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In re J.S.

Court of Appeals of Texas, Eleventh District

April 25, 2019

IN THE INTEREST OF J.S. AND J.S., CHILDREN

          On Appeal from the 326th District Court Taylor County, Texas Trial Court Cause No. 8479-CX

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [2]

          MEMORANDUM OPINION

          JOHN M. BAILEY CHIEF JUSTICE.

         This is an appeal from an order in which the trial court terminated the parental rights of the parents of J.S. and J.S., whom we will refer to as J.S.1 and J.S.2 in this opinion. The mother filed a notice of appeal.[1] In four issues on appeal, she challenges the legal and factual sufficiency of the evidence. We affirm.

         Termination Standards and Findings

         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 (Te x . 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 had committed three of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), and (O). Specifically, the trial court found that Appellant had knowingly placed or knowingly allowed both children 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 J.S.2 with 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 children, 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 children's removal from Appellant 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 both children. Appellant contends on appeal that the evidence is legally and factually insufficient to support the trial court's findings with respect to the children's best interest and subsections (D), (E), and (O).

         Background Facts

         The record shows that the Department first became involved with the children in this case in 2016, shortly after the birth of J.S.2. At that time, J.S.1 was two years old. Appellant and J.S.2 tested positive for methamphetamine and marihuana shortly after J.S.2's birth. J.S.1 also tested positive for methamphetamine. Appellant admitted that she had been using methamphetamine since she was thirteen years old. Because of Appellant's prolonged use of drugs while she was pregnant with J.S.2, he was born addicted and suffered from withdrawals to such an extent that less aggressive withdrawal treatments did not work; instead, he had to receive narcotic therapy.

         When Appellant went to the hospital, she appeared disheveled and unclean and had lots of scabs and sores. She left J.S.1 with a grandmother who also used methamphetamine and had serious health issues. Appellant's paramour, who was J.S.2's father, also used methamphetamine and admitted that he knew Appellant was using. The children were removed and placed in foster care. After the children were removed, Appellant again used methamphetamine, but she subsequently went to inpatient and then outpatient treatment and did not test positive again while this case was pending.

         The evidence reflects that Appellant made significant progress on her family service plan and was awarded a monitored return of the children in September 2017. However, during the monitored return, Appellant's home became unsanitary. There were full trash bags inside, food all over the floor, food containers and trash in a pile of toys, dirty diapers on the floor, piles of clothes, cigarette butts under J.S.1's bed, and lighters on the floor. The conservatorship caseworker spent several hours helping Appellant clean the house. However, the cleanliness of the house declined and was back to the same nasty condition during a subsequent visit by the caseworker. The caseworker testified that Appellant was unable to maintain a sanitary and stable home for the children.

         Appellant also neglected the children during the monitored return and permitted J.S.2's father to visit. During the monitored return, the children were unclean, had stuff caked on their faces, had very greasy hair, and smelled horrible. J.S.1 would arrive at preschool in this condition. Appellant sent J.S.1 to school in cold weather without a jacket (even though the school had provided one for her) and without appropriate shoes. J.S.1's teacher testified that, during the time period of the monitored return, J.S.1's behavior digressed; she exhibited aggressive behavior and seemed to be very hungry while in Appellant's care. The teacher visited Appellant's home and found it to be unsanitary. J.S.1 also developed a cavity during the monitored return. Prior to the monitored return, J.S.1 had to have root canals and four crowns because of the extensive cavities that she had when she came into the care of the Department. During the monitored return, J.S.2 developed a bleeding diaper rash. Appellant failed to tend to the children's medical needs or take them to doctor and therapy appointments. We note that J.S.1 was partially deaf in one ear and almost totally deaf in the other. Appellant also failed to tend to her own medical needs, creating a dangerous situation for the children. During a home visit by the caseworker, she noticed that Appellant was pale and asked her to check her blood sugar. Appellant's blood sugar level was 297, but she had no insulin in the house.

         The caseworker testified that termination of the parents' parental rights would be in the children's best interest. The child's attorney/guardian ad litem has filed a brief in this appeal in support of the trial court's termination order. And one of the foster parents testified that she did not believe that it would ...


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