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M.V. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

June 19, 2019

M. V., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 18-0015-CPSC1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING.

          Before Chief Justice Rose, Justices Kelly and Smith.

          MEMORANDUM OPINION

          Chari L. Kelly, Justice.

         M.V. appeals from the trial court's order terminating his parent-child relationship with his children J.V. and S.V.[1] After a bench trial, the trial court found that M.V. had committed conduct that satisfied the requirements for termination of parental rights found in paragraphs (D), (E), and (O) of Texas Family Code section 161.001(b)(1). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). In addition, the trial court found that termination of M.V.'s parental rights was in the best interest of the children. See id. § 161.001(b)(2). For the reasons set forth below, we will affirm the trial court's judgment.

         BACKGROUND

         On February 5, 2018, the Department of Family and Protective Services (the Department) received allegations that the porch of the children's home appeared to be surrounded by blankets and it appeared to be used for sleeping. The next day, a Department investigator spoke to the principal of the school attended by the older children-I.G., [2] then eight years old, and J.V., then six years old. The principal reported that she was concerned because the boys had missed several days of school and were often tardy. During its investigation, the Department found that the porch contained alcohol bottles and had the odor of marihuana. I.G. and J.V. made outcries of daily marihuana use by C.S. and C.S.'s sister during which time the boys and their eight-month-old sister, S.V., were left unattended inside. Both boys referred to "weed," and I.G. described his mother and aunt using a striped bong, which he described and drew a picture of. J.V. described where his mother kept the marihuana and described how to use a pipe to smoke it. Both boys stated that their father, M.V., smoked cigarettes but did not smoke marihuana. The Department removed the children from C.S. and M.V.'s care and, at the time of trial, the children were in foster care.[3]

         C.S. has a history of involvement with the Department resulting in the termination of her parental rights to her then ten-month-old child in 2008. At the time of trial, M.V. was being detained by United States Immigration and Customs Enforcement (ICE) at a facility in Pearsall, Texas.[4] At trial, C.S. testified that she had not completed her service plan and that she believed termination of her parental rights was in the children's best interest. After a bench trial, the trial court issued an order terminating each parent's parental rights and awarding the Department sole managing conservatorship. The trial court terminated M.V.'s parental rights on three grounds-section 161.001(b)(1)(D), (E), and (O) of the Texas Family Code-in addition to finding that termination was in the children's best interest. See id. § 161.001(b)(1)(D), (E), (O), (b)(2). M.V. timely appealed.

         DISCUSSION

         In his first issue, M.V. contends that there was legally insufficient evidence to support the termination of his parental rights pursuant to paragraph (O). However, M.V. does not challenge the sufficiency of the evidence supporting the termination of his parental rights pursuant to paragraphs (D) or (E).[5] Therefore, he has waived any challenge he may have to those findings. See Toliver v. Texas Dep't of Family & Protective Servs., 217 S.W.3d 85, 102 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("Holloway does not challenge the sufficiency of the evidence supporting the findings under section 161.001(b)(1)(F), (N), and (O), and thus he waives any complaint about the sufficiency of the evidence to support these findings."); see also In re T.W., No. 05-16-00232-CV, 2016 WL 3437589, at *6 (Tex. App.-Dallas June 21, 2016, pet. denied) (mem. op.) ("Father has not challenged the sufficiency of the evidence to support these grounds and has thus waived any complaint that the evidence is insufficient to support those findings."). Only one statutory ground is necessary to support a judgment in a parental rights termination case. Spurck v. Texas Dep't of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.-Austin 2013, no pet.) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)). The district court's unchallenged finding as to the statutory grounds in paragraphs (D) and (E) are binding on appeal. See, e.g., In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). Because the unchallenged findings can support the order of termination, it is unnecessary to review the legal sufficiency argument as to the finding with respect to paragraph (O). We overrule M.V.'s first issue.

         In his second issue, M.V. challenges the factual sufficiency of the evidence supporting the trial court's finding that termination of his parental rights is in the children's best interest. When evidence sufficiency grounds are asserted on appeal, we must apply a standard of review that reflects the clear and convincing burden of proof. In re J.F.C., 96 S.W.3d 256, 264-66 (Tex. 2002). In reviewing the factual sufficiency of the evidence, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. We must consider the disputed evidence and determine whether a reasonable factfinder could have reasonably resolved that evidence in favor of the finding. Id. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Id.

         Several factors are pertinent to the best-interest inquiry, including (1) the child's desires, (2) the child's present and future physical and emotional needs, (3) the present and future emotional and physical danger to the child, (4) the parental abilities of the person seeking custody, (5) the programs available to assist these individuals in promoting the child's best interest, (6) plans for the child by these individuals or the agency seeking custody, (7) the stability of the home or proposed placement, (8) the parent's acts or omissions that may indicate that the existing parent-child relationship is not appropriate, and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code § 263.307 (stating that "prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest" and listing factors that court should consider "in determining whether the child's parents are willing and able to provide the child with a safe environment").[6]

         With these guidelines in mind, we consider the evidence adduced at trial in light of the Holley factors.

         Desires of the children and stability of proposed placement

         Department caseworker Erin Larson testified that since February 2018, I.G. and J.V. have been living with foster parents and are doing well. The boys had trouble adjusting at first because they were unaccustomed to having rules and set times to go to bed and get up. Larson testified that they have grown comfortable in their foster placement. Larson testified that their foster mother is engaged with the boys' education and is a very experienced foster parent. The boys are bonded to their foster mother, Tonika Wade. Wade testified that when I.G. and J.V. first arrived, I.G. had a tendency to "parent" J.V. Both boys had difficulty understanding that they had to follow rules at home, but they are not struggling with that anymore. They are now working within the structure and routine set up by their foster parents. Wade stated that J.V. is doing very well in school and recently received an honor roll certificate as well as recognition for perfect attendance. Both I.G. and J.V. are happy and enjoy school. Wade testified that she has taken the boys on trips and tried to give ...


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