Opinion filed September 26, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-12-00353-CV
                                  __________

         IN THE INTEREST OF G.C. AND J.C., CHILDREN


                 On Appeal from the County Court at Law No. 2
                              Ector County, Texas
                     Trial Court Cause No. CC2-2991-PC


                      MEMORAND UM OPI NI ON
      This is an appeal from an order terminating the parental rights of the mother
and father of G.C. and J.C. Both parents filed a notice of appeal. We affirm.
                                      I. Issues
      In two issues on appeal, the children’s father challenges the legal and factual
sufficiency of the evidence to show best interest. Though not designated as an
“issue,” the father also argues that the evidence is legally and factually insufficient
to support the trial court’s findings regarding endangering conditions, endangering
conduct, and noncompliance with a court order. The mother presents six issues. In
the first issue, she complains of the admission into evidence of the results of a drug
test. In her second issue, the mother contends that the evidence is legally and
factually insufficient to show that the Department of Family and Protective
Services made reasonable efforts to return the children to the parents. In the third,
fourth, fifth, and sixth issues, the mother challenges the legal and factual
sufficiency of the evidence to support the trial court’s findings regarding best
interest, endangering conditions, endangering conduct, and noncompliance with a
court order.
                        II. Sufficiency Standards of Review
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). 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(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
      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
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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.
                                    III. Analysis
      In this case, the trial court found that the parents had committed three of the
acts listed in Section 161.001(1): those found in subsections (D), (E), and (O).
Specifically, the trial court found that both parents had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the physical or emotional well-being of the children; that the parents
had engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the physical or emotional well-being of the
children; and that both parents had failed to comply with the provisions of a court
order that specifically established the actions necessary for them to obtain the
return of the children, who had been in the managing conservatorship of the
Department for not less than nine months as a result of the children’s removal from
the parents for abuse or neglect. The trial court also found, pursuant to Section
161.001(2), that termination of each parent’s parental rights would be in the best
interest of the children.
      A. Evidence Introduced at Trial
      An investigator for the Department, Deanna Coffee, testified that, on
September 10, 2010, she received a report alleging that G.C. and J.C. were
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physically and medically neglected by their parents, who used drugs and even sold
their food stamps for drugs. At that time, G.C. was eleven years old, and J.C. was
four years old. Coffee interviewed G.C. at school that day, and the rest of the
family during a home visit a few days later. The home was appropriate, and the
parents denied any recent drug use. Coffee asked the four adults that lived there to
submit to a drug test, which they did. The children’s mother tested positive for
cocaine and marihuana, and their father tested positive for cocaine. After receiving
the results on September 20, the Department determined that supervised contact or
outside placement was necessary. The female adult, who had tested negative for
drugs, was permitted to act as the supervisor; however, the children’s mother
“kicked [the female] out of the home” on September 28.            The parents then
voluntarily placed the children outside the home, and the parents were
subsequently evicted from their apartment.
      After testing positive for drugs, the parents admitted that they had a history
of using drugs and had just “slipped up.” The mother said she had been clean for
two years before her recent use. The mother also admitted that she began smoking
marihuana when she was ten years old and that she had no plans of discontinuing
because she needed marihuana to feel more relaxed and mellow and to escape from
life. G.C. said his parents had told him that it was okay to do drugs. Evidence
presented at the final trial showed that the parents continued to use drugs after the
children were removed.
      In addition to substance abuse by the parents, domestic violence also
occurred. G.C. reported seeing his father beat his mother, which was acceptable
behavior in their household. G.C. was frightened of his parents. The children’s
paternal grandmother also witnessed domestic violence between the parents. The
father “didn’t feel that [the domestic violence] was an issue” and became agitated
when his mother confirmed that she had witnessed it.
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      At the time of the final trial, the parents had performed some of their
required services. However, the Department’s conservatorship worker, Michelle
Franco, testified that neither parent had complied with the service plan by
completing the required services. Also, both parents were still using illegal drugs,
and they refused a hair follicle test a few days before the final trial.
       Both G.C. and J.C. have special needs.           G.C. has both cognitive and
behavioral issues.    G.C.’s counselor testified that G.C. suffered from a mood
disorder, had a serious problem with aggression, and “lacked the brain functioning
to be able to take what he learned one second and carry it over to another.” G.C.’s
mood disorder was diagnosed as having possible psychotic features, and testing
showed that his level of intellectual functioning was “borderline.” He was also
diagnosed as having attention deficit hyperactivity disorder. Based upon G.C.’s
physical limitations, the parents’ history of substance abuse, and G.C.’s emotional
issues, the licensed professional counselor concluded that G.C. may have been
exposed to alcohol or drugs in utero.
      J.C. has developmental and cognitive issues. At the time of removal, J.C.
was still wearing a diaper and was obviously developmentally delayed. After
removal, J.C. had to be hospitalized to have extensive dental surgery because his
teeth were severely decayed. The foster parents have worked with J.C. and have
made sure that J.C.’s special needs are met. At age five, J.C. was the size of a two-
year-old and was cognitively similar to a two- or three-year-old. By the time of the
final trial, J.C. had improved.      According to the guardian ad litem, J.C. was
blossoming because of his foster parents.
      Before placing the children in foster care, two different voluntary
placements were attempted; neither worked. No suitable relative placement was
available for the children, and neither parent had a stable living environment at the
time of the final hearing. However, J.C. was in a stable foster home, and his
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special needs were being taken care of in that placement. G.C., because of his
extremely aggressive and assaultive behaviors, was moved to a residential
treatment center. According to Franco, G.C. has adjusted and is doing well there.
G.C. stated that he likes it there.
