Opinion filed July 12, 2012




                                                           In The


   Eleventh Court of Appeals
                                                        __________

                                                No. 11-12-00070-CV
                                                    __________

               IN THE INTEREST OF A.W.C. AND G.A.C., CHILDREN


                                    On Appeal from the 106th District Court
                                            Dawson County, Texas
                                      Trial Court Cause No. 11-03-18547


                                     MEMORANDUM OPINION
       After a bench trial, the trial court entered an order terminating the parental rights of the
mother and father of A.W.C. and G.A.C.1 The children’s mother (Connie) and father (Antonio)
have each filed a notice of appeal. We affirm.
                                                             Issues
       Connie presents three points of error for review, and Antonio presents eight issues for
review. All of the points of error and issues involve challenges to the sufficiency of the evidence
to support termination of Connie’s and Antonio’s parental rights. In her points of error, Connie
contends that the evidence was legally and factually insufficient to support the trial court’s
findings (1) that she constructively abandoned the children while they were in the temporary
conservatorship of the Department of Family and Protective Services (the Department); (2) that

       1
           In some parts of the record, the children are referred to as A.W.C., Jr. and G.A.S.C.
she failed to comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of her children; and (3) that, because the Department made
reasonable efforts to return the children to her, termination based on her alleged mental illness or
deficiency was not supported by the evidence. In his issues, Antonio contends that the evidence
was legally and factually insufficient to support the trial court’s findings (1) that he
constructively abandoned the children while they were in the temporary conservatorship of the
Department (Issues 1 and 2); (2) that he failed to comply with the provisions of a court order that
specifically established the actions necessary for him to obtain the return of his children (Issues 3
and 4); (3) that termination of his parental rights was in the best interest of the children (Issues 5
and 6); and (4) that, because the Department made reasonable efforts to return the children to
him, termination based on his alleged mental illness or deficiency was not supported by the
evidence (Issues 7 and 8).
                                   Legal and Factual Sufficiency
       Termination of parental rights must be supported by clear and convincing evidence. TEX.
FAM. CODE ANN. § 161.001 (West Supp. 2011).               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 under Section 161.001, it must be shown by clear and
convincing evidence that a 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. In this case, the trial
court found that the parents committed two of the acts listed in Section 161.001(1). Specifically,
the trial court found that Connie and Antonio had:
               [1] constructively abandoned the children who have been in the permanent
       or temporary managing conservatorship of the [Department] for not less than six
       months and: (1) the [Department] has made reasonable efforts to return the
       children to the [parent]; (2) the [parent] has not regularly visited or maintained
       significant contact with the children; and (3) the [parent] has demonstrated an
       inability to provide the children with a safe environment; [and]

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               [2] 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 who have been in the permanent or temporary managing conservatorship
       of the [Department] for not less than nine months as a result of the children’s
       removal from the parent under Chapter 262 for the abuse or neglect of the
       children.

See Section 161.001(1)(N), (O). The trial court also found that termination of Connie’s and
Antonio’s parental rights was in the children’s best interest. See Section 161.001(2).
       A trial court may order termination of parental rights under TEX. FAM. CODE ANN.
§ 161.003 (West 2008) when it is shown, and the trial court finds, that:
               (1) the parent has a mental or emotional illness or a mental deficiency that
       renders the parent unable to provide for the physical, emotional, and mental needs
       of the child;

               (2) the illness or deficiency, in all reasonable probability, proved by clear
       and convincing evidence, will continue to render the parent unable to provide for
       the child’s needs until the 18th birthday of the child;

               (3) the department has been the temporary or sole managing conservator
       of the child of the parent for at least six months preceding the date of the hearing
       on the termination held in accordance with Subsection (c);

               (4) the department has made reasonable efforts to return the child to the
       parent; and

               (5) the termination is in the best interest of the child.

