Opinion filed April 30, 2015




                                                In The


           Eleventh Court of Appeals
                                             __________

                                     No. 11-14-00245-CV
                                             __________

IN THE INTEREST OF D.T.M., J.B.M., AND R.A.M., CHILDREN


                         On Appeal from the 358th District Court
                                       Ector County, Texas
                             Trial Court Cause No. D-5392-AD


                          MEMORANDUM O PI NI O N
       This is an appeal from an order in which the trial court terminated the parental
rights of the parents of D.T.M., J.B.M., and R.A.M. The children’s mother filed a
notice of appeal, and in four issues on appeal, she challenges the legal and factual
sufficiency of the evidence to support the termination of her rights.1 We affirm.
                              I. Termination Findings and Standards
       The standards of review with respect to the mother’s appellate issues are well
settled.   The termination of parental rights must be supported by clear and

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        The children’s father voluntarily relinquished his parental rights and did not file an appeal.
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014). 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 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.
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      In this case, the trial court found, pursuant to Section 161.001(2), that
termination of the mother’s parental rights would be in the best interest of the
children and that the mother had committed three of the acts listed in Section
161.001(1)—those found in subsections (D), (E), and (F). Specifically, the trial court
found that the mother had knowingly placed or allowed the children to remain in
conditions or surroundings that endangered their physical or emotional well-being,
had engaged in conduct or knowingly placed the children with persons who engaged
in conduct that endangered the children’s physical or emotional well-being, and had
failed to support the children in accordance with her ability for a one-year period.
See id. § 161.001(1)(D), (E), (F).
                                     II. Analysis
      A. Acts of the Mother
      In her first and second issues, the mother challenges the legal and factual
sufficiency of the evidence to support the findings made pursuant to Section
161.001(1)(D), (E), and (F). Because we hold that the evidence is sufficient to
support the trial court’s finding under subsection (E), we do not address the mother’s
sufficiency challenges with respect to (D) and (F). See TEX. R. APP. P. 47.1. The
trial court found that the mother had engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the children’s
physical or emotional well-being. See FAM. § 161.001(1)(E). Under subsection (E),
the relevant inquiry is whether evidence exists that the endangerment of the child’s
well-being was the direct result of the parent’s conduct, including acts, omissions,
or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland 2011, no
pet.). Additionally, termination under subsection (E) must be based on more than a
single act or omission; a voluntary, deliberate, and conscious course of conduct by
the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000,
pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no
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pet.). 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).
Drug use and domestic violence may constitute evidence of endangerment. Id.;
C.J.O., 325 S.W.3d at 265.
      The children’s paternal grandfather and his wife filed a petition in December
2013 to terminate the parents’ rights and adopt D.T.M., J.B.M., and R.A.M. At that
time, the children had lived with the petitioners for almost two years. The parents
had voluntarily placed the children in the petitioners’ home in January 2012 when
the parents were both arrested for burglary of a habitation. At the time of the
children’s placement with the petitioners, the Department of Family and Protective
Services already had a pending case involving the family, and neither parent had
completed any of the services at the time of arrest. This was the Department’s third
involvement with the family. The Department closed its case in 2012 after the
children were placed with the petitioners. After the voluntary placement, the trial
court entered an order in March 2012 and appointed the paternal grandfather and the
mother as joint managing conservators of the children, with the grandfather to have
the right to designate the primary residence and the mother to have limited,
supervised visitation.
      The record shows that the mother had an extensive history with the
Department that began when D.T.M. was young and involved a pattern of child
neglect. The reasons for the Department’s involvement with the family were always
the same: domestic violence between the parents, drug use by the parents, instability,
and an unsafe home. The evidence was undisputed at trial that both the mother and
the father were drug abusers, had drugs in their home, and used drugs while the
children were in their care. The mother had used drugs off and on for most of the
children’s lives. She had been to rehab in 2006 during one of the Department’s cases.


