                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                     No. 06-12-00087-CV




IN THE INTEREST OF B. C., T. P., C. P., AND T. P., CHILDREN




           On Appeal from the 402nd District Court
                   Wood County, Texas
                 Trial Court No. 2011-458




          Before Morriss, C.J., Carter and Moseley, JJ.
           Memorandum Opinion by Justice Moseley
                                         MEMORANDUM OPINION

         In a suit brought by the Texas Department of Family and Child Protective Services

(Department), the parental rights of the Mother pertaining to her children, B.C., T.P.1, C.P., and

T.P.2, were terminated, and the parental rights of the Father to the children, T.P.1, C.P., and

T.P.2, were terminated. 1 As mentioned hereinafter, the trial court found that the evidence clearly

and convincingly proved that Mother and Father (1) had knowingly placed or knowingly allowed

the children to remain in conditions or surroundings which endangered the physical or emotional

well-being of the children, (2) had engaged in conduct or knowingly placed the children with

persons who engaged in conduct which endangered the physical or emotional well-being of the

children, and (3) 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. See TEX. FAM.

CODE ANN. § 161.001(1)(D), (E), (O) (West Supp. 2012). It also found termination to be in the

best interests of the children.

         On appeal, Mother and Father challenge the legal and factual sufficiency of the evidence

as to the first two grounds for termination mentioned above.                       We affirm the trial court’s

judgment of termination.




1
 For purposes of confidentiality, the children will be referred to as B.C., T.P.1, C.P., and T.P.2. The mother of the
children will be referred to as Mother, the father of T.P.1, C.P., and T.P.2 as Father. B.C.’s biological father (to
whom we refer as “Justin” and whose parental rights were terminated in the same action from which this appeal
arises) did not join in the appeal; accordingly, the question of his termination is not before us. TEX. R. APP. P. 9.8.
“Father” has no parental rights to B.C., and in the circumstances where we hereafter discuss parental rights to B.C.
generically as one of the “children,” the application is necessarily limited to B.C.’s relationship to “Mother.” At the
time of the termination hearing, B.C. was nine years old, T.P.1 was four, C.P. was three, and T.P.2 was two.

                                                          2
Factual History

       The attention of the Department was first directed toward this family in February 2011,

after the Department received a referral stemming from a December incident where a dog had

been reported to have attacked one of the children. A Department supervisor, June Tyler,

testified that the Department ruled out parental neglect concerning the attack. However, the

Department had two remaining concerns: (1) whether the children were properly supervised

while playing outside; and (2) the children were not current on their immunizations. Tyler also

entertained concerns about Father’s ability to care for his children due to his disability and about

the “unmet medical and mental health needs” of Mother. There was apparently some concern

about substance abuse by both of the parents.

       The trial court ordered both parents to abstain from drugs and alcohol, submit to

psychological and drug assessments, attend counseling sessions, attend parenting classes, attend

the meetings of Narcotics Anonymous (NA) at least once per week, and obtain and maintain

stable employment.

       In March 2011, Mother and Father began the Department’s prescribed counseling

through the Family-Based Safety Services (FBSS) program, though they later (advising Tyler

that they did not need counseling) ceased attendance at counseling and parenting classes. Father

was then arrested and incarcerated for a month due to a violation of his community supervision

on a criminal violation not directly related to the children. Tyler testified that the family

experienced an inability to pay rent and were forced to move repeatedly and that Mother and

Father made little or no progress completing the Department’s prescribed counseling and

                                                 3
parenting services. The couple had to get help from a local church to repair their car and find a

place to live.

        About six months later, in June 2011, it came to the attention of the Department that both

Mother and Father had been arrested in neighboring Rains County for public intoxication. Joel

Williams, a Department investigator, testified that he had been called by authorities after the

couple had been found (apparently intoxicated) with their car on the side of the road with the

children inside the automobile. Because the parents each appeared intoxicated and the police

could not determine who had been driving the car, both parents were arrested for public

intoxication.    Williams found reason to believe that the parents were negligent in their

supervision of the children because both were intoxicated in the circumstances as described and

even though all four children were in the car, there was only one car seat.