      During therapy, G.C. stated that he missed his brother; he did not state that
he missed his parents. At times, G.C. has said that he wants to return home to his
parents.   At other times, G.C. has expressed a desire to stay in foster care.
According to his counselor, G.C.’s “desires changed with his mood.” J.C., on the
other hand, has expressed no desire to live with his parents.
       At the time of the final trial, the father was employed but lived with his
mother, who would not allow the children or their mother to live in the house. The
father testified that he had attended AA meetings as required but that he had not
completed the substance abuse counseling. He admitted that he was still using
drugs and that he “did, like, a 20 rock crack cocaine” the Sunday before trial.
However, the father denied any use of methamphetamine even though he tested
positive for methamphetamine three times during this case. The father insisted that
he had learned to remain calmer, and he downplayed his previous comment—made
after completing a parenting course—that he would want to “smack” G.C. for his
behavior. The father testified that he had not made any living arrangements for the
children and was not in a position to take them at the time of the final trial.
       The Department’s plan for both children is termination and unrelated
adoption. According to Franco, J.C.’s foster parents would like to adopt him. The
guardian ad litem testified that, even though G.C. may not be likely to get adopted,
termination is in his best interest because he needs closure so he can move forward.
A licensed professional counselor who treated G.C. testified that G.C. “absolutely
does not need to return to his parents.” The guardian ad litem expressed similar
sentiments with regard to both G.C. and J.C. The paternal grandmother also stated
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that “it’s best that [the children] be in foster care and that they be adopted than for
them to be back with their parents.” Franco and the guardian ad litem testified that
termination would be in both children’s best interest and that it would not be in
their best interest to continue to have any contact with the parents.
      B. Acts of the Parents
      We hold that there was clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that both parents engaged in
conduct or knowingly placed the children with persons who engaged in conduct
that endangered the physical or emotional well-being of the children. In addition
to evidence of the parents’ drug use, there was evidence of domestic violence
between the parents. Such acts constituted conduct that endangered the children.
To support termination under Section 161.001(1)(E), the offending conduct does
not need to be directed at the child, nor does the child actually have to suffer an
injury. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Domestic violence may
constitute evidence of endangerment.           Id.; C.J.O., 325 S.W.3d at 265.
Furthermore, the evidence was undisputed that the parents failed to comply with
the provisions of a court order that specifically established the actions necessary
for them to obtain the return of the children, who had been in the managing
conservatorship of the Department for not less than nine months as a result of
removal from the parents for abuse or neglect. The evidence is legally sufficient to
support the trial court’s finding as to each parent under Section 161.001(1)(E) and
Section 161.001(1)(O). Because a finding that a parent committed one of the acts
listed in Section 161.001(1)(A)–(T) is all that is required under that statute, we
need not address the parents’ remaining arguments, including the mother’s fourth
issue, regarding the sufficiency of the evidence to support the trial court’s other
findings under Section 161.001(1). See TEX. R. APP. P. 47.1. The mother’s fifth
and sixth issues are overruled.
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      C. Best Interest
      We also hold that, based on the evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction
that termination of both the father’s and the mother’s parental rights would be in
the best interest of G.C. and J.C. See Holley, 544 S.W.2d at 371–72. We cannot
hold that the findings as to best interest are not supported by clear and convincing
evidence.
      Upon considering the record as it relates to the desires of the children, the
emotional and physical needs of the children now and in the future, the emotional
and physical danger to the children now and in the future, the parental abilities of
the parents, the parental abilities of J.C.’s foster parents, the ability of the
residential treatment center to meet G.C.’s needs, the programs available to assist
the foster parents and the treatment center, the plans for the children by the
Department, the instability of the parents’ home, the stability of the children’s
placement, acts and omissions indicating that the parent-child relationship was not
a proper one, the acceptance of household domestic violence that G.C. mimicked,
and the parents’ continued drug use, we hold that the evidence is both legally and
factually sufficient to support the findings that termination of the father’s and the
mother’s parental rights is in the best interest of the children. See id. The mother’s
third issue is overruled. The father’s issues on appeal are overruled.
                         IV. Evidence of Initial Drug Test
      The mother argues in her first issue that the trial court abused its discretion
in admitting evidence of the initial drug test that was conducted at the request of
the Department. The mother asserts that the test was illegally requested and
administered in violation of her constitutional rights. The mother, however, failed
to preserve this issue for review because she did not object at trial to the admission
of the complained-of evidence. See TEX. R. APP. P. 33.1; In re A.L.E., 279 S.W.3d
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424, 431 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The record shows that
the mother lodged no objection when testimony was introduced regarding that drug
test. The mother’s first issue is overruled.
                               V. Reasonable Efforts
      In her second issue, the mother contends that the evidence is legally and
factually insufficient to show that the Department made reasonable efforts to return
the children to their parents. The mother’s argument is misplaced. To terminate
parental rights under subsections (D), (E), and (O), the Department is not required
to prove that it made reasonable efforts to return the children.         See FAM.
§ 161.001(1)(D), (E), (O); see also In re A.R., No. 06-00-00156-CV, 2001 WL
1143208, at *5 (Tex. App.—Texarkana Sept. 28, 2001, no pet.) (not designated for
publication); Jones v. Dallas Cnty. Child Welfare Unit, 761 S.W.2d 103, 109 (Tex.
App.—Dallas 1988, writ denied). We note that such proof would have been
required if the parents’ rights had been terminated under subsection (N). See FAM.
§ 161.001(1)(N) (which specifically requires that reasonable efforts be made by the
Department to return a child to a parent who has constructively abandoned the
child). We also note that the record shows that the Department attempted to work
with the parents to effect the return of the children. The mother’s second issue is
overruled.
                               VI. This Court’s Ruling
      We affirm the trial court’s order of termination.




                                                    MIKE WILLSON
September 26, 2013                                  JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.

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