Opinion filed November 15, 2017




                                      In The


        Eleventh Court of Appeals
                                  ___________

                              No. 11-17-00137-CV
                                 ___________

        IN THE INTEREST OF T.A.C.G., T.M.G. III, N.L.G.,
                T.M.G., AND A.M.G., CHILDREN


                    On Appeal from the 118th District Court
                           Howard County, Texas
                         Trial Court Cause No. 51219


                     MEMORANDUM OPINION
      The trial court entered an order in which it terminated the parental rights of
the parents of T.A.C.G., T.M.G. III, N.L.G., T.M.G., and A.M.G. The father
appealed, and he presents two issues for our review. In the first issue, Appellant
challenges the sufficiency of the evidence to support the trial court’s best interest
finding, and in the second issue, he complains of the admission of several
photographs into evidence. We affirm.
                             I. Termination: Best Interest
      Appellant challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that termination of his parental rights was in the best
interest of his children. Termination of parental rights must be supported by clear
and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017).
To determine on appeal 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, 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.
FAM. § 161.001(b). In this case, the trial court found that Appellant committed four
of the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N),
and (O). Appellant does not challenge these findings, but he does challenge the trial
court’s finding that termination is in the children’s best interest.            See id.
§ 161.001(b)(2). Accordingly, we will uphold the order of termination if the
evidence is sufficient to support the best interest finding.
      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


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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 originally became involved in this case when it received a
priority one intake from the police based upon the children’s involvement in a
serious domestic violence situation, which resulted in the mother being taken to the
hospital and the father receiving staples and stitches. One of the children reported
that the parents “fight like this a lot.”
       The mother acknowledged at trial that Appellant had a drinking problem and
that there was domestic violence in the home. Appellant also admitted that he and
the children’s mother had a history of domestic violence. According to Appellant,
the children were removed after an incident of domestic violence in which Appellant
was a victim.
       Although Appellant did not complete the services required of him in the
family service plan, he testified that he was “doing better” and that he wanted to be
reunited with his children. He also testified, however, that he planned to live in
Lenorah with his girlfriend and provide a house for the children and their mother to
live in in Stanton. Appellant did not know the ages of his three youngest children.


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      The investigator for the Department testified about the unsanitary conditions
of the home at the time of the removal; the home was a safety hazard and a health
risk to the children. Domestic violence, alcohol abuse, the continued use of alcohol,
and the failure to complete the service plan—which was designed to help Appellant
with the problems that led to the removal—led the conservatorship caseworker to
conclude that Appellant was not able to provide a safe and stable home for his
children. The caseworker testified that the parents had endangered the children and
had inflicted emotional damage on them.
      The caseworker testified that the children were placed in foster homes at the
time of trial. Although three of the children were placed in one home and two in
another home, the children had been able to have contact with each other. The
caseworker testified that the children were happy and safe in their placements and
that the placements were meeting the children’s physical and emotional needs. She
explained that one of the current placements was interested in taking all five children
if they were to become available for adoption. The caseworker believed that
permanency in the home of that placement was best for the children. According to
the caseworker, the oldest child does not wish to be returned to the parents; the
caseworker did not ask the younger children about their desires to return to their
parents’ care. The caseworker testified that termination of both parents’ parental
rights would be in the best interest of the children, and the children’s attorney ad
litem asked that the children not be returned to the parents.
      Based upon the Holley factors and the evidence in the record, we cannot hold
that the trial court’s best interest finding is not supported by clear and convincing
evidence. See Holley, 544 S.W.2d at 371–72. The trial court could reasonably have
formed a firm belief or conviction that it would be in each child’s best interest for
Appellant’s parental rights to be terminated. We hold that the evidence is both


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legally and factually sufficient to support the trial court’s best interest finding. We
overrule Appellant’s first issue.
                    II. Admission of Photographs into Evidence
      In his second issue, Appellant argues that the trial court abused its discretion
when it admitted ten photographs into evidence. Eight of the photographs depicted
the condition of Appellant’s home at the time of removal, and two depicted the
injuries sustained by Appellant on that date. When the photographs were offered
into evidence, Appellant took the sponsoring witness on voir dire and then objected
that he had not been provided with those photographs in a timely manner prior to
trial as required by the trial court’s scheduling order. The trial court overruled
Appellant’s objection without a showing by the Department or a finding by the trial
court of good cause, lack of unfair surprise, or lack of unfair prejudice. See TEX. R.
CIV. P. 193.6.
      Assuming that, without such a showing or finding, the admission of the
photographs was an abuse of discretion, we conclude that any error in the admission
of the photographs was not reversible error. See TEX. R. APP. P. 44.1(a). Prior to
the admission of the photographs, Appellant had testified about the incident that
resulted in the removal of his children. He testified that he woke up with blood on
his head and stabs on his arms and that he “end[ed] up getting eleven staples and
five stitches in [his] head.” The two photographs of Appellant were cumulative of
Appellant’s own testimony. The other eight photographs merely depicted the
conditions of the house as testified to by the investigator and, thus, were cumulative
of her testimony. Under the record in this case, we cannot conclude that the
admission of the photographs into evidence probably caused the rendition of an
improper judgment or prevented Appellant from properly presenting the case to this
court. See id.; see also State v. Dawmar Partners, Ltd., 267 S.W.3d 875, 881 (Tex.


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2008); In re M.H., 319 S.W.3d 137, 149–50 (Tex. App.—Waco 2010, no pet.).
Because we conclude that the admission of the photographs does not constitute
reversible error, we overrule Appellant’s second issue.
                              III. This Court’s Ruling
      We affirm the trial court’s order of termination.




                                                    MIKE WILLSON
                                                    JUSTICE


November 15, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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