Opinion filed March 12 , 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00 25 2

- C V

__________ IN THE INTEREST OF C.C.C. AND C.S.C

. , CHILD REN

On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. C 4 5424

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 of the parent al rights of the
mother and father of C.C.C. and C.S.C

. The mother voluntarily re linquished her parental rights. The father appeal s

. We affirm

. In two issue s on appeal, t he children ’s father challenge s the legal and factual sufficiency of the evidence to support termination. The termination of parental rights must be supported by clear and convincing evidence. T EX

. F AM

. C ODE A NN

. § 161.001 ( West 2 01 4 ). To terminate parental rights under Section 161.001 , it must be shown by clear and convincing evidence that the parent has commi tted one of the acts listed in Section 161.001(1)(A)

– (T) and that termination is in the best
interest of the child. Id.2 To determine on appeal if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the lig ht 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). 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. Adam s , 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 stab ility 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 tha t 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 father had committed three of the acts listed in Section 161.001(1): those found in subsections (E), (O), and ( P ). Specifically, the trial court found that the father had engaged in conduct or knowingly placed the children with persons who engaged in conduct that3 endangered the children’ s physical or emotional well

- being; that the father had failed to comply with the provisions of a court order that specifically established the actions necessary for hi m 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 father ’s parental rights would be in the best
interest of the children.
The evidence at the final hearing showed that the children

— twin boys

—

were removed from the parents in July 2013 shortly after the children were born

. A Department investigator , Jeremy Henar d, testified that he went to the hospital after receiving an intake based upon the mother and one of the children testing positive for amphetamine at delivery. Henard subsequently determined that the meconium of both children tested positive for a mphetamine and methamphetamine. At the hospital, Henard conducted a presumptive drug test on the parents; both wer e positive for methamphetamine. The father told Henard that
he had used methamphetamine that day. He also admitted that he was a steady use r and that he used methampheta mine four to five times a week. The father told
Henard that he was unaware of the m other’s use of methamphetamine. However, the nurses reported that both parents had been leaving the room for long periods of time without goi ng to see the children, “just assumingly going out to smoke but

were gone for extended periods of time.” While Henard was talking to the nurses, the parents left the hospital without checking the mother out of the hospital.4 After removal, the father was o rdered by the trial court to complete various tasks, including those listed in th e father’s family service plan. The conservator

ship caseworker, Christy Light, testified that the father completed some of the requirements of the se rvice plan but not all o f them. The father tested positive for drugs while th e termination case was pending. He was also arrested during the
case and was incarcerated at the time of the final hearing. He failed to complete the first drug treatment program that he attempted
, bu t he did later complete a different drug treatment program. The father’s visits with the children were somewhat sporadic, and he did not obtain safe and appropriate housing, did not obtain employment, did not refrain from illegal activity, did not complet e individual counseling, and did not comple te “Your Baby and You” classes. At the time of trial, the father was incarcerated and was participating in the SAFP program. The father had been convicted of possession with intent to deliver
and received a fifte en

- year sentence in 2003. When the children were born, the father was on parole

. He violated a condition of his parole while this termination

case wa s pending, and he was arrested. The father testified that his parole was not

rev oked but, rather, was mo dified.
The father did not want his parental rights to be terminated

. He admitted that he could not care for the children at the time of the final hearing because he was incarcerated, but he said that he was due to be released in about four months
and wou ld then either go to a h alfway house or a “1B program.” The father hoped that the children could be placed with his cousin or remain with the current foster placement until the fa ther was able to care for them. The fathe r also stated that he
is “clear headed” now and that he i s not going to use drugs again.
The children lived with the same foster parents from the day they were released from the hospital to the date of the final hearing. The children were bonded with those foster parents, who provided a safe, appropriate, and stable5 home for the children. Acco rding to the guardian ad litem, the foster parents want the children to continue to have a relationship with their father

— “as long as he’s
clean”

— even if his rights a re terminated and the foster pa rents a re permitted to adopt the children. The guardian ad litem believed that termination of the father’s rights would be in the best interest of the children. The Department’s conservatorship caseworker also believed that it would be in the children’s best
interest to terminat e the father’s parental rights. Light testified that the safety risk had not been eliminated or reduced and that sobriety was still a concern. She thought that adoption would provide a safe, stable, drug

- fre e environment for the
children. We hold that there was clear and convincing evidence from which the trial court could reasonably hav e formed a firm belief that the father failed to comply with the provisions of a court order that specifically established the actions necessary f or him to obtain the return of the children. See F AM

. § 161.001(1)( O ). Section 161.001(1)(O) does not “make a provision for excuses” for a parent ’ s failure to comply with t he court

- ordered services. In re J.S. , 291 S.W.3d 60, 67 (Tex. App.

— Eastland 2009, no pet.) (quoting In re T.N.F. , 205 S.W.3d 625, 631 (Tex. App.

— Waco 2006, pet. denied)) (internal quotation marks omitted). Although the father did comply with some portions of the trial court’s order, the evidence, as detailed above, was undisputed that t he father failed to comply with
all of the provisions of the service plan as ordered by the trial court. Thus, there was clear and convincing evidence that the father failed to comply with the provisions of a court order that specifically establish ed the actions necessary for
him to obtain the return of the children. Furthermore, the record shows that, at the time of the final hearing, the
children had been in the Department’s care for over a year and that the children had been removed from the parents’ care due to abuse or neglect. The supreme court6 has held that the language “abuse or neglect of the child” as used in subsection (O) “necessarily includes the risks or threats of the environment in which the child is pl aced.” In re E.C.R. , 402 S.W.3d 239 , 248 (Tex. 2013). In E.C.R. , the court determined that “placing the child’s physical health or safety at substantial risk” is sufficient to support a finding of “abuse or neglect.” Id. at 240. Evidence that the
child ren and both parents tested positive for controlled substances

— methamphetamine and amphetamine

— at the time the children were born constituted sufficient evidence from which the trial court could have determined by clear and convincing evidence that the chi ldren had been removed because of a substantial risk of abuse or neglect. Because a finding that a parent committed on e of the acts listed in
Section 161.001(1)(A)

– (T) is all that is required under that statute, we need not
address the father’s remaining arguments regarding the sufficiency of the evidence to support the trial court’s other findings under Section 161.001(1). See T EX

. R.
A PP

. P. 47.1. T he father’s first issue is overruled. We also hold that, b ased 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 father’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 fi nding s as to best interest are not supported by clear and convincing evidence. Upon considerin g the record as it relates to 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 in the future, the parental abilities of the father and the foster parents , the plans for the child ren by the Department, the instability of the father’s home, the stability of the children’s placement, acts and omissions indicat ing that the parent

- child relationship wa s not a proper one, the father’s criminal history, and
the father ’ s drug use, we hold that the evidence is sufficient to support the findings7 that termination of the father’s parental rights is in the best interest of the children.
See id. T he father’s second issue is overruled.
We affirm t he trial court’s order of termination.

JIM R. WRIGHT
CHIEF JUSTICE

March 12 , 2015
Panel consists of: Wright, C.J., Willson , J. , and Bailey, J.