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## NO. 12

- 23

- 00002

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN THE INTEREST OF T

. S. S. C.,

M. M. H. AND M. K. W., CHILDREN §
§
§ APPEAL FROM THE

COUNTY COURT AT LAW NO

. 2

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION In two issues, K.G. appeals the trial c ourt’s order terminating her parental rights. We affirm.

B ACKGROUND K.G. is the mo ther of T.S.S.C , M.M.H, and M.K.W. The children’s fathers ar e S.C., N.H., and W.W., respectively. On August 25, 2020 , the Texas Department of Family and Protective Se rvices (the Departme nt) filed an original petition for protection of a child, for conservatorship, and for termination of parental rights. The Departm ent was appointed temporary managing conservator of the children, and K.G. and S.C. were allowed limited a ccess
t o the childre n. After a trial on the merits, the trial court ordered the termination of K.G.’s 1 parental rights based on findings that clear a nd convincing evidence supports such termination under subsections (D), (E), (O), and (P) of Texas Family Code Se ction 161.0 01(b)(1) and such termination is in the children’s best interest. This appeal followed.

1 The court also ordered the termination of S.C.’s and W.W.’s parental rights. They are not parties to this appeal.2 T ERMINATION OF P ARENTAL R IGHTS In K.G.’s first issue, she argues that the evidence is legally and factually insufficient to support the trial court’s findin g that termination of her parental rights is in the children’s best interest.
Standard of Review and Applicable Law Involuntary terminatio n of parental rights embodies fundamental constitutional rights. Vela v. Marywood , 17 S.W.3d 750, 759 (Tex. App

. — A u stin 200 0 ), pet. denied per curiam , 53 S.W.3d 684 (Tex. 2001); In re J.J. , 911 S.W.2d 437, 439 (Tex. App

. — Texarkana 1995, writ denied). Becau se a termination action “permanently sun d er s ” the b onds between a parent and child, the proceedings must be strictl y scrutinized. Wiley v. Spratlan , 543 S.W. 2 d 349, 352 (Tex.
1976 ) ; In re Shaw , 9 66 S.W. 2 d 174, 179 (Tex. App

. — El Paso 1998, no pet.). Sectio n 161.001 of the family code permits a court to order termination of parental rights if two elements are est ablishe d. T EX

. F AM

. C ODE A NN

. § 161.00 1 ( West 2022 ) ; In re J.M.T. , 39 S.W.3d 234, 237 (Tex

. App

. — Waco 1999, no pet.). First, the parent must have en gaged in any one of the acts or omission s itemized in the second subsection of the statute. T EX

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NN

. § 1 61.001 ( b)(1); Green v. T e

x. Dep’t of Protective & Regu latory Servs. , 25 S. W.3d 213,
219 (Tex. App

. — El Paso 2000, no pet.); In re J.M.T. , 39 S .W.3d at 237. Second, termination must be in the best interest of the child. T EX

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. § 161.001( b )( 2 ); I n re J.M.T. , 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviat e the petitioner’s burden of proving the o th er. T EX

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NN

. § 161.001 ; Wiley , 543 S.W. 2 d at 351; In re J.M. T. , 39 S.W.3d at 237. The clear and convincing standard for termination of p are ntal rights is both constitutionally and statutorily mandated

. T EX

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. § 161.001 ; In re J.J. , 911 S.W.2d at 439 . Clear and convincing evidence means “the mea sure of degree of proof that will produce in the mind of the trier of fact a firm belief or conviction a s to the truth of the allegations sought to be established.” T EX

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. § 101.007 ( W est 2019 ). The burden of proof is upon the party seeking th e depri vation of parental rights. In re J.M.T. , 39 S.W.3d at 240. When confronted with both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the eviden ce

. Glover v. Tex. Gen. Indem. Co. , 619 S.W.2d 4 00, 401 (Tex. 1981); In re M.D.S. , 1 S.W.3d 190, 197 (Tex. App

