Opinion filed March 6, 2015
In The
Eleventh Court of Appeals
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No. 11-14-00246-CV
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IN THE INTEREST OF J.F., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 7597-CX
MEMORAND UM OPI NI ON
This is an appeal from an order of termination of the parental rights of the
mother and father of J.F. Both parents appeal and, in two issues on appeal,
challenge the legal and factual sufficiency of the evidence. We affirm.
The trial court found that the parents failed to comply with the provisions of
a court order that specifically established the actions necessary for them to obtain
the return of J.F., who had been in the managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a result of the
child’s removal from the parents for abuse or neglect. See TEX. FAM. CODE ANN.
§ 161.001(1)(O) (West 2014). The trial court also found that termination of each
parent’s parental rights would be in the best interest of the child. See id.
§ 161.001(2).
The termination of parental rights must be supported by clear and
convincing evidence. FAM. § 161.001. To terminate parental rights under
Section 161.001, 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. Id.
To determine on appeal 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).
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 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-
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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 evidence at the final hearing showed that J.F. was removed from his
parents in June 2013 when he was approximately one year old. J.F.’s parents were
living in a field in a tent; they had been kicked out of a motel where they had been
living. They had no electricity, no water, and no food. J.F. was dirty all over. The
parents were not cooperative and refused a family placement at that time. The
father was arrested for disorderly conduct at the time of the removal. Neither
parent was employed, and neither had transportation.
The mother testified at trial and admitted that she did not complete her
family service plan. The mother completed a substance abuse assessment and a
psychiatric evaluation, but she did not start her services until several months after
she had signed her service plan. The record shows that the mother did not
complete the recommended counseling sessions, did not attend parenting classes,
did not follow through with drug tests when requested by the first caseworker,
failed to attend individual counseling to address anger management and relation-
ship issues, and failed to attend couple’s counseling. The parents’ second child was
born in December 2013 while this case was pending, and at that time, the parents
remained homeless. At the time of the final hearing, the mother was working in a
hotel where she was provided with a room to stay in and $100 per week. She
testified that she had been there since January 2014. However, a caseworker
testified that the room was not appropriate for children. A Department investigator
was concerned for the welfare of the parents’ children based upon “past family
violence.” Additionally, just one week prior to the final hearing, the parents
needed assistance to obtain food for themselves.
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The licensed chemical dependency counselor who performed the father’s
substance abuse assessment testified that the father had mentioned that he had
some terrifying hallucinations. This revelation caused the counselor concern, and
he thought it needed to be addressed in a mental health evaluation. However, the
father failed to attend any of the four appointments that were scheduled for him
with a psychologist. The father, who had a prior felony conviction but no
disabilities, did not have a job during the pendency of this case. The father
threatened various people associated with this case, including the guardian ad
litem, his own attorney, a caseworker, a supervisor, and the attorney representing
the Department.
The caseworker who had been assigned to this case since November 2013
testified that he believed it would be in J.F.’s best interest for the parent-child
relationship between J.F. and J.F.’s parents to be terminated and for J.F. to be
adopted by a family that would love him and take care of him. The caseworker
testified that the father was volatile and that the father’s temper would be a safety
concern. The caseworker also believed that J.F.’s emotional and physical well-
being would be endangered if he were returned to his parents. The record showed
that J.F. had developmental delays and did not walk until he was seventeen months
old. When he was placed in foster care, he screamed when placed in a car seat or
bathtub; the screaming sometimes lasted for the duration of the car ride or bath.
However, J.F. made great improvements after being placed with his foster family,
and his social skills improved. The foster family’s home was stable, and living
there was the only stability that J.F. had ever known.
In their first issue, the parents contend that the evidence is legally and
factually insufficient to support the findings under Section 161.001(1)(O). To
support the findings under subsection (O), the Department must have shown that
each parent “failed to comply with the provisions of a court order that specifically
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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 of Family and Protective Services 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.” FAM. § 161.001(1)(O).
One of the parents’ contentions in their first issue is that the appellate record
contains no trial court order applicable to subsection (O). A supplemental clerk’s
record, which was filed in this court after the parents’ brief, contains a trial court
order notifying the parents that they were required to take certain actions before
J.F. would be returned to their care.1 In that order, the trial court ordered the
parents to fully comply with the court’s orders and to “comply with each
requirement set out” in their service plan. The family service plan, which was
signed by both parents on July 31, 2013, was offered as an exhibit during the final
hearing in this cause and was included in the reporter’s record filed in this court.
Thus, the record on appeal contains the appropriate documents relating to
subsection (O).
The parents also contend that they completed some of the required services
and that they “made significant efforts, within their capabilities, to comply with the
service plan.” Section 161.001(1)(O) does not “make a provision for excuses” for
a 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)) (internal quotation marks omitted).
Although the parents, particularly the mother, did comply with some portions of
the trial court’s order, the evidence, as detailed above, was undisputed that neither
parent complied with the provisions of the trial court’s order. Thus, there was clear
1
We note that, in his request for the preparation of the appellate record, the parents’ attorney did
not request that the district clerk include this order.
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and convincing evidence that each 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 J.F.
Furthermore, the record shows that, at the time of the final hearing, J.F. had
been in the Department’s care for one year and that J.F. had been removed from the
parents’ care due to abuse or neglect. The supreme court has held that the language
“abuse or neglect of the child” as used in subsection (O) “necessarily includes the
risks or threats of the environment in which the child is placed.” In re E.C.R., 402
S.W.3d 239, 248 (Tex. 2013). In E.C.R., the court determined that “placing the
child’s physical health or safety at substantial risk” is sufficient to support a finding
of “abuse or neglect.” Id. at 240. Evidence of the family’s living situation and the
lack of food and water at the time of removal constituted sufficient evidence from
which the trial court could have determined by clear and convincing evidence that
J.F. had been removed because of a substantial risk of abuse or neglect. The
parents’ first issue is overruled.
In their second issue, the parents challenge the legal and factual sufficiency
of the evidence to support the best interest findings. We hold that, based on the
evidence presented at trial and the Holley factors, the trier of fact could reasonably
have formed a firm belief or conviction that termination of the mother’s and the
father’s parental rights would be in the best interest of the child. See Holley, 544
S.W.2d at 371–72. Upon considering the record as it relates to the emotional and
physical needs of J.F. now and in the future, the emotional and physical danger to
J.F. now and in the future, the parental abilities of the parents, the plans for J.F. by
the Department, the instability of the parents’ home, the stability of the child’s
placement, acts and omissions indicating that the parent-child relationship was not
a proper one, the failure of the parents to attend parenting classes, the threats made
by the father while this case was pending, the father’s volatile temper, and the
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parents’ inability to provide for J.F.’s needs, we hold that the evidence is sufficient
to support the findings that termination of the mother’s and the father’s parental
rights is in the best interest of J.F. See id. We cannot hold that the findings as to
best interest are not supported by clear and convincing evidence. The parents’
second issue is overruled.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
CHIEF JUSTICE
March 6, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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