See Section 161.003(a)(1)–(5). In this case, the trial court made the findings required for
termination under Section 161.003.
       The record shows that, on February 26, 2011, the Department received a report that
Connie and Antonio were neglecting A.W.C. and G.A.C. At that time, A.W.C. was nineteen
months old, and G.A.C. was five months old.            The Department received information that
Antonio had called friends in Lamesa because he and Connie were being evicted from their
residence in New Mexico; that Antonio had requested his friends to come to New Mexico and
then bring him, Connie, and the children to Lamesa; that, when Antonio and Connie and the
children were picked up in New Mexico and later arrived in Lamesa, the children “were dirty
and smelled” and Antonio and Connie “had body odor as well”; that Antonio and Connie did not


                                                  3
have any formula for G.A.C.; that Antonio and Connie were giving both children regular milk to
drink; and that the bottles the children were drinking from “were crusty and filthy.”
       Kimberly Masters, an employee of the Department, was the conservatorship caseworker
assigned to this case. Masters testified that, after the Department received the neglect report, an
investigator for the Department made contact with Antonio, Connie, and the children. The
record showed that this contact occurred on March 1, 2011. At that time, the children were very
dirty, and Antonio and Connie were also dirty. The investigator discovered that Antonio and
Connie were giving both children two percent milk. On the same day, the Department removed
the children from the care of Antonio and Connie. The Department placed A.W.C. and G.A.C.
in foster care with Lino and Holly Garcia. The children were still in the Garcias’ care at the time
of trial. The Department’s initial goal in the case was to reunify the children with Antonio and
Connie, but later, the Department’s goal became adoption by the Garcias.
       Masters testified that A.W.C. and G.A.C. were not current on their immunizations when
they were removed from Antonio and Connie. Masters also testified about the condition of the
children at the time of removal. She said that G.A.C. was developmentally delayed, was not
eating properly, and had intestinal problems. Masters said that A.W.C. was also developmentally
delayed. She said that A.W.C. had problems with his speech. Masters explained that A.W.C.
did not say any words and that his mode of communication consisted of “mainly grunts.” She
also said that A.W.C. was very small and did not have hand/eye coordination.
       Holly Garcia testified that she was married to Lino Garcia. Holly testified that A.W.C.
and G.A.C. came to live with Lino and her on March 1, 2011, and had continually lived with
them since that time. The Garcias had one other foster child, a three-month-old girl. Holly
testified that she was a stay-at-home mom.
       Holly testified that A.W.C. and G.A.C. were both sick when they came to live with her.
The Garcias took the children to doctor’s appointments, where the Garcias learned that both
children had sinus infections and double ear infections. Holly also testified that both children
were “small” when they were placed in her care. She learned at the children’s doctor’s
appointments that both children were in the fifth percentile. While in the care of the Garcias, the
children were brought current on their immunizations.
       Holly said that A.W.C. was developmentally delayed in his speech when he came to live
with her. She said that he had a very limited vocabulary. After being placed in the Garcias’

                                                4
care, A.W.C. attended speech therapy once a week and occupational therapy twice a week.
Holly said that A.W.C. was almost finished with speech therapy and that he “talk[ed] all the time
now.” She also said that A.W.C. was progressing well in occupational therapy and would be
attending “a little more occupational therapy just to learn some more motor skills.” A.W.C. did
not eat very much when he came to live with the Garcias. At that time, A.W.C. was still on a
bottle, and it took about a month to get him to consistently eat solid food. Holly was informed
that G.A.C. had been on whole milk before she was removed from Antonio’s and Connie’s care.
Holly said that G.A.C. “had a lot of stomach issues” at first and that it took “a little while to get
her stomach regulated.”
       Holly testified that both children “like[d] to eat [and were] healthy” and that the children
were “growing and thriving.” Holly said that, at the time of trial, A.W.C. was “almost past the
12th percentile” and G.A.C. was “already in the 72nd percentile.” Holly testified that, at the
time of trial, A.W.C. and G.A.C. were happy, healthy, and stable kids. Holly said that she and
her husband loved A.W.C. and G.A.C. and wanted to adopt them.
       The record shows that the Department removed another child from Antonio’s and
Connie’s care in 2008. Antonio and Connie voluntarily terminated their rights to this child.
       Antonio and Connie both received monthly disability checks. Antonio received monthly
checks in the amount of $681 and $175. Connie received a monthly check in the amount of
$175. Antonio had never been employed, and Connie had not been employed during the
pendency of this case. Neither Antonio nor Connie had a driver’s license or drove a car.
       Antonio and Connie had a house in Lamesa when they lived in New Mexico. The record
is not clear as to whether they owned the house. Antonio and Connie lived in this house at the
time of trial. When Antonio and Connie arrived in Lamesa from New Mexico, their house in
Lamesa was unlivable. It had no electricity or running water. Antonio and Connie lived in a
motel for a lengthy period of time. Masters testified that, when she first saw Antonio and
Connie’s house, it was “run down.” Masters explained that “[she] could see through the floor,
through the ceiling, windows were broken, [and] walls needed to be repaired.” Hollie Price
testified that she was the Court Appointed Special Advocate (CASA) and guardian ad litem for
A.W.C. and G.A.C. Price visited Antonio and Connie’s home shortly after the children were
removed from their care. At that time, Antonio and Connie did not live in the house. Price
described the condition of the house at that time as “dirty, [and] almost unlivable.” Price also

