Opinion filed February 5, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-14-00154-CV
                                     __________

                     IN THE INTEREST OF A.S. AND
                            B.S., CHILDREN


                     On Appeal from the 244th District Court
                                 Ector County, Texas
                        Trial Court Cause No. C-5379-AD



                      MEMORANDUM OPINION
      This appeal stems from an order in which the trial court denied a request to
terminate the parental rights of Appellee, the biological father of A.S. and B.S.
The children’s mother (Tiffany) and her husband, who together had filed a petition
for termination and adoption, appeal.      In its order, the trial court ruled that
Appellants had not proven by clear and convincing evidence that termination
would be in the children’s best interest. We affirm.
                                                  Issues
        Appellants present seven issues for review. However, we need only address
the final three issues as those are dispositive of the appeal.1                           See TEX. R.
APP. P. 47.1. In their fifth and sixth issues, Appellants challenge the legal and
factual sufficiency of the evidence to support the trial court’s finding that
termination of Appellee’s parental rights would not be in the best interest of A.S.
and B.S. In their seventh issue, Appellants complain that the trial court abused its
discretion in refusing to interview A.S. and B.S. in chambers.
                                 Denial of Petition to Terminate
        The relationship existing between a parent and a child is of such importance
that it is considered to be of constitutional dimension. Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985). Termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014). 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. In the present case,
the trial court did not make any ruling or finding as to whether Appellee had
committed any of the acts listed in Section 161.001(1). The trial court made only
one finding: that Appellants failed to prove by clear and convincing evidence that
termination would be in the children’s best interest. See id. § 161.001(2).
        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

        1
        In their first four issues, Appellants assert that the evidence was legally and factually sufficient
to support findings under Section 161.001(1)(E) and (Q) of the Family Code. See TEX. FAM. CODE ANN.
§ 161.001(1) (West 2014). In its order, the trial court did not rule on or address Section 161.001(1).
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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.
      When a parent whose rights have been terminated appeals and challenges the
legal sufficiency of the evidence, 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). In that same scenario, when addressing the factual
sufficiency of the evidence, 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).
      In this case, however, the appeal is not from an order of termination but
from an order denying a petition for termination. Appellants, as the petitioners at
trial, had the burden of proof at trial. Thus, they had the burden of establishing by
clear and convincing evidence that termination of Appellee’s parental rights would
be in the best interest of A.S. and B.S. See In re A.L.D.H., 373 S.W.3d 187, 192
(Tex. App.—Amarillo 2012, pet. denied); see also Burns v. Burns, 434 S.W.3d
223, 227 (Tex. App.—Houston [1st Dist.] 2014, no pet.).


