                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                   ________________________

                                       No. 07-16-00188-CV
                                   ________________________


                              IN THE INTEREST OF K.V., A CHILD



                             On Appeal from the 108th District Court
                                      Potter County, Texas
                 Trial Court No. 87,009-E; Honorable Doug Woodburn, Presiding


                                           October 11, 2016

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


        Appellant, J.V., appeals the trial court’s order terminating his parental rights to his

daughter, K.V.1      By a sole issue, J.V. asserts the evidence is legally and factually

insufficient to support the trial court’s finding that termination of his parental rights was

in his daughter’s best interest. We affirm.




        1
          To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b). The mother’s parental rights were
also terminated but she did not appeal.
        BACKGROUND

        When K.V. was only two months old, her medical checkup revealed serious

malnourishment.          She was diagnosed with failure to thrive and immediately

hospitalized.2      Her condition was reported to the Texas Department of Family and

Protective Services. After an investigator for the Department assessed K.V.’s condition,

the Department initiated emergency removal for medical neglect. K.V. was placed with

foster parents.


        During the investigator’s visit to the hospital, J.V. yelled at her that no one was

taking his child. He acted in an intimidating manner and hospital security was asked to

be present. J.V. threatened to shoot everyone and was escorted out by security.


        According to a psychologist’s testimony, K.V.’s mother has a below-average IQ

with cognitive impairments that prevent her from providing basic care for K.V., including

proper feeding. J.V. has an IQ within the average range that does not impair his ability

to care for K.V. He suffers from a seizure disorder that prevents him from obtaining a

driver’s license.


        The psychologist testified that J.V. suffers from a personality disorder and

depression. He has difficulty with social relationships and has a prior criminal history

that includes a charge of aggravated assault with a deadly weapon against K.V.’s

mother, for which he is currently on deferred adjudication community supervision. The

psychologist opined that J.V. does not have the minimal skills necessary for providing

quality care for K.V.

        2
           K.V. also had a healed clavicle fracture. However, testimony did not rule out the possibility that
the injury could have occurred during childbirth.

                                                     2
       K.V.’s parents have had stable housing for approximately four years. However,

they are both unemployed and their only source of income is the mother’s social

security disability payments. By his own admission, J.V. testified that the home is not

suitable for K.V.—it is infested with bed bugs, roaches, spiders, and mice. Testimonial

and photographic evidence established that there is no furniture in the house due to bed

bug infestation.     There is also a potential mold problem caused by the washing

machine. A photograph was introduced into evidence that depicted an electrical outlet

cover hanging from the wall with exposed wires.


       After K.V.’s removal, the Department implemented a family service plan with a

goal of family reunification that was explained to both parents.                 In addition to the

customary requirements of a family service plan, J.V. was required to participate in and

complete a Batterer and Intervention Prevention Program (BIPP) because of his violent

conduct toward K.V.’s mother.3          Bus passes were provided for both parents to get to

and from their services.


       The Department caseworker testified that J.V. completed most of his services

and was cooperative and pleasant at the outset.                 He did not complete individual

counseling sessions nor did he initiate BIPP. After the Department was finally able to

locate some of J.V.’s relatives, a cousin of J.V.’s contacted the Department and

arranged a visit with K.V. The visit went well and the relatives were evaluated for




       3
          The program is substantial and spans twenty-six weeks, and the participant is expected to pay
$25 for each class.


                                                  3
possible placement.4         Upon realizing that the Department’s goal had changed to

adoption by a relative, J.V. became uncooperative and hostile.


        J.V. testified he was unable to complete his counseling sessions because of

transportation issues. The bus trip usually took three hours. He had been previously

employed as a cosmetologist but did not renew his license in 2007 because he was not

interested in the field. He has not had employment in years but testified he was seeking

employment. He conceded his home was not suitable for K.V. and acknowledged that

placement with a relative was preferable. However, he did not want his parental rights

terminated.


