                                    NO. 07-04-0526-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                      APRIL 11, 2005

                          ______________________________


                   IN THE INTEREST OF M.A. AND B.A., CHILDREN

                        _________________________________

            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2000-509,361; HONORABLE MARVIN MARSHALL, JUDGE

                         _______________________________


Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1


                                MEMORANDUM OPINION


       This is an appeal from an order following a bench trial terminating the parent-child

relationship between M.A. and B.A., minor children, and their mother, Kathy Jo Lee Allen.

By her single issue, Allen challenges whether the evidence presented at trial was legally

and factually sufficient to support the trial court’s findings. We affirm.


       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
       Kathy Allen is the mother of two children, M.A., age ten, and B.A., age eight. Allen

was married to the children’s father, Danny Jack Allen, for seven years. Since 1991,

Danny has been convicted of various crimes, including felony theft, criminal mischief, and

felony possession with intent to manufacture methamphetamine. In June 2000, Allen

divorced Danny and received custody of the children. At time of trial, Danny was

incarcerated. He has since executed a voluntary affidavit of relinquishment terminating

his parental rights and is not a party to this appeal.


       Following the divorce, Allen and her children continued to live in the home while she

dated Jimmy Don Perrin.2 During this time, Allen admits that she frequently argued with

Perrin in the children’s presence and often consumed alcohol to the point of intoxication.

In November 2002, Allen was arrested for driving with a suspended license and

misdemeanor forgery, for which she is currently serving two years probation.3             In

December 2002, the children stayed with Allen’s sister, Linda Williams. While visiting the

children, Allen was arrested for driving with a suspended license and possession of drug

paraphernalia. Soon after, Williams contacted the Texas Department of Family and




       2
      It is unclear as to whether anyone other than Allen and her children resided in the
home. There is some evidence in the record which suggests that Perrin and another man,
Bobby Stephens, occupied the home for various periods of time.
       3
       Allen testified that she was initially charged with tampering with government
records after she signed her sister’s name on a traffic ticket. On February 6, 2004, she
pled guilty to a reduced charge of misdemeanor forgery and began serving her probation.

                                             2
Protective Services (the Department) with concerns about Allen’s behavior and her

supervision of the children.


       The Department began conducting its initial investigation after Allen was released

from jail. Although reluctant to participate or assist in the investigation, Allen did agree to

a safety plan prohibiting Perrin from contacting the children until the Department could

address safety concerns. Still, Allen continued to allow Perrin to visit the residence, and

the children informed caseworkers that they were witness to several incidents of domestic

violence. The children related to caseworker Leslie Struck how Perrin would sometimes

throw and destroy items in the home and that they witnessed Allen kicking Perrin with her

boots. They also described how after one argument Perrin physically restrained Allen to

the bed bounding her with “zip-ties.”4


       In March 2003, Allen was again arrested for driving with a suspended license. As

a result, the children were forced to stay the weekend with their father, Danny, and his

girlfriend, Heather Stephens, who, at that time, were under investigation for the

manufacture and trafficking of methamphetamines. The children were returned to their

mother’s care when she was released from jail the following week. Shortly thereafter,

caseworker Struck smelled a strong scent of ammonia coming from the children’s home

causing her to suspect that the occupants were involved in the illegal manufacture of


       4
        The children informed caseworker Struck that Perrin also threatened Allen with a
“torch with fire,” leading them to believe that their mother would be tortured.

                                              3
methamphetamines. On April 11, 2003, after Allen refused to submit to drug tests as

required by the safety plan, the Department arranged for the children to be placed with

their maternal aunt Trish McWright in Lubbock and requested that Allen not visit them

without supervision.    Soon thereafter, Allen went to the residence and threatened

McWright in front of the children. As a result, McWright refused to continue to care for the

children, and on April 14, 2003, they were removed and placed in the custody of the State.

The Department filed its petition for termination of parental rights on April 15, 2003.


       In early 2004, the Department began family reunification efforts in an attempt to

allow the children to return to their mother’s custody. Allen attended therapy sessions and

made efforts to maintain meaningful employment. However, in drug tests administered on

January 8, January 21, May 10, and August 9, Allen tested positive for

methamphetamines. The positive tests were in violation of her probation and her visitation

rights with her children were suspended. Allen admits that she did not seek treatment for

her drug addiction until the week before the final hearing in September 2004. At time of

trial, the children had been in the custody of the State for 17 months.


       On October 15, 2003, following a non-jury trial, the court terminated Allen’s parental

rights under section 161.001 of the Texas Family Code by finding clear and convincing

evidence that: (1) she knowingly placed or allowed the children to remain in conditions or

surroundings which endangered their physical or emotional well-being; (2) she engaged

in conduct or knowingly placed the children with persons who engaged in conduct which

                                             4
endangered their physical or emotional well-being; and (3) termination of the parent-child

relationship was in the best interest of the children. By her only issue, Allen contends the

evidence is legally and factually insufficient to terminate her parental rights. We disagree.