. — Amarillo 1999, no pet.). In conducting a legal sufficiency re vie w, we must look at a ll the evidence in the light most3 favorable to the finding to determine whether a reasonable trier of fact c ould ha ve formed a firm belief or conviction that its findings were true. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 20 0 2).
We must assume that the fact finder settled disputed fa c ts in favor of its finding if a reasonable fact finder could do so and disregard all ev idence that a reasonable fact finder could have disbelieved or found incredible. Id. The appropriate standard for review ing a factual suffic iency challenge to the termination findings is whether the evidence is such that a fact finder could reasona bly for m a firm belief or conviction about the truth of the petitioner’s allegations

. In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002). In determining wheth er the fact finder has met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27

- 29. Further, an appellate court should consider whether disputed evidence i s such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its findin g. In

r e J.F.C. , 9 6 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the w eight to be given their tes ti mony. Nordstrom v. Nordstrom , 965 S.W.2d 575, 580 (Tex. App

. — Houston [ 1 st Dist.] 1997, pet. denied).
Best Intere st of the Child In determining the best interest of the child, a number of factors have been considered, including (1) the desires of the chi ld; (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 ; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omis sions of the par ent that may i ndicate the existing parent

- child relationship is not a proper one; and (9) any excuse for the acts or omission s of the parent. Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1976). The family code also provides a list o f facto rs that we will consider in conjunction with the Holley factors. See T EX

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. § 263.307(b) (West 2019 ). These include (1) the chil d’s age and physical and mental vulnerabilities; (2) the magnitude, frequency, and circumstances of the harm to the child ; (3) the results of psychiatric, psychological, or deve l o p mental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (4) whether there is a history of substance abuse by the chil d’s fam ily or o thers who have access to the ch i ld’s home; ( 5) the willingness and ability of the4 child’s family to s eek, accept , and complete counse ling serv i ces and cooperate with and facilitate an appropriate ag e ncy’s close supervision; (6) the willingne ss and ability of the chil d’ s family to effect positive environmental and personal changes i n a reasonable period of time; (7) whether the child’s f amily demonstrates adequate parenting skills; and (8) whether an adequate social support system consisting o f an ex tended family and friends is available to the child. See id. § 263.307(b)(1), (3), (6 ), (8), (10), (11), (12), (13). The evidence need not pr ove all statut ory and Holley factors to show that termination of parental rights is in a ch i l d ’s best intere st. See Holley , 544 S.W.2d at 372; In re J.I.T.P. , 99 S.W.3d 841, 848 (Tex. App

. — Houston [14th Dist.] 2003, no pet.). In other words, the best inter est of the child do e s not require proof of any unique set of factors nor limit proof to any specific factors

. In re D.M

. , 58 S.W.3d 801, 8 15 (Tex. App.

— Fort Worth 200 1 , no pet.)

. Undi s puted evidence of just one factor may be sufficient in a particular case to support a finding tha t termi na tion is in the chil d ’s best interest. In re M.R.J.M. , 280 S.W.3d 494, 507 (Tex.
A pp

. — Fort Worth 2009, no pet.) . But the p resenc e of scant evidence rel evant to each factor will not support such a finding. Id. Evidence suppo rting termination of parental righ t s is also
p robative in determin in g whether termination is in the best int erest o f the child. See In re C.H. , 89 S.W.3d at 28

- 29. Analysis The evidence at trial showed that T.S.S.C ., M.M.H, and M.K.W. were se ven , five, an d three years old , respectively, at the time of trial

