Court of Appeals of Texas, Ninth District, Beaumont
IN THE INTEREST OF R.M.S. III
Submitted on May 29, 2019
Appeal from the County Court at Law No. 3 Montgomery County,
Texas Trial Cause No. 14-09-10137-CV
McKeithen, C.J., Kreger and Horton, JJ.
MCKEITHEN CHIEF JUSTICE
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.
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.
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.
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.
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.
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.).
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.
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 ...