      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00203-CV



                                    J. A. and J. H., Appellants

                                                  v.

                Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
        NO. 283,499-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               J. A. (“Jennifer”)1 and J. H. (“John”) appeal the trial court’s decree terminating their

parental rights to their three children who, at the time of the bench trial, were ages seven (“Mary”),

five (“Ann”), and two (“Johnny”). Jennifer and John contend that the evidence is legally and

factually insufficient to support the trial court’s finding that termination of their parental rights

was in the best interest of the children. We will affirm the termination decree.


                                           DISCUSSION

               A trial court may terminate a parent’s parental rights if clear and convincing evidence

shows that the parent committed conduct that amounts to a statutory ground for termination and that

termination of parental rights would be in the child’s best interest. See Tex. Fam. Code § 161.001(b);


       1
          We will refer to the children and their family members by aliases. See Tex. R. App. P. 9.8
(related to protection of minor’s identity in cases involving termination of parental rights).
In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Jennifer and John concede that there is legally and

factually sufficient evidence to support the trial court’s finding that they each committed a statutory

ground for termination2 but challenge the evidentiary sufficiency to support the trial court’s best-

interest finding.

                In reviewing the legal sufficiency of the evidence, we look at all the evidence in the

light most favorable to the finding to determine whether a reasonable factfinder could have formed

a firm belief or conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)

(citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume that the factfinder resolved

disputed facts in favor of the finding if a reasonable factfinder could do so, and we disregard all

evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id. at 573;

see In re K.M.L., 443 S.W.3d 101, 112–13 (Tex. 2014).

                In evaluating factual sufficiency, we view the entire record and uphold the finding

unless the disputed evidence that could not reasonably have been credited in favor of a finding is so

significant that the factfinder could not reasonably have formed a firm belief or conviction that the

Department’s allegations were true. In re A.B., 437 S.W.3d 498, 502–03 (Tex. 2014) (citing J.F.C.,

96 S.W.3d at 266; In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002)). We defer to the factfinder’s

reasonable determination on issues of credibility that involve an evaluation of appearance or




       2
          The trial court found that Jennifer and John each (1) knowingly placed or knowingly allowed
the children to remain in conditions and surroundings that endangered the children’s physical and
emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the children’s physical and emotional well-being; and (3) failed
to comply with the provisions of a court order that specifically established the actions necessary for
the parent to obtain the return of the children. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O).

                                                  2
demeanor, J.P.B., 180 S.W.3d at 573, and we resolve disputed evidence in favor of the finding if a

reasonable person could have found it clear and convincing, J.F.C., 96 S.W.3d at 266.

                John’s appellate argument is centered on his contention that because the children

did not testify and their guardian ad litem did not expressly ask them the question, “what are your

wishes,” with respect to termination and their relationship with their parents, “it is impossible to

determine that termination of the parent-child relationship was in the best interest of the children.”

See Tex. Fam. Code § 107.002(b)(2) (providing that guardian ad litem shall “seek to elicit in a

developmentally appropriate manner the child’s expressed objectives”). He relatedly complains

that the children’s attorney ad litem, therefore, “did not advocate for the expressed desires of the

children” as required by the Family Code. See id. § 107.003(a)(1)(B) (providing that attorney ad

litem shall “seek to elicit in a developmentally appropriate manner the child’s expressed objectives

of representation”). Essentially, John complains that there was no evidence of the first Holley factor

(i.e., the children’s desires), see Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), which he

contends precluded the trial court from making its best-interest finding. Jennifer’s argument globally

attacks the evidentiary sufficiency to support the trial court’s best-interest finding, relying primarily

on evidence that she contends demonstrates that she “had alleviated the cause for removal of the

children [i.e., drug use] and had shown that she could provide a safe and suitable environment for

the children at the time of the final hearing” because she had been clean of drugs in the eight to nine

months leading up to trial.

