in the Interest of J.W.M., Jr., a Child ( 2019 )

Opinion filed January 31, 2019
In The
Eleventh Court of Appeals
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No. 11-18-00207-CV
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IN THE INTEREST OF J.W.M., JR., A CHILD
On Appeal from the 446th District Court
Ector County, Texas
Trial Court Cause No. E-17-065-PC
MEMORAND UM OPI NI ON
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of J.W.M., Jr. The father filed a notice of appeal. In
eight issues on appeal, he challenges the legal and factual sufficiency of the
evidence. We affirm.
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). 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(b)(1)(A)–(U) and that termination is in the best interest of the child. FAM.
§ 161.001(b).
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 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 Appellant had committed three of the
acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O).
Specifically, the trial court found that Appellant had knowingly placed or knowingly
allowed the child to remain in conditions or surroundings that endangered the child’s
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physical or emotional well-being; that Appellant had engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being; and that Appellant had failed to comply
with the provisions of a court order that specifically established the actions necessary
for him to obtain the return of the child, 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’s removal from Appellant for abuse or
neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of Appellant’s parental rights would be in the best interest of the child.
Appellant contends on appeal that the evidence is legally and factually insufficient
to support the trial court’s findings with respect to the child’s best interest and
subsections (D), (E), and (O).
The record shows that the Department first became involved with J.W.M., Jr.
when he was six months old. The Department had received a report of neglectful
supervision by the parents and sent an investigator to locate the family. The
investigator did not locate them until the next day; they were at the mother’s
grandmother’s residence. Law enforcement were present at that time; they had
received a call about two individuals “hopping” fences with a baby. According to
the investigator, Appellant “seemed really anxious”; he “kept looking around and
kept moving” and appeared to be “under the influence.”
Appellant told the investigator that his probation was going to be revoked
soon. The Department presented evidence that Appellant was a convicted sex
offender based on his relationship with the mother when she was fifteen years old
and he was twenty-eight years old. The child’s mother indicated that Appellant’s
probation was being revoked because he had tested positive for methamphetamine
and had not been compliant in several months. Appellant’s probation officer
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confirmed that Appellant had “failed a plethora of drug tests.” The record reflects
that both parents were addicted to methamphetamine.
According to the child’s mother, she, Appellant, and the child were living in
a van. The investigator testified that the van contained pillows, sheets, and clothes
but that it did not contain an appropriate place for a baby to sleep or any food or
formula for a baby, although she did find an empty can of formula. After the child’s
mother admitted that she had smoked methamphetamine that day, the Department
attempted to initiate a safety plan; however, Appellant’s actions and his adamance
about his right to see the child resulted in a removal instead of a safety plan.
Although the child appeared to be happy and healthy at that time, removal was
necessitated by the parents’ drug use, the family’s living conditions, and the parents’
refusal to cooperate with a safety plan. The child was placed with a foster family,
and the parents were ordered to comply with the terms of their family service plan.
The child was subsequently placed with a paternal aunt and uncle, but that placement
failed due to marital issues between the aunt and uncle. When the aunt informed the
Department that neither she nor the uncle could continue as a placement for the child,
the child was returned to the foster parents with whom he had originally been placed.
A conservatorship caseworker for the Department testified that she had been
involved in this case since the adversary hearing. She testified that, at a visitation
early on in this case, the parents brought chocolate doughnuts and sweet tea for the
child. The caseworker, on multiple occasions, had to explain to the parents what
type of food was appropriate for a six-month-old child.
About two months after the removal, Appellant was arrested for evading arrest
and for not complying with the requirements of his sex-offender registration.
Appellant completed the parenting packets and a psychological evaluation while he
was in jail. He remained incarcerated at the time of the final hearing on termination.
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The testimony at that hearing indicated that Appellant would remain incarcerated for
the foreseeable future.
The caseworker testified that the child bonded quickly with the foster parents.
She also indicated that the foster parents provided the child with an appropriate home
and tended to all of his medical needs, including taking him to a specialist to obtain
a corrective helmet that the child had to wear for six to nine months, twenty-three
hours per day. The foster mother testified that the child had bonded with everyone
in her family and that she and her husband would like to adopt the child. The
Department’s plan for the child was termination of the parents’ parental rights and
adoption by the child’s foster parents.
The month before the final hearing, the child’s mother indicated that she
wanted to relinquish her parental rights because she could not provide for him and
because relinquishment would be in the child’s best interest. We note that the mother
did not follow through with the paperwork to relinquish her parental rights. The
caseworker testified that termination of both parents’ parental rights would be in the
child’s best interest. The child’s attorney/guardian ad litem agreed with the
Department that termination was appropriate.
In his fifth and sixth issues, Appellant challenges the legal and factual
sufficiency of the evidence to support the finding made by the trial court pursuant to
subsection (E) of Section 161.001(b)(1). Under subsection (E), the relevant inquiry
is whether evidence exists that the endangerment of the child’s well-being was the
direct result of the parent’s 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 625, 634 (Tex. App.—Fort Worth 2000, pet. denied);
In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). The
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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).
Drug use may constitute evidence of endangerment. Id.Here, the record contains clear and convincing evidence that both parents had
engaged in drug use while the child was in their care and had failed to provide a safe
environment for the child. The trial court could reasonably have formed a firm belief
or conviction that Appellant’s actions—a continued course of conduct that included
methamphetamine use, other violations of his probation, and failing to register as a
sex offender—had endangered the child. The evidence supports the trial court’s
finding that Appellant endangered the child’s physical or emotional well-being.
Consequently, we hold that the evidence is legally and factually sufficient to support
the trial court’s finding under Section 161.001(b)(1)(E). We overrule Appellant’s
fifth and sixth issues.
Because a finding that a parent committed one of the acts listed in
Section 161.001(b)(1)(A)–(U) is all that is required and because we have held that
the evidence is sufficient to support the trial court’s findings under subsection (E),
we need not address Appellant’s third, fourth, seventh, and eighth issues in which he
challenges the findings made pursuant to subsections (D) and (O). See TEX. R.
APP. P. 47.1.
In Appellant’s first and second issues, he challenges the legal and factual
sufficiency of the evidence to support the finding that termination of his parental
rights would be in the best interest of the child. We hold that, based on clear and
convincing evidence presented at trial and the Holley factors, the trial court could
reasonably have formed a firm belief or conviction that termination of Appellant’s
parental rights would be in the best interest of the child. 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
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physical danger to the child now and in the future, the parental abilities of Appellant
and the foster parents that wish to adopt the child, the plans for the child by the
Department, Appellant’s incarceration, Appellant’s inability to provide a safe and
stable home for the child, the stability of the foster parents’ home, Appellant’s
criminal history, and Appellant’s drug use, we hold that the evidence is sufficient to
support the finding that termination of Appellant’s parental rights is in the best
interest of the child. See id. We overrule Appellant’s first and second issues.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
January 31, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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