                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-14-00180-CV

                         IN THE INTEREST OF R.R., A CHILD



                                 From the 74th District Court
                                  McLennan County, Texas
                                 Trial Court No. 2012-4838-3


                                MEMORANDUM OPINION


        Seacrela and William1 appeal from a judgment terminating their parental rights

to their child, R.R., who had been removed by the Department of Family and Protective

Services.    See TEX. FAM. CODE ANN. § 161.001 (West 2008).                       On appeal, William

complains only that the evidence was legally and factually insufficient to support the

jury’s findings as to three separate predicate grounds for termination of his parental

rights to R.R. See id. § 161.001(1)(D), (E), (O). Seacrela complains only that the evidence

was legally insufficient to support the jury’s finding that termination of her parental

rights was in the best interest of R.R. See id. § 161.003(a)(5). Because we find that the


1We  use the appellants’ first names only in order to protect the identity of the child. See TEX. R. APP. P.
9.8(b)(1)(B).
evidence was legally and factually sufficient to support the jury's findings as to section

161.001(E) and that termination was in R.R.’s best interest, we affirm the judgment of

the trial court.

BURDEN OF PROOF

        In a proceeding to terminate the parent-child relationship brought under section

161.001 of the Texas Family Code, the Department is required to establish one predicate

ground listed under subdivision (1) of the statute and prove that termination was in the

best interest of the child. TEX. FAM. CODE ANN. § 161.001(1) (West 2008); In re E.N.C.,

384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

        Termination decisions must be supported by clear and convincing evidence.

TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West 2008). Evidence is clear and

convincing if it "will produce in the mind of the trier of fact a firm belief or conviction as

to the truth of the allegations sought to be established." Id. § 101.007.

LEGAL AND FACTUAL SUFFICIENCY

        In reviewing the evidence for legal sufficiency in parental termination cases, we

must determine whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180

S.W.3d 570, 573 (Tex. 2005). We must review all the evidence in the light most favorable

to the finding and judgment and assume that the factfinder resolved any disputed facts

in favor of its finding if a reasonable factfinder could have done so. Id. We must also



In the Interest of R.R., a Child                                                        Page 2
disregard all evidence that a reasonable factfinder could have disbelieved. Id. Further,

we must consider undisputed evidence even if it is contrary to the finding. Id.

        In a factual sufficiency review, we must give due consideration to evidence that

the trier of fact could reasonably have found to be clear and convincing. In re H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To determine

if the evidence is factually sufficient, we give due deference to the factfinder's findings

and determine whether, on the entire record, the factfinder could reasonably form a

firm conviction or belief that the parent committed an act that would support

termination and that termination of the parent's parental rights would be in the child's

best interest. In re H.R.M., 209 S.W.3d at 108; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

        Only one predicate ground of termination is necessary for a judgment of

termination when there is also a finding that termination is in the child's best interest.

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

FAMILY CODE SECTION 161.001(E)

        In his second issue, William argues the evidence is legally and factually

insufficient to prove the jury’s finding of predicate ground (E) of section 161.001.

Specifically, he contends there is no evidence that he, personally, endangered R.R.

        Section 161.001(E) of the Texas Family Code allows termination of the parent-

child relationship if the parent, "engaged in conduct or knowingly placed the child with

persons who engaged in conduct which endangers the physical or emotional well-being



In the Interest of R.R., a Child                                                       Page 3
of the child." TEX. FAM. CODE ANN. § 161.001(E) (West Supp. 2012). "Endanger" means

"to expose to loss or injury; to jeopardize." Texas Department of Human Services . v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987). The requisite endangerment may be found if the

evidence shows a parent's course of conduct that has the effect of endangering the

children's physical or emotional well-being. See id. at 534. Further, the conduct need

not occur in the child's presence. Walker v. Tex. Dep't of Family & Protective Servs., 312

S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We have held that

evidence is legally and factually sufficient to support endangerment where a parent had

been a drug dealer immediately prior to his arrest, conviction, and imprisonment for

dealing drugs. See In re R.M., No. 10-13-00330-CV, 2014 Tex. App. LEXIS 1921, *4-5

(Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.). Further, a long history of drug use

and irresponsible choices by a parent constitutes some evidence of endangerment under

subsection (E). See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

        Since 1998, William had spent over 10 years in prison. He had been convicted for

robbery, possession of a controlled substance, and possession of a controlled substance

with the intent to deliver. Four months prior to R.R.’s birth, William admitted to selling

drugs in an apartment where another individual was then shot and killed in William’s

presence. William admitted to being a drug dealer and conceded that drug dealing can

be dangerous. Further, William was in prison at the time of trial and had been there




In the Interest of R.R., a Child                                                     Page 4
since January of 2012. His projected release date was in 2018. He was eligible for parole

in June of 2014, but had been denied parole two times previously.

        Using the appropriate standards for determining the sufficiency of the evidence,

we find that the evidence was legally and factually sufficient to support the jury’s

finding pursuant to section 161.001(1)(E).      Accordingly, William’s second issue is

overruled. Because we have found the evidence sufficient to establish one predicate

ground for termination, we need not address the sufficiency of the evidence relating to

sections 161.001(1)(D) or (O). William’s issues one and three are overruled as well.

