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In re R.M.S.

Court of Appeals of Texas, Ninth District, Beaumont

June 27, 2019

IN THE INTEREST OF R.M.S. III

          Submitted on May 29, 2019

          On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 14-09-10137-CV

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          STEVE MCKEITHEN CHIEF JUSTICE

         The mother of the minor child R.M.S. Ill. ("Mother") appeals from a judgment terminating her parental rights. In three issues, Mother argues that (1) the trial court erred in terminating her parental rights under section 161.001(b)(1)(N); (2) the trial court erred in terminating her parental rights under section 161.001(b)(1)(P); and (3) the evidence was factually insufficient to support the trial court's finding that termination was in the best interest of R.M.S. III. See Tex. Fam. Code. Ann. § 161.001(b)(1)(N), (P), (2) (West Supp. 2018). We affirm the trial court's judgment.

         BACKGROUND

         In December 2017, the Texas Department of Family and Protective Services ("the Department") filed an original petition seeking the protection and removal of R.M.S. Ill. and the termination of Mother's parental rights. The record shows that the Department removed R.M.S. Ill. due to allegations of drug use and neglectful supervision and that on the day of removal Mother tested positive for methamphetamines. The Department's petition alleged Mother had committed seven statutory grounds that supported termination and that termination was in the best interest of R.M.S. III. The trial court appointed the Department as R.M.S. Ill's temporary managing conservator.

         In November 2018, the trial court conducted a bench trial and terminated Mother's parental rights, finding clear and convincing evidence supported five statutory grounds for termination. See Tex. Fam. Code. Ann. § 161.001(b)(1)(D), (E), (N), (O), (P) (West Supp. 2018). The trial court also found that termination of Mother's parental rights was in the best interest of R.M.S. III. See id. § 161.001(b)(2). Mother appealed.

         ANALYSIS

         In issues one and two, Mother challenges two of the independent grounds that the trial court found supported terminating her parental rights. In addition to a finding that termination is in the child's best interest, only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination. In the Interest of A. V., 113 S.W.3d 355, 362 (Tex. 2003); see Tex. Fam. Code. Ann. § 161.001 (West Supp. 2018). An appellant must challenge all independent grounds that fully support a judgment. In the Interest of S.J.R.-Z., 537 S.W.3d 677, 682 (Tex. App.-San Antonio 2017, pet. denied). By failing to raise an appellate challenge to the trial court's findings under section 161.001(b)(1)(D), (E), and (O), Mother failed to challenge all of the independent grounds listed in the termination order. Accordingly, we need not review Mother's challenges to the sufficiency of the evidence supporting the trial court's findings under subsections (N) and (P), because this court must accept the unchallenged findings as true and affirm the trial court's findings under subsections (D), (E), and (O). See id. at 682-83; In the Interest of N.L.D., 412 S.W.3d 810, 818 (Tex. App.-Texarkana 2013, no pet.). We overrule issues one and two.

         In issue three, Mother challenges the factual sufficiency of the evidence supporting the trial court's finding that termination of her parental rights is in the best interest of R.M.S. III. With three grounds of termination being unchallenged, we must affirm the termination if it is in the best interest of R.M.S. III. See In the Interest of N.L.D., 412 S.W.3d at 818.

         Regarding the child's best interest, we consider a non-exhaustive list of factors: (1) desires of the child; (2) emotional and physical needs of the child now and in the future; (3) emotional and physical danger to the child now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the child; (6) plans for the child by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam. Code. Ann. § 263.307(b) (West Supp. 2018). No particular Holley factor is controlling, and evidence of one factor may be sufficient to support a finding that termination is in a child's best interest. See In the Interest of A.P., 184 S.W.3d 410, 414 (Tex. App.-Dallas 2006, no pet.). The best interest determination may rely on direct or circumstantial evidence, subjective facts, and the totality of the evidence. See In the Interest of N.RT., 338 S.W.3d 667, 677 (Tex. App.-Amarillo 2011, no pet.).

         In regard to the Holley factors, Mother contends that she had lived with R.M.S. Ill. for most of his life, her visits with R.M.S. Ill. were appropriate, and she and R.M.S. Ill. were well bonded. Mother argues that because R.M.S. Ill's paternal grandparents have always provided stability and would continue to do so, evidence of Mother's lack of stability and living arrangements, inability to finish her service plan, and her parenting skills is factually insufficient to support the trial court's finding that termination of her parental rights is in the best interest of R.M.S. III. With respect to the best interest finding, the trial court heard testimony from Tevana Holder, an investigator with the Department, who testified that she investigated the original allegation of abuse and neglect of R.M.S. Ill. which was based on Mother's suspected drug use while caring for the child.

         According to Holder, the factual allegations included that Mother had sores on her face, Mother's attitude was up and down, and Mother was having outbursts of anger. Holder testified that when she met with Mother, she had no concerns based on R.M.S. Ill's appearance, but Mother appeared to be under the influence and was emotional and unable to focus. Holder explained that when they first talked, Mother told Holder that she would not pass a drug test because she was taking Adderall and had smoked marijuana, and later Mother admitted to using methamphetamine a couple of times per week. Holder testified that Mother tested positive for methamphetamine and did not have a stable residence, and R.M.S. Ill. was ...


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