Opinion ﬁled January 31, 2013

 

In The

QEIebentI) Qtnurt at Qppealﬁ

N0. 11~12-00172-CV

IN THE INTEREST OF A.C. AND A.C., JR., CHILDREN

 

 

0n Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 7099~CX

 

 

MEMORANDUM OPINION
The trial court entered an order terminating the parental rights of the mother and father of
AC. and AC“ lr. 3“ he mother (appellant) has ﬁled a notice of appeal from the termination
order. The father has not appealed. We afﬁrm.
In a single appellate issue, appellant asserts that the evidence is legally and factually
insufﬁcient to support the ﬁnding that temination is in the best interest of her children.
To preserve a challenge to the factual sufﬁciency ofthe evidence for appellate review in

a jury trial: a party must raise the challenge in a motion for new trial in the trial court. TEX. R.

CW. P. 324(b)(2); In re A.JL., I36 SW3d 293, 301 (Tex. Apprort Worth 2004, no pet).

Appellant did not ﬁle a motion for new trial. Therefore, she has waived her right to challenge
the factual sufﬁciency of the evidence. A.JL., 136 S.W.3d at 302.

Termination of parental, rights must be supported by clear and convincing evidence, TEX.
FAM. CODE  § 161.001 (West, Supp. 2012). 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 reasonable trier of fact could have formed a
ﬁrm belief or conviction that its ﬁnding was true. In re IRE, 180 S.W.3d 570, 573 (Tex.
2005); In re JF‘Cg 96 SW3d 256, 266 (Tex. 2002).

To terminate parental rights under Section 161.0013 it must be shown by clear and
convincing evidence that the parent has committed one of the acts or omissions listed in Section
161.001(l)(A}(T) and that termination is in the best interest of the child. Section 161.001( 1),
(2); In re A. V: 113 S.W.3d 355, 362 (Tex. 2003). This case proceeded to ajury trial. The jury
found that the parent-child relationship between appellant and the children should be terminated.
Based on the jury‘s verdict} the trial court entered an order terminating appellant’s parental rights
to the children. In the order, the trial court found that appellant had committed one or more of
the grounds for termination under Section 161 001(1). Speciﬁcally the trial court found by clear

and convincing evidence that appellant had:

[1] knowingly placed or lmowingly allowed the children to remain in conditions
or surroundings which endangcr[cd] the physical or emotional well-being of the
children; or

[2] engaged in conduct or knowineg placed the children with persons who
engaged in conduct which endanger[ed] the physical or emotional well~being of
the children; or

[3] been convicted or ha[d] been placed on community supervision, including
deferred adjudication community supervision: for being criminally responsible for
the death or serious injury of a child under the following sections of the Texas
Penal Code or adjudicated under Title 3 for conduct that caused the death or
serious injury of a child and that would constitute a Violation of one of the
following Texas Penal Code sections:

§ 22.02 (aggravated assanit); or

[4] had her parent~chi1d relationship terminated with respect to another child
based on a ﬁnding that [appellant’s] conduct was in violation of § 161.001(1)(D)
or (E)a Texas Family Code: or substantially equivalent provisions of the law of
another state; or

[5] knowingly engaged in criminal conduct that ha[d] resulted in fappeiiant’s]

conviction of an offense and conﬁnement or imprisonment and inability to care

for the children for not less than two (2) years from the date of ﬁiing the petition.

See Section 161.001(1)(D), (E), (L), (M): (Q).

Appellant acknowledged during her trial testimony that the above grounds for
termination under Section 161.001(1) were “likely true." She does not challenge on appeal the
trial court’s ﬁndings that were made pursuant to Section 161.0010). Any one of the
unchallenged ﬁndings was sufﬁcient to support termination as long as termination was shown to
be in the children’s best interest. See Section 161.001. Additionally: we have reviewed all of the
evidence, and we note that the evidence was legally and factually sufﬁcient to support a finding
that appellant committed all ﬁve of the above grounds for termination. The trial court also found
by clear and convincing evidence that termination of appellant’s parental rights was in the
children’s best interest. See Section l6l.001(2).

The question before us is Whether the best interest ﬁnding is supported by legally
sufﬁcient evidence. With respect to the best interest of a child, no unique set of factors need be
proved. In re 01 0., 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, 37142 (Tex. 1976). These include, but are not limited to, (l) 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 individuais 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~chiid relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent. [(1. Additionally? evidence that proves one
or more of the statutory grounds for termination may also constitute evidence illustrating that
termination is in the child’s best interest. (3.10., 325 SW3d at 266. A trier of fact may
measure a parent’s future conduct by his or her past conduct and determine that it is in the child’s

best interest to terminate parental rights. In re D. 8., 333 SW3d 379, 384 (Tex. Apprmarillo
2011: no pet).