                                                 5
said that the house had holes in the floors and broken windows and that the house did not have
electricity or running water.
         Masters said that, later in the case, members of a church remodeled Antonio and Connie’s
house. Masters saw the house two or three weeks before trial. She said that, although the
physical condition of the house was “fine” at that time, “[the home] had gone back downhill.”
She said that the house was dirty again and that wind was blowing through windows in the
house.
         Chris Powell testified that he was the senior pastor at First Baptist Church in Lamesa. He
said that, in July 2011, volunteers from his church rewired, replumbed, painted, and cleaned
Antonio and Connie’s house in Lamesa. The volunteers also made cosmetic repairs to the house.
They patched but did not replace broken windows in the house. Powell said that the church
provided Antonio and Connie with a washer and dryer, a stove, a refrigerator, a bed, a couch, and
some other items. Powell testified that the house was not in a livable condition before the
volunteers worked on it. He said that it would have concerned him for children to be in the
house in its former condition.
         After the children were removed from Antonio and Connie, court-ordered service plans
were put into place. Antonio and Connie were required to comply with the terms of their
respective service plans, which established the actions necessary for them to obtain the return of
A.W.C. and G.A.C. See Section 161.001(O). As required by the plans, Antonio and Connie
both completed psychological evaluations with William E. Hoke, Ph.D. The Department
introduced copies of Dr. Hoke’s reports of the evaluations into evidence as State’s Exhibit No. 1.
Dr. Hoke determined that Antonio, who was forty-nine years old, had a full-scale IQ of 51.
Dr. Hoke diagnosed Antonio with moderate mental retardation. Based on his examination of
Antonio, Dr. Hoke concluded in his report as follows:
                 Overall, these results are consistent with severe and chronic mental
         retardation which will have a major impact upon his ability to be an appropriate
         father. [Antonio] certainly is unable to care for himself and will require structure
         and supervision throughout the remainder of his life. It is likely that his wife,
         [Connie] spends much of her time in taking care of many of his needs. He will
         not be able to live independently and will certainly be unable to provide an
         appropriate or safe home for his children. Although he seems to love them and is
         somewhat attached to them, his limitations will place the children at risk for harm.




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               Recommendations include [Antonio] continuing with the Plan of Service
       as prescribed by CPS. This should include parenting classes, a clean and
       appropriate living arrangement, and any other services deemed appropriate. If he
       is able to receive the assistance he requires, his long-term prognosis may be
       slightly improved. In general, however, his cognitive limitations appear to be
       severe and are unlikely to improve in the future. As a result, his ability to
       adequately care for his children appears to be quite limited and it is very likely
       that they would be in danger were they to be placed with him as a primary
       paternal figure.

       Dr. Hoke determined that Connie, who was twenty-nine years old, had a full-scale IQ of
70. Based on his examination of Connie, Dr. Hoke concluded in his report as follows:
                Overall, these results suggest significant limitations in many areas in her
       life. It appears that she will struggle to provide an appropriate home for herself
       and will also struggle to provide an appropriate and stable home for her children.
       Unfortunately, her level of insight into her deficits appears to be very limited and
       it is likely that she will have a difficult time understanding why anyone might
       have concerns about her . . . ability to be an appropriate parent.