        The children were placed with the children’s paternal grandmother for a month before

being placed with their aunt and uncle for more long-term care. Williams explained to Mother

and Father that the placement agreement provided that the grandmother would care for the

children “for a duration of time until the parents could get with their [FBSS] caseworker and

make sure that the appropriate safety measures were being taken.”

        Tyler was unsuccessful in attempts to persuade Mother and Father to participate in and

complete the parenting classes and counseling; after the arrests for public intoxication, Tyler

determined that “there was no longer anything [FBSS] could do for them.” She also had

concerns regarding the couple’s previous drug and alcohol history. As a part of that history,

Tyler pointed out that in 2006, Mother was found passed out behind the wheel of a car with B.C.

                                                 4
in the vehicle and in 2009, Father had been charged with possession of marihuana. Tyler

testified, “My concern was that although we were offering services and intervening, they were

found on the side of the road intoxicated, still putting their children in the same situation that

they’ve been on probation for. . . . They’re not showing anything they learned from probation or

benefiting from what we’re trying to offer.” On August 21, 2011, the Department filed a petition

to remove the children.

       Department case worker Julie Tolsom was assigned to the case. She testified that Mother

and Father had completed their parenting classes, but they did not participate in their court-

ordered counseling. Mother testified that she attended all her counseling sessions, though she

did miss some when her grandmother passed away.            Mother said she was released from

counseling. Tolsom pointed out that during some of the sessions which Father attended, he

simply slept on the couch rather than participating.

       Father failed to obtain a psychological evaluation as he had been ordered, although

Mother submitted to hers. Although Mother was required to maintain appointments with her

psychiatrist and to take her medication, she only attended six sessions; despite the fact that

Mother had said she was taking her medications, Tolsom was unable to verify that she had.

Mother testified that she was taking her medications and had shown her counselor the bottle.

       The couple were also required to attend NA meetings, and, according to Tolsom, Mother

and Father provided proof that they attended NA meetings four or five times per month from

early January 2012 through the end of June 2012. Although Tolsom testified as to skepticism

over the regularity of attendance by both Mother and Father at these meetings, Mother and

                                                 5
Father attempted to show efforts at compliance. Overall, the evidence was not overwhelming in

favor of either position.

       Mother and Father told Tolsom that they had finished a drug and alcohol assessment, but

they never provided the proof of the assessment that they were required to provide. Tolsom

testified that during the case, Mother tested positive for the use of cocaine, Father was arrested

for driving while intoxicated (DWI), and both Mother and Father had tested positive for the use

of marihuana.

       Father was employed “on and off throughout this case,” but only provided proof of

employment once, a job he lost the very next week. Mother testified that “he always kept a job”

and that if he was let off one job, he would go get another one. She claimed that Father’s income

paid all of their bills, but she also admitted that they had some financial problems.

       Mother provided Tolsom with proof that she was employed at the Subway sandwich shop

in Quitman, Texas, as of July 25, 2011, but she was “let go” in October and failed to inform

Tolsom of that fact. Mother told Tolsom that she had gotten another job at a Subway in

Winnsboro, Texas, but she never provided Tolsom with verification of the employment, and

Mother said she had to leave that job because they were not allowing her to work enough hours.

Tolsom indicated that Mother had told her that she did not see any reason to look for another job,

but Mother denied ever having made that statement. Tolsom had never been made aware that

Mother held any other jobs. Mother testified that she had worked on some occasions with her

father doing tree service work.




                                                 6
         Mother and Father were unable to maintain stable housing. They moved at least five or

six times during the pendency of the Department’s case. If they had an appropriate home for the

children to live in at the time of the termination hearing, Tolsom was unaware of it. Tolsom

believed that the termination of Mother and Father’s parental rights was in the best interests of

the children. Tolsom testified that Mother and Father were bonded with the children and vice

versa.

