Opinion filed July 26, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-18-00068-CV
                                  __________

                 IN THE INTEREST OF S.M.B., A CHILD


                     On Appeal from the 326th District Court
                              Taylor County, Texas
                         Trial Court Cause No. 8743-CX


                      MEMORANDUM OPINION
       S.M.B.’s parents appeal from an order in which the trial court terminated their
parental rights. On appeal, each parent challenges the sufficiency of the evidence to
support the trial court’s findings in support of termination. We affirm.
                         I. Termination Standards and Findings
       The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). To determine 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 that termination is in the child’s best interest. C.J.O.,
325 S.W.3d at 266.
      After the final hearing in this case, the trial court found that both S.M.B.’s
mother and father had committed one of the acts listed in Section 161.001(b)(1)—
namely, subsection (O). See FAM. § 161.001(b)(1)(O). The trial court also found,
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in accordance with Section 161.001(b)(2), that termination of both parents’ parental
rights would be in the best interest of S.M.B. Both parents challenge each of these
findings.
                                 II. Evidence at Trial
      The record shows that the Department of Family and Protective Services
initially became involved with S.M.B. a few months after he was born. S.M.B., a
medically fragile child, was set for discharge from Cook Children’s Medical Center
when it came to the attention of the hospital staff that both of S.M.B.’s parents were
homeless at the time. In addition, they were also concerned with the father’s erratic
behavior toward S.M.B. and the hospital staff, as well as the mother’s unwillingness
to protect S.M.B. from the father’s actions and unwillingness to care for S.M.B.
      The father was seen by multiple nurses yelling and cursing at S.M.B. when
S.M.B. cried. Both parents were asked about their plan once S.M.B. was discharged
from the hospital. S.M.B.’s parents could not give a definite answer, and neither
could provide S.M.B. with stable housing, something that was imperative with
S.M.B.’s medically fragile state. S.M.B.’s parents also admitted that the father had
a mental illness that he was not being treated for, which caused his erratic and
unstable behavior in the hospital. The mother knew of the illness and behavior but
did not attempt to protect S.M.B. from the father when he was acting erratically, and
she did not show any attempt at bonding with or taking care of S.M.B. After
Department personnel met with both parents in the hospital, S.M.B. was removed
and placed into foster care.
      Both parents have a history with the Department, which involved their older
daughter and another child. According to an earlier allegation, the Department had
“reason to believe” that Appellants neglectfully supervised their daughter. In
another allegation, the Department also had “reason to believe” that the father had
sexually abused another child. The father did not have a criminal history when the
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investigation in this case began, but while this case was pending, he was charged
with the third-degree felony offense of assault family violence, impeding breath.
This assault family violence charge was still pending at the time of the termination
hearing. At the time of the investigation, the parents’ other child was living with a
family member.
      Upon removal, both parents were issued services and tasks that they were
required to complete in order to have S.M.B. returned. After initial services and
tasks were assigned, the Department received a report of the mother’s drug use. The
mother was then asked to complete drug tests on multiple occasions; she did not
complete the drug tests. The mother admitted to marihuana use on November 15,
2017. The mother had testified in a prior hearing that she used marihuana to help
her sleep at night. In addition, the father failed a drug test and refused to take any
more after that. Testimony indicated that not all tasks were completed by either
parent but that progress was made to the point that the mother felt that she could care
for S.M.B.
      The parents agreed that the foster parents were taking good care of S.M.B.,
but the parents believed they had made changes that would make them better parents
and did not want their rights to be terminated. However, the conservatorship
caseworker testified that she believed that termination of both parents’ rights would
be in S.M.B.’s best interest. Based on the parents’ history with the Department, the
father’s criminal history, and a severe lack of substantial progress of court-ordered
tasks and services, the caseworker did not believe that the parents would provide
S.M.B. with a safe home and stable environment.
                                     III. Analysis
      Both parents challenge the legal and factual sufficiency of the evidence to
support the trial court’s finding under subsection (O). Both parents also challenge