                            Review of Termination Proceedings


       The natural right existing between parents and their children is of constitutional

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination

proceedings must be strictly scrutinized. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980).

However, while parental rights are of constitutional magnitude, they are not absolute. In

re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Just as it is imperative for courts to recognize the

constitutional underpinnings of the parent-child relationship, it is also essential that

emotional and physical interests of the child not be sacrificed merely to preserve that right.

Id. A termination decree is complete, final, irrevocable, and divests for all time that natural

right as well as all legal rights, privileges, duties, and powers with respect to each other

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. In proceedings to

terminate the parent-child relationship under section 161.001 of the Family Code, the

petitioner must establish one or more acts or omissions enumerated under subsection (1)

of the statute, and must additionally prove that termination of the parent-child relationship

is in the best interest of the child. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

Though the same evidence may be probative of both issues, both elements must be




                                              5
established and proof of one element does not relieve the petitioner of the burden of

proving the other. See id.; In re C.H., 89 S.W.3d at 28.


       We turn now to the standards of review for challenges to sufficiency of the evidence

in termination proceedings. Because Rule 296 of the Texas Rules of Civil Procedure

provides for requests for findings of facts and conclusions of law in any case, we must first

consider the appropriate standard of review of a judgment following a non-jury trial where

the trial court did not make any findings of fact or conclusions of law and a reporter’s

record has been provided.5 In such case, the appellate court presumes the trial court

found all fact questions in support of its judgment and must affirm that judgment on any

legal theory supported by the pleadings and evidence. Point Lookout West, Inc. v.

Whorton, 742 S.W.2d 277, 278 (Tex. 1987). When a reporter’s record has been provided,

the implied findings may be challenged for legal and factual insufficiency “the same as jury

findings or a trial court’s findings of fact.” Roberson v. Robinson, 768 S.W.2d 280, 281

(Tex. 1989).


       Because termination of parental rights is of such weight and gravity, due process

requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.

Code § 161.001; In re G.M., 596 S.W.2d at 847. This standard has been defined as

“whether the evidence is such that a factfinder could reasonably form a firm belief or



       5
           Findings of fact and conclusions of law were not requested by either party.

                                              6
conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d at 25.

Although this standard is higher than traditional sufficiency standards of review, an

appellate court must not be so rigorous that the only findings that withstand its review are

those established beyond a reasonable doubt. Id. at 26. In this regard, in considering

whether the evidence is factually sufficient to support the implied findings, we must

determine whether the evidence is such that a reasonable factfinder could form a firm

belief or conviction about the truth of the Department's allegations. See id. at 25. 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 (Tex. 2002). When reviewing the legal sufficiency of the evidence to

support an order terminating parental rights, we 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. Id. Thus, we disregard all evidence that

a reasonable factfinder could have disbelieved or found to have been incredible. Id. We

will affirm the termination order if there is both legally and factually sufficient evidence on

any statutory ground upon which the trial court relied. See, e.g., In re S.F., 32 S.W.3d

318, 320 (Tex.App.–San Antonio 2000, no pet.).


                                          Analysis




                                              7
       We first review the sufficiency of the evidence under section 161.001(1)(D) and (E),

as to whether Allen knowingly placed or allowed her children to remain in conditions or

surroundings which endangered their physical or emotional well-being or whether she

engaged in conduct or knowingly placed her children with persons who engaged in

conduct which endangered their physical or emotional well-being. We begin by noting that

the record does not reflect any actual physical harm or abuse to the children resulting from

Allen’s conduct or the conditions in which they lived. This is not to say, however, that the

potential for such harm did not exist.


       On appeal, Allen contends there is no evidence that the children were placed in a

dangerous situation or that the children were placed with persons who were presently

engaging in conduct that could jeopardize their welfare. We disagree. There was

testimony from several witnesses, including Allen, as to the domestic violence that

occurred in the home between she and Perrin. These altercations involved the throwing

and destruction of household objects, in addition to physical assault. Although Allen

insists that she has ended her relationship with Perrin, evidence suggests she has

continued to have contact with him since the children were removed from the home. There

is also evidence that the children were exposed to the use, manufacture, and delivery of

methamphetamines. Witnesses testified as to the smell of ammonia emanating from the

home and observed numerous individuals arriving at and leaving the property in a matter

of minutes. On one occasion, the children stayed with their father and his girlfriend in a


                                             8
hotel while they were the subject of an ongoing investigation for the manufacturing and

trafficking of methamphetamines.       Furthermore, Allen has admitted that she is a

methamphetamine addict and testified as to her difficulties in overcoming this addiction.

