Opinion filed October 31, 2013




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00148-CV
                                     __________

      IN THE INTEREST OF A.K.L. AND K.C.L., CHILDREN

                     On Appeal from the 266th District Court

                                  Erath County, Texas

                          Trial Court Cause No. CV31420


                      MEMORAND UM OPI NI ON
      This is an appeal from an order terminating the parental rights of the mother
and father of A.K.L. and K.C.L. The mother appeals. We affirm.
                                         Issues
      The mother presents three issues on appeal. In her first issue, she complains
that the trial court failed to announce in open court its ruling that termination of the
parent-child relationship between the mother and the children would be in the
children’s best interest. In her second issue, the mother challenges the legal and
factual sufficiency of the best-interest finding. In her third issue, the mother
contends that the trial court erred in appointing the Texas Department of Family
and Protective Services as the children’s permanent managing conservator because
the evidence is legally and factually insufficient to support such an appointment.
                                  Best Interest Finding
         The mother first asserts that the trial court erred in terminating the mother’s
parental rights because it failed to orally announce at the conclusion of the final
hearing that termination would be in the best interest of the children. The mother
cites no authority for her assertion, and we find none. In its written order of
termination, the trial court specifically found by clear and convincing evidence that
termination of the parent-child relationship between the mother and the children “is
in the children’s best interest.” Moreover, the record from the hearing shows that,
although the trial court did not specifically state that termination is in the children’s
best interest, such a finding can be inferred from the trial court’s oral
pronouncement. The trial court stated in open court that three of the grounds for
termination against the mother were justified and that “[the court] will proceed to a
termination of the parental rights of both [parents]. . . . [W]e have a continuation
of a very awful and unfortunate cycle for these young children . . . , and it’s a
tragedy for these children, . . . and I can do what I can do here today . . . to fix
that.”    The trial court also stated in open court, “I’m finding that it’s in the
children’s best interest that the Department be named managing conservators . . .
and that . . . the [foster parents] be identified as adoptive placement for these
children.” We overrule the mother’s first issue.
         In her second issue, the mother challenges the legal and factual sufficiency
of the evidence supporting the best interest finding. The termination of parental
rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2013). To determine if the evidence is legally sufficient in
a parental termination case, we review all of the evidence in the light most
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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(1)(A)–(T) and
that termination is in the best interest of the child. FAM. § 161.001. The trial court
found that the mother committed three of the acts listed in Section 161.001(1): that
she knowingly placed or allowed the children to remain in conditions that
endangered the children’s physical or emotional well-being, that she engaged in
conduct or knowingly placed the children with persons who engaged in conduct
that endangered the children’s physical or emotional well-being, and that she failed
to comply with the provisions of a court order that established the actions
necessary for her to obtain the return of the children. The mother does not dispute
these findings, and they are supported by the record.
      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 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,
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(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 record shows that the Department received an intake in November 2011
when the mother attempted suicide by overdosing on medications. The mother had
been suffering from severe depression. At the time of the attempted suicide, the
mother was living in a dirty hotel room with the children—two-year-old A.K.L.
and two-month-old K.C.L.—and the children’s father. When the mother attempted
suicide, the children were in her care; the father was in court and was not present
when the mother took the pills. When the police arrived at the hotel, the father
appeared to be “under the influence”; he admitted that he had used
methamphetamine that day. The police found marihuana in the room.
      The parents had a history with the Department. A.K.L. tested positive at
birth for marihuana, and the mother was referred for services. In 2010, both
parents were referred to services for marihuana usage and for unsafe, inappropriate
housing—they were living out of their car. While this case was pending, the
parents did not maintain stable housing and were transient, often depending upon
relatives or friends, “living on the street,” or staying in an abandoned house. The
parents also failed to maintain stable employment.       Furthermore, the parents
maintained their relationship throughout this case despite the occurrence of
domestic violence between them. After the children were removed, the mother
was arrested twice: once for public intoxication and once for interfering with a
police officer’s public duties. The father was arrested numerous times for various
crimes.


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      The children’s caseworker testified that it was in the children’s best interest
for the mother’s parental rights to be terminated because the mother had not
demonstrated an appropriate “protective capacity” to support her children or keep
them safe. The Department’s goal for the children is to provide a permanent,
stable, and loving home for the children. The children’s foster parents provided
such a home and desired to adopt the children. The children’s guardian ad litem
recommended that both parents’ rights be terminated and that the foster parents be
appointed as the children’s permanent managing conservators.             The CASA
representative also recommended that the foster parents be appointed as the
guardians of the children.
      Based on the evidence presented at trial and the Holley factors, the trial court
could reasonably have formed a firm belief or conviction that termination of the
mother’s parental rights would be in the best interest of both A.K.L. and K.C.L.
We cannot hold that the finding as to best interest is not supported by clear and
convincing evidence. The evidence is both legally and factually sufficient to
support the finding that termination of the mother’s parental rights is in the best
interest of the children. The mother’s second issue is overruled.
                              Managing Conservator
      In her final issue, the mother argues that the evidence was legally and fac-
tually insufficient to show that the appointment of the Department as the children’s
permanent managing conservator was in their best interest. The findings necessary
to appoint a nonparent as sole managing conservator need only be established by a
preponderance of the evidence. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).
Consequently, we review a trial court’s conservatorship decision under a less
stringent standard of review than the standard for termination.              Id.    A
conservatorship determination is subject to review for an abuse of discretion and
may be reversed only if that determination was arbitrary and unreasonable. Id.
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      The record shows that the Department’s goal for the children was to place
them in a stable and permanent home, either through adoption by the current foster
parents or, possibly, the mother’s sister.      The foster parents, with whom the
children had lived since removal, sought to adopt the children. The children were
thriving in their care. It was not clear at the time of the termination whether
placement with the mother’s sister was a suitable alternative, and there was
evidence indicating that A.K.L. had reexhibited concerning behaviors after a recent
visit to the mother’s sister’s house. Based upon the evidence presented at trial, we
cannot hold that the trial court abused its discretion in appointing the Department
as the children’s managing conservator. The mother’s third issue is overruled.
                                   This Court’s Ruling
       We affirm the trial court’s order of termination




                                                     TERRY McCALL
                                                     JUSTICE


October 31, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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