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In re K.R.

Court of Appeals of Texas, Eleventh District

January 9, 2020

IN THE INTEREST OF K.R., A CHILD

          On Appeal from the 1st Multicounty Court at Law Mitchell County, Texas Trial Court Cause No. CCL17106

          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 K.R.'s mother and father.[1] K.R.'s father filed this appeal. On appeal, he challenges the legal and factual sufficiency of the evidence in each of his four issues. We affirm.

         The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2019). 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. Id.

         In this case, the trial court found that Appellant had committed four of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), (O), and (Q). Specifically, the trial court found that Appellant had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the child's physical or emotional well-being; that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being; that Appellant had failed to comply with the provisions of a court order that specifically established the actions necessary for him 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 Appellant for abuse or neglect; and that Appellant 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. The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant's parental rights would be in the best interest of the child.

         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 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).

         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.

         The Department initially received a report that the mother had used cannabis while she was pregnant. During that investigation, an investigator with the Department went to the location where K.R., the mother, Appellant's brother (who is M.R.'s father), and another adult male lived. The investigator was concerned that K.R. lived with three adults in a small, one-bedroom travel trailer and that a newborn child would also be living there soon. The living conditions at the trailer- particularly the scrap metal, junk cars, and old appliances outside the trailer- presented a danger to K.R.

         The Department received another intake shortly after the birth of M.R. The mother tested positive for methamphetamine at the time of M.R.'s birth. M.R. and K.R. also tested positive for methamphetamine. The mother and M.R.'s father tested positive for methamphetamine at the time of removal. The Department removed the children and placed them with a paternal aunt. The mother subsequently pleaded guilty to and was convicted of the offense of child endangerment as a result of her use of methamphetamine while pregnant with M.R.

         At the time of the removal, two-year-old K.R. was "very dirty"; her hair was matted; and she had a bruise on her forehead. The aunt with whom the children were placed testified that K.R. appeared to be very neglected. The aunt testified that K.R. had a large bruise on her forehead, was very dirty, had no shoes, and had stickers imbedded in her feet. The aunt testified that, when she saw K.R. about a month before the removal, K.R. had "excessive" bruising on her head, arms, and legs. When K.R. was placed with the aunt, K.R. was not potty trained, did not mind well, "had a real bad cussing problem," and was "scared to death of water." While in the aunt's care, K.R.'s behavior improved tremendously. The aunt had potty trained K.R. within one week. The aunt testified that K.R. is now a beautiful, happy, well-behaved little girl.

         Appellant has been in prison since K.R. was two weeks old. He was incarcerated at the time of removal and throughout the time that this case was pending in the trial court. Appellant appeared at trial via telephone. He testified that he had not received a parenting packet or a copy of his service plan. Appellant acknowledged that, at the time of trial, he was incarcerated for the offenses of unlawful possession of a firearm and assault and that, unless he is released on parole, he will remain incarcerated until K.R. is at least six years old. Appellant claimed that he did not know about the mother's long history of drug use.

         The record reflects that Appellant was convicted of burglary of a building in 2008. In 2014, Appellant committed the offense of unlawful possession of a firearm by a felon. In 2015, he committed the offense of aggravated assault causing serious bodily injury. Appellant was convicted of the latter two offenses in 2016, and his punishment was assessed at confinement for eight years for each offense, with the sentences to run concurrently.

         The conservatorship supervisor and the children's guardian ad litem both believed that termination of Appellant's parental rights would be in K.R.'s best interest. K.R. had been placed in a stable and loving home with a paternal aunt and was doing well there. K.R. was happy and had adjusted well in her aunt's home, and the aunt wanted to adopt K.R. and M.R. The aunt testified that she was not willing to be a permanent managing conservator so that Appellant could retain his parental rights; the aunt wanted to adopt the children. The aunt testified, however, ...


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