                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00314-CV


                         IN THE INTEREST OF M.R., A CHILD


                           On Appeal from the 84th District Court
                                  Ochiltree County, Texas
                Trial Court No. 14,410, Honorable Curt Brancheau, Presiding

                                    January 4, 2019

                            MEMORANDUM OPINION
                    Before CAMPBELL and PIRTLE and PARKER, JJ.


      Appellee the Texas Department of Family and Protective Services sought

termination of the parental rights of the father and the mother to their daughter, M.R.1

Trial of the final hearing was to the bench over two settings in July and August 2018.


      During the final hearing, the mother’s affidavit of relinquishment was received in

evidence.   At the conclusion of the evidence the trial court rendered a final order

terminating the parental rights of the father and the mother and appointing the Department



      1We use these party designations to protect the privacy of the child. See TEX.
FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b).
M.R.’s permanent managing conservator. The father has appealed, challenging only the

trial court’s best-interest finding. We will overrule the father’s issue and affirm the final

order of the trial court.


                                        Background


       The predicate grounds found by the trial court to warrant termination of the father’s

parental rights included endangering conditions, endangering conduct, constructive

abandonment, and failure to comply with a court order establishing actions necessary for

return of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),(E),(N), & (O) (West

Supp. 2018).


       Evidence supporting the court’s predicate-ground findings begins with the

Department’s placement of M.R., then seven years old, in a safety placement after

investigation of an allegation of neglect. M.R. and her parents were found occupying an

unkempt house lacking running water. The parents’ drug screens were positive. A

Department conservatorship worker agreed in testimony that the child’s parents were not

providing her basic necessities.


       On June 7, 2017, the Department filed its Original Petition for Protection of a Child,

for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship

regarding M.R., and was appointed her temporary managing conservator on June 19,

2017, following an adversary hearing.


       The Department prepared a family service plan for the parents. It was reviewed

with the father and made the order of the court. The worker testified the father did not

complete his service plan, and characterized the parents’ efforts as “very minimal.” She

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said he did not complete counseling, remain drug-free, or maintain housing or

employment.    The father testified he attended AA meetings.        He also completed a

psychosocial evaluation and an online parenting class. The worker said, however, that

the father did not follow the evaluation’s recommendations.


       The father was arrested in November 2017 for possession of methamphetamine.

He pled guilty to the state-jail felony offense, and was sentenced to time served in the

county jail. Between late November 2017 and the time of his release in early April 2018,

his incarceration hindered his ability to complete his service-plan requirements.


       In May 2018 drug tests, the father produced a negative urinalysis, but a hair-strand

test was positive for an unspecified substance. At trial, the father attributed the positive

test result to methamphetamine users at a residence where he was staying. The worker

testified to other occasions on which the parents gave excuses for their failure to take

requested drug tests.


       From the safety placement M.R. was moved to a shelter in Amarillo and then a

foster home nearby. The father’s supervised visitation was scheduled for a town nearer

the father’s residence, but the father did not make the visits, sometimes claiming he had

to work or had no transportation. The father last saw M.R. in September 2017.


       M.R.’s placement was later moved to a therapeutic foster home in the San Antonio

area. According to the worker, this was the only available placement in Texas able to

accept M.R. In the placement, M.R. is undergoing counseling for her inappropriate

masturbatory behavior. The worker said, M.R. is “a really sweet girl, but she does have

the sexually inappropriate behaviors.” She has “made progress.”


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       The worker said the father did not request telephone contact with M.R. and did not

send her cards or gifts. The father testified no one told him he was allowed to contact

M.R. while she was in the Department’s care.


       There was evidence that during the pendency of the case the father lived with a

friend and at a motel. He testified he no longer lived with the mother and was unaware

of her whereabouts. He moved to Amarillo after his release from jail and said he was

“sub-renting” a house in Amarillo with another person. He agreed his living arrangement

was not stable and said he lacked transportation. He had obtained employment with a

contractor for the city of Amarillo.


       Evidence showed M.R.’s only relatives to express any interest in her adoption were

the mother’s mother and step-father. But they removed themselves from consideration.


                                          Analysis


       In his brief, the father concedes the Department produced clear and convincing

evidence of at least one of the predicate grounds alleged. He does not challenge the

sufficiency of any of the predicate grounds found by the trial court. He argues, however,

there was no evidence or at least factually insufficient evidence to support the trial court’s

best-interest finding.


       The standards for appellate review of the proof presented to meet the

Department’s burden of clear and convincing evidence are described in In re K.M.L., 443

S.W.3d 101 (Tex. 2014) and In re K.V., No. 07-16-00188-CV, 2016 Tex. App. LEXIS

11091 (Tex. App—Amarillo Oct. 11, 2016, no pet.) (mem. op.). Clear and convincing

evidence is that measure or degree of proof which will produce in the mind of the trier of

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fact a firm belief or conviction as to the truth of the allegations sought to be established.

