Opinion filed July 17, 2014




                                                 In The


            Eleventh Court of Appeals
                                              __________

                                      No. 11-14-00019-CV
                                              __________

     IN THE INTEREST OF K.L.C., L.M.C., P.D.C., AND T.A.C.,
                       CHILDREN


                          On Appeal from the 118th District Court
                                 Howard County, Texas
                              Trial Court Cause No. 48,431


                           MEMORAND UM OPI NI ON
        This is an appeal from an order terminating the parental rights of the parents
of K.L.C., L.M.C., P.D.C., and T.A.C. The children’s mother and P.D.C.’s father
each filed a notice of appeal. 1 We affirm.
                                                 I. Issues
        P.D.C.’s father presents five issues for review. The mother presents six
points of error for review. In all five of his issues, the father challenges the legal

        1
         The father of T.A.C. and the unknown fathers of K.L.C. and L.M.C. did not file an appeal.
Therefore, references to “the father” in this court’s opinion refer to the father of P.D.C. as he is the only
father that appealed.
and factual sufficiency of the evidence to support the termination of his rights. In
her first five points of error, the mother challenges the legal and factual sufficiency
of the evidence to support the termination of her rights and the appointment of the
Department of Family and Protective Services as the managing conservator. In her
sixth point of error, the mother asserts that the trial court was without jurisdiction
at the final hearing because the dismissal date had expired.
                                    II. Background
      The Department of Family and Protective Services began family-based
safety services when the mother tested positive for cocaine upon the birth of T.A.C.
The children were subsequently removed from the twenty-year-old mother’s care
in April 2012. At the time of removal, the children were four years old, two years
old, one year old, and three months old, respectively. Two of the children were
placed with relatives, and two were placed with “fictive kin.” After the Depart-
ment’s attempt at family preservation failed, the Department sought termination of
the rights of all of the parents involved in this case.
                   III. Termination: Legal and Factual Sufficiency
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014). 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). To terminate parental rights, it must be shown by
clear and convincing evidence that the parent has committed one of the acts listed
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in Section 161.001(1)(A)–(T) and that termination is in the best interest of the
child. FAM. § 161.001.
      A. Acts of P.D.C.’s Father
      In this case, the trial court found that the father had committed five of the
acts listed in Section 161.001(1)—those found in subsections (D), (E), (N), (O),
and (Q). Specifically, the trial court found that the father had placed or 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 constructively abandoned the child, had failed to
comply with the necessary provisions of a court order, and had knowingly engaged
in criminal conduct that resulted in his conviction of an offense and confinement or
imprisonment and inability to care for the child for not less than two years from the
date the petition was filed. See id. § 161.001(1)(D), (E), (N), (O), (Q). The trial
court also found, pursuant to Section 161.001(2), that termination of the father’s
parental rights would be in the best interest of the child. The father challenges all
of these findings.
      In his first issue, the father challenges the sufficiency of the evidence to
support the trial court’s findings under subsections (D) and (E). We hold that there
was clear and convincing evidence from which the trial court could reasonably
have formed a firm belief that the father engaged in conduct or knowingly placed
P.D.C. with persons who engaged in conduct that endangered P.D.C.’s physical or
emotional well-being. See FAM. § 161.001(1)(E). Under subsection (E), the
relevant inquiry is whether evidence exists that the endangerment of the child’s
well-being was the direct result of the parent’s conduct, including acts, omissions,
or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland 2011, no
pet.). Additionally, termination under subsection (E) must be based on more than a
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single act or omission; a voluntary, deliberate, and conscious course of conduct by
the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth
2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999,
no pet.). The offending conduct does not need to be directed at the child, nor does
the child actually have to suffer an injury. In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009).
      The evidence shows that the father voluntarily absented himself from the
child’s life, had an extensive criminal history, was arrested for the possession of
cocaine after P.D.C.’s removal and after the father had been served with notice of
this case, was arrested for a probation violation, and was incarcerated in Florida at
the time of trial. Such acts constituted a course of conduct that endangered the
child. The evidence is legally and factually sufficient to support the trial court’s
finding as to the father under Section 161.001(1)(E). The portion of the father’s
first issue related to subsection (E) is overruled.
      Because a finding that a parent committed one of the acts listed in Section
161.001(1)(A)–(T) is all that is required under that statute, we need not address the
