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In re K.D.

Court of Appeals of Texas, Eleventh District

November 14, 2019

IN THE INTEREST OF K.D. AND V.P.D., CHILDREN

          On Appeal from the 1st Multicounty Court at Law Nolan County, Texas Trial Court Cause No. CC-7667

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          JIM R. WRIGHT, SENIOR CHIEF JUSTICE.

         This appeal stems from the trial court's order by which it terminated the parental rights of the mothers of K.D. and V.P.D. and the father of both children. Only the father appealed. In two issues, Appellant challenges the legal and factual sufficiency of the evidence with respect to the children's best interest and asserts that the trial court abused its discretion when it did not conduct a hearing on Appellant's motion for new trial. We affirm.

         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) of the Texas Family Code and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). Evidence is clear and convincing if it "will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." Id. § 101.007 (West 2019).

         In this case, the trial court found that Appellant had committed two of the acts listed in Section 161.001(b)(1)-those found in subsections (D) and (E). Specifically, the trial court found that Appellant (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being, see id. § 161.001(b)(1)(D); and (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being, see id. § 161.001(b)(1)(E). The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant's parental rights was in the best interest of the children. See id. § 161.001(b)(2).

         In his first issue, Appellant challenges the legal and factual sufficiency of the evidence to support the trial court's best interest finding; he does not challenge the sufficiency of the evidence to support the findings under subsections (D) and (E). 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 the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); In re M.G., No. 11-18-00351-CV, 2019 WL 2426775, at *1 (Tex. App.-Eastland June 11, 2019, no pet.). To determine whether 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); M.G., 2019 WL 2426775, at *1. We note that the trier of fact is the sole judge of the credibility of the witnesses at trial and that we are not at liberty to disturb the determinations of the trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573.

         The determination of the best interest of a child does not require proof of any unique set of factors. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.-Eastland 2010, pet. denied). However, courts are guided by the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors 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. Section 263.307(b) of the Family Code also "lists thirteen similar factors for determining the parents' willingness and ability to provide a safe environment." In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (citing Fam. § 263.307(b)). Evidence that proves one or more statutory grounds for termination may also constitute evidence that termination is in the child's best interest. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); C.J.O., 325 S.W.3d at 266.

         Appellant is the father of K.D. and V.P.D. The children have different mothers. Because she lacked financial stability, V.P.D.'s mother left V.P.D. with Appellant. After K.D. was physically abused by her mother, the Department of Family and Protective Services removed K.D. from her mother's care and placed her with Appellant.

         In April 2018, Appellant began an online conversation with a person he believed to be a fourteen-year-old girl, but was actually City of Sweetwater Police Officer Cory Stroman. Appellant stated in the conversation that he was smoking marihuana and that some people get "turned on" from using marihuana. Appellant made sexual overtures in the conversation that culminated in an agreement to meet at approximately 11:30 p.m. Appellant suggested that the fourteen-year-old girl shave and masturbate prior to the meeting and not wear a bra.

         Appellant stopped briefly at the meeting site, but drove away when Officer Stroman activated the lights on his police car. Appellant was arrested approximately two blocks from the meeting site. Appellant indicated to Officer Stroman that Appellant was there "to save the child" and that "he felt the child was somehow in distress."

         Officer Stroman performed an inventory search of Appellant's car and found two car seats. Only at that point did Appellant tell Officer Stroman that K.D., who was five years old, and V.P.D., who was three years old, were home alone. It was subsequently determined that the children had been left alone on previous occasions when Appellant took his fiancée, who is now his wife, to work.

         The Department removed the children from Appellant's home and placed them with V.P.D.'s maternal grandparents, who were also K.D.'s step-grandparents. The Department filed a Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. The Department's primary goal in the case was family reunification, but it had a concurrent goal of relative adoption.

         The trial court ordered Appellant to participate in certain services, including a psychological evaluation, counseling, parenting classes, and a drug and alcohol dependency assessment. Appellant completed all the ordered services. He also attended every scheduled visitation with the children and called the children almost every day. However, during ...


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