. Two years earlier, in August 202 0, they were

remov ed from K. G. ’s and W.W.’s hom e after K.G. and W.W. were found to be using methamphetamine while the children were in the home. S ervice plan s were creat ed for the parents . K.G. completed an inpatient drug rehabilitation program and obtained a job , housing, and protec tive orders against W.W. and K.G.’s friend S.B. , who had a history of marijuana use and became “ physical” when she and K.G. “got into it.”
I n September 2021, the trial court granted K.G. a monitored return of the children. For several months, the r eturn w ent well exce pt for some issues with the children missing school and appointments. In February 2022, the court ordered the end of the monitor ed return after M.K.W. tested positive for marijuana , K.G. allowed S.B. and W.W. to have contact with the ch ildren, and K.G. provided false documentation of employment when she had not worked since Dec ember.5 Following the failed monitored return, K.G.’s e fforts to reunite with her children w ere minimal. Her service plan was revised to add more parenting classes , but s he failed to attend them. In March 2022, K.G. tested positive for methamphetamine and PCP. Her service plan was then revised to add a substan ce abuse assessment and treatment. K.G. completed the assessment , the results of which indicated she needed inpatie nt treatment. She went to the treatment center but left without completing her course of treatment. K. G. testified that if she were drug test ed , she would test positive for methamphetamine because her last use was “yesterday.” K.G. worked only four days du ring this period and was living with a friend at th e time of trial. In addition to K.G.’s ongoing su bstance abuse, Department and CASA repre sentatives were concerned about the ill effects on the children of K.G. being in their lives only sporadical ly

. In the seven months following the failed monitored return, K.G. had one phone call and one virtual contact with T.S.S.C. A second virtual contac t was scheduled, but K.G. failed to attend. In July, during a sibling visit, K.G. spoke with the children on the ph one . When the call ended,
M.M.H. cried and was distant from her siblings for the rest of the visit . F or the rest of the weekend, she wet hers elf and was unable to sleep. M.M.H.’s p lay therapist noticed regression in her therap y after the call. Her p lay the mes re vert ed to the aban donment and lack of safety themes she exhibit ed in the beginning of her therapy. After this incident, t he Department and CASA decided that K.G. and M.M.H. should sp eak only in a counseling setting. K.G. maintained regular con tact wi th M. K.W. for a while , but for the last few weeks, she failed to call at the appointed time s

. Department c onservatorship caseworker Dah

- Mair i Scroggins testified that the children were thriving in their placements. Their permanency goal w as relativ e adopt ion. T.S.S.C. was currently in a nonadoptive foster home , but the Department was working toward placing him with a cousin in Kansas. T.S.S.C. and the cousin were in phone communication and had a great bond and relationship. M.M.H. was placed with he r siste r. CASA representative Patrina Mitchell testified that the sisters have a bond and M.M.H. was doing very well in the placement. M.K .W.

was in the same placement since the case began , and his foster parents maintained contact with him while he was wi th K.G. on the monitored return. M .K.W. was very comfortable in the placement. He called his foster parents “Granny” and “Papa ,” and they wanted t o adopt him. The older children wanted to see K.G. but did not say that they wanted to live with her. Scroggi ns and Mitchell acknowledged that the children loved K.G. , but they believed6 termination was in their best interest because of K.G.’s consistent sub stance abuse and the children’s need for permanency and stability. Reviewing the evidence under the approp riate s tandards , including the statutory and Holley factors , we conclude that a r easonable trier of fact could have formed a firm belief or convicti on th a t termination of K.G .’s parental rights was in the children ’s best interest. See T EX

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. § 161.00 1(b)(2)

. Accordingly, we overrule K.G .’s fi rst issue.