        Based on the evidence and recommendations, the trial court found that

termination was in K.V.’s best interest. TEX. FAM. CODE ANN. §161.001(b)(2) (West

Supp. 2016). The court also found that J.V. (1) knowingly placed or knowingly allowed

K.V. to remain in conditions or surroundings that endangered her well-being, (2)

engaged in conduct or knowingly placed K.V. with persons who engaged in conduct that

endangered K.V.’s well-being, and (3) failed to comply with the provisions of a court

order that specifically established the actions necessary for him to obtain the return of

K.V. See id. at § 161.001(b)(1)(D), (E), and (O).


        Appellant’s only challenge to termination of his parental rights is his complaint

that the evidence is insufficient to support the trial court’s best interest finding. He does

not challenge the statutory grounds for termination. Under section 161.001(b)(1) of the

Texas Family Code, those unchallenged findings are sufficient to support the trial

        4
           At the time of the final hearing, the Department had yet to receive the results of the home study
for J.V.’s cousin.

                                                     4
court’s termination order if the court otherwise finds the termination to be in the child’s

best interest.   See Perez v. Texas Dep’t of Protective and Regulatory Servs., 148

S.W.3d 427, 434 (Tex. App.—El Paso 2004, no pet.). See also In re K.M., No. 07-16-

00120-CV, 2016 Tex. App. LEXIS 6886, at *6 (Tex. App.—Amarillo June 29, 2016, no

pet.) (mem. op.).


         APPLICABLE LAW

         The Texas Family Code permits a court to terminate the relationship between a

parent and a child if the Department establishes (1) one or more acts or omissions

enumerated under section 161.001(b)(1) of the Code and (2) that termination of that

relationship is in the best interest of the child.       See TEX. FAM. CODE ANN. §

161.001(b)(1), (2) (West Supp. 2016); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.

1976). The burden of proof is by clear and convincing evidence. § 161.206(a) (West

2014). “‘Clear and convincing evidence’ means the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.” § 101.007 (West 2014).


         Only one statutory ground is required to support termination. In re K.C.B., 280

S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied).             Although evidence

presented may be relevant to both the statutory grounds for termination and best

interest, each element must be established separately and proof of one element does

not relieve the burden of proving the other. See In re C.H., 89 S.W.3d 17, 28 (Tex.

2002).




                                             5
       STANDARD OF REVIEW

       The natural right existing between parents and their children is of constitutional

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982).       See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Consequently, termination proceedings are strictly construed in favor of the parent. In

re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute,

and it is essential that the emotional and physical interests of a child not be sacrificed

merely to preserve those rights. In re C.H., 89 S.W.3d at 26. The Due Process Clause

of the United States Constitution and section 161.001 of the Texas Family Code require

application of the heightened standard of clear and convincing evidence in cases

involving involuntary termination of parental rights. See In re E.N.C., 384 S.W.3d 796,

802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).


       In a legal sufficiency challenge, we credit evidence that supports the verdict if

reasonable jurors could have done so and disregard contrary evidence unless

reasonable jurors could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex.

2014). However, the reviewing court should not disregard undisputed facts that do not

support the verdict to determine whether there is clear and convincing evidence. Id. at

113.   In cases requiring clear and convincing evidence, even evidence that does

nothing more than raise surmise and suspicion will not suffice unless that evidence is

capable of producing a firm belief or conviction that the allegation is true. Id.    If, after

conducting a legal sufficiency review, a court determines that no reasonable fact finder

could form a firm belief or conviction that the matter that must be proven is true, then

the evidence is legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).


                                              6
       In a factual sufficiency review, a court of appeals must give due consideration to

evidence that the fact finder could reasonably have found to be clear and convincing. In

re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d at 25). We must determine

whether the evidence is such that a fact finder could reasonably form a firm belief or

conviction about the truth of the Department’s allegations. In re J.F.C., 96 S.W.3d at

266. We also consider whether disputed evidence is such that a reasonable fact finder

could not have resolved the disputed evidence in favor of its finding. If, in light of the

entire record, the disputed evidence that a reasonable fact finder could not have

credited in favor of the finding is so significant that a fact finder could not reasonably

have formed a firm belief or conviction, then the evidence is factually insufficient. Id.