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the trial court’s finding that termination of their parental rights would be in the best
interest of S.M.B.
        A.      The Department adduced clear and convincing evidence, under
                Section 161.001(b)(1)(O), that the parents failed to comply with
                their court-ordered family service plan.
        Under subsection (O), there must be clear and convincing evidence that the
parents did not fully comply with their court-ordered family service plan—as
required to support a finding under Section 161.001(b)(1)(O). In re C.G., No. 11-
17-00301-CV, 2018 WL 1916671, at *2 (Tex. App.—Eastland Apr. 19, 2018, no
pet.) (mem. op.). In this case, the parents’ tasks included attendance and completion
of individual counseling, signature of all necessary release forms, and compliance
with the no-show policy of S.M.B.’s visits. The service plan also included allowance
of announced and unannounced visits to their homes; reporting all significant
relationships; and reporting changes in household composition, address, phone
number, or employment status within three days of the change. Both parents also
were to obtain and maintain employment and stable housing, attend all visitations
with and appointments of S.M.B., engage in and complete parenting classes, submit
to psychological exams and complete recommendations made by the provider, and
refrain from all illegal drug use.
        S.M.B.’s mother did not have a driver’s license.1 She had told the Department
that she was not interested in getting one, that she also did not have a car or reliable
means of transportation for S.M.B.’s medical appointments, and that taking the bus
was time consuming. She also had difficulty describing how to feed S.M.B. using
his “G-button” and admitted that she used drugs at night to help her sleep, which
could conflict with S.M.B.’s feeding. S.M.B.’s father was required to attend and


        1
          S.M.B.’s mother testified that she thought having a driver’s license was a necessity. The record
also reflects that S.M.B.’s father did not have a driver’s license.

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complete Batterer’s Intervention Prevention Program (BIPP), as well as contact
MHMR Betty Hardwick and complete an assessment. S.M.B.’s father did not
complete BIPP classes, did not contact MHMR Betty Hardwick for an assessment
in a timely manner, and did not refrain from criminal activity. S.M.B.’s father also
did not maintain stable employment and housing and did not complete the
recommendations from the psychological evaluation providers.
      Though each parent respectively completed a few of their tasks, they each did
not complete individual counseling, did not comply with the significant relationship
report, missed some of S.M.B.’s medical appointments, and did not refrain from the
use of illegal drugs. After a review of the record, we hold that the evidence is legally
and factually sufficient to support the trial court’s finding under subsection (O)
because both parents had an extensive list of tasks and services they were required
to complete before the return of S.M.B., and they failed to comply with that plan.
      B.     The Department adduced clear and convincing evidence, under
             Section 161.001(2), that termination was in the best interest of
             the child.
      Based upon the Holley factors and the evidence in the record, we hold that the
trial court’s best interest findings were supported by clear and convincing evidence.
See Holley, 544 S.W.2d at 371–72. We first note that the Department introduced
evidence that S.M.B. is medically fragile, that he has significant emotional and
physical needs, and that Appellants had failed to meet those needs. The Department
also adduced evidence that Appellants had failed to comply with the court-ordered
family service plan and had failed to maintain stable housing and employment. We
also note that the Department adduced evidence of the emotional and physical
danger to S.M.B., both now and in the future, if S.M.B. were to remain with the
parents. The Department further adduced evidence that S.M.B. had done well in the
current placement with foster parents, who attend to S.M.B.’s needs and are willing

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to care for S.M.B. until a permanent adoptive family is located and approved. The
Department notes that it can find an adoptive family, but an adoption plan cannot
begin until after a parent’s rights are terminated. We conclude that the trial court
could reasonably have formed a firm belief or conviction that termination of the
parents’ parental rights would be in the best interest of S.M.B. See In re K.W.C.,
No. 11-17-00215-CV, 2018 WL 826885, at *2 (Tex. App.—Eastland Feb. 8, 2018,
no pet.) (mem. op.).
                                        IV. This Court’s Ruling
        We affirm the trial court’s order of termination.




                                                           MIKE WILLSON
                                                           JUSTICE


July 26, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J. 2




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

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