in the Interest of K.N.M.M., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-15-00080-CV

IN THE INTEREST OF K.N.M.M., A CHILD

On Appeal from the 100th District Court
Donley County, Texas
Trial Court No. DCPS-14-7079, Honorable Stuart Messer, Presiding

July 13, 2015

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

Appellant, L.N.W.B., is the mother of the child K.N.M.M. 1 and had her parental

rights to K.N.M.M. terminated by final judgment of the trial court on the 20th day of

February, 2015. L.N.W.B. has appealed, contending that the evidence is insufficient to

find by clear and convincing evidence any of the predicate acts alleged by the

Department of Family and Protective Services or, that termination of L.N.W.B.’s parental

rights is in the best interest of K.N.M.M. We will affirm the trial court’s decision to

terminate L.N.W.B.’s parental rights.

1
To protect the confidentiality of the minor child, we will refer to the child and mother by initials
only. TEX. R. APP. P. 9.8
 Factual and Procedural Background

K.N.M.M. came into the conservatorship of the Department as the result of a

referral received on October 17, 2013, alleging that L.N.W.B.’s boyfriend had physically

abused the child while spanking her. At the time of the intake, K.N.M.M. had been

taken to the home of her maternal great aunt and uncle by L.N.W.B. A petition to

terminate L.N.W.B.’s parental rights was later filed on February 20, 2015, and K.N.M.M.

was officially placed with the maternal great aunt and uncle following the filing of the

petition. K.N.M.M. continued to reside with them up until and through the final hearing.

On the date of the final hearing, L.N.W.B. was incarcerated in the Institutional Division

of the Texas Department of Criminal Justice. She was represented by counsel at the

final hearing.

At the time of the filing of the petition, L.N.W.B. had a history of disappearing

from K.N.M.M.’s life for months at a time and leaving the child with the maternal great

aunt and uncle. Additionally, the record reflects that L.N.W.B. had a history of drug

abuse, lack of employment, and lack of a stable home. The petition alleged that

L.N.W.B.’s parental rights should be terminated because she had committed the

following predicate acts as outlined in Section 161.001(1) of the Texas Family Code:

(1) voluntarily left the child alone or in the possession of another not the
parent and expressed an intent not to return (Subsection A);

(2) voluntarily left the child alone or in the possession of another not the
parent without expressing an intent to return, without providing for the
adequate support of the child, and remained away for a period of at
least three months (Subsection B);

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 (3) voluntarily left the child alone or in the possession of another without
providing adequate support of the child and remained away for a
period of at least six months (Subsection C);

(4) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child (Subsection D);

(5) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-
being of the child (Subsection E);

(6) failed to support the child in accordance with the mother’s ability
during a period of one year ending within six months of the date of the
filing of the petition (Subsection F);

(7) executed before or after the suit is filed an unrevoked or irrevocable
affidavit of relinquishment of parental rights (Subsection K);

(8) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department for not less
than six months and: (1) the Department has made reasonable efforts
to return the child to the mother; (2) the mother has not regularly
visited or maintained significant contact with the child; (3) the mother
has demonstrated an inability to provide the child with a safe
environment (Subsection N); and

(9) failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return of
the child who has been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the
abuse or neglect of the child (Subsection O).

TEX. FAM. CODE ANN. § 161.001(1)(A–F), (K), (N–O) (West 2014).2

Trial was held to the court, without a jury, on February 6, 2015. The trial court

heard the testimony concerning the facts that prompted the removal of the child from

L.N.W.B.’s custody. Jessica Lepe was the conservatorship worker who testified on

behalf of the Department. Lepe testified that, prior to the instant case, she was aware

2
Further reference to the Texas Family Code will by reference to “Section ____,” “section ____,”
or “§ ____.”

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of instances where L.N.W.B. left the child with the maternal great aunt and uncle for

periods between three and six months. L.N.W.B. would tell the maternal great aunt and

uncle that she was simply not able to care for the child. Regarding the incident

involving the spanking by L.N.W.B.’s boyfriend, Lepe testified that L.N.W.B. knowingly

allowed K.N.M.M. to remain in surroundings or conditions that endangered her physical

or emotional well-being. Lepe testified about the family service plan that had been

developed for L.N.W.B. and that L.N.W.B. was aware of the plan and its contents.