       BEST INTEREST § 161.001(b)(2)

       The Department was required to prove by clear and convincing evidence that

termination of J.V.’s parental rights was in the child’s best interest. § 161.001(b)(2); In

re K.M.L., 443 S.W.3d at 116. Only if no reasonable fact finder could have formed a

firm belief or conviction that termination of J.V.’s parental rights was in the child’s best

interest can we conclude the evidence is legally insufficient. Id. (citing In re J.F.C., 96

S.W.3d at 266).


       There is a strong presumption that the best interest of the child will be served by

preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

Prompt and permanent placement of the child in a safe environment is also presumed

to be in the child’s best interest. See § 263.307(a). A non-exhaustive list of factors to

consider in deciding best interest is found at section 263.307(b) of the Family Code.

The Supreme Court has set out additional factors to consider when determining the best

                                              7
interest of a child. See Holley, 544 S.W.2d at 371-72. Those factors include (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 individual seeking custody; (5) the programs available to assist

the individual to promote the best interest of the child; (6) the plans for the child by the

individual 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.


       Evidence that supports one or more statutory grounds for termination may also

constitute evidence illustrating that termination is in the child's best interest. See In re

C.H., 89 S.W.3d at 28. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013).

The best interest analysis may consider circumstantial evidence, subjective factors, and

the totality of the evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d

667, 677 (Tex. App.—Amarillo 2011, no pet.).            Additionally, a child’s need for

permanence through the establishment of a “stable, permanent home” has been

recognized as the paramount consideration in determining best interest. See In re K.C.,

219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). See also § 263.307(a) (prompt

and permanent placement in a safe environment is presumed to be in a child’s best

interest).


       At the time of the final hearing, K.V. was too young to express her desires.

However, there was evidence that she was very bonded with her foster parents and had

thrived under their care. J.V.’s cousin and extended family were also available to adopt

                                             8
K.V. and care for her.         J.V. testified he was not opposed to his family providing a

suitable environment for K.V. and welcomed the opportunity for K.V. to know her

grandfather and great-grandmother.5


      J.V. acknowledged that some of the services he completed assisted him in caring

for K.V. However, he did not complete all his services. He excused his failure to

complete his services on the length of time that bus transportation took to get to some

of his appointments. Additionally, his psychologist opined that J.V. did not have the

minimal skills necessary to care for K.V.


      Notwithstanding that J.V. had stable housing for over four years, he had no

prospects for employment and had no resources to find a more suitable home that

would not present a danger to K.V. He testified he was actively looking for employment

and also looked at other housing but did not have any money for deposits.


      There was no evidence to suggest that the parent-child relationship was not

appropriate. There was testimony by the Department’s witnesses that J.V. loved his

only daughter. He testified about his desire to have a family. However, K.V.’s need for

a permanent and stable home outweighed J.V.’s wishes. The Department had foster

parents and relatives who were willing and able to adopt K.V. and meet her present

emotional and physical needs. There was testimony that J.V. had extended family in

south Texas who would provide support for K.V.


      Additionally, the trial court’s unchallenged predicate findings are probative

evidence of the best interest finding. In re E.C.R., 402 S.W.3d at 249-50. J.V. had a

      5
          J.V.’s family lives in south Texas near McAllen.

                                                     9
criminal history involving violence toward K.V.’s mother. He conceded that his living

environment was not suitable for K.V. The bed bugs, roaches, mice, and pesticide for

treating bed bugs endangered K.V.’s well-being. Having considered the Holley factors

and the need for prompt and permanent placement, we conclude there was clear and

convincing evidence to support the trial court’s finding that termination of the parent-

child relationship between J.V. and K.V. was in K.V.’s best interest. J.V.’s sole issue is

overruled.


      CONCLUSION

      The trial court’s order terminating J.V.’s parental rights to K.V. is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice




                                             10
