                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-09-00282-CV

                      IN THE INTEREST OF N.E.S., A CHILD




                         From the County Court at Law No. 2
                               Johnson County, Texas
                             Trial Court No. D200800062


                              MEMORANDUM OPINION


       The mother of N.E.S. appeals from an order terminating her parental rights. She

contends in her sole issue that the evidence is legally and factually insufficient to

support either of the predicate grounds for termination or the court’s finding that

termination is in the best interest of N.E.S. We will affirm.

       In a bench trial, the court found that the mother, “Elaine,”1 (1) knowingly placed

or allowed N.E.S. to remain in conditions or surroundings that endangered his physical

or emotional well-being and (2) failed to comply with an order that established the

actions necessary for the return of the child. See TEX. FAM. CODE ANN. § 161.001(1)(D),


1
       To protect the identity of the child, we refer to the mother by a pseudonym. See TEX. FAM. CODE
ANN. § 109.002(d) (Vernon 2009); TEX. R. APP. P. 9.8(b)(2).
(O) (Vernon Supp. 2010). The court also found that termination is in the best interest of

N.E.S.    Elaine contends in her sole issue that the evidence is legally and factually

insufficient to support any of these findings. We will affirm.

                                    Standards of Review

         For a legal-sufficiency challenge, we view all the evidence in the light most

favorable to the challenged findings to determine whether a factfinder could have

reasonably formed a firm belief or conviction that the findings are true. See In re J.L.,

163 S.W.3d 79, 84-85 (Tex. 2005); In re T.N.F., 205 S.W.3d 625, 630 (Tex. App.—Waco

2006, pet. denied).

         For a factual-sufficiency challenge, we “must give due deference” to the

challenged findings. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

         The court should inquire “whether the evidence is such that a factfinder
         could reasonably form a firm belief or conviction about the truth of the [ ]
         allegations.” “If, in light of the entire record, the disputed evidence that a
         reasonable factfinder could not have credited in favor of the finding is so
         significant that a factfinder could not reasonably have formed a firm belief
         or conviction, then the evidence is factually insufficient.”

Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex.

2002)); accord T.N.F., 205 S.W.3d at 630.

                          Dangerous Conditions or Surroundings

         Regarding the first finding, Elaine argues that the crisis center where N.E.S was

removed from her custody was a safe and appropriate environment and, even though

the child and she resided “at several different locations” “in the months leading up to




In re N.E.S.                                                                              Page 2
her contact with the Department [of Family and Protective Services],” the Department

failed to establish that any of these prior locations posed a danger to N.E.S.

        According to the testimony, Elaine and N.E.S. lived in at least eight different

locations from the time of his birth until he was removed from her care when he was

almost ten months’ old.2 Several of the places where they lived or visited posed a

danger to N.E.S. First, when they visited Michael S. for Christmas, Elaine testified that

he “violently sodomized” her while N.E.S. was in the room. She testified that this was

not “a safe and appropriate place” for N.E.S. and they left “into the cold to get away.”

She hitched a ride with a man who took her to her friend Christine’s home, where they

lived about four months. That ended when she got into a “fight” with Christine, who

pulled Elaine to the ground while she was holding N.E.S. Then, she moved to a trailer

park where she lived with a woman she met in church. A Department investigator

testified that Elaine characterized this person as an “unsuitable adult.” Elaine testified

that this person said that she was bipolar “and it was quite obvious she didn’t take her

meds.” After living there nine days, she stayed with another friend for three days.

Then she moved to a 72-hour shelter before she was transferred to the crisis center from

which N.E.S. was removed.

        The caseworker Kindra Brown testified that these moves created “an unstable

situation” for N.E.S. and placed him “in an unsafe condition.”



2
        The Department maintains that they lived in 10 different locations, which Elaine disputes. For
example, the Department includes within this number their stay with Michael S., the father of an older
child of Elaine’s, for 2 days for “visitation for Christmas.” Elaine does not count this stay as a place
where they lived, but she did testify that she had nowhere else to go when they left there.


