                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-16-00256-CV

                        IN THE INTEREST OF
        M.F.L. AKA M.F.O. AND D.W.L. AKA D.W.O., CHILDREN,


                             From the County Court at Law
                                  Ellis County, Texas
                               Trial Court No. 91121CCL


                              MEMORANDUM OPINION

       Christy L. appeals from a judgment that terminated the parent-child relationship

between her and her children, M.F.L. and D.W.L.1 After hearing all the evidence, the trial

court found by clear and convincing evidence that Christy (1) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings that endanger

the children, and (2) engaged in conduct or knowingly placed the children with persons

who engaged in conduct that endangers the children; (3) failed to comply with a court

order; (4) used a controlled substance; and (5) constructively abandoned D.W.L. TEX.

FAM. CODE ANN. § 161.001 (1) (D) (E) (N)(O) (P) (West Supp. 2012). The trial court further



1The children are also known as M.F.O and D.W.O. In this opinion we will refer to them only as M.F.L.
and D.W.L.
found by clear and convincing evidence that termination of the parental rights of Christy

was in the best interest of the children. We affirm.

                                         Background Facts

       Christy and Russell O. are the biological parents of M.F.L. and D.W.L. Christy has

two adult children and a ten year-old son who lives with his father. At the time of trial,

M.F.L was four years-old and D.W.L. was almost two years-old. D.W.L. tested positive

for methamphetamines at the time of his birth. He was placed with Russell’s aunt and

uncle where he has lived since his birth. M.F.L. was removed at that time and placed

with Christy’s sister and brother-in-law, and she continues in that placement. Christy

has a long history with the Texas Department of Family and Protective Services. Christy

admitted using methamphetamines while pregnant with D.W.L. and while caring for

M.F.L. Christy failed to comply with her court-ordered services, and she tested positive

for drugs. Christy was arrested for theft and possession of a controlled substance after

the children were removed from her care.

       Russell admitted to being a registered sex offender. Russell also admitted to using

methamphetamines. Russell completed the court-ordered services, but he did not seek

possession of the children. The trial court did not terminate Russell’s parental rights to

M.F.L. and D.W.L. at the conclusion of the trial. The trial court ordered that the current

placements for M.F.L. and D.W.L. be named as each child’s permanent managing

conservator. Russell was named as a possessory conservator of M.F.L and D.W.L.




In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children                Page 2
                                   Abandonment of Pleading

       In the first issue, Christy argues that the trial court erred when it terminated her

parental rights and not the rights of Russell after the Department abandoned the position

of having only one of the parent’s rights terminated. Whether a pleading has been

abandoned is a question of law which we review de novo. In re C.C.J., 244 S.W.3d 911,

921 (Tex.App.-Dallas 2008, no pet.). Formal amendment of the pleadings is not required

in order to show abandonment. Id. A stipulation may form the basis for abandonment.

Id.

       A stipulation is an agreement, admission, or concession made in a judicial

proceeding by the parties or their attorneys respecting some matter incident thereto. Id.

In construing a stipulation, a court must determine the intent of the parties from the

language used in the entire agreement, examining the surrounding circumstances,

including the state of the pleadings, the allegations made therein, and the attitude of the

parties with respect to the issue. Id. A stipulation should not be given greater effect than

the parties intended, and should not be construed as an admission of a fact intended to

be controverted. Id.

       At the close of evidence, the trial court stated:

              Okay. I’ll entertain closing argument. Do each of you need a couple
       of moments to compose your thoughts? What I’m going to want to know
       is if whether I terminate both[,] one or none, I want you to discuss in the
       alternatives, depending on what I end up doing on that, what your desires
       would be in each of those scenarios. So, if you need a moment to collect
       your thoughts, I’ll grant it, or if you’re all ready, I’ll hear closing arguments
       now.



In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children                       Page 3
The attorney for the Department took a few moments, and then made her closing

argument. During her closing argument, the attorney for the Department stated that the

Department does not believe it would be in the children’s best interest to terminate one

parent and not the other. The Department went on to state that the other option would

be permanent managing conservatorship of the children. The Department said that if the

trial court chooses this option, the Department recommends placing the least burden as

possible on the managing conservators with significant restrictions on the part of the

parents as the safety concerns have not been alleviated throughout this case.

       Christy argues that the Department abandons an absolute termination position

with the stipulation that it does not believe it would be in the children’s best interest to

terminate one parent but not the other and takes a qualified termination position. Christy

further argues that the trial court then terminates her parental rights, but not Russell’s

after the Department abandoned that position and no longer sought that relief from the

trial court.