               Recommendations include [Connie] continuing with the Plan of Service as
       prescribed by CPS. This should include individual counseling, couples
       counseling, parenting classes, homemaker skills training, family counseling,
       budgeting classes, and all other services as indicated. If she is able to receive the
       assistance she requires, her long-term prognosis may be slightly improved.
       Again, given what appear to be a number of significant limitations, it is likely that
       [Connie] will struggle in the future to be able to provide an appropriate home for
       her children, yet may be fairly unaware of her deficits and limitations.

       The service plans also required Antonio and Connie to participate in an MHMR
assessment and to follow through with all recommendations provided by MHMR. Masters
testified that the MHMR services entailed a mental health evaluation and services, financial
budgeting classes, parenting classes, and any other necessary life skills classes. The Department
included the MHMR services on the service plans so that Antonio and Connie would have an
opportunity to learn how to take care of themselves and to manage their money. Additionally,
MHMR would help Antonio and Connie obtain necessary medications and any other available
disability payments. Masters said that the MHMR services were made available to Antonio and
Connie in Lamesa.
       Masters testified that the Department scheduled appointments for Antonio and Connie to
receive MHMR services on three separate occasions but that Antonio and Connie did not show


                                                7
up for any of the appointments. A prior caseworker in the case set up the first appointment, and
Masters set up the second and third appointments. Masters testified that Anita Carillon, a
Department employee, attempted to take Antonio and Connie to the last scheduled appointment
but that she could not find them. Masters said that Antonio and Connie told her that they went to
an MHMR appointment but that they did not need services and so “MHMR turned them away.”
Masters contacted MHMR and confirmed that Antonio and Connie missed all the scheduled
appointments.
       A temporary order provided that Antonio and Connie would have supervised visitation
with the children a minimum of two hours every other week at the Department’s office closest to
the children’s foster care placement. The visitations were scheduled to take place in the
Department’s office in Odessa. Because neither Antonio nor Connie had a driver’s license or a
car, the Department provided round-trip transportation to them for their visits with A.W.C. and
G.A.C. Masters said that, although the Department made transportation available to Antonio and
Connie, they only visited A.W.C. and G.A.C. on nine of twenty-four scheduled visits. Masters
testified that, before a scheduled visitation, Carillon would go to Antonio and Connie’s house
and, if they were not home, would then go to places where they often went, such as convenience
stores and restaurants, to look for them. On most occasions, Carillon could not find Antonio and
Connie. Masters said that, the week before trial, Antonio and Connie visited the children for the
first time in four months.
       Connie testified that she had been getting disability checks since she was five years old.
Connie said that she was put in special education classes while in school. However, she said
that, “knowing how smart [she was],” she had no idea why she was placed in special education
classes. Connie also said that she had gone to school through the tenth grade.
       Connie testified that she and Antonio went to MHMR. She said that they “made the
appointments on [their] own.” Connie said that she talked to a psychiatrist and a caseworker by
videoconference at MHMR. She testified that, at MHMR, “he” wanted to give her shots because
she was anemic. Connie said that she did not “want to take no shots.” Connie said that, at
MHMR, she was told that the only way she could take classes was to take medication. Connie
said that, a long time ago, a doctor diagnosed her with schizophrenia. Connie testified that she
used to take medication for her schizophrenia but that “God ha[d] taken away [her] mental
illness.” She said that she had promised God that she would not take any more medications and