In re N.E.S.                                                                                     Page 3
        In addition, Elaine testified that she began smoking marijuana when she was

seventeen and had also tried cocaine and methamphetamine. She was diagnosed as

having problems with substance abuse and alcohol dependence. She tested positive for

marijuana twice after N.E.S. was removed from her care. She denied ever smoking

marijuana in his presence but conceded that she was around him after having smoked

marijuana, which she characterized as “a bad decision.” She also reported to a women’s

center intoxicated on two different nights, in violation of the center’s rules.

        Under the applicable standard, the evidence is legally sufficient to support the

court’s finding that Elaine knowingly placed or allowed N.E.S. to remain in dangerous

conditions or surroundings.           See In re J.C., 151 S.W.3d 284, 288-89 (Tex. App.—

Texarkana 2004, no pet.); In re D.C., 128 S.W.3d 707, 715-16 (Tex. App.—Fort Worth

2004, no pet.). The evidence is likewise factually sufficient to support this finding. Id.3

                                            Best Interest

        We employ the familiar Holley factors when evaluating the sufficiency of the

evidence to support a finding that termination is in the best interest of the child. See

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); T.N.F., 205 S.W.3d at 632. We also

consider the factors listed in section 263.307 of the Family Code. See TEX. FAM. CODE

ANN. § 263.307 (Vernon 2009); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In

re S.N., 272 S.W.3d 45, 51 (Tex. App.—Waco 2008, no pet.).




3
        Because we have found the evidence legally and factually sufficient with regard to this predicate
ground for termination, we need not examine the sufficiency of the evidence to support the other
predicate ground. See In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.).


In re N.E.S.                                                                                      Page 4
        Desires of the Child: N.E.S. was two at the time of trial and not of sufficient

maturity to express a preference. See S.N., 272 S.W.3d at 51-52.

        Emotional and Physical Needs: N.E.S. has the usual emotional and physical needs

of a toddler. Brown testified that Elaine suffers from major depressive disorder and

borderline personality disorder and has attempted suicide “numerous” times. Brown

opined that these conditions prevent Elaine from being consistently capable of

providing for N.E.S.’s needs, particularly in view of Elaine’s history of failure to seek

treatment for her mental health needs. Id. at 52; D.C., 128 S.W.3d at 717.

        Emotional and Physical Danger: Elaine’s history of drug and alcohol abuse, the

violent encounters she experienced during the nomadic existence she had with N.E.S.,

and the instability of living in so many different locales all contribute to the conclusion

that Elaine poses a present and future risk of danger to N.E.S. See S.N., 272 S.W.3d at

52-53; J.C., 151 S.W.3d at 291; D.C., 128 S.W.3d at 717.

        Parental Abilities: Elaine completed a parenting class as part of her service plan.

However, the caseworker and a manager from a women’s center where she lived until a

month before trial both expressed concerns about her ability to provide adequate

parenting for N.E.S. Thus, the evidence is conflicting on this factor. See S.N., 272

S.W.3d at 53.

        Available Programs: Elaine provided testimony that N.E.S. and she could live in a

women’s center where she lived for about seven months after N.E.S. was removed from

her care.      However, she was “exited” from this center about a month before trial

because of a verbal altercation with a case manager and another resident. A manager


In re N.E.S.                                                                         Page 5
from the center testified that she did not believe Elaine was stable enough to

successfully participate in the program with N.E.S. Thus, the evidence is conflicting on

this factor. Id.

        Plans for Child: Elaine testified that she wants to live with N.E.S. in this women’s

center while she receives the treatment and counseling she needs.            However, the

manager testified that she does not believe Elaine can successfully participate in the

program. The Department plans to keep N.E.S. in foster care until a suitable adoptive

home is found. Thus, the evidence is conflicting on this factor. Id.

        Stability of the Home: N.E.S. is currently living in a safe and stable home with his

foster parents. Elaine wants to live with him in the women’s center although the

manager does not believe she can successfully participate due to her history. Beyond

Elaine’s prior experience in this women’s center, she has demonstrated a history of

being unable to provide N.E.S. a stable home. Thus, the evidence is conflicting on this

factor. Id.

        Acts and Omissions: Elaine’s history of drug and alcohol abuse, the violent

encounters she experienced during the nomadic existence she had with N.E.S., and the

instability of living in so many different locales are all acts and omissions relevant to

this factor. Her continued use of marijuana and alcohol after N.E.S.’s removal, her

failure to seek treatment on a consistent basis, and her difficulties in the women’s center

are also relevant. The evidence on this factor supports the best-interest finding. Id. at

53-54; J.C., 151 S.W.3d at 291; D.C., 128 S.W.3d at 717.




