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SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 
2-03-092-CV
 
IN THE INTEREST OF C.A.J.,
 
A CHILD  
 
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FROM THE 
323RD DISTRICT COURT OF TARRANT COUNTY 
 
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OPINION
 
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        Appellant, C.J., appeals from the trial court’s order terminating her 
parental rights with regard to her child C.A.J.  In a single point, appellant 
complains that the evidence was factually insufficient to support the court’s 
conclusion that termination of the parent-child relationship was in the child’s 
best interest.  We affirm.
 
FACTS
        Appellant gave birth to C.A.J., her third child, on April 19, 2002.  When 
C.A.J. was born, she tested positive for cocaine.  In response, the hospital 
called Child Protective Services (C.P.S.) to report the abuse.  At the hospital, 
appellant admitted to the C.P.S. worker that she took crack cocaine on a daily 
basis while she was pregnant with C.A.J.
        Due to the Texas Department of Protective and Regulatory Services’ 
(D.P.R.S.) ruling that C.A.J. had been abused, shortly after her birth C.P.S. 
removed her from appellant’s care and placed her in foster care.  Initially, C.P.S. 
considered  appellant’s mother, JoAnn Wilson (“Wilson”), as a placement option 
for the child, but she withdrew her name from consideration.  Consequently, 
C.P.S. placed the child with Karen Eckman (“Eckman”), appellant’s sister in 
California.  The Eckmans took possession of C.A.J. with an understanding that 
they would ultimately adopt C.A.J. 
        Wilson testified that when she withdrew her name from consideration as 
an option for placement for C.A.J., she recommended Eckman as a potential 
placement option.  However, Wilson also stated that when she recommended 
Eckman, she did not think that Eckman planned to adopt C.A.J.  Additionally, 
Wilson claimed that she was unaware that she could be reconsidered for 
placement.  Appellant testified that she was unable to care for the child on her 
own.  Appellant also admitted that it was probably in the child’s best interest 
to live with her sister. 
        Aisha Anderson, the C.P.S. caseworker assigned to C.A.J. in July 2002, 
testified that she tried to set up visitation appointments between C.A.J. and 
appellant, but had been unable to do so because she could not locate appellant.  
After appellant was incarcerated, Anderson arranged the only visit that occurred 
between C.A.J. and appellant by taking C.A.J. to visit at the jail.  Anderson 
noted that no bonding had occurred between appellant and the child. 
        During the termination proceedings, appellant was pregnant with her 
fourth child.  Her second child lives with appellant’s mother, and her first child 
lives with another relative.  Appellant admitted to using drugs during all of her 
pregnancies.  In addition to drug addiction, appellant also suffers from bipolar 
disorder and schizophrenia.  Appellant has twice been convicted of prostitution 
and at least twice for assault.  At the time of trial, appellant was serving a 
fifteen-month sentence for a felony level theft conviction and could not provide 
a stable home for C.A.J.  Based upon this evidence, the trial court concluded 
that it was in the child’s best interest to terminate appellant’s parental rights.
ANALYSIS
In appellant’s sole point, she complains that the evidence was factually 
insufficient to support the trial court’s conclusion that termination of the parent-child relationship was in the child’s best interest.  A parent’s rights to “the 
companionship, care, custody and management” of his or her children are 
constitutional interests “far more precious than any property right.”  Santosky 
v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982).  “While 
parental rights are of constitutional magnitude, they are not absolute.  Just as 
it is imperative for courts to recognize the constitutional underpinnings of the 
parent-child relationship, it is also essential that emotional and physical interests 
of the child not be sacrificed merely to preserve that right.”  In re C.H., 89 
S.W.3d 17, 26 (Tex. 2002). In a termination case, the State seeks not just to 
limit parental rights but to end them permanently—to divest the parent and child 
of all legal rights, privileges, duties, and powers normally existing between 
them, except for the child’s right to inherit.  TEX. FAM. CODE ANN. § 161.206(b) 
(Vernon 2002); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  We strictly 
scrutinize termination proceedings and strictly construe involuntary termination 
statutes in favor of the parent.  Holick, 685 S.W.2d at 20-21; In re D.T., 34 
S.W.3d 625, 630 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
