in the Interest of S.L.S., a Child ( 2019 )

Opinion filed January 28, 2019
In The
Eleventh Court of Appeals
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No. 11-18-00204-CV
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IN THE INTEREST OF S.L.S., A CHILD
On Appeal from the County Court at Law
Erath County, Texas
Trial Court Cause No. CV08670
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
S.L.S.’s parents. The mother filed an appeal. In a single issue on appeal, she
challenges the legal and factual sufficiency of the evidence to support the trial court’s
best interest finding. We affirm.
Termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To determine on
appeal 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). In this case, 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 physical or emotional well-being, 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 had failed to comply with
provisions of a court order that specifically established the actions necessary for her
to obtain the return of the child. See id. § 161.001(b)(1)(D), (E), (O). Appellant
does not challenge these findings, but she does challenge the trial court’s finding
that termination is in the child’s best interest. See id. § 161.001(b)(2). Accordingly,
we will uphold the order of termination if the evidence is sufficient to support the
best interest finding.
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
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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.
The record in this case reflects that the Department of Family and Protective
Services became involved with S.L.S. when he was less than two weeks old. During
an investigation of a reported concern related to the baby’s health, the Department
determined that S.L.S. was very lethargic, had a bad case of thrush, and was too
skinny. S.L.S. weighed 6.5 pounds at birth; at eleven days old, he had lost over 30%
of his body weight and weighed only 4.5 pounds. However, neither parent was
concerned about S.L.S.’s apparent health problems at that time. The Department’s
investigator believed that S.L.S. needed to be taken to a hospital immediately. The
investigator took S.L.S., along with Appellant, to the emergency room at Cook
Children’s Hospital. S.L.S. was admitted to the hospital and was treated for severe
thrush and severe malnutrition. S.L.S. gained weight while at the hospital.
The trailer home in which the family lived at the time of removal was in poor
condition. It had broken windows and holes in the floor, and it was hot inside—as
only one bedroom had a window unit. Additionally, there was no food in the house
other that a box of pancake mix and rotten milk.
The evidence showed that Appellant complied with some, but not all, of the
provisions of her court-ordered service plan. In this regard, the use of drugs by
Appellant did not seem to be an ongoing problem, although Appellant did test
positive for methamphetamine at the time of removal. Appellant, however, denied
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ever using methamphetamine. Appellant was aware that S.L.S.’s father had a
criminal history, had been “locked up” for six years, and was on parole. The father
tested positive for methamphetamine and amphetamine while this case was pending.
After she ended her relationship with the baby’s father, Appellant engaged in a
relationship and moved in with a man who was under indictment for the offense of
sexual assault of a child. The record reflects that Appellant did not have a car or a
driver’s license, that her housing situation was tenuous, and that the Department had
concerns about how Appellant “would do on her own” because she had not
demonstrated an ability to provide a healthy, stable home environment or a stable
job. Appellant did, however, regularly attend visitation with S.L.S. while this case
was pending.
Not long after removal, the Department placed S.L.S. in a foster home; he
remained in that same foster home at the time of trial. The foster parents would like
to adopt S.L.S. if possible. S.L.S. is doing well in that home and has bonded with
his foster parents. The record reflects that the foster parents are able to meet all of
S.L.S.’s current and future needs, including some special needs. The optic nerve in
S.L.S.’s left eye never developed, and he is permanently blind in that eye. A portion
of S.L.S.’s brain, the septum pellucidum, is also absent.
The conservatorship caseworker testified that the Department’s plan for
S.L.S. was termination of the parents’ parental rights and adoption by the foster
parents. The caseworker believed that termination of Appellant’s rights would be in
S.L.S.’s best interest. The child’s guardian ad litem informed the trial court that
Appellant’s judgment was poor, that she believed Appellant’s judgment would
continue to be poor, and that the child would not be safe with Appellant. The child’s
attorney ad litem recommended that the trial court terminate Appellant’s parental
rights.
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Appellant did not agree with these assessments; she did not want her parental
rights to be terminated and did not believe that it would be in S.L.S.’s best interest
to do so. She believed that “a child can bond better with the actual parents and stuff.”
Although she admitted at trial that she had endangered S.L.S. prior to the removal,
she believed that she had learned how to be a better parent.
Based upon the Holley factors and the evidence in the record, we cannot hold
that the trial court’s best interest finding is not supported by clear and convincing
evidence. See Holley, 544 S.W.2d at 371–72. The trial court could reasonably have
formed a firm belief or conviction that it would be in the child’s best interest for
Appellant’s parental rights to be terminated. We hold that the evidence is legally
and factually sufficient to support the trial court’s best interest finding. We overrule
Appellant’s sole issue on appeal.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
January 28, 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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