When discussing L.N.W.B.’s compliance with the service plan, Lepe explained that

L.N.W.B. did not stay in contact with the Department and, thus, failed to meet the

requirement that she notify the Department within five days of changes in her contact

information. Likewise, Lepe testified that L.N.W.B. was ordered to submit to random

drug testing and wholly failed to do so. L.N.W.B. submitted to one scheduled drug test

at the beginning of the case and tested positive for methamphetamine. In addition,

L.N.W.B. was ordered to be tested after one of the status hearings and failed to show

up for the testing. L.N.W.B. was ordered to undergo a psychological evaluation and,

although an appointment was made for her, L.N.W.B. failed show up and be evaluated.

L.N.W.B. never scheduled her ordered drug and alcohol assessment. In summation on

this area, Lepe testified that L.N.W.B. failed to comply with the provisions of the court

order that specifically established actions necessary for her to retain or regain custody

of K.N.M.M.

At the conclusion of the testimony, the trial court terminated L.N.W.B.’s parental

rights by finding “beyond a reasonable doubt” that L.N.W.B. had violated the following

subsections of section 161.001(1). Subsection D, endangering the child; Subsection E,

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placing the child with persons who engaged in conduct which endangers the physical or

emotional well-being of the child; Subsection F, failing to support the child in

accordance with her ability; Subsection N, constructively abandoning the child who was

in the temporary conservatorship of the Department; and Subsection O, failing to

comply with the provisions of a court order that specifically established the actions

necessary for the mother to regain custody of K.N.M.M. Further, the trial court also

found “beyond a reasonable doubt” that termination of L.N.W.B.’s parental rights would

be in K.N.M.M.’s best interest. § 161.001(2).

L.N.W.B. now appeals the trial court’s findings regarding the predicate acts and

whether termination of her parental rights is in the best interest of K.N.M.M. L.N.W.B.

contends that the evidence was insufficient to support any of the trial court’s findings

regarding predicate acts or best interest of the child. We disagree and will affirm.

Standard of Review

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

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

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interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).

The Texas Family Code permits a court to terminate the parent-child relationship

if the petitioner establishes both: (1) one or more acts or omissions enumerated under

Section 161.001(1), and (2) that termination of the parent-child relationship is in the best

interest of the child. § 161.001. Though evidence may be relevant to both elements,

each element must be proved, and proof of one does not relieve the burden of proving

the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best

interest of the child must be proved, only one statutory ground is required to terminate

parental rights under Section 161.001. See In re A.V., 113 S.W.3d 355, 362 (Tex.

2003). Therefore, we will affirm the trial court’s order of termination if legally and

factually sufficient evidence supports any one of the grounds found in the termination

order, provided the record shows that it was also in the best interest of the child for the

parent’s rights to be terminated. See id.

Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see § 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). This standard, which focuses on whether a

reasonable jury could form a firm belief or conviction, retains the deference a reviewing

court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.

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 In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, we look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or

conviction as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. “To give appropriate deference to the factfinder’s conclusions and

the role of a court conducting a legal sufficiency review, looking at the evidence in the

light most favorable to the judgment means that a reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could

do so.” Id. In other words, we will disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination

order, we determine “whether the evidence is such that a factfinder could reasonably

form a firm belief or conviction about the truth of the [Department]’s allegations.” In re

C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire

record, the disputed evidence that a reasonable factfinder could not have credited in

favor of the finding is so significant that a factfinder could not reasonably have formed a

firm belief or conviction, then the evidence is factually insufficient.” Id.

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 Analysis

Predicate Acts

Although the Department alleged some nine predicate acts it intended to prove to

support termination of L.N.W.B.’s parental rights, the trial court found that the

Department had provided sufficient evidence to demonstrate that L.N.W.B. had violated

the requirements of five of the subdivisions of Section 161.001(1). Because proof of

violation of one predicate act is sufficient to support an order of termination, we will

concentrate on L.N.W.B.’s compliance with the provisions of the trial court order. See In

re A.V., 113 S.W.3d at 362; see also § 161.001(1)(O).

The uncontroverted testimony before the trial court was that L.N.W.B. was made

aware of the court-ordered family service plan. Further, the trial court heard that

L.N.W.B. failed to complete almost all of the requirements of the plan. Specifically,

L.N.W.B. did not stay in contact with the Department, failed to submit to random drug

testing, failed to take the psychological evaluation that was ordered, and failed to

appear for the alcohol and drug assessment. With this evidence before it, the trial court

had more than enough evidence to make a finding that, based upon clear and

convincing evidence, L.N.W.B. had violated Subsection O of Section 161.001(1). §

101.007; In re C.H., 89 S.W.3d at 26. Accordingly, L.N.W.B.’s contention to the

contrary is overruled.

Best Interest

L.N.W.B. argues the trial court committed reversible error in finding that the best

interest of K.N.M.M. would be served by terminating her parental rights. This is so,

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according to L.N.W.B., because the Department failed to offer sufficient evidence to

support the finding.

