Opinion filed March 8, 2012




                                            In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-11-00078-CV
                                       __________

       IN THE INTEREST OF Z.G., L.H., A.B., AND L.W., CHILDREN


                          On Appeal from the County Court at Law

                                   Midland County, Texas

                               Trial Court Cause No. FM 50,995


                              MEMORANDUM OPINION

       The trial court entered an order terminating the parental rights of the mother and the
fathers of Z.G., L.H., and L.W.       In the same order, the trial court awarded managing
conservatorship of A.B. to a paternal relative and possessory conservatorship to A.B.’s father,
but did not terminate either parent’s rights to A.B. The children’s mother (Candice) and the
father of Z.G. and L.W. (John) have each filed a notice of appeal. We affirm.
                                             Issues
       Candice presents seven issues for review, and John presents two issues. In her first and
second issues, Candice asserts that the evidence is legally and factually insufficient to support
the finding that she knowingly placed or knowingly allowed the children to remain in conditions
or surroundings that endangered the physical or emotional well-being of the children. In her
third and fourth issues, Candice challenges the legal and factual sufficiency of the evidence
supporting the finding that she 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 her fifth and sixth issues, she challenges the trial court’s finding that termination of
her parental rights is in the best interest of the children. In her seventh issue, Candice argues that
the trial court erred in awarding sole managing conservatorship of A.B. to a relative, Sheila,
because Sheila was not a party to the suit and because the pleadings did not support such an
award.        In his first issue, John contends that TEX. FAM. CODE § 263.405 (2007)1 is
unconstitutional and that the trial court abused its discretion in finding John’s appeal frivolous
under that statute. In his second issue, John argues that the evidence is legally and factually
insufficient to support the trial court’s findings regarding best interest, endangering conduct, and
constructive abandonment.
                                                     Frivolous Appeal
          The trial court signed the order terminating parental rights on March 30, 2011. John and
Candice each filed a statement of points for appeal, challenging the sufficiency of the evidence to
support the trial court’s various findings. On May 9, 2011, the trial court held a Section
263.405(d) hearing regarding frivolousness and ultimately determined that John’s appeal was
frivolous because he did not present a substantial question for review. The trial court entered
orders regarding frivolousness on May 17, 2011. The appellate record contains the reporter’s
record from the Section 263.405(d) hearing and the reporter’s record from the termination
hearing. We hold, contrary to the assertion made in the appellee’s brief, that John invoked this
court’s jurisdiction by filing his notice of appeal. We also hold that John has asserted challenges
to the sufficiency of the evidence that present an arguable basis for appeal and are not frivolous.
See In re K.E.L., No. 11-10-00144-CV, 2011 WL 2204071 (Tex. App.—Eastland June 2, 2011,
no pet.) (mem. op.); In re Q.W.J., 331 S.W.3d 9 (Tex. App.—Amarillo 2010, no pet.).2
Accordingly, we will address the merits of the challenges to the sufficiency of the evidence

          1
          We note that Section 263.405 has been drastically amended and partially repealed and no longer contains the pro-
visions about which John complains in this appeal. The amendments took effect on September 1, 2011, while this case was
pending in this court. Act of April 29, 2011, 82nd Leg., R.S., ch. 75, §§ 4, 5. In this opinion, we refer to the version of Section
263.405 that was in effect at the time of the trial court’s order.
          2
           In making a frivolous determination under Section 263.405(d), a trial court was not to decide the merits of a party’s
appeal; that task fell within the province of an appellate court. In re Q.W.J., 331 S.W.3d at 14. Instead, the trial court was to
determine whether there was an arguable basis for an appeal, i.e., whether the issues raised were frivolous. Id. Sufficiency of the
evidence is an arguable issue in an appeal from a contested termination proceeding. Id.