At the time of trial, AC1, a girl, was seven years old, and AC, lit, a boy, was ﬁve years
old. Appellant was twenty-nine years old. Appellant took AC. to school on Thursday,
January 20, 201i. AC. had been absent from school the previous two days, and Monday of that
week was Martin Luther King Jr. Day, which was a school hoiiday. A.C.’s teacher, Tiffany
Steele, testified that A.C.’s “Whole face” looked swollen. Appellant told Steele that AC. fell and
hit her head in the bathtub. Steele said that AC. had bruises on her face and neck and that “it
looked like [AC had] broken blood vessels, or petechiae” around her mouth. After appellant
left the school, Steele sent AC. to the school nurse. Steele said appellant repeatedly called her
during the school day and told her that she did not hurt AC.

Later that morning, Steele asked AC. what happened to her. Initially, A.C. told Steele
that appellant told her not to tell. Ultimately, AC. told Steele that appellant got mad at her
because she licked A.C., Jr.’s private part and that appellant put her head under the water in the
bathtub. AC. said that appellant grabbed her by the hair and pushed her head down into the
water. AC. also told Steele that she thought she was going to die when appellant put her head
under the water. A.C., Jr. witnessed the incident and was upset by it.

Steele reported the incident to the Texas Department of Family and Protective Services.
The Department notified the police. Abilene Police Detective Eric Vickers went to A.C.’s
school. Detective Vickers testiﬁed that AC. had bruises on her face and petechiae underneath
her eyes. Detective Vickers explained that petechiae can be a sign of asphyxiation or severe
trauma. Detective Vickers transported AC. to the hospital for evaluation. Susie Butz, a
registered nurse, saw AC. at the hospital. Butz testiﬁed that AC. had suffered physical trauma
to her face. After AC. was evaluated at the hospital, Detective Vickers took her to the Child
Advocacy Center to be interviewed.

Abilene Police Detective Stacy Cisneros interviewed appellant at the Law Enforcement
Center. The interview was recorded, and a copy of the recorded interview was introduced into
evidence. initially, appellant told Detective Cisneros that AC. fell and hit her face in the
bathtub. Detective Cisneros testified that he continued to question appellant because A.C.’s
injuries were not consistent with appellant’s story. Later, appellant confessed that she slapped
AC. in the face three times and dunked A.C."s head under the water. Appellant told Detective
Cisneros that the incident happened at about 7:00 pm. on January l7, 20l l, and that she kept

AC. home from school the next two days. Appellant admitted during her testimony that she

slapped AC. and slammed her head into the water. Appellant testified that her physical abuse of
AC. devastated AC. and AC. Jr.

The Department removed AC. and A.C., Jr. from appellant’s care. and it filed a petition
seeking termination of appellant’s parental rights to her children. The Department placed the
children in the care of appellant’s maternal aunt. AT. and her husband, J.T. Appellant had an
extensive history with the Department. In 2004, appellant physically abused her daughter,
HAW. At that time, HAW. was three years old. Appellant testified that, on that occasion. she
hit HAW. in the face and hit her more than once. The Department removed RAW. and
appellant’s son from her care, placed HAW. in A.T.’s care, and placed appellant’s son in the
care of another aunt.

AT filed a petition to terminate appellant’s parental rights to HAW. That case
proceeded to a jury trial. The jury found by clear and convincing evidence that appellant had
knowingly placed or knowingly allowed HAW. to remain in conditions or surroundings that
endangered her physical or emotional well~being, that appellant had engaged in conduct or
knowingly placed E.A.W. with persons who engaged in conduct that endangered E.A.W.’s
physical or emotional well—being, and that termination of appellant’s parental rights was in
E.A.W.*s best interest. On October 13. 2009, the trial court entered an order terminating
appellant’s parental rights to RAW. in accordance with the jury’s verdict. The trial court also
terminated the parental rights of E.A.W.’s father. Later. AT. adopted E.A.W.

Appellant was charged with a felony offense of aggravated assault with a deadly weapon
as a result of the incident in which she injured AC. Appellant pleaded guilty to the offense, and
she was convicted of the offense. She received a ﬁve~year prison sentence for the offense. At
the time of trial, appellant was in the process of serving her ﬁve~year sentence.

