In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00545-CV
IN THE INTEREST OF C.P., P.P. AND I.P., CHILDREN
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 80,817-E, Honorable Douglas Woodburn, Presiding
May 10, 2013
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, K.A.P., appeals from the trial court’s order terminating her parental
rights to her three children, C.P., P.P. and I.P.1 Through one issue, she contends the
evidence was insufficient to support the trial court’s order. We will affirm.
Background
K.A.P. is the biological mother of C.P., P.P., and I.P. B.P. is the father of all
three children. The children, two boys and a girl, were 9, 7, and 6 years old respectively
1
We will refer to the children’s mother and the children by their initials. See Tex.
R. App. P. 9.8.
at the time of the final hearing. In May 2011, the Department of Family and Protective
Services filed its original petition, seeking relief including termination of the parental
rights of both parents.
The case reached final hearing in November 2012, and the trial court signed its
order of termination the next month.2 By its order, the court made findings that K.A.P.:
(1) knowingly allowed the children to remain in conditions or surroundings which
endangered their physical or emotional well-being; (2) engaged in conduct or knowingly
placed the children with persons who engaged in conduct which endangered their
physical or emotional well-being; (3) failed to comply with the provisions of a court order
specifying the actions needed by K.A.P. to obtain the return of the children who had
been in the Department’s care for longer than nine months; and (4) used a controlled
substance as defined by Chapter 481, Health and Safety Code, in a manner that
endangered the health or safety of the children; and failed to complete a court-ordered
substance abuse treatment program; or after completion of a court-ordered substance
abuse treatment program continued to abuse a controlled substance. Tex. Fam. Code
Ann. § 161.001(1)(D), (E), (O), and (P) (West 2012). The trial court also found it was in
the best interests of the children for K.A.P.’s parental rights to be terminated. Tex. Fam.
Code Ann. § 161.001(2) (West 2012). It is from this order that K.A.P. appeals.
2
The trial court also terminated the parental rights of B.P., who had signed a
voluntary relinquishment of his rights to each of his children. B.P. does not appeal the
trial court’s order.
2
Analysis
Through her sole issue on appeal, K.A.P. argues the evidence was legally and
factually insufficient to support the trial court’s order of termination under subsections
161.001(1)(D), 161.001(1)(E) and 161.001(2) of the Family Code. As the Department
notes, K.A.P. does not challenge the sufficiency of the evidence supporting termination
under subsection 161.001(1) (O) or (P).
A parental-rights termination decree must be based on a finding of at least one
predicate ground and a finding that termination is in the best interest of the child. Tex.
Fam. Code Ann. § 161.001(1), (2) (West 2012). If multiple predicate grounds are found
by the trial court, we will affirm based on any one ground because only one is necessary
for termination of parental rights. In re T.N.F., 205 S.W.3d 625, 629 (Tex.App.—Waco
2006, pet. denied).
K.A.P. challenges only two of the trial court's four findings on predicate grounds
for termination. Because either of the two unchallenged findings will support the order
of termination, we need not address her challenge to the sufficiency of evidence
supporting the predicate grounds. In the Interest of D.S., 333 S.W.3d 379, 388
(Tex.App.—Amarillo 2011, no pet.).
We turn to the evidence supporting the trial court’s finding termination of K.A.P.’s
parental rights was in the best interests of her three children.
A strong presumption exists that a child's best interests are served by
maintaining the parent-child relationship. In the Interest of L.M., 104 S.W.3d 642, 647
(Tex. App.—Houston [1st Dist.] 2003, no pet.). The Department has the burden to prove
3
by clear and convincing evidence that termination is in the child’s best interests. In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005).
In a legal sufficiency review in a parental rights termination case, we must look at
all the evidence in the light most favorable to the trial court’s finding to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re T.N.F., 205 S.W.3d
at 630. To give appropriate deference to the factfinder's conclusions, 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. In re J.F.C., 96 S.W.3d at 266. A reviewing court should
disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been incredible. Id.
In conducting a factual sufficiency review, "a court of appeals must give due
consideration to evidence that the factfinder could reasonably have found to be clear
and convincing." Id. The inquiry must be "whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the State's
allegations." Id. A court of appeals should consider whether disputed evidence is such
that a reasonable factfinder could not have resolved the dispute in favor of its finding. 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. In re J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)); In re T.N.F., 205 S.W.3d at 630.
4
The primary factors to consider when evaluating whether termination is in the
best interest of the child are the Holley factors, which include: (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. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re
T.N.F., 205 S.W.3d at 632. The Holley list of factors is not exhaustive and not all the
listed factors need be proved as a condition precedent to termination. In re C.H., 89
S.W.3d at 27; In re T.N.F., 205 S.W.3d at 632.
