Opinion filed April 12, 2012
In The
Eleventh Court of Appeals
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No. 11-11-00202-CV
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IN THE INTEREST OF A.J.J.M., A CHILD
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 15,650
MEMORANDUM OPINION
The trial court entered an order terminating the parental rights of A.J.J.M.’s mother and
father. The mother (appellant) has filed a notice of appeal from the termination order.
A.J.J.M.’s father, who voluntarily relinquished his rights, has not filed an appeal. We affirm.
Issue
Appellant presents a single issue for review. In that issue, she asserts that the evidence is
legally and factually insufficient to support the finding that termination is in the best interest of
A.J.J.M.
Legal and Factual Sufficiency
Termination of parental rights must be supported by clear and convincing evidence. TEX.
FAM. CODE ANN. § 161.001 (West Supp. 2011). 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).
To terminate parental rights, 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. Section 161.001. In this case, the trial court found that appellant
committed three of the acts listed in Section 161.001(1). The trial court found that appellant had
engaged in conduct or knowingly placed A.J.J.M. with persons who engaged in conduct that
endangered his physical or emotional well-being, that appellant had constructively abandoned
A.J.J.M., and that appellant had failed to comply with the provisions of a court order stating the
actions necessary for her to obtain the return of A.J.J.M. See Section 161.001(1)(E), (N), (O).
Appellant does not challenge the findings made pursuant to Section 161.001(1). Any one of
these unchallenged findings was sufficient to support termination as long as termination was
shown to be in A.J.J.M.’s best interest. See Section 161.001. The trial court also found that
termination was in A.J.J.M.’s best interest. See Section 161.001(2).
The question before us is whether the best interest finding is supported by legally and
factually sufficient evidence. 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-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
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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.
On January 20, 2010, appellant’s children were removed from her care. Appellant
subsequently voluntarily relinquished her rights to her two daughters in favor of relatives with
whom the girls had been living. At the final hearing in this case, the Department of Family and
Protective Services sought to terminate appellant’s parental rights to her son, A.J.J.M.
Appellant, her probation officer, and the Department caseworker testified at that hearing. The
Department’s caseworker was of the opinion that terminating appellant’s parental rights would
be in A.J.J.M.’s best interest.
The record shows that appellant was arrested for forgery on the day that the children were
removed from her care and that, on the date of the final hearing in this case, appellant was
incarcerated for violating her probation. A motion to revoke her probation was pending.
A.J.J.M. was and is medically fragile; he was born with a congenital heart defect,
tricuspid atresia. He had surgery shortly after birth to place a shunt in his heart. Appellant was
informed at that time that A.J.J.M. would need a second heart surgery. Appellant failed to obtain
the needed second surgery. Upon removal, A.J.J.M. was “basically navy blue” and was
immediately taken to the hospital, where it was discovered that his blood oxygenation level was
dangerously low due to poor blood flow. His heart had grown over the shunt, and the blood flow
through the shunt had decreased to “smaller than a piece of pencil lead.” Open heart surgery was
performed as soon as possible to remove the shunt and reroute arteries. Appellant admitted that
A.J.J.M. was having extreme health issues at the time of his removal and that, if he had not been
taken to the doctor, he could have died. There was evidence that the lack of oxygen
subsequently caused A.J.J.M. to exhibit mild mental retardation. When he was removed,
A.J.J.M. also suffered from an infected G-button feeding tube and bruising above his left eye.
A.J.J.M. was filthy, and appellant’s home was unsanitary and infested with roaches.
Appellant had no means of transportation and visited A.J.J.M. only twice in the sixteen
months between removal and the final hearing. She also failed to comply with about half of the
requirements set out in her family service plan. Appellant tested positive for cocaine while this
case was pending, and she had used cocaine while pregnant. Appellant admitted that she had a
drug problem, that her drug habit affected her ability to comply with the court-ordered service
plan and to adequately parent her children, and that she had refused to seek drug treatment
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despite the efforts of the Department. Appellant agreed at the final hearing that she still was not
able to take care of A.J.J.M.; however, she stated that, if she were given additional time, she
would seek drug treatment and would be able to take care of A.J.J.M. in the future.
The record shows that A.J.J.M. had been placed with foster parents who were attending
to all of his medical and emotional needs, who thought that A.J.J.M. “hung the moon,” and who
wanted to adopt him. A.J.J.M. was progressing and doing well in his foster home. He had
bonded with his foster family, and he became hysterical when his foster mother left during one
of appellant’s visits with A.J.J.M. Having a stable home with someone who can properly care
for A.J.J.M., who ensures that A.J.J.M. receives necessary medical care, who has bonded with
A.J.J.M., and who has demonstrated adequate parenting skills is in A.J.J.M.’s best interest.
Based upon the evidence in the record, we cannot hold that the best interest finding is not
supported by clear and convincing evidence; the trial court could reasonably have formed a firm
belief or conviction that appellant is unable to appropriately parent A.J.J.M. and that it would be
in A.J.J.M.’s best interest for appellant’s parental rights to be terminated. Thus, the evidence is
both legally and factually sufficient to support the finding that termination of appellant’s parental
rights is in the best interest of A.J.J.M. Appellant’s sole issue is overruled.
This Court’s Ruling
We affirm the trial court’s order terminating the parental rights of A.J.J.M.’s mother.
TERRY McCALL
JUSTICE
April 12, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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