BEST INTEREST—HOLLEY FACTORS

        In Seacrela’s sole issue, she contends the evidence is legally insufficient to

support the jury’s finding that terminating her parental rights was in R.R.’s best

interest.

        There are several factors that the trier of fact in a termination case may consider

in determining the best interest of the child, which include: (a) the desires of the child,

(b) the emotional and physical needs of the child now and in the future, (c) the

emotional and physical danger to the child now and in the future, (d) the parental

abilities of the individuals seeking custody, (e) the programs available to assist these

individuals to promote the best interest of the child, (f) the plans for the child by these

individuals or by the agency seeking custody, (g) the stability of the home or proposed

placement, (h) the acts or omissions of the parent which may indicate that the existing



In the Interest of R.R., a Child                                                       Page 5
parent-child relationship is not a proper one, and (i) any excuse for the acts or omissions

of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not

exhaustive.      In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).    Some listed factors may be

inapplicable to some cases while other factors not on the list may also be considered

when appropriate. Id.

The desires of the child

        At the time of trial, R.R. was 25 months old. She had been removed from

Seacrela’s care at 7 months old. While R.R. is too young to express her desires, we note

that there was evidence in the record that she bonded well with her second foster family

who wanted to adopt her. At the time of trial, R.R. had been residing with this family

for 7 months. For the first two months R.R., was in foster care, Seacrela did not visit

her. Seacrela then visited 11 times before she was sent to prison for a violation of her

probation.

The emotional and physical needs of the child now and in the future
The emotional and physical danger to the child now and in the future

        R.R. is a well-adjusted child and had no special needs at the time of trial.

        Seacrela was not R.R.’s primary care-giver when the Department removed R.R.

from Seacrela’s possession. Seacrela allowed another person, the mother of one of

William’s five other children, to be R.R.’s primary caregiver. This person was not

approved as a placement for R.R. when R.R. was removed.




In the Interest of R.R., a Child                                                       Page 6
        Further, on the day R.R. was removed, Seacrela had smoked marijuana in the

morning, an hour or two before being given R.R. to take care of for the remainder of the

day. When a representative from the Department contacted Seacrela at 4:00 p.m. that

same day, Seacrela appeared to still be under the influence of marijuana, the apartment

smelled of marijuana and cigarettes, R.R. smelled of cigarettes, and R.R.’s room was a

mess. The apartment belonged to Seacrela’s cousin. Seacrela testified at trial that when

paroled from prison she would return to this same apartment.

        Seacrela’s cousin testified that she would be willing to allow Seacrela and R.R. to

live with her. The cousin further testified that she did not know, but had heard, that

Seacrela had smoked marijuana prior to R.R.’s removal, disputed that her home smelled

of marijuana on the day of the removal, and acknowledged that the Department did not

approve of her as a placement for R.R.

        Seacrela testified that she and William would like to marry. William had been in

prison the entirety of R.R.’s life. He dealt drugs prior to him being incarcerated. At the

time of trial, William was up for parole in a month, but had been rejected twice before;

so there was no guarantee that he would be released any time soon.

The programs available to promote the best interest of the child
The plans for the child by the individuals or the agency seeking custody
The acts or omissions of the parent, and any excuse for the acts or omissions

        Seacrela minimally worked at her family plan prior to her arrest for a probation

violation. She was arrested 5 months after R.R. was removed from her care and was



In the Interest of R.R., a Child                                                     Page 7
still in prison at the time of trial. Her excuse for not fully participating in her family

plan was that an arrest warrant for her was outstanding during that time. Seacrela’s

only plan for R.R. was to have R.R. wait for her release from prison and wait for her to

get her life in order. Seacrela’s plans for herself included moving in with a cousin who

the Department did not approve of and marrying R.R.’s father whose parental rights to

R.R. have now been terminated for endangerment. The Department planned for R.R.’s

adoption by the foster family if Seacrela’s and William’s parental rights were

terminated.

Summation

        After a review of all the evidence under the appropriate standards, we find the

evidence was legally sufficient to prove that termination of Seacrela’s parental rights to

R.R. was in R.R.’s best interest. Seacrela’s sole issue is overruled.

CONCLUSION

        Having overruled each issue raised by William and Seacrela on appeal, we affirm

the trial court’s judgment.2

                                                  TOM GRAY
                                                  Chief Justice

2 In this proceeding the appellants were determined to be indigent and allowed to proceed without the
advance payment of cost. See TEX. R. APP. P. 20.1. The ability to proceed without the advance payment of
cost does not, however, mean that the costs are not owed by an unsuccessful appellant. See In re
McGowan, No. 10-10-00208-CV, 2010 Tex. App. LEXIS 5046 (Tex. App.—Waco June 30, 2010, orig.
proceeding) (mem. op.). Because we have affirmed the judgment of the trial court, and thus ruled against
the appellants in this appeal, the judgment of the Court will award the appellee the appellate cost paid by
the appellee, if any, and all unpaid cost of the appeal will be taxed, jointly and severally, against the
appellants. The Clerk of this Court is hereby ordered to write off all unpaid filing fees for this proceeding
from the accounts receivable of the Court. The write off, however, in no way eliminates or reduces the
fees owed by the appellants pursuant to the Court’s judgment.

In the Interest of R.R., a Child                                                                      Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 2, 2014
[CV06]




In the Interest of R.R., a Child              Page 9