The children here were initially removed from K.A.P.’s care because of the
parents’ long history of drug abuse and mutual domestic violence. At one point, the
father fired a gunshot toward the house, grazing I.P., causing minor injury. The children
were returned to K.A.P. after she completed counseling, drug treatment and a service
plan. But she then stopped attending counseling, stopped participating in her recovery
program, and relapsed into drug use. She also injured P.P. when she threw the child
into a chair. The children again were removed from K.A.P.’s care.
All three children require medication and therapy for severe behavioral problems.
Witnesses testified to “fits” during which two of the children hit, scream and throw
5
things.3 The children were classified as “moderate or specialized,” a classification
showing they required an intermediate level of care and supervision. I.P. required
placement in a residential treatment facility in the summer of 2011 as a result of his
extreme behavior, and remained in the facility at the time of trial.
A caseworker agreed the children’s behavior following the second removal from
K.A.P.’s care was “significantly worse” than after the first removal. A clinical
psychologist testified he was concerned about K.A.P.’s relationship with P.P. in
particular. The psychologist testified that based on his evaluation of K.A.P., she was
likely to continue her past behaviors.
The children’s counselor testified P.P. and I.P. were “very violent.” Testimony at
trial indicated all of the children require higher than normal levels of care. Two
caseworkers testified K.A.P. was not capable of handling the type of care the children
required and agreed K.A.P. did not have the resources to do so. The psychologist also
testified K.A.P. had “limited” ability to handle her children. K.A.P.’s individual counselor
testified she believed K.A.P. had a “poor prognosis” for lasting change.
A counselor also testified that P.P. was very fearful that her mother would injure
her again. K.A.P. admitted at trial that her drug use may have caused some of the
children’s problems. K.A.P.’s counselor testified K.A.P. minimized the significance of
her drug use and minimized the incidents that led to the removal of her children. K.A.P.
3
C.P. had the least serious behavioral issues but also exhibited what the clinical
psychologist termed parentification, meaning he acted like a surrogate parent to his
younger siblings. The psychologist opined that this behavior, together with the
children’s other behaviors, indicated improper parenting and a “chaotic home.” The
children’s therapist noted C.P. had “anger issues.”
6
failed to complete the required 90-day treatment program after she was removed from a
program for failure to follow the rules.
That evidence, coupled with the evidence of K.A.P.’s past endangering conduct,
viewed in the required light, provided legally sufficient evidence that termination of her
parental rights was in the best interests of the children.
The court also heard evidence that while C.P. indicated a desire to return to his
mother, P.P. and I.P. expressed a desire not to do so. The record indicates that at
times P.P. did not want to attend visits with her mother.
There is evidence contrary to the trial court’s best interest finding, including
evidence K.A.P. attended scheduled visits with her children, expressed a desire to have
her children returned to her, completed many of the services required of her by the
Department, was employed and had an apartment, remained drug-free and actively
participated in Narcotics Anonymous during the months before trial. 4 However, we give
deference to the trial court’s weighing of the evidence. The trial court reasonably could
have viewed that evidence as weakened by the evidence, also undisputed, that K.A.P.
had remained drug-free for a time when the children were first removed from her care,
but relapsed after they were returned. And, in any event, we conclude that the evidence
K.A.P.’s lifestyle stabilized and improved during the months leading up to trial, though
undisputed, is not so significant that the trial court could not reasonably have formed a
firm belief or conviction that termination was in the children’s best interests. In re J.F.C.,
4
At the final hearing, the children’s attorney ad litem only reluctantly argued for
termination.
7
96 S.W.3d at 266; see In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) ("evidence of
improved conduct, especially of short-duration, does not conclusively negate the
probative value of a long history of drug use and irresponsible choices").
As noted, at the time of trial, one of the boys had been residing for several
months in a residential treatment facility, made necessary by his volatile behavior. The
girl and the older boy reside in different places. P.P. is in a foster home while C.P.
remains in a group home. The court heard testimony that all three will require
counseling and treatment for “some time in the future.” The evidence permitted the
court to reach a firm conclusion that K.A.P., despite her improved stability, was unlikely
to be able to provide the kind of care these children require. And, so long as their
conservatorship remained undecided, the resulting uncertainty and instability hindered
their progress toward emotional well-being. The evidence that termination of K.A.P.’s
parental rights was in the best interests of the children also was factually sufficient.
Conclusion
In sum, we find that legally and factually sufficient evidence supported a
conclusion termination is in C.P., P.P., and I.P.’s best interests. We overrule K.A.P.’s
sole issue on appeal and affirm the judgment of the trial court.
James T. Campbell
Justice
8
in the Interest of C.P., P.P. and I.P., Children
Combined Opinion