                A factfinder’s best-interest finding is reviewed in light of several factors set out in

Holley: (1) the child’s wishes, if the child is of an appropriate age to express such wishes; (2) the



                                                   3
child’s present and future emotional and physical needs; (3) present and future emotional and

physical danger to the child; (4) the parenting abilities of the individuals seeking custody; (5) programs

available to assist those people seeking custody in promoting the child’s best interest; (6) plans

for the child by the people or agency seeking custody; (7) the stability of the home or proposed

placement; (8) the parent’s acts or omissions that may indicate that the parent-child relationship is

improper; and (9) any excuse for the parent’s acts or omissions. Id. at 371–72. Contrary to John’s

assertion, the Department need not prove all of the Holley factors, and the absence of some factors

does not bar the factfinder from finding by clear and convincing evidence that termination is in a

child’s best interest, especially when there is undisputed evidence that the parental relationship

endangered the child. See C.H., 89 S.W.3d at 27. Evidence presented to satisfy a predicate statutory-

ground finding may also be probative of the child’s best interest. Id. at 28.


Summary of the evidence

                There was evidence at trial related to several of the Holley factors, some of which

we summarize here. Regarding the children’s wishes, the guardian ad litem testified that although

she had not specifically asked the children, “what are your wishes,” because of their young ages,

she had asked them “where they want to live,” and the children responded that they want to “stay

with [New] Mommy and Daddy.”3 It is reasonable to conclude that such inquiry is developmentally

appropriate for children of these ages and that the ad litem’s testimony constituted some evidence


        3
         The guardian ad litem explained on the stand that the children had begun calling the foster
parents “Mommy” and “Daddy” and that she clarified with the children that when they used those
names, the children were referring to the foster parents—their “New Mommy and Daddy [foster
parents]” as opposed to their “Old Mommy and Daddy [Jennifer and John].”

                                                    4
of the first Holley factor, although we note that the Department was not required to prove any

particular factor. See id. at 27. John has not cited any authority holding that the alleged failure of

an attorney ad litem or guardian ad litem to determine the desires of the children constitutes

reversible error, nor would we determine such failure to be reversible error on its face except as it

pertains to evidentiary sufficiency. We therefore continue with a review of the evidence in light

of the other Holley factors.

               The guardian ad litem testified that she believed the children were happy, safe, and

stable in the foster home, which is a “legal risk” home, meaning that the foster parents want to adopt

all three children. The guardian ad litem further testified that the children had never asked her about

their parents, such as when they would get to see them or go home with them.

               The Department presented evidence of its prior involvement with the family in 2013

when it received a report that John, while intoxicated, had hit Jennifer while she was holding her

children and that the children “had blood on them” afterwards. That case was closed after John and

Jennifer completed Anger Management classes, individual therapy, couples therapy, Mommy and Me

classes, and random drug testing. The Department became involved with the family again in 2015

when it received a report that Jennifer tested positive for marihuana at the time of Johnny’s birth.

               There was evidence at trial about Jennifer’s years-long use of marihuana, including

her use of it a few weeks before Johnny’s birth, who also tested positive for the drug at birth. There

was evidence of Jennifer’s repeated use of marihuana during the pendency of the case, despite the

removal of her children to the Department’s custody and regular court-ordered drug tests, many of

which she missed. Although Jennifer testified that she had not used marihuana in the eight or nine



                                                  5
months leading up to trial, there were no drug tests admitted into evidence from that time period

to corroborate her testimony. The trial court could reasonably have formed a firm conviction that

evidence of Jennifer’s recent “turnaround” is not a guarantee that her drug problems will not recur and

was not required to ignore her long history of dependency. See In re M.G.D., 108 S.W.3d 508, 513

(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“[E]vidence of a recent turnaround should be

determinative only if it is reasonable to conclude that rehabilitation, once begun, will surely continue.”).

                There was similar evidence about John’s years-long use of illegal drugs (including

marihuana, cocaine, and methamphetamine) and alcohol abuse as well as his continued use of the

substances during the pendency of the case and several missed court-ordered drug tests. On more

than one occasion during the pendency of the case, John had vomited immediately prior to court

settings and visitations, indicating possible intoxication, although Jennifer testified that the vomiting

was due to “upper GI bleeding.” Evidence indicated that John had arrived at the hospital to see

newborn Johnny either intoxicated or under the influence of drugs and was given a citation for

public intoxication.

