Opinion filed August 1, 2019




                                      In The


          Eleventh Court of Appeals
                                   __________

                               No. 11-19-00047-CV
                                   __________

                 IN THE INTEREST OF A.M.J., A CHILD


                     On Appeal from the 318th District Court
                             Midland County, Texas
                        Trial Court Cause No. FM 63,581


                      MEMORANDUM O PI NI O N
      This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of A.M.J. The father appeals. He presents two
issues: one in which he complains of the admission of hearsay and one in which he
challenges the sufficiency of the evidence to support the best interest finding. We
affirm.
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). 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(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
         In this case, the trial court found that the father had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found that the father had knowingly placed or knowingly
allowed the child to remain in conditions or surroundings that endangered the child’s
physical or emotional well-being, that the father had engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being, that the father had constructively
abandoned the child, and that the father had failed to comply with the provisions of
a court order that specifically established the actions necessary for him to obtain the
return of the child. The trial court also found, pursuant to Section 161.001(b)(2),
that termination of the father’s parental rights would be in the best interest of the
child.
         On appeal, the father challenges the legal and factual sufficiency of the
evidence with respect to the trial court’s best interest finding. 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).
         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.
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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 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.
        The Department of Family and Protective Services received an intake that
included allegations of drug abuse, domestic violence, and physical neglect of the
child1 by the father. The child was removed from the father’s home after an
investigation by the Department. At that time, A.M.J. was two years old. The family
was living in deplorable conditions. The father’s house had no running water, and
the toilet was three-fourths full of solid waste. Wiring inside the house was exposed.
Dirty clothes were strewn about everywhere. Four children and two adults were
sleeping in the same bedroom, where there were two mattresses on the floor, because
that was the only room in the house that was heated. In the room next to the
bedroom, the roof was partially caved in. Also, there were lots of random people in
and out of the home, and A.M.J.’s mother indicated that “they were involved in



        1
          We note that three other children—eleven-year-old I.A.V., ten-year-old R.A.J., and nine-year-old
C.N.J.—were also removed from the father’s home. A.M.J. has the same father as, but a different mother
than, the other three children. Those three children are the subject of the appeal in Cause No. 11-19-00044-
CV.
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drugs.” Furthermore, although the father denied it, other evidence indicated that he
was violent and engaged in domestic violence.
      The father had been involved with the Department in the past. The father
admitted to having problems with alcohol and marihuana and said that he could not
stay clean long enough to maintain a job. At the time of the removal, the father was
arrested based on a warrant for failure to appear that was related to a charge of felony
driving while intoxicated. At the time of trial, the father had pleaded true to a motion
to revoke the felony DWI and was in jail due to a pending charge of forgery of a
financial instrument. The father had no idea how long he would be incarcerated.
The father admitted to a “small” criminal history, including drug possession and
several DWIs; he denied that his criminal history included burglary. He testified that
he had been arrested for the possession of cocaine but said that marihuana was his
drug of choice.     While this case was pending, the father tested positive for
methamphetamine. Between the time of removal and the time of trial, the father had
visited A.M.J. only about six times, and he had not seen her in approximately five
months.
      When A.M.J. was removed, the Department could not find a suitable family
member that was available as a placement. The father was ordered by the trial court
to comply with the provisions of his family service plan so that A.M.J. could be
returned to him; the father did not do so. A.M.J. was placed in a foster-to-adopt
home and was doing very well there.
      The Department’s goal for A.M.J. was the termination of both parents’
parental rights and adoption by the foster parents. The Department believed that
termination of both parents’ rights would be in A.M.J.’s best interest. The child’s
guardian ad litem, a CASA volunteer, recommended that the trial court terminate
both parents’ parental rights and leave A.M.J. in the foster-to-adopt home.


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      In his second issue, the father challenges the legal and factual sufficiency of
the evidence to support the trial court’s best interest finding. We note that the trier
of fact is the sole judge of the credibility of the witnesses at trial and that we are not
at liberty to disturb the determinations of the trier of fact as long as those
determinations are not unreasonable. J.P.B., 180 S.W.3d at 573. We have considered
the record as it relates to the desires of the child (who was too young to express a
desire), 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, the parental
abilities of the father and of the persons with whom the child was placed, the
Department’s plans for the child, the father’s inability to provide a safe home for the
child, the father’s use of methamphetamine, the father’s history of alcohol and drug
abuse, the deplorable conditions of the father’s home, the father’s failure to comply
with his court-ordered services, and the father’s criminal history.
      The trial court could reasonably have formed a firm belief or conviction, based
on clear and convincing evidence presented at trial and the Holley factors, that
termination of the father’s parental rights would be in A.M.J.’s best interest. See
Holley, 544 S.W.2d at 371–72. Therefore, we hold that the evidence is legally and
factually sufficient to support the finding that termination of the father’s parental
rights is in the child’s best interest. See id. We overrule the father’s second issue.
      In his first issue, the father presents an evidentiary complaint. The inclusion
and exclusion of evidence is a matter committed to the sound discretion of the trial
court. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). A trial court
abuses its discretion if it acts without reference to any guiding rules or principles.
E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). An
error in the admission of evidence requires reversal only if it probably caused the
rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145 S.W.3d
131, 144 (Tex. 2004); see TEX. R. APP. P. 44.1(a)(1).
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      The father contends that the trial court erred when it overruled his hearsay
objection and permitted the conservatorship caseworker to testify about the father’s
criminal history. See TEX. R. EVID. 801 (hearsay). Prior to the caseworker’s
testimony, the father had testified about his own criminal history, acknowledging
that he was currently in jail on a forgery charge and that he had been convicted once
for the possession of a controlled substance and more than once for driving while
intoxicated. The father denied that he had been arrested for burglary.
      The caseworker subsequently testified that she had run the father’s criminal
history at the onset of the case. When the caseworker was asked about the particulars
of the father’s criminal history, the father objected on the basis of hearsay and noted
the absence of a certified copy of any judgment of conviction. The trial court
overruled the father’s objection, and the caseworker testified that the father’s
criminal history included convictions for burglary of a habitation, burglary of a
vehicle, and illegal possession of a weapon.
      While we agree that the caseworker’s testimony constituted hearsay, we note
that an exhibit had already been admitted at trial that contained the same information
about which the father objected. Prior to any testimony at the trial, the Department
offered several exhibits into evidence.       All were admitted without objection,
including Exhibit No. 7. Exhibit No. 7, the father’s psychological evaluation,
contained the following statement: “[The father] has an extensive criminal history
dating from 1996 to 2015 including burglary, riot participation, drug possession,
unlawful carrying of a weapon, and numerous drunk driving charges.” Because the
psychological evaluation had already been admitted into evidence without objection,
the complained-of testimony was cumulative evidence, and any error related to its
admission was harmless. See State Office of Risk Mgmt. v. Allen, 247 S.W.3d 797,
800 (Tex. App.—Dallas 2008, no pet.). We overrule the father’s first issue.


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        We affirm the trial court’s order of termination.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


August 1, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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