Opinion filed December 13, 2018
In The
Eleventh Court of Appeals
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No. 11-18-00161-CV
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IN THE INTEREST OF C.F., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8795-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of C.F. The mother appeals and presents five issues
for this court’s consideration, including challenges to the sufficiency of the evidence
in support of the trial court’s findings. We affirm.
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). 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 in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b).
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 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 trial court found that Appellant had committed the acts listed in
subsections (D), (E), and (O) of Section 161.001(b)(1). Specifically, the trial court
found that Appellant had knowingly placed or knowingly allowed the child to remain
in conditions or surroundings that endangered the child’s physical or emotional well-
being, that Appellant had engaged in conduct or knowingly placed the child with
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persons who engaged in conduct that endangered the child’s physical or emotional
well-being, and that Appellant had failed to comply with the provisions of a court
order that specifically established the actions necessary for her to obtain the return
of the child, 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 parent for abuse or neglect. The trial court also found, pursuant to
Section 161.001(b)(2), that termination of Appellant’s parental rights would be in
the best interest of the child.
In her second, fourth, and fifth issues on appeal, Appellant challenges the
sufficiency of the evidence to support the trial court’s findings. She contends in her
first issue that this court’s sufficiency review is limited to the reporter’s record
because the trial court did not take judicial notice of its file. In her third issue,
Appellant urges this court to consider the sufficiency of the evidence with respect to
subsections (D) and (E) even if we are to find the evidence sufficient under
subsection (O).
In response to Appellant’s first “issue,” we note that the trial court was not
asked to take judicial notice of its file and that nothing in the record indicates that it
did so of its own accord. Therefore, this court’s review of the evidence will be
limited to the evidence produced at trial as reflected in the reporter’s record. That
record reveals that only two witnesses testified at the trial: an investigator for the
Department and the conservatorship caseworker that was involved in this cause.
The record reflects that the Department became involved with C.F. when she
was eleven months old. At that time, the Department received an intake related to
methamphetamine use in the home. C.F., who had some suspicious bruising on her
face, tested positive for methamphetamine and was removed by the Department. At
the time of removal, C.F. resided with her father, her father’s girlfriend, and her
father’s mother. Appellant did not reside with them at the time of removal. During
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the investigation, however, Appellant admitted not only that she used
methamphetamine but also that she had used methamphetamine with the father in
the home from which C.F. was removed. Appellant said that a drug called “flakka”
was also being used in the home where C.F. lived.
After removal, the trial court ordered Appellant to comply with the provisions
of her family service plan. The conservatorship caseworker indicated that Appellant
may have had some mental health issues that interfered with her ability to
“complete” her service plan; however, the undisputed evidence indicated that
Appellant failed to comply with most of the provisions of that plan. In the only two
drug tests that Appellant submitted to while this case was pending, she tested
positive for methamphetamine. Additionally, Appellant failed to complete parenting
classes, failed to maintain contact with the Department, failed to keep the
Department updated as to her address and a pending criminal charge against her,
failed to complete inpatient drug treatment, failed to attend counseling, failed to
regularly visit C.F., and failed to submit to drug testing on several occasions.
The conservatorship caseworker testified that she believed that termination of
Appellant’s parental rights would be in the best interest of C.F. The Department’s
goal for C.F. was for her to be adopted by her foster parents, who were described at
trial as good foster parents. In that regard, C.F. had been placed in the same foster-
to-adopt home for a year. She had thrived in that home and was very bonded with
her foster family. At the time of trial, C.F. was healthy and no longer exhibited the
aggressive behaviors that had been an earlier concern.
On appeal, Appellant challenges the trial court’s findings under both
subsection (D) and subsection (E) in her fourth issue. 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.).
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Additionally, termination under subsection (E) must be based on more than a 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). Drug use may constitute evidence of endangerment. Id.
Here, the record reflects that Appellant used methamphetamine, that she had
engaged in methamphetamine use with the child’s father in the home where C.F.
resided and was thus aware of the father’s use of methamphetamine in the home, and
that C.F. tested positive for methamphetamine at the time of removal. C.F.’s
physical and emotional well-being was endangered by the use of methamphetamine
in her presence, and Appellant, at a minimum, knew that methamphetamine use was
occurring in the home in which C.F. resided. Additionally, the Department
presented evidence that Appellant continued to use methamphetamine while this
case was pending. Thus, clear and convincing evidence supports the trial court’s
finding that Appellant endangered the child’s physical or emotional well-being or
that she knowingly placed the child with persons who engaged in conduct that
endangered the child’s physical or emotional well-being. Consequently, we hold
that the evidence is legally and factually sufficient to support the trial court’s finding
under Section 161.001(b)(1)(E). We overrule Appellant’s fourth issue.
Because a finding that a parent committed one of the acts listed in
Section 161.001(b)(1)(A)–(U) is all that is required and because we have held that
the evidence is sufficient to support the trial court’s finding under subsection (E),
we need not address Appellant’s second or third issue or the remainder of her fourth
issue. See TEX. R. APP. P. 47.1.
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In her final issue, Appellant challenges the sufficiency of the evidence in
support of the trial court’s finding that termination of Appellant’s parental rights
would be in the child’s best interest. Based on the evidence presented at trial and in
light of the Holley factors, the trial court could reasonably have formed a firm belief
or conviction that termination of Appellant’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 the child now and in the
future, the emotional and physical danger to the child now and in the future, the
parental abilities of Appellant and the foster parents, the plans for the child by the
Department, the stability of the child’s placement, Appellant’s continued drug use,
Appellant’s sporadic contact with the child, and Appellant’s inability to care for the
child, we hold that the evidence is sufficient to support the finding that termination
of Appellant’s parental rights is in C.F.’s best interest. See id. We note that C.F.
was too young to express her desires in this matter. We overrule Appellant’s fifth
issue.
We affirm the order of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
December 13, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals1;
and Wright, S.C.J.2
Willson, J., not participating.
1
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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