Opinion filed April 10, 2019




                                                  In The


            Eleventh Court of Appeals
                                             ___________

                                       No. 11-18-00280-CV
                                          ___________

                      IN THE INTEREST OF N.T., A CHILD


                           On Appeal from the 29th District Court
                                 Palo Pinto County, Texas
                               Trial Court Cause No. C47218


                           MEMORANDUM OPINION
        After having previously terminated the parental rights of N.T.’s father, the
trial court entered an order in which it terminated the parental rights of N.T.’s
mother. The mother filed an appeal. In a single issue on appeal, she challenges the
legal and factual sufficiency of the evidence to support the trial court’s best interest
finding.1 We affirm.


        1
         We note that, in their brief, Appellees (the foster parents) assert that Appellant has waived her sole
issue on appeal by failing to adequately brief it. Because we believe the issue to be adequately briefed, we
reject Appellees’ suggestion that Appellant has waived her challenge to the trial court’s best interest finding.
                        Termination Findings and Standards
      The natural right that exists between parents and their children is a
constitutionally protected right, and termination of the parent-child relationship can
only be justified by the most solid and substantial reasons. Wiley v. Spratlan, 543
S.W.2d 349, 352 (Tex. 1976). Termination of parental rights must be supported by
clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp.
2018). 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 had knowingly
placed or knowingly allowed the child to remain in conditions or surroundings that
endangered the child’s physical or emotional well-being, 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, had failed to support the child in
accordance with her ability during the relevant one-year period, and had failed to
comply with provisions of a court order that specifically established the actions
necessary for her to obtain the return of the child. See id. § 161.001(b)(1)(D), (E),
(F), (O). Appellant does not challenge these findings, but she does challenge the
trial court’s finding that termination is in the child’s best interest.        See id.
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§ 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
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.
                         Best Interest: Evidence and Analysis
      The record in this case reflects that the Department of Family and Protective
Services removed N.T. from his parents when he was nine months old. When N.T.
was eight months old, Appellant was experiencing some mental health issues and
decided to check herself in for treatment—where she remained for only four or five
days. She left N.T. with a neighbor and instructed the neighbor to call N.T.’s father
and have him come get N.T. so that N.T. could stay with the father. Appellant knew
that N.T.’s father was a violent man. Although Appellant had obtained a protective
order against the father, she nonetheless placed N.T. in the father’s care while she


