Opinion filed August 1, 2013




                                        In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-13-00036-CV
                                   __________

      IN THE INTEREST OF J.A.L. AND M.N.L., CHILDREN


                     On Appeal from the 358th District Court
                                Ector County, Texas
                         Trial Court Cause No. D-3106-PC


                      MEMORAND UM OPI NI ON
      This is an appeal from an order terminating the parental rights of the mother
and father of J.A.L. and M.N.L. Both parents filed a notice of appeal. We affirm.
      In a single issue on appeal, the children’s father challenges the legal and
factual sufficiency of the evidence to show endangerment, abandonment,
noncompliance with a court order, and best interest. The mother presents two
issues in which she asserts that the evidence is legally and factually insufficient to
support the trial court’s finding that termination of her parental rights is in the best
interest of the children. Although not presented as an “issue,” the mother also
challenges the legal and factual sufficiency of the evidence to support the trial
court’s findings regarding endangering conditions, endangering conduct, and
compliance with a court order.
      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. Section 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
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-
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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.
      In this case, the trial court found that the father had committed four of the
acts listed in Section 161.001(1): those found in subsections (D), (E), (N), and (O).
The trial court found that the mother 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; that the father had
constructively abandoned the children, who 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 the father, (2) the father had not regularly visited or maintained
significant contact with the children, and (3) the father had demonstrated an
inability to provide the children with a safe environment; 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.


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      The record shows that J.A.L. and M.N.L. were removed from their parents
on October 12, 2011, when J.A.L. was four years old and M.N.L. was two years
old. The Department removed the children due to physical abuse to both children;
the parents had severely disciplined the children. At the time of removal, M.N.L.
had a big bruise on her lower back that was fading, and J.A.L. had bruising on his
upper thighs and legs, around his genital area, and on his penis. J.A.L.’s injuries
were caused by the father beating J.A.L. with a belt. The record indicates that this
type of beating occurred more than once.
      The evidence shows that the father beat the children with a belt. The father
stated that the mother also used excessive discipline with the children, including
spankings with a belt that left bruises on them. During counseling with Teresa
Volaro, a licensed professional counselor, the mother denied physically abusing the
children; she only admitted to calling them stupid and yelling at them. The mother
did tell the counselor that she did not intervene when the father was hitting the
children with the belt “because her mother always hit her with a belt and she was
afraid she would get hit with the belt, too.” J.A.L. screamed when he saw the belt.
      Volaro testified that marital problems between the parents were ongoing at
the time of the final hearing. The parents were not able to handle stressors in an
appropriate manner, and evidence was presented showing that domestic violence
had occurred between the parents and in the presence of the children. Two weeks
before the hearing, the parents got into a loud argument while they were in Volaro’s
office for a counseling session.     The father had told Volaro throughout the
counseling sessions that “it would be a big mistake to bring the children home right
now because of the situation with him and [the mother].” In a session two weeks
before the final hearing in this case, the father admitted that “there has not been a
change.” Volaro could not recommend that the children go back to live with the


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parents in that environment of hostility. She would fear for the physical and
emotional safety of the children if they were returned to their parents.
      Jenna Clark, a licensed professional counselor, conducted a psychosocial
assessment of the parents. She testified that domestic violence or abuse that occurs
between parents in the presence of small children is dangerous to those children
and “terribly detrimental to the children’s emotional growth.” Clark also testified
that hitting children in the face or spanking young children to the point of having
bruises on their legs and buttocks is excessive and abusive. The attachment issue
caused by a parent’s physical abuse is a deep issue that affects all relationships
with significant adults in the children’s lives.
      The Department’s conservatorship worker, Michelle Franco, testified that the
mother had performed some of the required services but that she had not complied
with the service plan because she failed to complete Project ADAM as ordered.
Franco also testified that the father completed some of the required services but
that he failed to comply with the service plan; he did not attend all of the therapy
that was required, did not obtain financial counseling, and did not maintain stable
employment. The father had nine different jobs during the time period from
removal to the final hearing.
      According to Franco, the children were disruptive after their visits with the
mother. Over the course of the case, J.A.L. wet himself, had temper tantrums, and
was very bossy after the parents visited. The children changed in a positive manner
when the parents missed their visits. Overall the children are happy and content
and behaving well in their current situation.       They have a safe home.      The
Department recommended that the parental rights of the mother and father be
terminated and that the children be adopted by their foster parents. According to
Franco, the foster parents would like to adopt J.A.L. and M.N.L. Franco testified
that she thought it would be in the best interest of the children to terminate the
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parents’ rights.   She stated that the parents “have not shown any kind of
improvement since the beginning of the case.” Franco was concerned that the
physical abuse would recur because the parents had not changed despite the
services offered to them.
      The father testified that he was a changed person and asked the court to
return the children to him and the mother. At trial, the mother testified that, on two
occasions, she spanked the children with a belt but did not leave marks or bruises.
The mother admitted to screaming at the children and agreed that she allowed the
father to spank the children and to regularly deny the children of anything to drink.
She also stated that the domestic violence between her and the father often resulted
in the father getting mad and taking it out on the children. The mother testified
that she and the father had learned in counseling how to properly deal with
stressors.
      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 the severe physical abuse of J.A.L., there was evidence of domestic violence
between the parents. Both constitute 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. The evidence is legally
sufficient to support the trial court’s finding as to each parent under
Section 161.001(1)(E). 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 regarding the sufficiency of the
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evidence to support the trial court’s other findings under Section 161.001(1). See
TEX. R. APP. P. 47.1.
      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 J.A.L. and M.N.L. 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. 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. The father’s sole issue and both of the
mother’s issues are overruled.
      We affirm the trial court’s order of termination.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


August 1, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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