Opinion filed May 23, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-18-00335-CV
                                  __________

                 IN THE INTEREST OF A.W., A CHILD


                    On Appeal from the 326th District Court
                             Taylor County, Texas
                        Trial Court Cause No. 8683-CX


                      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 the father of A.W. The mother filed a notice of appeal. In
two issues on appeal, she challenges the sufficiency of the evidence to support the
termination of her parental rights. 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).
      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 one of the acts
listed in Section 161.001(b)(1)—that found in subsection (O). Specifically, the trial
court found that Appellant had failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of the
                                           2
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 the parent 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.
       In her second issue, Appellant challenges the legal and factual sufficiency of
the evidence with respect to the trial court’s finding under subsection (O). The
record shows that the Department became involved with A.W.’s family when she
was twelve years old. At that time, A.W.’s younger sister, A.T., was critically ill and
was admitted to the PICU at Cook Children’s Medical Center. A.T. had Type 1
diabetes, and the mother was not providing appropriate care for A.T., despite having
been instructed on how to do so. Family based safety services were instituted, but
concerns about A.T.’s blood sugar continued, as did concerns about A.T. missing
school, missing appointments at Cook, and running out of syringes. The next month,
A.T. was removed from Appellant’s care. At the time of her removal, A.T. tested
positive for amphetamine, methamphetamine, and cocaine. After A.T.’s positive
drug test, A.W. was also removed from Appellant’s care.
       The record indicates that a family service plan was prepared and made an
order of the trial court. The uncontroverted evidence reflects that Appellant failed
to comply with some of the provisions of her service plan. She did not obtain or
maintain employment during the eighteen months that this case was pending. And,
most notably, Appellant continued to test positive for methamphetamine, including
a hair follicle test that was conducted five weeks prior to trial.
       Approximately one year after A.W. was removed, but while the case was still
pending in the trial court, Appellant was a passenger in a vehicle that was stopped
after leaving a known drug location. Appellant had narcotics hidden in her
undergarments and was arrested. About two weeks prior to the final hearing on
                                           3
termination, Appellant pleaded guilty to the second-degree felony offense of
possession of methamphetamine. Pursuant to a plea bargain agreement, Appellant’s
ten-year sentence was suspended, and she was placed on community supervision for
ten years.
       After her arrest, Appellant received inpatient treatment for her admitted drug
addiction. Appellant, however, failed to timely sign up for outpatient treatment as
required when she was released from inpatient treatment. Additionally, Appellant
continued to have various unapproved people in and out of her apartment, including
a man named Byron that was living in Appellant’s apartment when A.W. and A.T.
went there for a Christmas visit. Appellant later admitted that Byron was one of her
drug dealers. While this case was pending, police were called to Appellant’s address
numerous times, and at least one “violent episode” occurred there. The violent
episode caused Appellant to go to the “Noah Project.”1
       Appellant testified at trial that she had sought and received treatment for her
disease/addiction, that she was no longer doing drugs, and that her sobriety date was
May 18, 2018—approximately three and one-half months prior to trial but more than
fourteen months after A.W. was removed from Appellant’s care. Appellant
acknowledged that it took her a long time to admit that she had a drug problem and
to seek help for it. She indicated that she was still seeing a counselor and that the
appointments with the counselor were helpful. Appellant did not want her parental
rights to be terminated.
       The Department’s goal with respect to A.W. was for her parents’ parental
rights to be terminated and, ultimately, for A.W. to be adopted. The conservatorship
caseworker for the Department believed that, although it would be traumatic at first,


       1
         We note that the Noah Project is a facility for victims of family violence and sexual assault.
http://noahproject.org/.

                                                  4
it would be good for A.W. in the long run for the trial court to terminate Appellant’s
parental rights. The guardian ad litem expressed great concern over returning A.W.
to Appellant.
      There was no dispute that A.W. was bonded with Appellant. A few weeks
before trial, A.W. indicated that she did not want her mother’s parental rights to be
terminated but that she wished to be placed in the home of one of her friends. By
the time of trial, A.W. and A.T. had been placed in an adoptive home; however, they
had only been in that home for thirty days. Therefore, it was not yet known if the
foster parents in the adoptive home intended to adopt A.W. and A.T. The foster
parents indicated that “they are in it for the long run” and “would not discharge these
girls no matter what.” The trial judge conferred with A.W. in chambers prior to
announcing his decision in this cause. Neither the substance of that conversation
nor A.W.’s desire at the time of trial appears in the appellate record.
      The record contains clear and convincing evidence to support the trial court’s
finding under Section 161.001(b)(1)(O). Based on the evidence in this case, the trial
court could reasonably have formed a firm belief or conviction that Appellant failed
to comply with the provisions of her court-ordered family service plan, which
specifically established the actions necessary for her to obtain the return of A.W., a
child who had been in the managing conservatorship of the Department for not less
than nine months as a result of her removal from Appellant for abuse or neglect.
Appellant did not present any evidence that she was unable to comply with certain
provisions of her family service plan and had made a good faith effort to comply
with those particular provisions. See FAM. § 161.001(d). Consequently, we hold
that the evidence is sufficient to support the trial court’s finding. We overrule
Appellant’s second issue.
      In her first issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of her parental rights is
                                           5
in A.W.’s best interest. Based upon the Holley factors and the evidence in the record,
as set forth above, 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.
We acknowledge A.W.’s previously expressed desire that her mother’s parental
rights not be terminated; however, considering A.W.’s desire to be placed with a
friend instead of with Appellant, A.W.’s emotional and physical needs, Appellant’s
parental abilities, the danger to A.W. if returned to Appellant’s care, Appellant’s
continued use of methamphetamine for well over one year after her children were
removed, Appellant’s failure to enroll in outpatient drug treatment, Appellant’s
unstable employment, and the Department’s plans for A.W., the trial court could
reasonably have formed a firm belief or conviction that it would be in A.W.’s best
interest for her mother’s parental rights to be terminated. We hold that the evidence
is both legally and factually sufficient to support the trial court’s best interest finding.
Accordingly, we overrule Appellant’s first issue.
                                         This Court’s Ruling
        We affirm the trial court’s order of termination.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


May 23, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                      6