                There was evidence about Jennifer and John’s involvement during the pendency of

the case with a former neighbor of theirs (“Dizzy”) that resulted in John being shot. Jennifer testified

that she and John picked up Dizzy to give him a ride somewhere and that “someone [began] shooting

at [Dizzy] and [John] got caught in the crossfire.” She further admitted that after the Dizzy incident

the police found marihuana in her car and that she “was smoking mari[h]uana” at the time. Jennifer

testified that she does not believe John still has an alcohol problem because he “overcame his

sickness” but also testified that he had not been drinking recently because “[h]e’s not working right



                                                     6
now to afford beer.” Jennifer testified that she and John had been homeless, living in their van and

then in shelters after they could no longer make payments on the van, for about three and a half

months during the pendency of the case. They began renting a home suitable for raising children

about a month before trial and Jennifer is currently employed as a janitor at a school; John was

unemployed at the time of trial but had recently performed some “odd jobs.” There was evidence

that Jennifer and John had become engaged a few months before trial and planned to stay together,

although Jennifer testified that she would be willing to be apart from John if the court allowed the

children to return only to her.

                The record does not indicate that Mary and Ann have any special physical or

emotional needs, but the guardian ad litem testified that the foster parents have observed Johnny

exhibiting “seizure-like activity” and that “there was [sic] some concerns with his brain activity” that

may be related to his in utero exposure to marihuana, for which they have taken him to a neurologist.

The record does not contain evidence concerning Jennifer’s or John’s parenting abilities or those of

the proposed adoptive foster parents, although the Department caseworker did testify that there had

been no “problems with the children” while at the foster home and that she had no reason to believe

that adoption by the foster parents would not be “successful.” There was evidence indicating that

when the Department removed the children from their parents’ custody, it placed them in the custody

of John’s mother (“Grandmother”) at the parents’ request but then removed the children from her

custody a few months later after discovering that the school-aged girls had missed an inordinate

amount of school. There was evidence that, during the time that the children were in Grandmother’s

custody, Jennifer and John stayed overnight at her house in violation of a court order.



                                                   7
                The guardian ad litem testified that neither Jennifer nor John had completed the

counseling previously ordered by the court nor availed themselves of any substance-abuse programs

such as AA, NA, or Celebrate Recovery, although John testified that he had found support in his

recovery process through meeting weekly with the deacon at his church and attending men’s-group

meetings there. There was also evidence that Jennifer had missed several visitations with her children

during the pendency of the case.


Evidentiary sufficiency

                While the record in this case is relatively brief, we nonetheless conclude, after

viewing the above-summarized and other evidence in the light most favorable to the trial court’s

finding, that the trial court could reasonably have come to a firm belief or conclusion that

termination of Jennifer’s and John’s parental rights was in the best interest of the children, especially

considering the evidence supporting the statutory grounds for termination (i.e., endangerment and

failure to complete court-ordered services) and the parents’ long history of drug use. Accordingly,

we conclude that the evidence is legally sufficient to support the district court’s finding by clear and

convincing evidence that termination is in the children’s best interest.

                We reach the same conclusion regarding the factual sufficiency of the evidence after

giving due consideration to the disputed evidence in the case. Deferring to the district court’s role

to assess the credibility of the witnesses, especially as those credibility determinations relate to the

parents’ asserted recent sobriety, we conclude that the disputed evidence is not so significant that a

reasonable factfinder could not form a firm belief or conviction that terminating Jennifer’s and

John’s parental rights was in the best interest of the children. We conclude that the evidence is


                                                   8
factually sufficient to support the district court’s finding by clear and convincing evidence that

termination is in the children’s best interest.


                                           CONCLUSION

                We affirm the trial court’s decree terminating the parental rights of Jennifer and John

to their three children.



                                                  __________________________________________

                                                  David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: July 18, 2018




                                                     9