                                                8
that she could not break her promise to God. She said that “[she had not] taken medication in a
long time.” However, Connie said that she was currently taking medication for mood swings
relating to her going through menopause.
       With respect to missing visitation periods with the children, Connie said that she and
Antonio did not hear Carillon knock on the door if Carillon came to their house to take them to
the visits. Connie said that Carillon tried to make her look bad and “made [them] miss out on
seeing the babies.” Connie also said that A.W.C. and G.A.C. were not sick when they were
removed from her care. Connie testified that she was capable of taking care of the children
because Antonio taught her how to take care of them.
       Connie also testified about the condition of her and Antonio’s house. She said that, at the
beginning of the case, the house had no electricity. However, she said that a church had put
wiring in the house.
       Antonio testified that he and his family came back to Lamesa because their landlord in
New Mexico had “kick[ed] [them] out.” Antonio testified that their house in Lamesa needed to
be fixed up “a little bit” when he and Connie moved back to Lamesa from New Mexico. He said
that the church helped fix up their house in Lamesa.
       Antonio said that A.W.C. and G.A.C. were not sick when they were removed from his
care. He does not believe that Carillon came to their house to pick up Connie and him for visits
with the children every time that she said she did. Antonio said that he and Connie went to
MHMR and that, while there, he did a videoconference with a psychiatrist. He said that a lady at
MHMR told him that “you don’t need to come here no more.”
       Norma Rosales testified that she had known Antonio all her life. She said that Antonio
babysat her children in 1993. Rosales testified that Antonio was able to take care of her kids.
       The evidence, which is summarized above, showed that Antonio’s and Connie’s service
plans required them to participate in an MHMR assessment and to follow through with all
recommendations provided by MHMR.            Masters testified that the Department made three
separate appointments for Antonio and Connie to receive MHMR services but that Antonio and
Connie did not attend any of the appointments. Masters confirmed with MHMR that Antonio
and Connie missed all their appointments. Antonio and Connie testified that they went to
MHMR. The trial court’s function, as the trier of fact, was to judge the credibility of the
witnesses, assign the weight to be given their testimony, and resolve any conflicts or

                                                 9
inconsistencies in the testimony. In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth
2004, pet. denied). The trial court was entitled to believe all, part, or none of the testimony of
any witness. In re T.N., 180 S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.). The
trial court was free to believe Masters’s testimony and to disbelieve Connie’s and Antonio’s
testimony. Based on the evidence presented at trial, the trial court could reasonably have formed
a firm belief or conviction that Connie and Antonio both failed to comply with the court-ordered
service plans. Therefore, the evidence is legally and factually sufficient to support termination
under Section 161.001(1)(O) of the Texas Family Code.
       Connie’s second point of error and Antonio’s third and fourth issues are overruled.
Because only one ground is needed to support a termination order, we need not address Connie’s
first and third points of error and Antonio’s first, second, seventh, and eighth issues challenging
the sufficiency of the evidence to support the trial court’s findings under Sections 161.001(1)(N)
and 161.003 of the Texas Family Code.
       In his fifth and sixth issues, Antonio challenges the sufficiency of the evidence to support
the trial court’s finding that termination of his parental rights was in the best interest of A.W.C.
and G.A.C. The focus is on the children’s best interest, not that of the parents. Dupree v. Tex.
Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas, no writ). 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 of 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. In re C.J.O., 325 S.W.3d at 266. A trier of fact may measure a parent’s future conduct



                                                10
by his or her past conduct and determine that it is in the child’s best interest to terminate parental
rights. In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.).
       The record shows that A.W.C. and G.A.C. were removed from Connie’s and Antonio’s
care on March 1, 2011. Since that date, the children had been living with the Garcias. The
children had thrived while in the Garcias’ care. The Garcias had provided a stable environment
for the children and had met the children’s needs. A.W.C. and G.A.C. had a good relationship
with the Garcias, and the Garcias wanted to adopt them. On the other hand, Connie and Antonio
had not exhibited adequate parenting abilities in the past. The evidence demonstrated that they
could not provide A.W.C. and G.A.C. a safe and stable home environment or meet their physical
and emotional needs. Further, the evidence showed that Connie and Antonio likely would not be
able to sustain a safe and stable environment or to meet the children’s needs in the future.
Considering Connie’s and Antonio’s past conduct, the trial court could have reasonably
concluded that Connie and Antonio would not be able to provide the children with a safe and
stable environment or to meet their needs in the future.
       Based on the evidence, the trial court could reasonably have formed a firm belief or
conviction that termination of Connie’s and Antonio’s parental rights would be in the best
interest of A.W.C. and G.A.C. Therefore, we cannot conclude that the trial court’s best interest
finding is not supported by clear and convincing evidence. The evidence is legally and factually
sufficient to support the finding that termination of Connie’s and Antonio’s parental rights is in
the best interest of A.W.C. and G.A.C. Antonio’s fifth and sixth issues are overruled.
                                        This Court’s Ruling
       We affirm the trial court’s order terminating Connie’s and Antonio’s parental rights to
A.W.C. and G.A.C.




                                                              TERRY McCALL
                                                              JUSTICE
July 12, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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