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presented in John’s second issue. John’s first issue is sustained in part, and his challenge to the
constitutionality of Section 263.405 is moot.
                                   Legal and Factual Sufficiency
       Candice and John both challenge the legal and factual sufficiency of the evidence
supporting termination. With respect to the legal and factual sufficiency challenges, termination
of parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2011). 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. Section 161.001.
       A. Candice’s Appeal
       In this case, the trial court found that Candice committed three of the acts listed in
Section 161.001(1). The trial court found that she had knowingly placed or knowingly allowed
Z.G., L.H., and L.W. to remain in conditions or surroundings that endangered the physical or
emotional well-being of the children, had engaged in conduct or knowingly placed Z.G., L.H.,
and L.W. with persons who engaged in conduct that endangered the physical or emotional well-
being of the children, and had failed to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of Z.G., L.H., and L.W.
who had been in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the children’s removal
from the parent for abuse or neglect. See id. § 161.001(1)(D), (E), (O). The trial court also
found that termination of Candice’s rights was in the best interest of Z.G., L.H., and L.W. See
id. § 161.001(2).
       On    appeal,    Candice    does    not   challenge   the   trial   court’s   finding   under
Section 161.001(1)(O) that she failed to comply with the provisions of a court order that

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specifically established the actions necessary for her to obtain the return of Z.G., L.H., and L.W.
The unchallenged finding, which is supported by the evidence, is sufficient to support
termination as long as termination was shown to be in the children’s best interest. See Section
161.001; In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003, pet. denied).
Therefore, we must address Candice’s fifth and sixth issues concerning best interest, but we need
not reach the merits of her first, second, third, and fourth issues as they are not dispositive of this
appeal. See TEX. R. APP. P. 47.1; In re B.K.D., 131 S.W.3d at 16.
       The question we must address is whether the best interest finding is supported by legally
and factually sufficient evidence. 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
illustrating that termination is in the child’s best interest. C.J.O., 325 S.W.3d at 266.
       The record shows that, on April 21, 2010, authorities were dispatched to the house where
Candice lived with her four children: Z.G., age 10; L.H., age 4; A.B., age 3, and L.W., age 1.
Cassandra Nunez, a mental health officer with the Midland County Sheriff’s Office, testified that
she was called to assist Adult Protective Services to perform a welfare check on Candice. When
Officer Nunez arrived, Candice was crying and asked for help. According to Officer Nunez,
Candice was showing signs of emotional distress, paranoia, and maybe some psychosis. Candice
said she was “in a bad place” at that time in her life, “a really down point.” Candice was talking
about “psychic networks,” saying that her mother and another woman were “actually getting into
her head” and that she could not keep a job or go out in public because she heard people “talking
about her future.” Officer Nunez testified that Candice was not capable of caring for the children

                                                  4
at that time. Officer Nunez called Child Protective Services and then took Candice to Midland
Memorial Hospital.
       Melissa Walker, an investigator with Child Protective Services, testified that she was the
removal worker in this case in 2010 and that she had also been involved with Candice and her
children in 2008. The Department of Family and Protective Services became involved with
Candice in 2008 when L.H. was found walking unsupervised down a busy highway. It was also
determined at that time that Candice had been leaving the children in the care of a registered sex
offender. The Department instituted a safety plan in 2008. Walker testified that, when she went
to visit Candice in the hospital on April 21, 2010, Candice told her that she was having a lot of
issues; that the “Psychic Network was in her head and was giving people information about her”;
that there are people “going into the future and changing things in the future”; and that, when she
goes to Wal-Mart, “everybody is looking at her because they know that they are victims in her
head.” Walker testified that Candice was not making much sense and that she talked very little
about the children.
       Candice was treated and placed on medication for depression. Candice subsequently quit
taking the medication when she felt she no longer needed it. She testified that her doctor later
approved of her decision to quit taking her medication. A licensed professional counselor, who
counseled Candice in June and July 2010, testified that Candice’s depression affected her
parenting and her ability to keep a job. The counselor also testified that Candice was withdrawn
and distant and that the parent-child bond between Candice and her children was lacking.
       Testimony showed that Candice had struggled with major depression since L.H. was
born. Candice’s mother testified that Candice’s depression “affects everything” and that Candice
seemed to have “this psychic stuff” in her head. At the time of trial, Candice lived with her
mother and her mother’s boyfriend in a one-bedroom mobile home. Candice slept on the couch.
Candice’s mother, who for health reasons was not able to take the children, pleaded for a little
more time for Candice to get herself together. According to Candice’s mother, Candice had
provided a safe and stable home environment for the children from 2005 to 2008 but that it had
been “iffy” since then. Candice’s mother agreed that, at the time of trial, Candice could not
provide a safe environment for the children.
       The record also reflects that the Department was concerned about Candice’s use of drugs.
During the period after removal and prior to trial, Candice failed to show up for several

