Opinion filed November 27, 2013

In The

Eleventh Court of Appeals __________

No. 11-13-00160-CV

__________

IN THE INTEREST OF J.M.S., A CHILD

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CV 12-04-110

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 the unknown father of J.M.S. The mother filed a notice of appeal. We affirm.

I. Issues

On appeal, the mother presents one issue with five subparts in which she

challenges the legal and factual sufficiency of the evidence to support the trial 

court’s findings. The mother specifically asserts that the evidence is insufficient to 

show that she placed J.M.S. in surroundings that endangered J.M.S., that she 

knowingly engaged in conduct that endangered J.M.S., that she failed to obey a 
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court order, that she is unable to meet J.M.S.’s needs due to a mental or emotional 

illness or mental deficiency, and that termination of her parental rights is in 

J.M.S.’s best interest. 

II. Sufficiency Standards of Review

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. 

A trial court may also terminate a parent’s rights pursuant to Section 161.003 

of the Family Code if the court finds by clear and convincing evidence (1) that the 

parent has a mental or emotional illness or a mental deficiency that renders the 

parent unable to provide for the physical, emotional, and mental needs of the child; 

(2) that the illness or deficiency will continue to render the parent unable to 

provide for the child’s needs until the 18th birthday of the child; (3) that the 

Department of Family and Protective Services has been the managing conservator 

of the child for at least six months; (4) that the Department has made reasonable 

efforts to return the child to the parent; and (5) that termination is in the best 

interest of the child. Id. § 161.003 (West 2008). 
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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 

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. 

III. Analysis

In this case, the trial court found that the mother had committed three of the 

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

and that termination would be in the best interest of J.M.S. Specifically, the trial 

court found that the mother had knowingly placed or knowingly allowed the child 

to remain in conditions or surroundings that endangered the child’s physical or 

emotional well-being, had engaged in conduct or knowingly placed the child with 

persons who engaged in conduct that endangered the physical or emotional wellbeing of the child, and had failed to comply with the provisions of a court order 

that established the actions necessary for the mother to obtain the return of the 

child who had been in the conservatorship of the Department for at least nine 

months as a result of the child’s removal from the parent for abuse or neglect. The 
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trial court also found that termination of the mother’s rights was appropriate under 

Section 161.003 due to the mother’s mental or emotional illness or mental 

deficiency. 

The record shows that J.M.S. was eight years old at the time of trial and had 

been living in a foster home since being removed from her mother’s care in March 

2012. The mother was thirty-seven years old. She was not employed, but she 

received SSI and Social Security because of some type of disability; she had “no 

idea” what type of disability but thought that it was “[p]robably a mental 

condition.” The mother had lived with her parents all of her life until the 

Department became involved in this case in December 2011—when the mother’s 

father, David, was arrested for possessing child pornography. At that time, the 

Department told the mother that J.M.S. could not live in that home, so the mother

and J.M.S. went to Chicago, Illinois, to stay with the mother’s half-sister. The 

mother testified that she and J.M.S. stayed there for “[p]robably a few years,” but

the mother agreed that she has difficulty keeping up with time and that it was 

possible they only stayed in Chicago a couple of months. The mother and J.M.S. 

moved back to Texas from Chicago in March 2012. At that time, the Department 

took custody of J.M.S., and the mother moved in with her parents.

About two months after moving back to Texas, the mother moved into a 

place of her own. The record shows that the mother had a difficult time 

maintaining a stable home and that she moved back in with her father whenever

she was in between places. At the time of trial, the mother was engaged; she and 

her fiancé lived together in a two-bedroom house. However, prior to becoming 

engaged, the mother had allowed inappropriate people to stay at her residence and 

had permitted a “tent city” in her backyard where homeless people or vagrants 

camped. Several of the homeless people eventually moved into the mother’s 

home. One of them was a registered sex offender whose conviction involved a 
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child. Even after the Department informed the mother of these issues, she 

continued to allow the homeless people, including the convicted sex offender, to 

live in her home. On one visit, the caseworker observed two men consuming 

alcohol at 8:30 in the morning, whiskey bottles and beer cans strewn in the house, 

a demolished kitchen table, and a broken flat-screen television. The caseworker 

testified that the police were summoned to the mother’s residence numerous times 

for a variety of reasons that seemed to involve the men that were in and out of the 

mother’s residence and that included one allegation of sexual assault of which the 

mother was the victim. Despite this, the mother continued to leave her windows 

and doors unlocked. The caseworker feared for her own safety and took somebody 

with her when she went to visit the mother. She believed that the mother was just 

too trusting and did not comprehend what was at risk.