There is a strong presumption that a child’s interest is best served by preserving

the conservatorship of the parents; however, clear and convincing evidence to the

contrary may overcome that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)

(per curiam). The Texas Supreme Court has recognized a non-exhaustive list of factors

that are pertinent to the inquiry whether termination of parental rights is in the best

interest of the child: (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

which 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. See Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976); see also § 263.307 (West 2014) (providing extensive list of

factors that may be considered in determining child’s best interest). In examining the

best interest of the child, we may consider evidence that was also probative of the

predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest

determination may rely on direct or circumstantial evidence, subjective facts, and the

totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.).

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 The Department need not prove all nine Holley factors, and the absence of

evidence relevant to some of those factors does not bar a finding that termination is in

the child’s best interest, especially in the face of undisputed evidence that the parental

relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley

factor is controlling, and evidence of one factor may be sufficient to support a finding

that termination is in the child’s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex.

App.—Dallas 2006, no pet.) The evidence supporting the predicate grounds for

termination may also be used to support a finding that the best interest of the children

warrants termination of the parent-child relationship. In re D.S., 333 S.W.3d 379, 384

(Tex. App.—Amarillo 2011, no pet.).

As stated above, the evidence supports the finding by the trial court of the

predicate events which supported the termination of L.N.W.B.’s parental rights. This

evidence is likewise probative of the best interest of the children. See In re C.H., 89

S.W.3d at 28

The first Holley factor is the desire of the child. See Holley, 544 S.W.2d at 371–

72. When, as in this case, the child is too young or unable to express a desire the trial

court may look at the bond between the child and the foster parents to support a finding

that the child’s desire is to remain with the foster parents. See In re U.P., 105 S.W.3d

222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g). Further a

court may consider that the parent in question has spent a minimum amount of time

with the child. See id. In the case before the Court, the record supports the fact that

K.N.M.M. has bonded with her maternal great aunt and uncle. In fact, the record clearly

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demonstrates that the child has spent most of her life with them. This supports the trial

court’s finding that termination is in the best interest of the child.

The second and third Holley factors are the emotional and physical needs of the

child now and in the future and the emotional and physical danger to the child now and

in the future. See Holley, 544 S.W.2d at 371–72. We will address these factors

together.

We begin with a consideration of L.N.W.B.’s past conduct. We begin here

because the trial court could measure L.N.W.B.’s future conduct by her past conduct.

See In re D.S., 333 S.W.3d at 384. Initially, we observe that the Department received a

referral about physical abuse directed at K.N.M.M. by L.N.W.B.’s then-boyfriend. Added

to this scenario is L.N.W.B.’s continued course of leaving K.N.M.M. with her maternal

great aunt and uncle for months at a time. During those periods, L.N.W.B. had no

contact with the child at all. To these facts, we add that L.N.W.B. has a history of drug

use. The record reflects that L.N.W.B. took an initial drug screen and tested positive for

methamphetamine. After the initial test, L.N.W.B. failed to appear for any other drug

testing. Then, there is the issue of L.N.W.B.’s failure to complete the services required

in order to militate against removal. This action indicates that L.N.W.B. has no real

concern for any type of relationship with her child. Finally, at the time of the final

hearing, L.N.W.B. was incarcerated on a probation revocation and was not scheduled to

be released until December 2016. From this testimony, the trial court had sufficient

evidence to conclude that the child’s emotional and physical needs now and in the

future could best be served by terminating L.N.W.B.’s parental rights. This same

evidence supports the trial court’s finding that returning K.N.M.M. to L.N.W.B. was to

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risk emotional and physical danger now and in the future to the child. See id; see also

Holley, 544 S.W.2d at 371–72.

As to the Holley factor regarding the stability of the placement as opposed to the

home, the above referenced evidence shows that the child has not had any stability

except when she stayed with her maternal great aunt and uncle. Further, according to

the Department’s witnesses, K.N.M.M. has bonded with them as they have served as

her foster parents. Thus, this evidence supports that termination of L.N.W.B.’s parental

rights is in the best interest of the child.

Based upon our review of the record, the trial court had ample evidence to find

that termination of L.N.W.B.’s parental rights were in the best interest of K.N.M.M. In re

R.R., 209 S.W.3d at 116. L.N.W.B.’s contentions to the contrary are overruled.

Conclusion

Having overruled all of L.N.W.B.’s issues, we affirm the trial court’s judgment

terminating L.N.W.B.’s parental rights.

Mackey K. Hancock
Justice

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