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sought mental health treatment. Appellant testified, however, that the father had
only been violent toward her, not toward N.T.
      The Department became involved while N.T. was in his father’s care. Soon
thereafter, the father absconded to Michigan with N.T. The mother helped the
Department locate and take custody of N.T. after the father took him to Michigan.
At the time of removal from the father, N.T. was developmentally delayed. N.T.
also tested positive for a variety of drugs at that time, including cocaine, heroin, and
cannabis.
      Not long after removal, the Department placed N.T. in a foster home; he
remained in that same foster home throughout the proceedings. The Department
pursued termination of the father’s parental rights, and the parties involved in this
case proceeded on the presumption that Appellant was going to relinquish her
parental rights after the father’s parental rights were terminated; however, Appellant
changed her mind and decided not to relinquish her parental rights. In response, the
foster parents filed a petition for termination by which they sought to have
Appellant’s parental rights terminated, and Appellant filed a counterpetition in
which she sought sole managing conservatorship.
      At the trial on those petitions, Appellant denied that, when she left N.T. in the
father’s care, she knew that the father used illegal drugs. However, there was some
evidence presented at trial that Appellant had told one of the conservatorship
workers in this case that, when she first met the father, “the only thing he did was
smoke marijuana” but that she later became aware that he was using cocaine, at
which time “she kicked him out.” Appellant denied that she would permit the father
to see N.T. if N.T. were returned to Appellant; she testified that she had made
significant progress and could now avoid the father and keep N.T. safe. However,
text messages between Appellant and the father were admitted into evidence. In
those messages, which appear to have been typed in January 2017 prior to the
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termination of the father’s parental rights in October 2017, Appellant asked: “So did
they share with you about how we can lose our parental rights, if I let you see him
unauthorized[?]” In subsequent messages that same day, Appellant stated: “I’m
NOT LOSING MY SON AGAIN, F-----G WIT YO DUMB ASS”; “Bitch you
forcing it, get mad at yourself n---a.          You DID DIS, HOLD YOURSELF
ACCOUNTABLE MF”; and “When did [sic] case over, you could see him. But
until then CPS calling the mf shots.”          However, the record also reflects that
Appellant had obtained a protective order against the father and that, in February
2017, she called the police when the father violated that order by breaking into
Appellant’s apartment while Appellant and N.T. were there.
      Appellant testified that she had previously decided to relinquish her parental
rights to N.T. because, at that time, she believed that N.T. would be better off if his
foster parents raised him. Appellant had unsupervised visitation with N.T. while the
case was pending in the trial court and continued to develop a relationship with him.
She testified that she loves N.T., that she needs him, and that she is “ready” to resume
her role as his mother. The record reflects that Appellant was protective of N.T.,
that Appellant had acted appropriately from the very beginning of this case, that N.T.
was bonded with Appellant, that Appellant exhibited appropriate parenting skills,
and that Appellant and N.T. had a loving relationship. Appellant’s therapist believed
that she had “fully utilized counseling services by learning coping and parenting
skills necessary to provide a safe household for children.” Appellant obtained stable
employment at a bank, and she had appropriate housing throughout the case below.
Furthermore, all of Appellant’s drug tests during this case were negative, and there
was no indication at trial that she had ever used illegal drugs.
      There was some evidence in the record about Appellant’s parenting skills with
respect to her other two children. Appellant’s middle child is in another state, and
the paternal grandmother has custody of that child. Appellant’s oldest child lives
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with Appellant and does very well in school. However, when asked at trial about an
incident in which her oldest child “snatched a loaf of bread” out of Appellant’s hand,
Appellant admitted, “I pushed her down, and I choked her, yes, I did.”
      The foster parents love N.T. and would like to adopt him if possible. N.T. is
doing well in the foster parents’ home and has bonded with them. N.T. refers to his
foster parents as “mommy and daddy.” The record reflects that the foster parents
are able to meet all of N.T.’s current and future needs. The foster parents doubted
Appellant’s ability to provide financially for N.T. and were concerned about
Appellant’s mental health issues and about her ability to keep N.T. safe. The foster
father did not believe that N.T. would be safe in Appellant’s home. The foster
mother was also concerned about N.T.’s safety because she was “not convinced”
that the father was out of Appellant’s life. The foster mother testified, “I don’t feel
that [Appellant] can care for him appropriately. I’m worried about the -- everything
that we’ve heard about the continued mental difficulties that she has.” The foster
mother testified that it would be in N.T.’s best interest to terminate Appellant’s
parental rights.
      The Department was not in agreement with the foster parents on this matter.
A Department supervisor testified that the Department had not requested the
termination of Appellant’s parental rights because there were no grounds to do so.
The Department’s plan for N.T. was to return him to Appellant. Not one of the eight
Department employees that testified at trial stated that it would be in N.T.’s best
interest to terminate Appellant’s parental rights. Two conservatorship caseworkers
testified about the strong bond between N.T. and Appellant, and one of those
caseworkers explicitly testified that it would not be in N.T.’s best interest to
terminate Appellant’s parental rights. Appellant did not want her parental rights to
be terminated and did not believe that it would be in N.T.’s best interest to do so
because N.T. loves her and they have a mother/son bond.
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      The child’s guardian ad litem, a CASA volunteer, testified that she believed
that termination of Appellant’s parental rights would be in N.T.’s best interest.
However, the guardian ad litem also testified that she “[a]bsolutely” believed that
N.T. should continue to have a relationship with Appellant—a position that is
inconsistent with termination. The child’s attorney ad litem noted that Appellant
had previously expressed a desire to “relinquish her rights because [N.T.] was in a
good place”; he then recommended “that it should become the final order” of the
trial court. By “it,” we assume that the attorney ad litem meant termination, rather
than relinquishment, because a trial court cannot order a parent to voluntarily
relinquish the parent’s parental rights.
      Texas law presumes that the best interest of a child is served by awarding
custody to a natural parent. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.
1990). Furthermore, involuntary termination proceedings and statutes must be
strictly scrutinized in favor of the parent. In re E.R., 385 S.W.3d 552, 563 (Tex.
2012); Holick v. Smith, 685 S.W.2d 18, 20–21 (Tex. 1985). Here, when viewed in
the light most favorable to the finding, there is evidence in the record that termination
of Appellant’s parental rights would be in N.T.’s best interest. See J.P.B., 180
S.W.3d at 573 (legal sufficiency standard). Furthermore, based on the record as a
whole, we conclude that a reasonable factfinder could have formed a firm belief or
conviction that termination of Appellant’s rights would be in N.T.’s best interest.
See C.H., 89 S.W.3d at 25–26 (factual sufficiency standard). In reaching this
conclusion, we have considered the Holley factors, as well as the presumption in
favor of Appellant as N.T.’s natural parent. See Holley, 544 S.W.2d at 371–72;
Holick, 685 S.W.2d at 20–21. Despite Appellant’s bond with N.T., the trial court
could have determined that Appellant is unable to keep N.T. safe. We hold that the
evidence is legally and factually sufficient to support the trial court’s best interest
finding. Accordingly, we overrule Appellant’s sole issue on appeal.
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                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                                   KEITH STRETCHER
                                                                   JUSTICE


April 10, 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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