in the Interest of C.P., P.P. and I.P., Children

• Court: Court of Appeals of Texas
• Decided: May 10, 2013
• Docket: 07-12-00545-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00545-CV

IN THE INTEREST OF C.P., P.P. AND I.P., CHILDREN

On Appeal from the 108th District Court Potter County, Texas Trial Court No. 80,817-E, Honorable Douglas Woodburn, Presiding

May 10, 2013

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, K.A.P., appeals from the trial court’s order terminating her parental

rights to her three children, C.P., P.P. and I.P.1 Through one issue, she contends the

evidence was insufficient to support the trial court’s order. We will affirm.

Background

K.A.P. is the biological mother of C.P., P.P., and I.P. B.P. is the father of all

three children. The children, two boys and a girl, were 9, 7, and 6 years old respectively

1 We will refer to the children’s mother and the children by their initials. See Tex. R. App. P. 9.8. at the time of the final hearing. In May 2011, the Department of Family and Protective

Services filed its original petition, seeking relief including termination of the parental

rights of both parents.

The case reached final hearing in November 2012, and the trial court signed its

order of termination the next month.2 By its order, the court made findings that K.A.P.:

(1) knowingly allowed the children to remain in conditions or surroundings which

endangered their physical or emotional well-being; (2) engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangered their

physical or emotional well-being; (3) failed to comply with the provisions of a court order

specifying the actions needed by K.A.P. to obtain the return of the children who had

been in the Department’s care for longer than nine months; and (4) used a controlled

substance as defined by Chapter 481, Health and Safety Code, in a manner that

endangered the health or safety of the children; and failed to complete a court-ordered

substance abuse treatment program; or after completion of a court-ordered substance

abuse treatment program continued to abuse a controlled substance. Tex. Fam. Code

Ann. § 161.001(1)(D), (E), (O), and (P) (West 2012). The trial court also found it was in

the best interests of the children for K.A.P.’s parental rights to be terminated. Tex. Fam.

Code Ann. § 161.001(2) (West 2012). It is from this order that K.A.P. appeals.

2 The trial court also terminated the parental rights of B.P., who had signed a voluntary relinquishment of his rights to each of his children. B.P. does not appeal the trial court’s order.

2 Analysis

Through her sole issue on appeal, K.A.P. argues the evidence was legally and

factually insufficient to support the trial court’s order of termination under subsections

161.001(1)(D), 161.001(1)(E) and 161.001(2) of the Family Code. As the Department

notes, K.A.P. does not challenge the sufficiency of the evidence supporting termination

under subsection 161.001(1) (O) or (P).

A parental-rights termination decree must be based on a finding of at least one

predicate ground and a finding that termination is in the best interest of the child. Tex.

Fam. Code Ann. § 161.001(1), (2) (West 2012). If multiple predicate grounds are found

by the trial court, we will affirm based on any one ground because only one is necessary

for termination of parental rights. In re T.N.F., 205 S.W.3d 625, 629 (Tex.App.—Waco

2006, pet. denied).

K.A.P. challenges only two of the trial court's four findings on predicate grounds

for termination. Because either of the two unchallenged findings will support the order

of termination, we need not address her challenge to the sufficiency of evidence

supporting the predicate grounds. In the Interest of D.S., 333 S.W.3d 379, 388

(Tex.App.—Amarillo 2011, no pet.).

We turn to the evidence supporting the trial court’s finding termination of K.A.P.’s

parental rights was in the best interests of her three children.

A strong presumption exists that a child's best interests are served by

maintaining the parent-child relationship. In the Interest of L.M., 104 S.W.3d 642, 647

(Tex. App.—Houston [1st Dist.] 2003, no pet.). The Department has the burden to prove

3 by clear and convincing evidence that termination is in the child’s best interests. In re

J.L., 163 S.W.3d 79, 84 (Tex. 2005).

