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In re A.T.

Court of Appeals of Texas, Eleventh District

May 23, 2019

IN THE INTEREST OF A.T., A CHILD

          On Appeal from the 326th District Court Taylor County, Texas Trial Court Cause No. 8664-CX

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

          MEMORANDUM OPINION

          JIM R. WRIGHT, SENIOR CHIEF JUSTICE.

         This is an appeal from an order in which the trial court terminated the parental rights of the mother and the father of A.T. Each parent filed a notice of appeal. On appeal, the parents challenge the sufficiency of the evidence to support the termination of their parental rights. W e affirm.

         Termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). 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 the father had committed one of the acts listed in Section 161.001(b)(1)-that found in subsection (Q). Specifically, the trial court found that the father had knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date that the petition was filed. With respect to the mother, the trial court found that she 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 the mother had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the child's physical or emotional well-being, had engaged in conduct or knowingly placed the child with someone who engaged in conduct that endangered the child's physical or emotional well-being, and 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 the mother's and the father's parental rights would be in the best interest of the child.

         The parents challenge the legal and factual sufficiency of the evidence in their issues on appeal. In the father's first issue, he challenges the trial court's finding under subsection (Q) and argues specifically that there was some evidence at trial that he could arrange for A.T. to be cared for by others until he was released from prison. In the father's second issue and the mother's first issue, they assert that the evidence is legally and factually insufficient to support the trial court's findings that it would be in the child's best interest to terminate the mother's and the father's parental rights. In the mother's second issue, she challenges the legal and factual sufficiency of the evidence with respect to the trial court's finding under subsection (O).

         The record shows that the Department became involved with A.T.'s family when she was eight years old. At that time, A.T. was critically ill and was admitted to the PICU at Cook Children's Medical Center. A.T. had Type 1 diabetes, and the mother was not providing appropriate care for A.T., despite having been instructed on how to do so. Family based safety services were instituted, but concerns about A . T. 's blood sugar continued, as did concerns about A.T. missing school, missing appointments at Cook, and running out of syringes. The next month, A.T. was removed from the mother's care. At the time of her removal, A.T. tested positive for amphetamine, methamphetamine, and cocaine. After A.T.'s positive drug test, her older sister, A . W., was also removed from the mother's care.

         The record indicates that a family service plan was prepared for each parent. The uncontroverted evidence reflects that the mother failed to comply with some of the provisions of her service plan. She did not obtain or maintain employment during the eighteen months that this case was pending. And, most notably, the mother continued to test positive for methamphetamine, including a hair follicle test that was conducted five weeks prior to trial.

         Approximately one year after A.T. was removed, but while the case was still pending in the trial court, the mother was a passenger in a vehicle that was stopped after leaving a known drug location. She had narcotics hidden in her undergarments and was arrested. About two weeks prior to the final hearing on termination, the mother pleaded guilty to the second-degree felony offense of possession of methamphetamine. Pursuant to a plea bargain agreement, the mother's ten-year sentence was suspended, and she was placed on community supervision for ten years.

         After her arrest, the mother received inpatient treatment for her admitted drug addiction. However, she failed to timely sign up for outpatient treatment as required when she was released from inpatient treatment. Additionally, she continued to have various unapproved people in and out of her apartment, including a man named Byron that was living in the mother's apartment when A.W. and A.T. went there for a Christmas visit. The mother later admitted that Byron was one of her drug dealers. While this case was pending, police were called to the mother's address numerous times, and at least one "violent episode" occurred there. The violent episode caused the mother to go to the "Noah Project."[1]

         The mother testified at trial that she had sought and received treatment for her disease/addiction, that she was no longer doing drugs, and that her sobriety date was May 18, 2018-approximately three and one-half months prior to trial but more than fourteen months after A.T. was removed from the mother's care. The mother acknowledged that it took her a long time to admit that she had a drug problem and to seek help for it. She indicated that she was still seeing a counselor and that the appointments with the counselor were helpful. The mother did not want her parental rights to be terminated.

         Nor did the father want his parental rights to be terminated. A . T. 's father was incarcerated during the entirety of this case. The record reflects that he committed an aggravated robbery with a deadly weapon while the mother was pregnant with A.T. and that he had been incarcerated A.T.'s whole life. The father was convicted and sentenced in 2009 to serve a fifty-year term of confinement for the aggravated robbery. Prior to the commission of that offense, the father had been convicted in 1993 of murder, for which he received a fifteen-year sentence and was released in 2006. The father had also been convicted of a felony in 1989-delivery of cocaine. According to the mother, A.T. had never met her ...


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