        In proceedings to terminate the parent-child relationship brought under 
section 161.001 of the family code, the petitioner must establish one or more 
of the acts or omissions enumerated under subdivision (1) of the statute and 
must also prove that termination is in the best interest of the child.  TEX. FAM. 
CODE ANN. § 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 
1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. 
denied).  Both elements must be established; termination may not be based 
solely on the best interest of the child as determined by the trier of fact.  Tex. 
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
        Termination of parental rights is a drastic remedy and is of such weight 
and gravity that due process requires the petitioner to justify termination by 
“clear and convincing evidence.”  TEX. FAM. CODE ANN. § 161.206(a) (Vernon 
Supp. 2004); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).  This intermediate 
standard falls between the preponderance standard of ordinary civil proceedings 
and the reasonable doubt standard of criminal proceedings.  G.M., 596 S.W.2d 
at 847; D.T., 34 S.W.3d at 630.  It is defined as 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.  The higher burden of proof in termination cases alters the 
appellate standard of factual sufficiency review.  In re C.H., 89 S.W.3d at 25.  
“[A] finding that must be based on clear and convincing evidence cannot be 
viewed on appeal the same as one that may be sustained on a mere 
preponderance.”  Id.  In considering whether the evidence of termination rises 
to the level of being clear and convincing, 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.  Id.  Our inquiry here 
is whether, on the entire record, a factfinder could reasonably form a firm 
conviction or belief that the parent violated one of the conduct provisions of 
section 161.001(1) and that the termination of the parent’s parental rights 
would be in the best interest of the child.  Id. at 28. 
        Specifically, the State alleged and the court found that appellant’s 
conduct had violated sections 161.001(1)(D), (E), and (R) of the Texas Family 
Code.  TEX. FAM. CODE ANN. §§ 161.001(1)(D), (E), (R).  Subsection D states 
that the court may terminate the parent-child relationship if the court finds by 
clear and convincing evidence that the parent has “knowingly placed or 
knowingly allowed the child to remain in conditions or surroundings which 
endanger the physical or emotional well-being of the child.”  Id. § 
161.001(1)(D).  Subsection E provides another basis for termination if a parent 
has “engaged in conduct or knowingly placed the child with persons who 
engaged in conduct which endangers the physical or emotional well-being of the 
child.”  Id. § 161.001(1)(E).  Subsection R provides for termination when the 
parent has “been the cause of the child being born addicted to alcohol or a 
controlled substance, other than a controlled substance legally obtained by 
prescription, as defined by Section 261.001.”  Id. § 161.001(1)(R).  The State 
need only present sufficient evidence to support one of the section 161.001(1) 
factors and show that termination is in the best interest of the child under 
section 161.001(2).  Id. § 161.001; see In re W.J.H., 111 S.W.3d 707, 714 
(Tex. App.—Fort Worth 2003, pet. denied); In re W.S., 899 S.W.2d 772, 776 
(Tex. App.—Fort Worth 1995, no writ).  Because appellant’s argument is 
limited to the issue of whether termination of the parent-child relationship was 
in the best interest of the child, that is the only prong we need to address.  
        The primary focus of appellant’s argument is that there is no evidence to 
show that the child would be better off if placed with appellant’s sister than 
she would be if placed with appellant’s mother.  When ascertaining what is in 
the best interest of the child, we look at the following nonexclusive list of 
factors first set out by the Texas Supreme Court in Holley v. Adams, 544 
S.W.2d 367 (Tex. 1976):
(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 which 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. at 371-72.  These factors are not exhaustive.  Some listed factors may be
inapplicable to some cases; other factors not on the list may also be considered
when appropriate.  C.H., 89 S.W.3d at 27.  Furthermore, undisputed evidence
of just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the children.  Id.  On the other hand, the
presence of scant evidence relevant to each Holley factor will not support such
a finding.  Id.
        In addition to the above, a parent’s inability to provide adequate care for 
the child, lack of parenting skills, poor judgment, and repeated instances of 
immoral conduct may also be considered when looking at best interest.  See 
Garza v. Tex. Dept. of Human Servs., 794 S.W.2d 521, 525 (Tex. 