remainder of the father’s first issue or his second, third, and fourth issues regarding
the sufficiency of the evidence to support the trial court’s other findings under
Section 161.001(1). See TEX. R. APP. P. 47.1.
      B. Acts of the Children’s Mother
      The trial court found that termination of the mother’s parental rights would
be in the best interest of the children and that the mother had committed three of
the acts listed in Section 161.001(1)—those found in subsections (D), (E), and (O).
Specifically, the trial court found that the mother had knowingly placed or allowed
the children to remain in conditions or surroundings that endangered their physical
or emotional well-being, had engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangered the children’s physical or
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emotional well-being, and had failed to comply with the necessary provisions of a
court order. See FAM. § 161.001(1)(D), (E), (O). Because we hold that the
evidence is sufficient to support the trial court’s findings under Section
161.001(1)(E) and (O), we do not address the mother’s first point of error relating
to Section 161.001(1)(D). See TEX. R. APP. P. 47.1.
      In her second point of error, the mother challenges the legal and factual
sufficiency of the evidence to support the finding 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. The record shows
that, while she was pregnant with T.A.C., the mother used cocaine. At the child’s
birth, both the mother and child tested positive for cocaine. The mother’s use of
cocaine while pregnant endangered T.A.C. Furthermore, the mother admitted at
trial that her use of cocaine had endangered all of her children and that, until
“recently,” she had had difficulty staying away from drugs. Accordingly, we hold
that there was clear and convincing evidence from which the trial court could
reasonably have formed a firm belief that the mother engaged in conduct that
endangered the physical or emotional well-being of the children. See FAM. §
161.001(1)(E); In re D.O., 338 S.W.3d at 33; In re D.T., 34 S.W.3d at 634; In re
K.M.M., 993 S.W.2d at 228. The mother’s second point of error is overruled.
      In her fifth point of error, the mother challenges the legal and factual
sufficiency of the evidence to support the finding that she failed to comply with the
provisions of a court order establishing the actions necessary for her to obtain the
return of her children See FAM. § 161.001(1)(O). Section 161.001(1)(O) provides
that a court may terminate the parent-child relationship if the parent failed to
comply with the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of the Department for not less
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than nine months as a result of the child’s removal from the parent for the abuse or
neglect of the child. The statute does not “make a provision for excuses” for the
parent’s failure to comply with the court-ordered services. In re J.S., 291 S.W.3d
60, 67 (Tex. App.—Eastland 2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625,
631 (Tex. App.—Waco 2006, pet. denied)).
      The evidence in this case was undisputed that the mother failed to comply
with the provisions of the court order that required her to complete the services in
her family service plan. The Department’s caseworker, Kristie Saenz, testified
regarding the mother’s failures, which included positive drug tests for cocaine,
amphetamine, and benzodiazepine; the failure to submit to some of the scheduled
drug tests; the failure to complete a psychological assessment; the failure to
maintain employment; the failure to attend parenting classes; and the failure to
complete drug and alcohol treatment. The mother admitted at trial that she had not
fully complied with the trial court’s order. The evidence also showed that the
children had been removed for abuse or neglect based upon the conditions of the
home and the mother’s drug use. Based upon the evidence presented at trial, we
hold that there was clear and convincing evidence from which the trial court could
reasonably have formed a firm belief that the mother failed to comply with the
provisions of a court order that specifically established the actions necessary for
her to obtain the return of the children who had been in the permanent or
temporary managing conservatorship of the Department for more than nine months
as a result of the children’s removal from the mother for abuse or neglect. See
FAM. § 161.001(1)(O). The mother’s fifth point of error is overruled.
      C. Best Interest of the Children
      In the father’s fifth issue and the mother’s third point of error, they argue
that the evidence is legally and factually insufficient to support the trial court’s
findings of best interest. With respect to the best interest of a child, no unique set
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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.
      The record shows that, at the time of the final hearing, the termination
proceeding had been pending for approximately eighteen months. During this time
period, the mother did not regularly attend visitations with K.L.C. and T.A.C., and
she visited L.M.C. only one time. Neither parent visited P.D.C. a single time
during the pendency of this case. Saenz testified that the father had seen P.D.C.,
who was approaching three years old, only two times in his life. The father had no
contact with P.D.C. during the Department’s involvement in this case. At the time
of the final hearing on termination, the father was incarcerated in Florida. Prior to
his incarceration, the father had bounced back and forth between Florida and
Texas, and although he was living in Texas when this case was filed, he failed to
remain in contact with the Department. The father had an extensive criminal
history, which included the possession of cocaine.


