Opinion filed May 19, 2022
In The
Eleventh Court of Appeals
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No. 11-21-00271-CV
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IN THE INTEREST OF R.B.W., R.R.T., AND R.L.T., CHILDREN
On Appeal from the County Court at Law
Erath County, Texas
Trial Court Cause No. CV09401
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother of the children, R.B.W., R.R.T., and R.L.T. 1 The mother filed
this appeal. On appeal, she presents one issue in which she challenges the trial
court’s finding that the termination of her parental rights would be in the children’s
best interest. We affirm the order of the trial court.
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We note that the trial court did not terminate the parental rights of the fathers.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West 2022). 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. Id.
In this case, the trial court found that Appellant had committed two of the acts
listed in Section 161.001(b)(1)—those found in subsections (N) and (O). Appellant
does not challenge these findings on appeal.
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 children. See id.
§ 161.001(b)(2). In her sole issue on appeal, Appellant challenges both the legal and
factual sufficiency of the evidence to support the trial court’s best interest finding.
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). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In
re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
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
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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.
Evidence and Analysis
The record shows that the Department of Family and Protective Services
received several back-to-back intakes in 2020 based upon concerns that Appellant
was using drugs while caring for her three children, who at that time were
approximately six years, three years, and one year old. There were also concerns
that Appellant was leaving the children with various people for lengthy amounts of
time. Appellant was hostile and did not cooperate with the Department during its
investigation. She refused to submit to a drug test or to discuss other safety concerns
involving her home and the children. The Department had to obtain court orders
because of Appellant’s refusal to cooperate. However, she continued to be
uncooperative, refused to submit to drug testing as requested, and refused most of
the services offered, including counseling for one of the children. Appellant, at some
point during this stage of the case, did test positive for illegal substances. As a result
of Appellant’s actions, the children were removed from Appellant’s care.
After the children were removed, a permanency caseworker with Our
Community–Our Kids worked with the children and the parents involved in this
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case. Appellant was ordered by the trial court to comply with each requirement of
her family service plan and to participate in these specific services: a psychological
evaluation, counseling, parenting classes, drug and alcohol dependency assessment,
and drug testing. Appellant, at first, participated in some of her services, but she
resumed the use of illegal substances and, hence, the trial court suspended her
visitation with the children. Appellant tested positive for amphetamine at a level of
18,770, methamphetamine at a level of 182,582, heroin at a level of 2,363, codeine
at a level of 21,967, and morphine at a level over 15,000. After she tested positive
and visitation was suspended, Appellant did not obtain two negative results on drug
tests—as required to reinstitute visitation. At the time of trial, she had not visited or
had any contact with the children in eight months.
While this proceeding was pending below, Appellant was arrested twice: once
for possession of a controlled substance and once for unauthorized use of a motor
vehicle. Both of those felony charges remained pending at the time of the final
hearing on termination. The permanency caseworker testified that Appellant’s
conduct and continued drug use constituted a safety concern and a danger for the
children. Furthermore, another witness testified about Appellant’s lack of parenting
skills and the unsafe environment in which Appellant had placed her children.
Appellant did not appear for trial, and her attorney indicated that she did not
think Appellant planned to be present. The permanency caseworker testified that
she had been attempting to locate Appellant but had been unable to do so. At the
time of the final hearing on termination, Appellant had had no contact with the
Department in over four months.
The permanency caseworker and one of the fathers testified that it would be
in the children’s best interest for Appellant’s parental rights to be terminated. The
children’s attorney ad litem agreed, and she recommended that the trial court
terminate Appellant’s parental rights. The CASA volunteer who had been appointed
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as the children’s guardian ad litem also agreed that termination of Appellant’s
parental rights would be in the children’s best interest. The Department’s plan for
R.R.T. and R.L.T. was for them to remain with their father. The Department’s plan
for R.B.W. was for her to remain with her father and her former stepmother.
The trial court, as the trier of fact, is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. We are not at liberty to disturb the determinations of the
trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d
at 573. Giving due deference to the trial court, we hold that, based on the evidence
presented at trial and 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 R.B.W., R.R.T., and R.L.T. See Holley, 544 S.W.2d at 371–
72. Upon considering the record as it relates to the desires of the children (who in
this case were likely too young to express their desires), the emotional and physical
needs of the children now and in the future, the emotional and physical danger to the
children now and in the future, the parental abilities of those involved, the plans for
the children by the Department, Appellant’s continued use of drugs and pattern of
criminal acts while the case was pending below, Appellant’s failure to visit or have
any contact with her children for eight months, and the instability of Appellant’s
situation, we hold that the evidence is legally and factually sufficient to support the
finding that termination of Appellant’s parental rights is in the best interest of
R.B.W., R.R.T., and R.L.T. See id. We defer to the trial court’s finding as to the
children’s best interest, see C.H., 89 S.W.3d at 27, and we cannot hold in this case
that the trial court’s finding as to best interest is not supported by clear and
convincing evidence. Accordingly, we overrule Appellant’s sole issue.
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This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
May 19, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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