The mother testified that she used to take prescription medications, although 

she had “no idea” why, and that she no longer took them because her doctor told 

her to quit taking her medications. The caseworker testified that the mother failed 

to comply with the provisions of the court order regarding MHMR. The mother

testified that she had never heard of the word “depression” and did not know what 

“diagnosed” meant. Seven times while this case was pending, the mother called 

for an ambulance because she felt lightheaded or felt her heart fluttering. The 

mother’s fiancé suffered from post-traumatic stress disorder and, about two months 

prior to the final hearing, was hospitalized for one week in a psychiatric facility

due to suicidal thoughts. According to both the mother and her fiancé, they argue 

quite a bit.

The mother testified that she knew her father had child pornography on his 

computer. J.M.S. was also aware of the child pornography and had “witness[ed] 

some things on the computer she shouldn’t have seen.” Although the mother said 

she would not allow her father to have contact with J.M.S. if J.M.S. were returned 
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to the mother, the evidence showed that the mother “still relies on her father 

greatly.”

The mother worked hard trying to make the changes necessary for J.M.S. to 

be returned to her care. And it is clear that the mother loves J.M.S. and that J.M.S.

also loves her mother. However, the evidence at trial showed that the mother is not 

capable of providing for the physical, emotional, and mental needs of J.M.S. or of

making decisions that are in the best interest of J.M.S. The caseworker testified 

that the mother had a mental or emotional illness or a mental deficiency that 

rendered her unable to provide for the needs of J.M.S., and the caseworker

believed that such deficiency and inability would continue until J.M.S.’s eighteenth 

birthday. The record reflects that the Department made reasonable efforts to return 

J.M.S. to the mother.

The caseworker and the child’s court-appointed special advocate testified 

that it would be in J.M.S.’s best interest to terminate the mother’s parental rights. 

The caseworker recommended the long-term placement of J.M.S. with her aunt in 

Chicago. The aunt and J.M.S. have become attached, and the aunt wants what is 

best for J.M.S., including a stable home. The caseworker testified that J.M.S. is

ready to move in with her aunt and is excited about that prospect.

The Department produced clear and convincing evidence from which the 

trial court could reasonably have formed a firm belief that either (1) the mother had 

engaged in conduct or knowingly placed the child with persons who engaged in 

conduct that endangered the physical or emotional well-being of J.M.S. by 

allowing J.M.S. to live in the father’s home where she was exposed to child 

pornography1 or (2) the mother had a mental or emotional illness or a mental 

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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 mother’s challenges to the sufficiency of the 

evidence with respect to the trial court’s findings under Section 161.001(1)(D) and (O). See TEX. R.

APP. P. 47.1. 
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deficiency that rendered her unable to provide for the physical, emotional, and 

mental needs of J.M.S. and will continue to render her unable to provide for 

J.M.S.’s needs until J.M.S. is eighteen years old. See FAM. §§ 161.001(1)(E), 

161.003. The trial court could also have found by clear and convincing evidence

that the Department had been the managing conservator of J.M.S. for at least six 

months, that the Department had made reasonable efforts to return the child to the 

parent, and that termination would be in the best interest of J.M.S. 

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 mother’s parental rights would be in the best interest of 

J.M.S. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it 

relates to the desires of the child, the emotional and physical needs of the child 

now and in the future, the emotional and physical danger to the child now and in 

the future, the parental abilities of the mother, the criminal conduct of the mother’s 

father—involving child pornography—upon whom the mother relied for 

assistance, the parental abilities of the aunt, the plans for the child by the

Department, the instability of the mother’s home, the stability of the proposed

placement with the child’s aunt, and the mother’s inability to comprehend the 

dangers associated with various situations, we hold that the evidence is both legally 

and factually sufficient to support the finding that termination of the mother’s 

parental rights is in the best interest of J.M.S. See id. We cannot hold that the 

finding as to best interest is not supported by clear and convincing evidence. The 

mother’s issue on appeal is overruled. 
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IV. This Court’s Ruling

We affirm the trial court’s order of termination. 

JOHN M. BAILEY

JUSTICE

November 27, 2013

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.