C ONSERVATORSHIP In K.G .’s s econd issue, s he argues that the trial court erred by appo int ing the Department

as sole managing conservator without appoint ing her as a possessory conservator.
Standard of Review and Applicable Law “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” T EX

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. § 153.002 (West 2014 ). The trial court is given wide latitude in dete rmining the best interests of a minor child. Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex. 1982)

. In contrast to termination findings, conservatorship determinations are governed by a preponderance of the evidence s tandard. In re J.A.J. , 243 S.W.3d 611 , 616 (Tex. 2007). The appointment of a conservator is subject to review for abuse of discretion an d may be reversed only if the decision is arbitrary and unreasonable. Id. (citing Gillespie , 644 S.W.2d at 45 1 ). The Tex as Family Code creates a rebuttable p resumption that a parent will be named a child’s managing con servator, unless the court finds that such appointment would not be in the child’s best interest “because the appointment would s ignificantly impair the child ’s physical health or emotional devel opment” or finds that there is a history of family violence involving the parents. T EX

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. § 153.1 3 1(a) (West 2014 ). However, the term “parent” does not include a parent as to whom the parent

- child relations hip has been terminated. Id. § 101.02 4. Section 1 61.207 provides: “If the court terminates the parent

- child relationship with respect to both parents or to the only living parent, the court shall appoint a su itable, competent adult, the Department of Prote ctive and Regulatory Services, a lice nsed child

- placing agency, or an authorized agency as a managing conservator of the child.” Id. § 161.20 7(a) (West 2022 ). In cases where a trial court’s termination of the parent

- child relationship is reversed, a parent is required to independently challen ge a trial court’s conservatorship finding under7 Section 153.131(a) to obtain reversal of the conservato rship appointment. See In re J.A.J. , 243 S.W.3d at 616

- 17; In re A.S. , 261 S.W.3d 76, 92 (Tex. App

. — Houston [ 14 th D ist. ] 2008, pet. denied). In this cas e, however, we overruled K.G.’s challenge to the termination finding. We have reviewed the evidence supp orting the court’s termination findings and found the evidence to be legally and factually sufficient. Based upon t he evidence recited above, we conclud e the trial court did not abuse its discretion in appointing the Depar tment as sole managing conservator of the children and not appointing K.G. as a possessory conservator. See In re G.C. , No. 01

- 12

- 00935

- CV, 2013 W L 8 16440, at *10 (Tex. App

. — Houston [1st Dist.] Mar. 5, 2013, pet. denied) (mem. op.) (finding no abuse of dis cretion in conservatorship finding where the evidence was sufficient to support termination of parental rights ). Nonetheless, K.G. argues that the t rial court’s failure to name her as a possessory conservator while allowing N.H. to maintain his parental rights shows the court’s decision w as arbitrary. K.G. specifically notes the evidence that N.H. was serving a twelve

- year prison sentence for delivery of a controlled sub stance , the lack of evidence of a relationship between N.H. and M.M.H., and the evidence that M.M.H. and K.G. have a sign ificant bond. We disagree that this evidence renders the court’s decision not to name K.G. as a possessory conserva tor arbitrary. N.H. testified that he was in prison when the case began and was not offered any services by the Department. He was denied par ole twice but hoped to make parole soon

. N.H. was in agreement with M.M.H.’s placement with his older daughter. Upo n his release, N.H. planned to comply with all the Department’s requests

. He understood that he must put forth a great amount of effort befor e he could have unsupervised access to M.M.H

. Under these circumstances, we cannot conclude that the court’s conservato rsh ip findings were arbitrary. For the f oregoing reasons, we ov errule Appellant’s second issue.

D ISPOSITION Having overruled Appellant’ s first and second issue s , we affirm the trial court’s judgment.

G REG N EELEY Justice
Opinion delivered April 20 , 2023. Pan el consisted of Worthen, C.J., Hoyle, J., and Neeley, J.8 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 20 , 2023

NO. 12

- 23

- 00002

- CV

IN THE INTEREST OF T. S. S. C., M. M. H. AND M. K. W., CH ILDREN

A ppeal from the County Court at Law No

. 2 of Angelina County, Texas (Tr.Ct.No. CV

- 00453

- 20

- 08 )
THIS CAUSE came to be hea rd on t he appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirm ed , and that this decision be certified to the court below for observance. Greg Neeley , Justice

. Panel consisted of Wor then, C.J., Hoyle, J., and Nee ley, J.