TEX. FAM. CODE ANN. § 101.007 (West 2014); In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).


       To assess the trial court’s best-interest determination, we may consider the factors

itemized in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).2 While the Holley “listing is by

no means exhaustive, [it] does indicate a number of considerations which either have

been or would appear to be pertinent.” Holley, 544 S.W.2d at 372.3 “The absence of

evidence about some of these considerations would not preclude a fact-finder from

reasonably forming a strong conviction or belief that termination is in the child’s best

interest, particularly if the evidence were undisputed that the parental relationship

endangered the safety of the child.” In re C.H., 89 S.W.3d at 27. In some circumstances,

evidence of even one Holley factor may be sufficient. Jordan v. Dossey, 325 S.W.3d 700,

729 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing In re C.H., 89 S.W.3d at

27). A court may fairly measure a parent’s future conduct by his past when determining

whether termination is in a child’s best interest. In re C.V., 531 S.W.3d 301, 308 (Tex.

App.—Amarillo 2017, pet. denied) (citing In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—


       2 The Holley factors are: (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 interests 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
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.
       3 See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing Family Code
section 263.307 [“Factors in Determining Best Interest of Child”] and Holley as providing
factors for consideration “when determining whether termination of parental rights is in
the best interest of the child” and also referencing Family Code section 153.131(b) which
provides “a strong presumption that the best interest of a child is served by keeping the
child with a parent”).

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San Antonio 2013, no pet.)). The best-interest analysis focuses on the best interest of

the child and not the parent. In re C.V., 531 S.W.3d at 307.


       We begin by noting that the unchallenged evidence supporting the father’s

commission of endangering conduct and constructively abandoning M.R. strongly support

the court’s best-interest finding. See In re C.H., 89 S.W.3d at 28 (same evidence may be

probative both of predicate grounds and best interest).


       With regard to other factors, M.R. was almost age nine by the time of final hearing

but no evidence of her desires was presented. According to the worker, M.R. missed her

parents and frequently mentioned them but the worker could not say whether M.R. was

interested in having a telephone conversation with them. We have noted evidence of

M.R.’s apparent sexual acting-out behavior. She was placed in a therapeutic foster home

and in counseling. According to the worker, the prospect of M.R. remaining in this facility

until an adoptive family is located is “realistic.” There was suggestion in the testimony of

the existence of potential adoptive parents. No relative was interested in adoption. M.R.’s

mother relinquished her parental rights.


       By the time final hearing concluded, some eleven months had passed since the

father last saw M.R. While her relocation to the San Antonio area made personal visits

with the father more difficult, there was no evidence the father requested assistance to

arrange a visit. Nor does it appear the father visited, or otherwise contacted, his daughter

before her transfer to San Antonio. The father was unable to recall in testimony that the

court previously ordered supervised visitation.       The court also heard the father

acknowledge he did not attempt communication with his daughter even through cards or



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by telephone, and dismiss his lack of effort by merely asserting that contacting her during

the case would not have been “plausible.”


       The court could have seen the father’s efforts to complete the services required

for return of M.R. as half-hearted at best. While in jail, there was no evidence he

requested assistance with his services from the worker, who visited him in jail, or his

court-appointed attorneys in the criminal case or the Department’s case. The court also

had reason to doubt the father’s resolve to distance himself from drug use. By the father’s

own testimony, even after his release from jail, he had close association with individuals

using methamphetamine. Although the father testified he was working to improve his

situation, his housing and transportation remained unstable at the time of trial.


       As factfinder, the trial court was the exclusive judge of the credibility of the

witnesses and the weight to be given their testimony. In re H.E.B., No. 07-17-00351-CV,

2018 Tex. App. LEXIS 885, at *5 (Tex. App.—Amarillo Jan. 31, 2018, pet. denied) (mem.

op.). It was authorized to believe some, all, or none of a witness’s testimony. Id.

Significantly, the father’s testimony contains no mention of the child’s needs or his plans

to meet her needs. Considering all the evidence of the best interest factors in the light

most favorable to the trial court’s finding, we conclude a reasonable trier of fact could

have formed a firm belief or conviction that termination of the father’s parental rights was

in the child’s best interest. See In re K.M.L., 443 S.W.3d at 112-13, 116 (legal sufficiency

standard). And, viewing all the evidence in a neutral light, we conclude that the disputed

and undisputed evidence favoring and disfavoring the finding permitted a reasonable

factfinder to form a firm belief or conviction that termination was in M.R.’s best interest.

See In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014) (factual sufficiency standard).

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Hence, the evidence supporting the court’s finding that termination of the father’s parental

rights was in the best interest of M.R. was legally and factually sufficient. See Holley, 544

S.W.2d at 371-72. We accordingly overrule the father’s appellate issue and affirm the

trial court’s final order of termination.




                                                         James T. Campbell
                                                            Justice




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