       Christy cites In the Interest of Shaw, in support of her position that the Department

abandoned its position on termination. However, in Shaw, at the outset of a trial seeking

termination of parental rights, the Department specifically acknowledged that it was not

seeking termination of the rights of one party named in the pleadings. In the Interest of

Shaw, 966 S.W.2d 174, 176 (Tex.App. – El Paso 1998, no pet.). In the present case, the

Department argued throughout trial for termination of parental rights. There is no

unequivocal statement by the Department that it is not seeking termination for either

parent. After a request by the trial court to address alternatives if the court chooses to

In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children                  Page 4
terminate one, both, or none of the parents, the Department addressed that issue while

maintaining that the Department is seeking termination of both parents. We do not find

that the Department abandoned the position of termination. We overrule the first issue.

                                              Best Interest

        In the second issue, Christy argues that the evidence is legally and factually

insufficient to support the trial court’s finding that termination is in the children’s best

interest.2 In conducting a legal sufficiency review in a parental termination case:

        [A] court should look at all the evidence in the light most favorable to the
        finding to determine whether a reasonable trier of fact could have formed
        a firm belief or conviction that its finding was true. To give appropriate
        deference to the factfinder's conclusion and the role of a court conducting a
        legal sufficiency review, looking at the evidence in the light most favorable
        to the judgment means that a reviewing court must assume that the
        factfinder resolved disputed facts in favor of its finding if a reasonable
        factfinder could do so. A corollary to this requirement is that a court should
        disregard all evidence that a reasonable factfinder could have disbelieved
        or found to be incredible. This does not mean that a court must disregard
        all evidence that does not support the finding. Disregarding undisputed
        facts that do not support the finding could skew the analysis of whether
        there is clear and convincing evidence.

In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d

256, 266 (Tex.2002)) (emphasis in J.P.B.).

        In a factual sufficiency review,

        [A] court of appeals must give due consideration to evidence that the
        factfinder could reasonably have found to be clear and convincing.... [T]he
        inquiry must be "whether the evidence is such that a factfinder could
        reasonably form a firm belief or conviction about the truth of the State's
        allegations." A court of appeals should consider whether disputed
        evidence is such that a reasonable factfinder could not have resolved that


2Christy does not challenge the trial court’s finding as to the termination of her parental rights under TEX.
FAM. CODE ANN. § 161.001 (1) (D) (E) (N)(O) (P) (West Supp. 2012).
In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children                                  Page 5
       disputed evidence in favor of its finding. If, in light of the entire record, the
       disputed evidence that a reasonable factfinder could not have credited in
       favor of the finding is so significant that a factfinder could not reasonably
       have formed a firm belief or conviction, then the evidence is factually
       insufficient.

In re J.F.C., 96 S.W.3d 256, 266-67 (Tex.2002) (quoting In re C.H., 89 S.W.3d 17, 25

(Tex.2002)) (internal footnotes omitted) (alterations added).

       In determining the best interest of a child, a number of factors have been

considered, including (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; (6) the plans for the child by these

individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may

indicate the existing parent-child relationship is not a proper one; and (9) any excuse for

the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re

S.L., 421 S.W.3d 34, 38 (Tex.App.-Waco 2013, no pet.). The Holley factors focus on the best

interest of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38. The

goal of establishing a stable permanent home for a child is a compelling state interest. Id.

The need for permanence is a paramount consideration for a child's present and future

physical and emotional needs. Id.

       Because of the age of M.F.L. and D.W.L., they were not able to express their desires;

however, the evidence shows that both children are bonded with their current care-

givers. D.W.L. has never lived with Christy, and has had limited visitation with her.

M.F.L. has a parent-child relationship with her current care-givers. The evidence shows

In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children                       Page 6
that D.W.L. tested positive for methamphetamine at birth and was removed from Christy

at that time. Christy admitted using methamphetamines while pregnant with D.W.L.

and while caring for M.F.L. Christy continued to use methamphetamines after the

removal of the children, and tested positive for drug use on more than one occasion.

Christy was arrested on more than one occasion after the removal of the children. After

the removal of the children, Christy was in a relationship with a man who was on parole

for injury to a child, and it was not clear whether she had ended that relationship.

       Christy did not complete the service plan ordered by the court and did not

complete the programs to assist her in parenting the children. Christy was not able to

demonstrate that she had stable, suitable housing for the children and that she had a plan

to care for the children. We find that the evidence is legally and factually sufficient to

support the trial court’s finding that termination is in the children’s best interest. We

overrule the second issue.

                                             Conclusion

       We affirm the trial court’s judgment.




                                                       AL SCOGGINS
                                                       Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 28, 2016
[CV06]


In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children                   Page 7
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