         Amy McDonald, a case supervisor for the Court Appointed Child Advocates (CASA),

was the guardian ad litem for the children. In her opinion, termination of the couple’s parental

rights was in the best interests of the children. She noted that their case had been open for two

years and no significant progress for the benefit of the children had been made—“[t]hey have no

home, no income, no ability to provide for the kids.” When the children first came into foster

care, they had “significant behavioral and developmental issues.” Mother and Father both failed

to comply with the court’s orders regarding their service plan. In her opinion, the actions of

Mother and Father endangered the children throughout the pendency of the case. Due to the

ongoing alcohol and drug use of the parents, she believed the children would be substantially

harmed if they were placed back in the home of Mother and Father.

         Father testified that at the time of the termination hearing, he was incarcerated for

violation of the terms of community supervision upon which he had been placed after a charge of

criminal mischief. He admitted that there were also charges pending against him in Upshur

County, Texas, for DWI and evading arrest.         Regarding the June 2011 public intoxication

incident, he testified that he had been driving with Mother, but had only consumed one-half of a

                                               7
beer and he claimed he was not intoxicated. However, he pled guilty to the charge and was

sentenced to time served.

       Father admitted that he refused to submit to the psychological assessment and testified

that while he attended some of the counseling sessions, he “kept losing jobs with all the stuff [he]

had to do.” He did not have a car and found attending the classes and counseling sessions to be

difficult. At the time of the hearing, he was employed with a construction job. He admitted that

he had not ceased drinking and still did not have a stable home or income for the children.

However, he testified that he had enough money to pay his bills, and the only reason they kept

moving was because he was trying to find a home that would satisfy the demands of the

Department. At the time of the hearing, although Father was incarcerated, Mother was living at

the home of his mother.

       After listening to the evidence, the trial court found it supported the statutory grounds for

termination and determined that termination was in the children’s best interest.

Analysis

Sufficient evidence supports termination

       The trial court found by clear and convincing evidence that Mother and Father knowingly

placed or knowingly allowed the children to remain in conditions or surroundings which

endangered the physical or emotional well-being of the children (TEX. FAM. CODE ANN

§ 161.001(1)(D)); engaged in conduct or knowingly placed the children with persons who

engaged in conduct which endangered the physical or emotional well-being of the children (TEX.

FAM. CODE ANN. § 161.001(1)(E)); and failed to comply with the provisions of a court order that

                                                 8
specifically established the actions necessary for them to obtain the return of the children (TEX.

FAM. CODE ANN. § 161.001(1)(O)). The trial court also found that termination of the parental

relationships was in the best interests of the children.

        On appeal, Mother and Father argue that the evidence is legally and factually insufficient

to support the trial court’s findings under Section 161.001(1)(D) and (E), and the finding that

termination is in the children’s best interests.

        “Along with a best interest finding, a finding of only one ground alleged under Section

161.001(1) is sufficient to support a judgment of termination.” In re D.W., 353 S.W.3d 188, 194

(Tex. App.—Texarkana 2011, pet. denied) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);

In re K.G., 350 S.W.3d 338 (Tex. App.—Fort Worth 2011, pet. denied)). Here, the parents

failed to challenge the trial court’s findings under Section 161.001(1)(O). Therefore, we must

accept and affirm the trial court’s factual findings under subsection (1)(O) (i.e., that Mother and

Father failed to comply with the provisions of a court order that specifically established the

actions necessary for them to obtain the return of children in the permanent or temporary

managing conservatorship of the Department for not less than nine months as a result of the

children’s removal from the parents under Chapter 262 for the abuse or neglect of the children).

See TEX. FAM. CODE ANN. § 161.001(1)(O). Based upon that established finding, we must

affirm the trial court’s order of termination if termination is in the children’s best interests. 2




2
 Because the parents failed to challenge the trial court’s findings under Section 161.001(1)(O), we need not
determine if the trial court’s findings under subsections (1)(D) and (E) are also supported by legally and factually
sufficient evidence.
                                                         9
       In determining the best interests of the child, a number of factors have been considered,

including (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; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the

acts or omissions of the parent that may indicate the existing parent-child relationship is not a

proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544

S.W.2d 367, 371–72 (Tex. 1976).

