Opinion filed August 18, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00321-CV
                                        __________

              IN THE INTEREST OF S.P. AND S.M.J., CHILDREN


                          On Appeal from the 326th District Court

                                     Taylor County, Texas

                                Trial Court Cause No. 6752-CX


                           MEMORANDUM OPINION

       The trial court entered an order terminating the parental rights of the mother and father of
S.P. and S.M.J. The mother and father each filed a notice of appeal from the termination order.
We affirm.
                                              Issues
       The mother presents four issues for review, and the father presents one issue. In her first
issue, the mother asserts that the evidence is legally and factually insufficient to support the
finding that termination of her parental rights is in the best interest of the children. In her
second, third, and fourth issues, the mother challenges the legal and factual sufficiency of the
evidence supporting the findings that she knowingly placed or knowingly allowed the children to
remain in conditions or surroundings that endangered the physical or emotional well-being of the
children, that she engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the physical or emotional well-being of the children, and
that she failed to comply with the provisions of the service plan. In his sole issue, the father
contends that the trial court abused its discretion by determining that this appeal is frivolous and
that the evidence is legally and factually insufficient to support the finding that termination is in
the best interest of the children.
                                                        Background
          The trial court signed the order terminating parental rights on October 4, 2010. Each
parent filed a statement of points for appeal, challenging, among other things, the sufficiency of
the evidence. See TEX. FAM. CODE ANN. § 263.405 (Vernon 2008). On October 29, 2010, the
trial court apparently held a Section 263.405(d) hearing regarding frivolousness and ultimately
determined that the appeal of each parent was frivolous. However, the trial court did not enter an
order on the frivolousness issue until April 6, 2011, after the parents’ briefs were filed in this
court and well after the trial court lost plenary power. The appellate record does not contain a
reporter’s record from the Section 263.405(d) hearing, but it does contain the reporter’s record
from the trial on termination. Consequently, we will address the merits of the substantive issues
presented rather than merely determine whether the appeals are frivolous.1
                                            Legal and Factual Sufficiency
          In their issues on appeal, the parents challenge the legal and factual sufficiency of the
evidence supporting termination. With respect to the legal and factual sufficiency challenges,
termination of parental rights must be supported by clear and convincing evidence. TEX. FAM.
CODE ANN. § 161.001 (Vernon Supp. 2010). 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).

          1
            We note that, in making a frivolous determination under Section 263.405(d), a trial court is not being asked to decide
the merits of a party’s appeal; that task falls within the province of an appellate court. In re Q.W.J., 331 S.W.3d 9, 14 (Tex.
App.—Amarillo 2010, no pet.). Instead, the trial court is to determine whether there is an arguable basis for an appeal, i.e.,
whether the issues raised are frivolous. Id. Sufficiency of the evidence is an arguable issue in an appeal from a contested
termination proceeding. Id.

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       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. Section 161.001. In this case, the trial court found that the
parents committed three of the acts listed in Section 161.001(1). The trial court found that the
parents had knowingly placed or knowingly allowed the children to remain in conditions or
surroundings that endangered the physical or emotional well-being of the children, had engaged
in conduct or knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children, and had failed to comply with
the provisions of a court order that specifically established the actions necessary for them to
obtain the return of the children who had been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for not less than nine
months as a result of the children’s removal from the parents for abuse or neglect. See Section
161.001(1)(D), (E), (O). The trial court also found that termination was in the children’s best
interest. See Section 161.001(2).
       The record shows that, after extensive efforts on the part of Lindsay Savage, a Family
Based Safety Service worker with Child Protective Services, to keep the family together, the
children were removed from their parents for neglect under TEX. FAM. CODE ANN. ch. 262
(Vernon 2008 & Supp. 2010). After the children were removed, a court-ordered service plan
was put into place.    The parents were required to comply with that service plan, which
established the actions necessary for them to obtain the return of the children.          Section
161.001(O). The record shows, and the parents admitted, that they did not fully comply with the
court-ordered service plan as required. Based on the evidence presented at trial, the trial court
could reasonably have formed a firm belief or conviction about the truth of the allegations that
each parent failed to comply with the service plan.
       The next question we must address is whether the best interest finding is supported by
legally and factually sufficient evidence. 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

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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 record shows that Savage worked with both parents for several months prior to the
removal of the children to try to help the family “get back on their feet” and “prosper.” Under a
special program that was in effect at that time, the Department provided numerous services,
household items, phone cards, transportation, diapers, wipes, baby formula, car seats, and clothes
to the family and also paid over $1,000 for an apartment, which the family was evicted from
after one month and which the father “trashed.” The family also received aid in the form of
TANF, WIC, Medicaid, and food stamps and aid from various churches. Despite the extensive
assistance, the parents made minimal effort or progress toward becoming self-sustaining and
being able to provide a safe place for the children to live. The parents remained homeless and
often stayed in shelters or on the street.
        The record shows that the children had been placed with various relatives and friends
before being removed and placed with foster parents; that the foster parents wished to adopt the
children; that the children are safe and doing better in foster care; that S.M.P., who is
developmentally delayed and needs therapy and extra attention, has progressed while in the care
of the foster parents; that the parents’ actions, including domestic abuse, constitute an
endangerment for the children; that the father behaved sexually inappropriately with S.P.; that
the parents remain homeless, moving frequently and often staying with various relatives, in
motels, in shelters, or on the street; that the mother is unable to provide a safe, stable home for
the children; that the father is unable to provide a safe, stable home for the children; that the
father was in prison at the time of trial serving a five-year sentence and had a variety of prior
convictions; and that both parents are capable of working but do not maintain employment or
provide support for the children. Based on such evidence, the trial court could reasonably have
formed a firm belief or conviction that termination of both parents’ rights would be in S.P.’s and
S.M.J.’s best interest.

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       Evidence indicating that the mother had another baby after S.P. and S.M.J. were removed
and that the third child had not been removed from her care at the time of trial does not control
the outcome of this appeal and is not dispositive of whether termination of parental rights is in
the best interest of S.P. and S.M.J. We cannot hold that the finding as to termination being in the
children’s 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 both parents’ parental
rights is in the best interest of the children. The mother’s first and fourth issues and the father’s
sole issue are overruled. As these issues are dispositive of the appeal, we need not address the
remaining issues. See TEX. R. APP. P. 47.1.
       We affirm the trial court’s order terminating the mother’s and the father’s parental rights.




                                                      TERRY McCALL
                                                      JUSTICE


August 18, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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