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However, she resumed her drug use after successfully completing a drug rehab
program. The mother used methamphetamine and cocaine.
      In addition to her use of drugs, the mother had a criminal history that included
thefts, evading arrest, driving while intoxicated, and burglary of a habitation. At the
time of trial, the mother had just been released on parole from the Texas Department
of Criminal Justice. She had been convicted of the second-degree felony offense of
burglary of a habitation and had served seventeen months of a three-year sentence.
All of these offenses occurred sometime after her first child was born.
      The mother also exposed the children to domestic violence. There was
evidence of “chronic habitual” domestic violence between the parents. The father
was arrested at least three times (in 2005 or 2006, 2009, and 2011) for assaulting the
mother, and there were other unreported incidents of violence committed by the
father against the mother. One particularly violent incident occurred in 2009 when
the father “busted the main artery behind [the mother’s] left eye.” That incident
resulted in the mother having to undergo “immediate” surgery for a brain injury.
Despite the domestic violence, the mother still loved the father and wanted their
family to be together. The mother admitted that the children were present during
some of the incidents of domestic violence.
      A woman who lived near the family for about one and one-half years testified
that the children would come to her house frequently and ask for food and something
to drink. The neighbor fed the children and allowed them to come and go when they
wanted. According to the neighbor, the children were not clean.
      We hold that there was clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that the mother engaged in a course
of conduct that endangered the children’s physical or emotional well-being. See
FAM. § 161.001(1)(E). Because the evidence is both legally and factually sufficient


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to support the finding made by the trial court under Section 161.001(1)(E), we
overrule the mother’s first and second issues.
      B. Children’s Best Interest
      In her third and fourth issues, the mother challenges the best interest finding.
She argues that the evidence is legally and factually insufficient to support the trial
court’s finding that termination of her parental rights would be in the best interest of
the children. We disagree.
      At the time of trial in May 2014, the children were ten, six, and five years old,
respectively. They had been living with the petitioners since January 2012. In a
March 2012 order, the trial court found a pattern of child neglect by the mother and
permitted the mother to have supervised visitation only. The mother did not
regularly visit the children even during the periods when she had been released from
jail. The mother acknowledged that, at the time of trial, she was not in a position to
have the children come live with her, and she admitted that she had made mistakes
in the past but suggested that things were different now. However, the mother’s
social media postings and her failure to perform any of the court-ordered services
seemed to belie the mother’s suggestion. The mother’s past actions, which included
exposing the children to drug use and domestic violence, also indicated that she did
not act in the best interest of her children.
      A Department supervisor, who had previously been the family’s caseworker,
testified that the petitioners were an appropriate placement for the children and that
it would be in the children’s best interest to remain with the petitioners. The
supervisor also testified that the Department had been involved with the mother for
about nine years and that the mother had “been given the opportunity over and over
and over again to do what is right by her children and has failed to do so.”
      The children’s paternal grandmother, an ex-wife of the petitioner grandfather,
testified that she believed that termination of both parents’ rights would be in the
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best interest of the children. Her opinion was based not only on the parents’ past
actions but also on the positive changes in the children that occurred after they went
to live with the petitioners.
      The mother’s grandmother thought that termination of the mother’s rights
would be detrimental to the children, but she agreed that the children had made
progress since going to live with the petitioners. She “deeply appreciate[d]” the
“wonderful job” that the petitioners had done with the children. The mother’s
grandmother also acknowledged that the mother had a drug problem during most of
the children’s lives, took drugs while the children were present, and continued a
relationship with an abusive man.
      The petitioners both testified at trial. Their testimony indicated that they love
the children, are financially stable, and provide a good home for the children. The
children are happy with the petitioners. The children’s behavior had improved
tremendously while in the petitioners’ care; when the children came to live with the
petitioners, the children were outspoken, had no boundaries or rules, hid food under
their beds during the night, and used profane language. At the time of trial, the
children were all doing exceptionally well and were involved in many activities. The
petitioners had complied with the Department’s request that the children receive
counseling. The children loved the petitioners, expressed no desire to see their
mother, and called the petitioners “[M]om” and “Pop.” The petitioners requested
that the mother’s rights be terminated, believed termination would be in the
children’s best interest, and asked to be permitted to adopt and raise the children.
      Based on the evidence presented at trial with respect to the desires of the
children, the emotional and physical needs of the children, the emotional and
physical danger to the children, the parental abilities of the individuals seeking
custody, the programs available to assist these individuals to promote the best
interest of the children, the plans for the children by these individuals, the stability
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of the petitioners’ home, the instability of the mother’s home, the acts or omissions
of the mother with respect to the children, and any excuse for the acts or omissions
of the mother, the trial court could reasonably have formed a firm belief or
conviction that termination of the mother’s parental rights would be in the best
interest of each of the children. See Holley, 544 S.W.2d at 371–72. We cannot hold
that the finding as to best interest is not supported by clear and convincing evidence.
Because the evidence is both legally and factually sufficient to support the finding
that termination of the mother’s rights would be in the children’s best interest, we
overrule the mother’s third and fourth issues.
      We affirm the trial court’s order of termination.




                                                     MIKE WILLSON
                                                     JUSTICE


April 30, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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