       The list is not exhaustive, but simply indicates considerations that have been or could be

pertinent. Id. However, the best interest of the child neither requires proof of any unique set of

factors nor limits proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—

Fort Worth 2001, no pet.). There is no requirement that the party seeking termination prove all

nine factors. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The analysis of evidence relating to one

factor may be adequate in a particular situation to support a finding that termination is in the best

interest of the child. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.).

Evidence supporting the termination of parental rights is also probative of best interest. C.H., 89

S.W.3d at 28. The Holley test focuses on what is in the best interest of the child, not on the best

interest of the parent. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,

86 (Tex. App.—Dallas 1995, no writ).

       Amy McDonald, the CASA supervisor over this case, spoke with nine-year-old B.C.,

who indicated a desire to live with Mother and Father. According to McDonald, the other

                                                 10
children were too young to understand the import of the court proceedings. Tolsom testified that

termination would be hard on the children emotionally, “[p]robably more than hard[,]” and that

the children and both parents are bonded. Tolsom went on to relate that the children “have

psychiatric needs. They have emotional needs that cannot be addressed without them having a

family.” When the children were placed with a relative, that relative subsequently requested that

the Department retrieve the children because they were disruptive (the behavior of the children

being a factor in the failure of the Department to achieve a long-term placement of the children).

Tolsom testified, nonetheless, that in the current placement, the “children’s psychiatric issues

have been addressed, and they’re doing really well.”

        Evidence concerning the poor parenting abilities of Mother and Father and their failure to

make use of available programs suggests that termination is in the children’s best interests. The

record reveals that both parents continued to use illicit drugs and alcohol, even after they were

made aware that their parental rights were in jeopardy. 3 At the time of the termination hearing,

Father was incarcerated for an alcohol-related community supervision violation, a situation that

would render him unable to care for the children if they were returned to him. 4 During the

Department’s case, Mother tested positive for use of cocaine and both parents tested positive for

marihuana use. Also during the Department’s case, Mother and Father were arrested for public

intoxication after they were found with the children in a car on the side of the road, the car not


3
 Parental drug abuse is a factor in analysis of a child’s best interest. In re M.R., 243 S.W.3d 807, 820 (Tex. App.—
Fort Worth 2007, no pet.).
4
 A parent’s inability to provide adequate care for his children, lack of parenting skills, and poor judgment may be
considered when looking at the children’s best interests. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth
2003, no pet.).
                                                        11
being equipped with necessary safety equipment for transport of the children. During the period

of time when the children had been removed from the home, Tolsom drove the parents from her

office to visit the children in Tyler, Texas. Upon returning, the parents got into their own vehicle

and drove away only to be stopped by the police a short distance away and arrested because

Father had an open alcohol container in the car and Mother had an outstanding warrant for

failure to appear. While Mother has made some progress in counseling and proper medication,

Father has refused to quit drinking and to submit to the prescribed alcohol and drug assessment.

       Both Mother and Father completed the court-ordered parenting classes, but there is

evidence that the Father’s employment is sporadic and the Mother is unemployed. The parents

are unable to provide a stable home, having moved several times during the Department’s case.

At the time of the final hearing, Father was incarcerated and Mother was residing in the home of

her mother-in-law. The fact that neither parent was able to point out any kind of specific plan for

the children if they received custody weighs in favor of termination. See In re S.M.L.D., 150

S.W.3d 754, 761 (Tex. App.—Amarillo 2004, no pet.). Although the children were in what was

designated as a “foster/adopt home,” the adults in that home were unwilling to adopt the four

children; hence, the children were not then in an adoptive or long-term placement, although the

Department was seeking a single adoptive placement for all four children.

       Based upon this fact circumstance, a fact-finder could have formed a firm belief or

conviction that termination of Mother’s and Father’s parental rights was in the best interests of

the children. Accordingly, we hold that the evidence is legally and factually sufficient to support




                                                12
the trial court’s finding that termination of their parental rights was in the children’s best

interests.

        We affirm the trial court’s order of termination.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        December 4, 2012
Date Decided::         January 9, 2013




                                                 13
