D.E.R., S.N.H., and T.W.H. The mother appeals, as does the father of
S.N.H. and T.W.H. 1 We affirm

.

1 B ecause the father s of D.E.R. and T.M.A. have not appeal ed
, we refer to the father of S.N.H. and T.W.H. as “the father ” in this opinion. We note that the parental rights of T.M.A.’s father were not terminated and that he was appointed to be T.M.A.’s managing conservator.2 The mother presents two issues on appeal. In those issues, she challenge s the legal and factual sufficiency of the evidence to support termination and the trial court’s finding as to best interest

. The father presents one issue challenging the legal and factual sufficiency of the evidence as to the findin gs regarding his conduct, but the father does not challenge the trial court’s best interest finding.
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 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 it s 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 Sectio n 161.001(1)(A )

– ( T) and that termination is in the best interest of the
child. F AM . § 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.
denie d). 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 chil d, (6) the plans for the child by these individuals or by the3 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 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. In this case, the trial court found that the parents had each committed three
of the acts listed in Section 161.001(1) . The trial court found that the mother had
committed acts found in subsections (D), (E), and (O) and that the fathe r had committed acts found in subsections (D), (E)
, and ( P ). Specifically, the trial court found that both parents had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children’s physical or

em otional well

- being; that both parents 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; that the mother had failed to comply with the provisions of a court order that specifically established the actions necessary for he r to obtain the return of the children , 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 ren ’s removal from the parent s for abuse or neglect ; and that the father ( a ) used a controlled substance in a manner that endangered the children and ( b ) either failed to complete a substance abuse treatment program or continued to abuse a controlled substance after completing a substance abuse treatment program

. The trial court also found, pursuant to Section 161.001(2), that termination of the mother’s and the father’s parental rights would
be in the best interest of the children.
The evidence at the final hearing in November 2013 showed that the
children

— who at the time of the hearing were ages twelve, nine, six, and two

—4 had been removed from the parents on November 28, 201 2

. When the Department’s investigator arrived o n that date, police were s earching the residence
where the mother and the father lived with all four children

. The father was not present at the time and refused to come home; the mother was arrested for possession of a controlled substance

. An investigator for the Department testified that, inside the residence, there were “pills” within the children’s reach and that “dangerous” construction equipment , including a saw, was found in one child’s
bedroom. The mother tested positive for methamphetamine on that date. Another Depa rtment investigator testified that the police had received information concerning illegal drug trafficking at the parents’ residence. The mother said she was unaware of any drug trafficking but was aware of the presence of the hydrocodone pills for which she had no prescription. A tablet that appeared to be a drug ledger was also found in the residence; it was in the mother’s handwriting.
The mother admitted that the handwriting was hers, but she stated that she had
“written as instructed” by the father

. The Department’s caseworker , Melanie Scott, testified that the mother was addicted to drugs and “couldn’t get honest.” The mother continued to test positive for drugs after completing a twelve

- step program. According to Scott, the mother was not very coo perative wit h the Department but did complete some, but not all, of her family service plan. The mother visit ed the children regularl y when she was not incarcerated, but little bonding or nurturing occurred during those visits. After
visitation with the mother, D.E.R. was often angry , upset, and physically sick. D.E.R. did not understand why she was in the Department’s care, and she accused Scott one time of trying to tear up D.E.R.’s family

. The record does not show whether D.E.R.’s anxiety eased after the visitations ceased when the mother was sent to prison , nor does the record reflect the desires of the children

.5 At the time of trial, the mother and the father were incarcerated. T he mother

w as in prison for tampering with a government document; she had been incarcerated since July 2013 and expected to be released on September 27, 2014. The father had been in prison since March 2013 for violating his parole. Scott testified that the parents were unable to maintain appropriate housing for a six

month period and that the mother was unable to provide the children with a safe
environment. The Departmen t attempted a reunification, but the parents were
unable to reduce the risk to the children. Scott also testified that a home study of the children’s maternal grandmother did not g o well and showed no stability. The mother testified that she had completed some of the court

- ordered services, such as a parenting class, a domestic violence class, a v alues clarification class, a twelve

- step program, and some counseling sessions

. The mother testified that she did not test positive for drugs after May 13, 2013, when she completed her
twelve

- step program. She also testified that she was enrolled in a vo cational class in prison to become an electrician and a cognitive class to change “criminal mind thinking.” The mother admitted making some mistakes but did not want her parental rights terminated. She testified that she thought her children would be

emo tionally harmed if her rights were terminated.
Scott testified that termination of the mother’s parental rights would be in
the children’s best interest. Scott testified that the children need stability ; that
T.M.A.’s father ha s provided a loving, stable home for her with a good support system; that T.M.A. has done very well in her father’s care; and that the father’s cousin wants to adopt the other three children. At the time of trial, the Department had just completed a home s tudy for an adoptive placement of D.E.R., S.N.H., and T.W.H. with the father’s cousin and the cousin’s husband, whom Scott described as an older, stable , loving, and nurturing couple.6 We hold that there was clear and convincing evidence from which the tria l court could reasonably hav e formed a firm belief that both parents (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well

- being or (2) e ngaged in conduct or knowingl y placed the children with persons who engaged in conduct that endangered the physical or emotional well

- being of the children. F AM

. § 161.001(1)(D), (E). Under subsection (D), we examine evidence related to the environment of
the children to determine if the environment was the source of endangerment to the
children ’ s physical or emotional well

- being. In re D.T. , 34 S.W.3d 625, 630 (Tex. App.

— Fort Worth 200 0 , pet. denied). Under subsection (E), the relevant inquiry is
whether evidence exists that the endangerment of the chil dren’ s well

- being was the direct result of the parents ’ 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 at 634; 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). In this case, there was evidence that the children were exposed to dangerous equipment and drugs inside their home. Thus, a finding under subsection (D) was supported because the children’s environment was the source of danger. With respect to subsection (E), the evidence showed that the par ents used drug s and were involved in drug trafficking . Such acts const ituted conduct that endangered
the children. The evidence is legally and factually sufficient to support the trial court’s finding s as to the mother and the father under Section 161.001(1) (D) and7 Section 161.001(1) ( E )

. 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 parent s ’ remaining arguments regarding the sufficiency of the evidence to support the trial co urt’s other findings under Section 161.001(1). See
T EX

. R. A PP

. P. 47.1. T he mother’s first issue and the father’s sole issue are overruled. We also hold that, b ased on the evidence presented at trial and the Holley
factors , the trial court could reaso nably have formed a firm belief or conviction
that termination of the mother’s parental rights would be in the best interest of the
children

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

– 72

. We cannot hold that the finding s as to best interest are not supported by clear and convincing evidence. Upon considering the record as it relates to th e desires of the child ren ; the emotional and physical needs of the child ren now and in the future ; the emotional and physical danger to the child ren now and i n the future ; the parental abilities of the mother, the father, T.M.A.’s father, and the couple seeking to adopt the other three children; the plans for the child ren by the Department ; the i nstability of the parents’ home; the stability of the children’s p lacement and proposed placement;
the acts and omissions indicat ing that the parent

- child relationship wa s not a proper

one ; the dangers associated with the parents’ home; and both parents’ continued drug use, we hold that the evidence is sufficient to support the finding that termination of the mother’s parental rights is in the best interest of the children.
See id. T he mother’s second issue is overruled.
We affirm t he trial court’s order of termination.

June 5 , 2014 JIM R. WRIGHT
Panel consists of: Wright, C.J., CHIEF JUSTICE Willson , J. , and Bailey, J.