                                   NO. 12-13-00316-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN THE INTEREST OF                                §      APPEAL FROM THE

M.L.H.-M.,                                        §      COUNTY COURT AT LAW

A CHILD,                                          §      CHEROKEE COUNTY, TEXAS

                                MEMORANDUM OPINION
       V.H. appeals the termination of her parental rights. In seven issues, V.H. challenges the
order of termination. We affirm.


                                          BACKGROUND
       V.H. is the mother of M.L.H.-M., born May 31, 2013. B.M. is the father of M.L.H.-M.
and is not a party to this appeal. On June 3, 2013, the Department of Family and Protective
Services (the Department) filed an original petition for protection of M.L.H.-M., for
conservatorship, and for termination of V.H.’s parental rights. The Department was appointed
temporary managing conservator of the child, and V.H. was appointed temporary possessory
conservator with limited rights and duties, including visitation.
       At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that V.H. had engaged in one or more of the acts or omissions necessary to support
termination of her parental rights. The trial court also found that termination of the parent-child
relationship between V.H. and M.L.H.-M. was in the child’s best interest. Based on these
findings, the trial court ordered that the parent-child relationship between V.H. and M.L.H.-M.
be terminated. This appeal followed.
                               TERMINATION OF PARENTAL RIGHTS
       Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action ―permanently sunders‖ the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
       Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013); In re
J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have
engaged in any one of the acts or omissions itemized in the first subsection of the statute. TEX.
FAM. CODE ANN. § 161.001(1) (West Supp. 2013); Green v. Texas Dep’t of Protective &
Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39
S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(2) (West Supp. 2013); In re J.M.T., 39 S.W.3d at 237. Both elements must be
established by clear and convincing evidence, and proof of one element does not alleviate the
petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at
351; In re J.M.T., 39 S.W.3d at 237.
       The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means ―the measure or degree of proof that 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.‖ TEX. FAM. CODE ANN. § 101.007 (West 2008). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.


                                       STANDARD OF REVIEW
       When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm



                                                  2
belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
       The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).


                         TERMINATION UNDER SECTION 161.001(1)(M)
       In her seventh issue, V.H. argues that the evidence is legally and factually insufficient to
support a finding that she had her parent-child relationship terminated with respect to another
child based on a finding that her conduct was in violation of Section 161.001(1)(D) or (E) of the
Texas Family Code. The court may order termination of the parent-child relationship if it finds
by clear and convincing evidence that the parent had her parent-child relationship terminated
with respect to another child based on a finding that the parent’s conduct was in violation of
Section 161.001(1)(D) or (E). See TEX. FAM. CODE ANN. § 161.001(1)(M) (West Supp. 2013).
       The record shows Lawanda Tucker, a conservatorship worker with the Department,
testified that V.H.’s parental rights were terminated as to one of her older children, Mo.H.
During her testimony, a certified copy of a final decree of termination filed in the district court of
Travis County, Texas, on April 27, 2009, was offered and admitted into evidence without
objection. Tucker confirmed, and the termination decree showed, that the district court found
V.H.’s conduct violated Sections 161.001(1)(D) and (E) of the Texas Family Code, and that the
district court terminated V.H.’s parent-child relationship with Mo.H.




                                                  3
       V.H. argues, however, that the Department failed to introduce evidence through a proper
witness about the specific instances that led to the purported findings. She contends that the
Department must again present the underlying facts utilized in the earlier trial to support the
prior court’s decree of termination for use in this trial. It is well established, however, that when
a prior decree of termination as to another child is properly admitted into evidence, the
Department need not reestablish that the parent’s conduct with respect to that child was in
violation of Sections 161.001(1)(D) or (E). In re J.M.M., 80 S.W.3d 232, 243 (Tex. App.—Fort
Worth 2002, pet. denied), disapproved on other grounds, In re J.F.C., 96 S.W.3d at 267 & n. 39.
The Department need only show that the parent’s rights were terminated as to another child
based on findings that the parent violated Sections (D) and (E). See id.; TEX. FAM. CODE ANN.
§ 161.001(1)(M).
       As a matter of law, V.H.’s parental rights to her older child, Mo.H., were terminated
based on findings in the termination decree that she violated Sections 161.001(1)(D) and (E) of
the Texas Family Code. Therefore, we hold that the evidence is legally and factually sufficient
to support termination of V.H.’s parental rights under Section 161.001(1)(M). Accordingly, we
overrule V.H.’s seventh issue regarding Section 161.001(1)(M).


                                BEST INTEREST OF THE CHILDREN
       In her fifth and sixth issues, V.H. argues that the evidence is legally and factually
insufficient to support a finding that termination of her parental rights was in the best interest of
the child. In determining the best interest of the child, a number of factors have been considered,
including (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; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976).
       This list is not exhaustive, but simply indicates considerations that have been or could be
pertinent. Id. However, the best interest of the child does not require proof of any unique set of
factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort



                                                 4
Worth 2001, no pet.). The Holley test focuses on the best interest of the child, not the parent’s
best interest. Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86
(Tex. App.—Dallas 1995, no writ). We apply the Holley factors below.
Analysis
         The evidence at trial demonstrated that V.H. had a history of mental illness and drug
abuse.      Her behavior was erratic and unstable throughout the case, and she was rude,
disrespectful, confrontational, and ―out of control‖ towards the Department workers throughout
this case. The Department caseworker stated that she tried to work with V.H. and had taken ―a
lot‖ of verbal abuse from V.H. and B.M., M.L.H.-M’s father and V.H.’s paramour. As a
teenager, V.H. was diagnosed with bipolar disorder, depression, and unstable moods. V.H.’s
licensed professional counselor testified that V.H.’s main issue was depression, and they talked
about positive thinking skills, focusing on things that she can control, and managing her anger.
The evidence showed that the overwhelming theme throughout V.H.’s medical and mental health
records was instability and chaos that continued to the time of trial based on her relationship with
B.M. and continued drug use. V.H.’s pattern of behavior concerned her counselor because
nothing had changed. In his opinion, V.H. was unable to demonstrate a stable home because of
her continued affiliation with B.M. and her drug use while she was pregnant with M.L.H.-M.
V.H.’s being previously diagnosed with delusional disorder and borderline personality disorder
would not surprise her counselor based on V.H.’s history of drug use.
         V.H. tested positive for marijuana on January 9, 2013, while she was pregnant with
M.L.H.-M. However, she had not tested positive for drugs since M.L.H.-M.’s birth, but had
recently refused to submit to drug testing.      B.M. took one drug test after M.L.H.-M. was
removed and it was positive for marijuana. He admitted that another drug test would be positive
when he was asked to submit to drug testing about a month before trial. V.H. knew B.M.
admitted he was using drugs and that he would be positive for drugs. V.H. chose to stay with
B.M. even though he refused to participate in services, failed a drug test, and the Department
caseworker and her counselor told her not to continue in a relationship with him. Her counselor
discussed with V.H. the importance of her being a role model for her children and that B.M.’s
refusing to participate in services did not reflect a stable home. However, ―most of the time‖
V.H. fell back into a ―victim role,‖ blaming other people and not taking responsibility for her
mistakes.



                                                 5
       V.H. had three older children, E.H., Mo.H., and Mi.H. She relinquished her parental
rights to E.H. and Mi.H. Further, Mi.H. was removed from V.H.’s care because she failed to
consent to a medical procedure needed to sustain the child’s life. The Department intervened
and Mi.H. was saved. The Department caseworker expressed concern that V.H. was unwilling to
consent to the appropriate care that her child needed. V.H.’s parental rights to Mo.H. were
terminated based on a finding that her conduct violated Sections 161.001(1)(D) and (E) of the
Texas Family Code.
       V.H.’s visitations with M.L.H.-M. were originally scheduled for one hour each week.
However, due to V.H.’s and B.M.’s disrespectful behavior, including not following visitation
rules, their visitations were changed to one hour every two weeks.          V.H. and B.M. were
disrespectful to the Department staff and did not exhibit appropriate behavior during visits, i.e.,
sitting and napping, talking on their cellular telephones, and talking negatively about the staff.
V.H. did not demonstrate the ability to parent even after she completed a parenting class.
Further, V.H. did not exhibit any behavior indicating that she had learned from her past mistakes.
       The evidence also showed that V.H. and B.M. made allegations against the father of
another of V.H.’s children, harassed him, cursed at him, and stalked him. Some of the allegations
included accusations that the other father had been physically violent towards V.H. and that he
jumped out of the bushes at her house with a knife. The other father recalled a meeting with the
Department and V.H. in which she ―holler[ed] and yell[ed]‖ at him and said some ―really awful
stuff.‖ V.H. harassed and stalked the other father during the pendency of this case, cursing him
and hitting him. According to the other father, B.M. acted unstable when B.M. attended court
hearings and parenting classes with V.H., ―cussed [him] out,‖ and threatened him. He believed
that B.M. could be dangerous around his child.
       Finally, the Department caseworker believed it was in M.L.H.-M’s best interest that
V.H.’s parental rights be terminated.     The CASA representative recommended that V.H.’s
parental rights to M.L.H.-M. be terminated, and V.H.’s counselor was unable to imagine any
scenario in which he believed it would be safe, or in the best interest of M.L.H.-M., to be
returned to V.H. According to the Department caseworker, M.L.H.-M. was in an adoptive foster
placement, and she believed the child would be easily adopted.
       Viewing the evidence relating to the Holley factors in the light most favorable to the
finding, we hold that a reasonable fact finder could have formed a firm belief or conviction that



                                                 6
termination of V.H.’s parental rights was in the best interest of the child. However, V.H. points
out that there were no allegations that she physically abused M.L.H.-M., that she used drugs after
January 9, 2013, that she had positive drug tests during the pendency of this case, and that the
child was uncomfortable or distressed during her supervised visits. Although there is some
evidence that M.L.H-M. did not sustain serious injuries while she was in V.H.’s care, this
evidence is not so significant that a reasonable trier of fact could not have reconciled this
evidence in favor of its finding and formed a firm belief or conviction that terminating V.H.’s
parental rights was in the best interest of the child. Therefore, we hold that the evidence is
legally and factually sufficient to support the trial court’s finding that termination of V.H.’s
parental rights is in the best interest of the child. Accordingly, we overrule V.H.’s fifth and sixth
issues regarding the best interest of the child.


                                                    DISPOSITION
         Having overruled V.H.’s fifth, sixth, and seventh issues, we affirm the judgment of the
trial court. 1

                                                                           SAM GRIFFITH
                                                                              Justice

Opinion delivered January 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         1
          Because we have concluded that the evidence is legally and factually sufficient to support termination of
V.H.’s parental rights under subsection (1)(M), we need not address V.H.’s first, second, third, and fourth issues
regarding subsections (1)(D) or (1)(E). See TEX. FAM. CODE ANN. § 161.001(1); TEX. R. APP. P. 47.1.


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          JANUARY 31, 2014


                                          NO. 12-13-00316-CV


                        IN THE INTEREST OF M.L.H.-M., A CHILD,


                                Appeal from the County Court at Law
                      of Cherokee County, Texas (Tr.Ct.No. 2013-06-0390)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