                                          7
      The evidence at trial reflected that the mother was not able to provide a safe
environment for the children. She continued to use drugs after her children were
removed. At trial, she testified that she had been “clean” for almost six months,
but there were no drug tests to confirm her testimony.           The mother had not
completed drug and alcohol treatment or parenting classes as required.
      Saenz testified that the children were doing very well in their respective
placements and that the parents in those placements desired to adopt the child that
was in the parents’ care. Testimony showed that all four children were thriving in
their placements and had bonded to their placement families. The placements had
assured the Department that they would continue with monthly sibling visits. The
placement families had stable homes and could offer stability to the children. The
Department’s goal for the children was termination and adoption. Both Saenz and
the guardian ad litem testified that termination of the parents’ rights and adoption
by the respective placements would be in the best interest of the children.
      Based on the evidence presented at trial with respect to the emotional and
physical needs of the children, the emotional and physical danger to the children,
the parental abilities of the individuals seeking custody, the programs available to
assist these individuals to promote the best interest of the children, the plans for the
children by these individuals and by the Department, the stability of the home or
proposed placement, the acts or omissions of the parents with respect to the
children, and any excuse for the acts or omissions of the parents, the trial court
could reasonably have formed a firm belief or conviction that termination of the
father’s parental rights would be in the best interest of P.D.C. and that termination
of the mother’s parental rights would be in the best interest of each of the children.
See Holley, 544 S.W.2d at 371–72. We cannot hold that the findings as to best
interest are not supported by clear and convincing evidence. Because the evidence
is both legally and factually sufficient to support the findings that termination of
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the parents’ rights would be in the children’s best interest, we overrule the father’s
fifth issue and the mother’s third point of error.
                     IV. Appointment of Managing Conservator
      In her fourth point of error, the mother challenges the sufficiency of the
evidence to support the trial court’s finding that the Department should remain the
children’s permanent managing conservator. The mother argues that the evidence
is legally and factually insufficient to establish (1) that appointment of the mother
as the children’s managing conservator would significantly impair the children’s
physical health or emotional development and (2) that appointment of the
Department as the children’s managing conservator is in the children’s best
interest. See FAM. § 153.131. We disagree.
      The findings necessary to appoint a nonparent as sole managing conservator
need only be established by a preponderance of the evidence.            Lewelling v.
Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). Consequently, we review a trial
court’s conservatorship decision under a less stringent standard of review than the
standard for termination. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). 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. As
we held above, the trial court’s finding that termination of the mother’s parental
rights would be in the best interest of the children was supported under the higher,
clear-and-convincing burden of proof. The record shows that the mother had
demonstrated an inability to safely parent the children, that the Department’s goal
for the children was adoption, that each child’s respective placement wanted to
adopt that child, and that the children were very happy and were thriving in the
care of their respective placements. The trial court did not abuse its discretion with
respect to the appointment of the Department as the children’s managing
conservator. The mother’s fourth point of error is overruled.
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                                          V. Dismissal Date
        In her final point of error, the mother argues that the trial court abused its
discretion when it denied her motion to dismiss the proceeding, in which she urged
that the trial court did not have jurisdiction at the time of the final hearing. The
mother contends that the mandatory dismissal date had expired.                              See FAM. §
263.401. A trial court “shall dismiss” a termination suit filed by the Department
“[u]nless the court has commenced the trial on the merits” by the dismissal date.
Id. The original dismissal date was July 1, 2013.2 The extended dismissal date of
December 28, 2013, was reflected in two subsequent permanency hearing orders
entered by the trial court. See id. The final trial on the merits commenced on
December 11, 2013, and reconvened on January 8, 2014. Near the end of the
hearing on January 8, the mother’s attorney requested that the case be dismissed
pursuant to Section 263.401.
        A trial court does not lose jurisdiction over a termination proceeding when
the dismissal date passes; the dismissal dates are not jurisdictional. In re Dep’t of
Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). Furthermore, a
party who fails to “make a timely motion to dismiss” prior to the commencement
of the trial in this type of case waives the right to object to the trial court’s failure
to dismiss the suit. FAM. § 263.402(b). The mother failed to file her motion to
dismiss prior to the commencement of the trial. Therefore, she waived the right to
object to any failure of the trial court to dismiss this suit based upon the mandatory
dismissal date. See id.
        Moreover, the record does not support the mother’s contention because the
dismissal date had not lapsed in this case when the trial on the merits commenced.
The extended dismissal date—as set by the trial court, reflected in its orders, and
        2
          We note that the mother asserts that the trial court’s temporary order, for purposes of determining
the original dismissal date, does not appear in the record. However, after the mother’s brief was filed, the
district clerk filed a supplemental clerk’s record that contained the trial court’s temporary order.

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permitted by Section 263.401—was December 28, 2013. Trial on the merits
commenced on December 11, 2013, before the dismissal date. Thus, the trial court
complied with the provisions of Section 263.401. The mother’s sixth point of error
is overruled.
                               VI. This Court’s Ruling
      We affirm the trial court’s order of termination.




                                                    JOHN M. BAILEY
                                                    JUSTICE


July 17, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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