                                                5
scheduled drug tests. She tested positive for marihuana in four or five separate drug tests during
that time period, including the most recent test she had taken. Candice tested negative in only
three of her drug tests. Furthermore, Candice failed to complete the required outpatient program
for the treatment of substance abuse.
       Testimony showed that, at the time of Candice’s hospitalization and the children’s
removal, Candice’s home was not a safe environment for the children. The house was “filthy,”
and there was no edible food in the house. The refrigerator was not working properly, and it
contained flies and rotten food. The children’s hygiene was poor. Z.G. was at home, instead of
at school, just because Candice did not take him to school that day. Z.G. appeared at that time to
be attentive to the needs of his younger siblings and to have taken on the role as their caregiver.
Candice testified at trial that, on the day she was hospitalized, she was a capable caregiver for
her children.
       After their removal, Z.G. and L.H. had episodes in which they separately exhibited
troubling behavior and were temporarily placed in a psychiatric hospital. L.H. slammed another
child’s finger in a door and laughed hysterically when the child’s finger began bleeding; L.H.
exhibited no signs of empathy. Z.G. had uncontrolled outbursts and behaviors, stood outside in
the rain crying and laughing hysterically stating that “it” was just “too much” for him, and
reported that his mother had thrown knives at him.           During a permanency conference, a
Department supervisor and a program director both questioned Candice about her disciplinary
methods. Candice answered affirmatively when asked whether “she had ever thrown knives at
[Z.G.] or the other children or other items.” At trial, however, Candice emphatically denied that
she had ever made such an admission.
       Z.G., L.H., and L.W. were ultimately placed together in a foster home in Fort Worth
with foster parents who desired to adopt all three boys. None of the children testified at trial, and
no evidence was offered regarding the desires of the children. There was evidence that Z.G.’s
and L.H.’s behavioral issues had improved since being placed in the foster home.
       Based on the evidence presented at trial, the trial court could reasonably have formed a
firm belief or conviction that termination of Candice’s rights would be in the best interest of
Z.G., L.H., and L.W. We cannot hold that the finding as to best interest is not supported by clear
and convincing evidence. The evidence is both legally and factually sufficient to support the



                                                 6
finding that termination of Candice’s parental rights is in the best interest of Z.G., L.H., and
L.W. Candice’s fifth and sixth issues are overruled.
       B. John’s Appeal
       The trial court found that John had engaged in conduct or knowingly placed Z.G. and
L.W. with persons who engaged in conduct that endangered the physical or emotional well-being
of the children and that John had constructively abandoned Z.G. and L.W. because they had been
in the permanent or temporary managing conservatorship of the Department of Family and
Protective Services or an authorized agency for not less than six months and (1) the Department
or authorized agency had made reasonable efforts to return the children to John, (2) John had not
regularly visited or maintained significant contact with the children, and (3) John had
demonstrated an inability to provide the children with a safe environment. See
Section 161.001(1)(E), (N). The trial court also found that termination of John’s rights was in
the best interest of Z.G. and L.W. See Section 161.001(2).
       The record shows that Candice was essentially the sole parent for her children and that
John did not see Z.G. often, had never paid any child support, and was not there for Z.G.
emotionally. John had never seen L.W. John had denied that there was even a possibility that he
was L.W.’s father. However, a paternity test, which was conducted in conjunction with these
proceedings, showed that John was L.W.’s father. John was incarcerated at the time of trial for
the offense of possession of a controlled substance in a correctional facility. John had prior
convictions for unauthorized use of a motor vehicle and for possession of a controlled substance.
He had been in county jail ten to fifteen times and had spent nine months in a state jail facility.
John admitted that he had not performed the service plan, that he had not visited Z.G. after the
Department removed Z.G. from Candice’s care in April 2010 even though John was not
incarcerated until July 2010, and that he had tested positive for cocaine and marihuana in a drug
test performed at the request of the Department in May 2010. John testified that he did not use
cocaine and that the cocaine must have “showed up through [his] pores.” When asked how often
he smoked marihuana, John testified, “Not that much. Probably two, three times a week.”
       Adriana Mendoza, the supervisor for the conservatorship unit of the Department in
Midland County, testified that John was not a significant father figure to Z.G. or L.W., that John
had not demonstrated an ability to provide a safe and stable environment for his children, that the
Department had made reasonable efforts to return the children to John, that John had not