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      When an appellant attacks the legal sufficiency of an adverse finding on an
issue on which the appellant had the burden of proof, the appellant must
demonstrate on appeal that the evidence establishes, as a matter of law, all vital
facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)).
Thus, to prevail on their legal sufficiency challenge, Appellants must show that the
evidence at trial established as a matter of law, or conclusively established, that it
would be in the best interest of A.S. and B.S. to terminate Appellee’s parental
rights. See Dow Chem., 46 S.W.3d at 241; A.L.D.H., 373 S.W.3d at 192.
      When an appellant challenges the factual sufficiency of the evidence to
support a finding on an issue on which the appellant bore the burden of proof at
trial, the appellate court must consider and weigh all of the evidence and,
generally, can set aside a verdict only if the evidence is so weak or if the finding is
so against the great weight and preponderance of the evidence that it is clearly
wrong and unjust. Dow Chem., 46 S.W.3d at 242. However, when the appeal is
from the denial of a petition to terminate parental rights—where the burden of
proof at trial is proof by clear and convincing evidence instead of proof by a
preponderance of the evidence, we review the entire record and must “determine
whether the trial court’s failure to form a firm conviction or belief that a parent’s
rights must be terminated is contrary to the overwhelming weight of the evidence
and clearly wrong.” Burns, 434 S.W.3d at 227. The court in A.L.D.H. stated that,
when the appellant is challenging the trial court’s finding that termination is not in
a child’s best interest, the appellate court “must review the evidence to ascertain if
the evidence was of such a character that it had to produce in the mind of the
factfinder a firm belief or conviction that termination was in the best interest of the
child.” A.L.D.H., 373 S.W.3d at 193. Additionally, we note that we are not to
reweigh the evidence or judge the credibility of the witnesses and that we must
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defer to the trial court’s credibility determinations as long as those determinations
are not unreasonable. J.P.B., 180 S.W.3d at 573.
      The record in this case shows that Appellee and his children had a wonderful
relationship until June 5, 2012, when Appellee committed an act that detrimentally
affected his children. At that time, Appellee’s daughter, A.S., was twelve years old
and his son, B.S., was ten years old. On June 5, 2012, Appellee, who was
suffering from severe depression, threatened to commit suicide. Appellee sent
Tiffany a text indicating his intent to kill himself, and Tiffany called the police and
requested that the police conduct a welfare check on Appellee. When the police
arrived at Appellee’s home, Appellee “slammed the door in their face and then
fired two shots out of his back door.” After a two-hour standoff, Appellee texted
Tiffany to tell her that he would kill himself outside so as not to make a mess
inside the house and to ask her to promise him that she would take care of their
children. Appellee then came out of the house with a gun, was shot by the police,
and was taken into custody. As a result of the June 5, 2012 incident, Appellee
subsequently pleaded guilty to four counts of aggravated assault on a public
servant and received a ten-year sentence.
      Prior to the June 5 incident, Appellee and Tiffany had joint custody of the
children. The couple had divorced in 2008, and they agreed to an even split in
custody; the children spent every other week with Appellee. Appellee was a
loving, nurturing, hands-on father prior to the June 5 incident. By all accounts,
Appellee loved his children and they loved him; Tiffany agreed at trial that the
children still love Appellee and that Appellee still loves them.
      After the June 5 incident, the children suffered emotionally and required
counseling. The children have had limited contact with Appellee since his arrest: a
few phone calls and several letters. At the time of trial, A.S. was fourteen years
old, and B.S. was twelve years old. They had stopped writing Appellee and did not
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want to have any contact with him. The children had bonded with their stepfather
and asked to be adopted by him. A.S. and B.S. told Tiffany that they “don’t want
[Appellee] to be their dad, they want [their stepfather] to be their dad.” Tiffany
testified that she believed it would be in the children’s best interest for Appellee’s
parental rights to be terminated and for the children to be adopted by their
stepfather.
      Appellee, who testified at trial by telephone, disagreed with Tiffany’s
assessment; he did not believe that terminating his parental rights would be in the
children’s best interest. He explained that he knew he had hurt the children by his
actions on June 5, 2012. He understood that they were mad at him and believed
that “a large part of that healing, the only way it’s going to come, is by resuming a
relationship with” Appellee so that they can work through the process together.
Appellee had spent twelve years with A.S. and ten years with B.S. prior to his
incarceration and testified that, during that time, he and the children had a strong
bond. Appellee’s mother and one of his friends also testified about the strong bond
that the children had had with Appellee.
      Appellee offered into evidence two letters from A.S. to Appellee and one
letter from B.S. to Appellee. In a letter written on March 10, 2013, A.S. expressed
her anger with Appellee and stated, “I love you and all, but I am still mad at you
for not being strong enough to overcome the devil’s power. I hope that one day I
will calm down and let you see me again.”          B.S. wrote in a letter that was
postmarked November 5, 2012, that he was sorry and that, if he had known
Appellee was so depressed, he would have gotten help. B.S. also promised to
“lose more weight” and stated, “You were a great dad, both of us love you a lot.”
      The attorney ad litem for the children informed the trial court that she had
“had an opportunity to visit firsthand” with the children and “to be in their home,
watch their interaction with their mother and [stepfather].” The attorney ad litem
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believed that termination of Appellee’s parental rights would be in the best interest
of the children.    She informed the trial court that the children were bright,
intelligent, and articulate; that they knew what they wanted; and that they had not
been coerced or coached. The attorney ad litem explained the harm that the
children had suffered as a result of Appellee’s actions on June 5, 2012, including
being in the press, losing friends, losing a church home, having to change schools,
and knowing that their father wanted to kill himself. According to the attorney ad
litem, the children do not want to have any contact with Appellee, and they are
trying to forgive Appellee and move forward with “a father [their stepfather] and
with their mother who makes them feel safe and secure.”
      Based upon the evidence in the record and the Holley factors, we cannot
hold that Appellants established as a matter of law, or conclusively established,
that it would be in the best interest of A.S. and B.S. to terminate Appellee’s
parental rights. Nor can we hold that the trial court’s failure to form a firm
conviction or belief that Appellee’s rights must be terminated was contrary to the
overwhelming weight of the evidence and clearly wrong or that the evidence was
of such a character that it had to produce in the mind of the factfinder a firm belief
or conviction that termination was in the best interest of A.S. and B.S. Even
Tiffany admitted at trial that the issue of termination was not a “[r]ight and wrong,
black and white” situation and that there were “shades of gray” with respect to the
issue. We overrule Appellants’ fifth and sixth issues.
                           Refusal to Interview Children
      In their seventh issue, Appellants assert that the trial court abused its
discretion by refusing to interview the children in chambers as requested by
Appellants. Appellants rely upon Section 153.009 of the Family Code as support
for their contention. See FAM. § 153.009. Section 153.009 provides in part as
follows:
                                          7
             (a) In a nonjury trial or at a hearing, on the application of a
      party, the amicus attorney, or the attorney ad litem for the child, the
      court shall interview in chambers a child 12 years of age or older and
      may interview in chambers a child under 12 years of age to determine
      the child’s wishes as to conservatorship or as to the person who shall
      have the exclusive right to determine the child's primary residence.
      The court may also interview a child in chambers on the court’s own
      motion for a purpose specified by this subsection.
             (b) In a nonjury trial or at a hearing, on the application of a
      party, the amicus attorney, or the attorney ad litem for the child or on
      the court’s own motion, the court may interview the child in chambers
      to determine the child’s wishes as to possession, access, or any other
      issue in the suit affecting the parent-child relationship.
             (c) Interviewing a child does not diminish the discretion of the
      court in determining the best interests of the child.

The record shows that Appellants requested that the trial court confer with the
children because the children wanted to speak to the court. The trial court refused
to interview the children because the court could not find “any authority” to do so
in a termination proceeding.
      Even if the trial court abused its discretion in refusing to interview the
children, we cannot hold that the error, if any, constitutes reversible error. Both
Tiffany and the children’s attorney ad litem expressed the children’s desires to the
trial court, and those desires were for the trial court to terminate Appellee’s
parental rights and to permit their stepfather to adopt them.          Furthermore,
Appellants made no offer of proof as to what the children would have said if they
had been interviewed by the trial court. For these reasons, we cannot hold that the
error, if any, in refusing to interview the children in chambers probably caused the
rendition of an improper judgment or probably prevented Appellants from properly
presenting their case on appeal. See TEX. R. APP. P. 44.1(a). Appellants’ seventh
issue on appeal is overruled.


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                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


February 5, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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