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In re C.R.

Court of Appeals of Texas, Eleventh District

February 28, 2018

IN THE INTEREST OF C.R., A CHILD

         On Appeal from the 446th District Court Ector County, Texas Trial Court Cause No. E-16-085-PC

          Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J.[1]

          MEMORANDUM OPINION

          JOHN M. BAILEY JUSTICE.

         The trial court entered an order in which it terminated the parental rights of the mother and the father of C.R. The mother appeals. She presents four issues on appeal. We affirm.

         In her first three issues, Appellant challenges the legal and factual sufficiency of the evidence to support the trial court's findings in support of termination. Termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2017). 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(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.

         In this case, the trial court found that Appellant committed two of the acts listed in Section 161.001(b)(1)-those found in subsections (D) and (E). 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 and that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being. 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. Appellant challenges each of these findings.

         The record shows that the Department of Family and Protective Services became involved with Appellant, who was herself a child, and Appellant's family prior to C.R.'s birth. Appellant and her siblings had been placed with their grandmother, M.B. On at least two occasions, Appellant had run away from M.B.'s home. When the authorities returned Appellant to M.B.'s home in June 2016, Appellant was pregnant. Appellant was fourteen years old at the time, and the baby's father was thirty-one years old. After giving birth, Appellant ran away again. She took C.R. with her. When C.R. was two weeks old, Appellant and the father committed the offense of aggravated robbery with a deadly weapon against a member of the father's family. Appellant admitted that she told the father to tie the victims up and "get rid of them" so that there would be no witnesses. For this offense, Appellant received an eight-year determinant sentence as a juvenile, but the sentence was probated for eight years.

         At the time of trial, Appellant was incarcerated and awaiting a hearing on allegations that she had violated the terms of her probation. Appellant had been arrested for assault, theft, and failure to identify herself. Additionally, she had withdrawn from school and had not completed parenting classes or individual therapy as required by her family service plan.

         At the time of trial, C.R. lived in a foster home and had developed "a very strong bond with her foster parents." The foster parents had expressed a desire to adopt C.R. The caseworker for the Department believed that termination of Appellant's parental rights would be in C.R.'s best interest. C.R.'s guardian ad litem also believed that it would be in C.R.'s best interest for the parental rights of both parents to be terminated.

         The record contains clear and convincing evidence that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being-as required to support a finding under Section 161.001(b)(1)(E). 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.). 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).

         Appellant's actions in taking C.R., running away with C.R.'s father, and committing a violent crime while Appellant was responsible for the care of C.R. was conduct that endangered C.R. Appellant continued to engage in a course of "violent criminal activity" after C.R. was removed from Appellant's care. We hold that the evidence is legally and factually sufficient to support the finding under subsection (E), and we overrule Appellant's second issue. Because it must be shown that the parent has committed only one of the acts listed in Section 161.001(b)(1)(A)-(U), we need not reach the merits of Appellant's first issue. See Tex. R. App. P. 47.1.

         In her third issue, Appellant challenges the sufficiency of the evidence in support of the trial court's best interest finding. Based upon the Holley factors and the evidence in the record, we cannot hold that the trial court's best interest finding is not supported by clear and convincing evidence. See Holley, 544 S.W.2d at 371- 72. The trial court could reasonably have formed a firm belief or conviction that it would be in C.R.'s best interest for her mother's parental rights to be terminated. The evidence at trial showed that Appellant was not capable of meeting C.R.'s needs. C.R. is in a safe, appropriate placement with foster parents who want to adopt her. We hold that the evidence is both legally and factually sufficient to support the trial court's best interest finding. We overrule Appellant's third issue.

         In her final issue, Appellant asserts that the trial court abused its discretion when it ignored the Department's repeated violations of Appellant's constitutional rights, including the Department's failure to provide adequate notice of the service plan, the placement of C.R. and Appellant with M.B. in a setting that was "bound to fail, " and the Department's misrepresentations to Appellant regarding the plans for C.R. to remain in Appellant's life. However, Appellant did not object on any of these bases at trial. Because Appellant did not object at trial, she did not preserve her complaint for appellate review. See Tex. R. App. P. 33.1; In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). Appellant also complains in her final issue that the clerk's record in this cause fails to include the original ...


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