                                                7
demonstrated the ability to maintain employment, that John had tested positive for cocaine and
marihuana, that John had not maintained a significant relationship with Z.G. or L.W., and that
John had had no contact of any sort with either of the children after their removal. Mendoza
testified that, throughout this case and before this case began, John put his needs before those of
his children. Mendoza was of the opinion that termination of John’s parental rights would be in
Z.G.’s and L.W.’s best interest so they could have a safe and stable environment with a caregiver
who had a vested interest their future and in their well-being.
       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). “[A] parent’s use of narcotics and its effect on his or her ability to
parent may qualify as an endangering course of conduct.” Id. Subjecting children to a life of
uncertainty and instability may also endanger their physical and emotional well-being. In re
R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). To support termination
for constructive abandonment under Section 161.001(1)(N), it must be shown that the
Department or an authorized agency had been the managing conservator of the child for not less
than six months, that the Department or authorized agency had made reasonable efforts to return
the child, that the parent had not regularly visited or maintained significant contact with the
child, and that the parent had demonstrated an inability to provide the child with a safe
environment.
       In this case, there was evidence that John engaged in a course of conduct that endangered
his children’s well-being. He had been in and out of prison or jail numerous times, and he
abused drugs. There was also evidence that John had constructively abandoned Z.G. and L.W.
The children had been under the managing conservatorship of the Department for eleven months.
The Department had attempted to place John’s children with him when they were removed from
Candice’s care, but John was not a suitable placement. The Department made reasonable efforts
to work with John. John failed to contact either child by any means while they were in the
Department’s care. There was also evidence that John was unable to provide his children with a
safe environment. The trial court’s findings under Section 161.001(1)(E) and (N) are supported
by the record.
       Furthermore, the trial court’s finding as to best interest is also supported by the record. In
addition to the evidence that supports the findings regarding abandonment and endangering

                                                 8
conduct, there was evidence that John had no real relationship with either child and that he could
not provide a safe and stable environment for them. There was also evidence that Z.G. and
L.W., along with their brother, had been placed together in a foster home in Fort Worth and that
the foster parents wanted to adopt all three boys. Evidence showed that Z.G.’s emotional well-
being had improved during his time in the foster home. Neither Z.G. nor L.W. testified at trial,
and no evidence was offered regarding their desires.
       Based on the evidence presented at trial, the trial court could reasonably have formed a
firm belief or conviction (1) that John had either constructively abandoned Z.G. and L.W. or
engaged in a course of conduct that endangered the physical or emotional well-being of Z.G. and
L.W. and (2) that termination of John’s rights would be in the best interest of Z.G. and L.W. We
cannot hold that the trial court’s findings are not supported by clear and convincing evidence.
The evidence is both legally and factually sufficient to support the findings regarding John and
his children. John’s second issue is overruled.
                                     Conservatorship of A.B.
       In her seventh issue, Candice complains that the trial court erred in awarding sole
managing conservatorship of A.B. to Sheila because the pleadings did not support such an award
and because Sheila was not a party to the lawsuit. First, we note that Candice waived this
complaint by failing to urge it at trial or in her statement of points for appeal. See
Section 263.405(i); In re J.H.G., 302 S.W.3d 304, 305 (Tex. 2010). Second, we disagree with
Candice’s contention that her complaint involves subject-matter jurisdiction or standing. Citing
to TEX. FAM. CODE ANN. § 102.004(b) (West 2008), Candice suggests that Sheila must have
intervened to be eligible to be appointed as A.B.’s conservator. Section 102.004(b) is not
applicable in this case as this case was instituted by the Department for the children’s protection.
In re C.S., 264 S.W.3d 864, 869 (Tex. App.—Waco 2008, no pet.). The trial court’s jurisdiction
was invoked by the Department’s pleadings requesting that Candice’s parental rights to all of her
children be terminated and that the children be permanently placed with a relative or other
suitable person as the permanent sole managing conservator. A.B. had been placed with Sheila,
a paternal cousin, prior to trial. Sheila was identified in the permanency plan as an appropriate
relative caregiver for A.B. It was the Department’s recommendation that A.B. remain with
Sheila and that Sheila be appointed as A.B.’s conservator. We hold that the trial court had the
authority to appoint Sheila as A.B.’s managing conservator.          See TEX. FAM. CODE ANN.

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§§ 161.205, 263.404 (West 2008); In re C.S., 264 S.W.3d at 869. Candice’s seventh issue is
overruled.
       The order of the trial court is affirmed.




                                                        JIM R. WRIGHT
                                                        CHIEF JUSTICE


March 8, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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