In re N.E.S.                                                                          Page 6
        Excuses: Elaine’s primary excuse is that she was a victim of domestic violence

and thus cannot be blamed for N.E.S.’s exposure to the violent encounters noted. She

had to move so frequently because she has no home or family support and no stable

employment.       However, she offers no excuse for her drug and alcohol abuse, her

inability to follow the rules and stay in a rehabilitation center, or her failure to seek

treatment on a consistent basis. Thus, the evidence is conflicting on this factor. See S.N.,

272 S.W.3d at 54.

        Statutory Factors: Evidence regarding seven of the thirteen statutory factors listed

in section 263.307(b) support the best-interest finding: (1) N.E.S.’s “age and physical and

mental vulnerabilities”; (2) “the magnitude, frequency, and circumstances of the harm

to [N.E.S.]”; (3) Elaine’s mental health history and relevant evaluations; (4) the history

of domestic violence; (5) Elaine’s substance abuse; (6) her failure to demonstrate

adequate parenting skills; and (7) the lack of an adequate social support system. See

TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (6), (7), (8), (12), (13). Three of the statutory

factors do not apply. Id. § 263.307(b)(2), (5), (9).4 The evidence regarding two of the

statutory factors is conflicting, so we consider these factors to be neutral: (1) Elaine’s

willingness "to seek out, accept, and complete counseling services" and cooperate with

the Department; and (2) her “willingness to effect positive environmental and personal

changes within a reasonable period of time.”                 Id. § 263.307(b)(10), (11).        And the

evidence regarding one of the statutory factors tends to contradict the best-interest


4
        The factors which we deem inapplicable are: (a) the frequency and nature of out-of-home
placements; (b) whether N.E.S. is fearful of returning to Elaine’s home; and (c) whether the perpetrator of
harm to N.E.S. has been identified. See TEX. FAM. CODE ANN. § 263.307(b)(2), (5), (9) (Vernon 2009).


In re N.E.S.                                                                                        Page 7
finding: “whether the child has been the victim of repeated harm after the initial report

and intervention by the department.” Id. § 263.307(b)(4).

        “Our evaluation of whether the evidence supports a best-interest finding does

not involve a precise mathematical calculation despite the listing of relevant factors.”

S.N., 272 S.W.3d at 54 (citing C.H., 89 S.W.3d at 27; T.N.F., 205 S.W.3d at 632). Under the

applicable standards, we hold that the evidence is legally and factually sufficient to

support the court’s finding that termination of Elaine’s parental rights is in the best

interest of N.E.S.

        We overrule Elaine’s sole issue and affirm the judgment.



                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed October 6, 2010
[CV06]

*      (Chief Justice Gray concurs in the judgment to the extent it affirms the trial
court’s judgment of termination of Elaine’s parental rights. A separate opinion will not
issue. He notes, however, that the “statutory factors” identified and reviewed relate to
a determination of “whether the child’s parents are willing and able to provide the child
with a safe environment” and as such they are not “statutory factors” directly regarding
the best interest of the child in the context of a termination proceeding. See TEX. FAM.
CODE § 263.307. While we can evaluate other factors beyond the Holley factors, I find it
unnecessary to do so, especially when the record does not contain any indication that
the parties presented evidence on these factors, although in the trial in this proceeding
they did but they do not argue this evidence in connection with the issue on appeal.
Further, it sets a dangerous precedent for us to be weighing into our review factors the
parties routinely do not even attempt to address in a termination proceeding. It is not
surprising that neither party cites or discusses these “statutory factors” in their briefing


In re N.E.S.                                                                          Page 8
to this Court of the “best interest” element necessary to terminate the parental rights to
the child. Finally, the summary nature in which the Court makes its review of these
“statutory factors” makes them seem relatively less important than the other factors.
Any factor that we consider, whether it is one of the original Holley factors or an
additional factor, should be weighed into the analysis based on its relative value in
reviewing the determination of best-interest.)




In re N.E.S.                                                                        Page 9