We find these circumstances, combined with the fact that Allen has been reluctant to seek

assistance, sufficient to allow a factfinder to reasonably conclude that she endangered her

children’s physical well-being and raises doubt as to her ability to provide her children a

safe environment in which to live. Just as importantly, Allen’s choice of lifestyle has also

had a negative impact on the emotional welfare of her children. Allen’s conduct need not

cause physical injury as a termination of the parent-child relationship may be based on

emotional endangerment alone. In re S.H.A., 728 S.W.2d 73, 83-84 (Tex.App–Dallas

1987, writ ref’d n.r.e).


       It is clear from the record that both children, ages 10 and 8, were consciously

aware of their mother’s drug and alcohol abuse and even attributed their mother’s conduct

to that fact. When asked about the children’s ability to comprehend their mother’s

problems, their guardian ad litem stated that “they were just like sponges” and that “they

soaked it all in.” Doctor Wilbanks, a counselor and family therapist, testified that when

Allen would fail to show up for visits, the children expressed disappointment and anger and

asserted that it was probably due to their mother’s drug use. The children also informed

caseworkers that Allen repeatedly instructed them not to discuss with anyone about what

was going on in the home or they would be taken away. As a consequence of Allen’s


                                             9
conduct, both children are exhibiting behavioral problems and show signs of severe

depression, especially M.A. Applying the appropriate standards of review, we find the

evidence to be legally and factually sufficient so as to enable a factfinder to reasonably

form a firm conviction or belief that Allen endangered the physical and emotional well-

being of her children.


       We now turn our focus to whether termination of the parent-child relationship is in

the best interest of the children. See § 161.001(2). We begin with the presumption that

the best interest of a child is usually served by preserving the parent-child relationship.

Wilson v. State, 116 S.W.3d 923, 929 (Tex.App.–Dallas 2003, no pet.). In deciding the

best interest of a child, we consider several factors 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 which 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. Holley, 544

S.W.2d at 371-72.        These factors are not exhaustive; some listed factors may be

inapplicable to some cases, while other factors not on the list may also be considered

when appropriate. In re C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of one

factor may be sufficient in a particular case to support a finding that termination is in the


                                             10
best interest of the child. Id. On the other hand, the presence of scant evidence relevant

to each Holley factor will not support such a finding. Id. Evidence that proves one or more

statutory grounds for termination may also constitute evidence illustrating that termination

is in the child's best interest. See id. at 28. In any case, there must be evidence from

which a factfinder could reasonably have formed a firm conviction or belief that the child's

best interest warranted termination. In re D.S.A., 113 S.W.3d 567, 574 (Tex.App.--Amarillo

2003, no pet.).


       It is undisputed that the Allen children have feelings toward their mother, and at

least one of the children, B.A., has expressed some desire to return to her mother.

Nonetheless, Dr. Wilbanks testified that both children seek a stable environment and

become angered at their mother’s drug usage. The evidence shows that Allen has

repeatedly struggled to overcome her addiction to methamphetamine, only to relapse due

to a lack of commitment and irresponsible behavior. The record also makes clear that

Allen was aware of the possibility of recovery and was informed that drug usage would

impair her ability to get her children back. She was offered assistance in this regard from

the State, as well as from family and friends who knew of her struggles. Despite this, Allen

continuously failed to make choices in the best interest of her children. Despite the fact

that Allen now admits she needs help and has “taken steps to get herself admitted,” the

evidence does not suggest a willingness to commit to raising her children in a safe and

suitable environment.


                                            11
       Furthermore, Dr. Hoke, a clinical psychologist, expressed concern as to whether

Allen would ever be able to lead a stable lifestyle and be an appropriate parent. Allen

argues that one or both of the children may not be adoptable and that “leaving them in that

kind of limbo is no permanency.” Although a lack of evidence about plans for permanent

placement and adoption is relevant to best interest, it cannot be the dispositive factor. In

re C.H., 89 S.W.3d at 28.       Doctor Wilbanks testified to the children’s multitude of

behavioral problems and, based on her interaction with the family, she feels that

termination of Allen’s parental rights would be in the best interest of both children, as they

need resolution and a permanent home.


       Although Allen maintains that her conduct and surroundings never jeopardized the

emotional well-being of her children, the bulk of the evidence suggests that these children,

being of such an impressionable age, will continue to develop further emotional and

behavioral problems if returned to a culture of drug abuse and apathy. We agree with

Allen’s contention that just because a parent is not the very best parent does not mean that

the parent’s behavior rises to the level of termination. Unfortunately, Allen’s indifference

towards the emotional and physical welfare of her children rises above that of simply bad

parenting. Having carefully reviewed the record, we conclude that there is legally and

factually sufficient evidence to support the trial court’s finding that termination of Allen’s

parental rights under section 161.001(2) is in the best interest of the children. Allen’s sole

issue is overruled.


                                             12
Accordingly, the trial court’s order of termination is affirmed.


                                    Don H. Reavis
                                      Justice




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