App.—Corpus Christi 1990, no writ) (holding that a parent’s lack of judgment, 
parenting skills, failure to provide adequate nutrition to her children, instructing 
them to disobey their foster parents, and skip school, are all factors to consider 
in a parental termination); Sanchez v. Tex. Dept. of Human Res., 581 S.W.2d 
260, 265-66 (Tex. Civ. App.—Corpus Christi 1979, no writ) (holding that the 
parent’s poor prognosis regarding her ability to learn to care for her children is 
a factor to consider in terminating the parent-child relationship); Coleman v. 
Tex. Dept. of Pub. Welfare, 562 S.W.2d 554, 557 (Tex. Civ. App.—Tyler 
1978, writ ref’d n.r.e.) (considering the fact that the parent was living with 
someone to whom she was not married in determining whether to terminate the 
parent-child relationship); D.F. v. State, 525 S.W.2d 933, 940 (Tex. Civ. 
App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.) (op. on reh'g) (considering the 
parent’s unstable employment history in determining the best interest of the 
child); Magallon v. State, 523 S.W.2d 477, 479 (Tex. Civ. App.—Houston [1st 
Dist.] 1975, no writ) (considering the parent’s repeated instances of unwed 
motherhood in determining whether termination was in the child’s best 
interest).
        In the case at bar, it is undisputed that appellant used illegal drugs during 
her pregnancy with C.A.J., as well as during her first two pregnancies and 
current pregnancy.  The fact that appellant repeatedly exposed her unborn 
children to cocaine or methamphetamine may be considered in determining 
whether appellant endangered the well-being of her children.  See Holley, 544 
S.W.2d at 371-72; In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 
2003, no pet.).  Appellant has been a drug addict for thirteen years and has 
enrolled in at least four different drug treatment programs, but failed to 
complete any of them.  Appellant’s drug addiction clearly poses an emotional 
and physical danger to C.A.J. now and in the future.
        Appellant freely admits that she is unable to care for the child herself.  
She has no stable source of income or permanent home and spent most of her 
time prior to being in jail, living in motels or at the Salvation Army.  Without 
stability, income, or a home, appellant is unable to provide for the child’s 
emotional and physical needs.  Moreover, appellant’s unstable life threatens the 
physical well-being of the child and may put the child at risk of injury.  
        Appellant wisely concedes that it is not in the best interest of the child 
to retain custody of the child herself.  However, appellant argues that it will not 
be in the child’s best interest to live in California with appellant’s sister because 
the child will be far away and will never be allowed to see appellant or her 
maternal grandmother.  Essentially, appellant fears that if the child is adopted 
by appellant’s sister, C.A.J. will never know appellant’s “side to the story” and 
will grow up hating appellant.  Yet, this has nothing to do with the child’s best 
interest.
        Testimony at trial reflected that C.A.J. was doing well since her 
placement with the  Eckmans.  Anderson testified that Eckman maintained more 
than the required contact with D.P.R.S., in contrast to appellant and her mother 
who have both failed to cooperate with the state agencies in the past.  In 
particular, appellant failed to stay in contact with her caseworker, failed to 
complete drug rehabilitation programs, and failed to complete her assigned 
C.P.S. service plan.
        Appellant argues that it is in the best interest of the child to be placed 
with appellant’s mother, Wilson, because her second child lives with Wilson and 
is doing well.  However, Wilson herself admitted to withdrawing from 
consideration as a placement for C.A.J.  Moreover, she recommended Eckman 
as a suitable placement.  Wilson implied that she would like to be reconsidered 
as a placement for C.A.J., but admitted to never contacting the C.P.S. 
investigator to make her desire for reconsideration known.  Additionally, no 
evidence was presented to show that placement of C.A.J. with the Eckmans 
would not be in her best interest.
        In light of the evidence of appellant’s continuous and long-term drug use, 
her unstable lifestyle, and criminal record, we hold that the evidence is factually 
sufficient to support the trial court’s conclusion that termination of the parent-child relationship was in the child’s best interest.  Accordingly, we overrule 
appellant’s sole point.  Therefore, we affirm the  trial court’s order terminating 
the parent-child relationship in its entirety. 
 
 
                                                          TERRIE LIVINGSTON
                                                          JUSTICE 
 
PANEL F:  LIVINGSTON, DAUPHINOT, and HOLMAN, JJ. 
 
DELIVERED:  November 20, 2003