Laura Taff, a licensed professional counselor. testified that she had provided counseling
to AC. and A.C., Jr. on a weekly basis since March 7, 201 1. AC. told Taff that she was afraid
of appellant and that appellant was mean. AC. also told Taff that appellant hurt her. In her
early counseling sessions with the children, Taff saw indications that AC. and AC. Jr. were
suffering from attachment disorders. Taff testified that attachment disorders are generally
caused by abuse. neglect, or a traumatic event.

Taff testified that AC. and A.C.. Jr. had made significant progress toward their emotional

well-being since being placed with AT. and J.T. Taff said that the children appeared to have a

healthy attachment to AT. and 1T. Taft testiﬁed that AC. and A.C., Jr. needed to live in a
healthy and stable environment, that she believed AT. and J.T. were providing AC. and
A.C., Jr. with such an environment, and that she believed AC. and AC, Jr. would thrive if they

continued to live with AT. and IT.
AT. testiﬁed that AC. and A.C., Jr. had been in her and her husband’s care since

January El, 2011. AT. said that AC. and AC, Jr. had bonded with her, her husband, and
HAW. AT. testiﬁed that she loved AC. and AC, J12, that she would take care of them, and
that she would protect them. She said that she and her husband wanted to adopt AC. and
AC, Jr.

Appellant testiﬁed that she did not intend to hurt AC. and that she hated herself for what
she did to AC. Appellant described the incident in which she physically abused AC. as
“another mistake.” Appellant said that her mother physically, emotionally, mentally. and
verbally abused her as a child. She said that her aunts and other family members also abused her
when she was a child. Appellant said that she had been diagnosed with dysthymia, depression,
and a personality disorder. She also said that, in 2009, she began taking the prescription drug,
Lexapro, for treatment of her depression. Appellant testiﬁed that she took Lexapro until the ﬁrst
week of January 2011, when she ran out of pills. She said that she was unable to obtain another
prescription for Lexapro at that time and that, therefore, she was not taking her medication when

she abused AC. on January 17, 201 1.

Appellant received counseling from Rebecca McMurray, a licensed marriage and family
therapist, after the incident in which appellant abused HAW. Appellant sought help from
McMurray with respect to parenting skills and dealing with stress so that what happened to
HAW. would not happen again. McMurray testiﬁed that she counseled appellant for ﬁve or six
years, that she saw appellant on a weekly basis for the ﬁrst two or three years, and that,
thereafter, the counseling sessions became more sporadic. McMurray believed that appellant
made good progress with respect to her parenting skills as a result of the counseling sessions.
Appellant had not seen McMurray for about six months before the January 2011 incident in
which appellant abused AC. McMurray had seen appellant two or three times after the incident
but had not seen her in over a year at the time of trial.

In 2006, McMurray testiﬁed in a custody trial that involved HAW. At that time,
McMurray testiﬁed that she did not believe that appellant posed a risk to her children. In this

case, McMurray testified that she believed that appellant loved her children and that she was a
good morn. McMurray was surprised when she learned that appellant abused AC. McMurray
believed that appellant took medication for her depression. Appellant told McMurray that she
became more depressed and that she struggled to control her emotions when she was not on her
medication. Appellant also told McMurray that she had not taken her medication for about two
weeks before she abused AC.

McMurray testiﬁed that appellant should have access to AC. and AC, Jr. McMurray
thought that supervised contact between appellant and the children would be appropriate.

Having reviewed the evidence in the light most favorable to the best interest ﬁndng
under the Holley factors} we hold that a reasonable juror could have formed a ﬁrm belief or
conviction that terminating appellant’s parental rights was in the best interest of AC. and
AC, Jr. Therefore, the evidence was legally sufﬁcient to support the best interest ﬁnding. Had
appellant preserved her factual sufﬁciency challenge, we would hold that the evidence was
factually sufﬁcient to support the best interest ﬁnding because the disputed evidence as to the
best interest ﬁnding was not so signiﬁcant that a juror could not have reasonably formed a ﬁrm
belief or conviction that termination was in the children’s best interest. See In re J.F.C., 96
S.W.3d at 266. Appellant’s issue is overruled.

The order of the trial court is afﬁrmed.

TERRY MCCALL
JUSTICE

January 3L 2013

Panel consists of: Wright, Cl,
McCallr 1.? and Willson, l.