In a legal sufficiency review in a parental rights termination case, we must look at

all the evidence in the light most favorable to the trial court’s finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re T.N.F., 205 S.W.3d

at 630. To give appropriate deference to the factfinder's conclusions, looking at the

evidence in the light most favorable to the judgment means that a reviewing court must

assume that the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so. In re J.F.C., 96 S.W.3d at 266. A reviewing court should

disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been incredible. Id.

In conducting a factual sufficiency review, "a court of appeals must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing." Id. The inquiry must be "whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction about the truth of the State's

allegations." Id. A court of appeals should consider whether disputed evidence is such

that a reasonable factfinder could not have resolved the dispute in favor of its finding. If,

in light of the entire record, the disputed evidence that a reasonable factfinder could not

have credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient. In re J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.

2002)); In re T.N.F., 205 S.W.3d at 630.

4 The primary factors to consider when evaluating whether termination is in the

best interest of the child are the Holley factors, which include: (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 which 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. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re

T.N.F., 205 S.W.3d at 632. The Holley list of factors is not exhaustive and not all the

listed factors need be proved as a condition precedent to termination. In re C.H., 89

S.W.3d at 27; In re T.N.F., 205 S.W.3d at 632.

The children here were initially removed from K.A.P.’s care because of the

parents’ long history of drug abuse and mutual domestic violence. At one point, the

father fired a gunshot toward the house, grazing I.P., causing minor injury. The children

were returned to K.A.P. after she completed counseling, drug treatment and a service

plan. But she then stopped attending counseling, stopped participating in her recovery

program, and relapsed into drug use. She also injured P.P. when she threw the child

into a chair. The children again were removed from K.A.P.’s care.

All three children require medication and therapy for severe behavioral problems.

Witnesses testified to “fits” during which two of the children hit, scream and throw

5 things.3 The children were classified as “moderate or specialized,” a classification

showing they required an intermediate level of care and supervision. I.P. required

placement in a residential treatment facility in the summer of 2011 as a result of his

extreme behavior, and remained in the facility at the time of trial.

A caseworker agreed the children’s behavior following the second removal from

K.A.P.’s care was “significantly worse” than after the first removal. A clinical

psychologist testified he was concerned about K.A.P.’s relationship with P.P. in

particular. The psychologist testified that based on his evaluation of K.A.P., she was

likely to continue her past behaviors.

The children’s counselor testified P.P. and I.P. were “very violent.” Testimony at

trial indicated all of the children require higher than normal levels of care. Two

caseworkers testified K.A.P. was not capable of handling the type of care the children

required and agreed K.A.P. did not have the resources to do so. The psychologist also

testified K.A.P. had “limited” ability to handle her children. K.A.P.’s individual counselor

testified she believed K.A.P. had a “poor prognosis” for lasting change.

A counselor also testified that P.P. was very fearful that her mother would injure

her again. K.A.P. admitted at trial that her drug use may have caused some of the

children’s problems. K.A.P.’s counselor testified K.A.P. minimized the significance of

her drug use and minimized the incidents that led to the removal of her children. K.A.P.

3 C.P. had the least serious behavioral issues but also exhibited what the clinical psychologist termed parentification, meaning he acted like a surrogate parent to his younger siblings. The psychologist opined that this behavior, together with the children’s other behaviors, indicated improper parenting and a “chaotic home.” The children’s therapist noted C.P. had “anger issues.”

6 failed to complete the required 90-day treatment program after she was removed from a

program for failure to follow the rules.

That evidence, coupled with the evidence of K.A.P.’s past endangering conduct,

viewed in the required light, provided legally sufficient evidence that termination of her

parental rights was in the best interests of the children.

The court also heard evidence that while C.P. indicated a desire to return to his

mother, P.P. and I.P. expressed a desire not to do so. The record indicates that at

times P.P. did not want to attend visits with her mother.

There is evidence contrary to the trial court’s best interest finding, including

evidence K.A.P. attended scheduled visits with her children, expressed a desire to have

her children returned to her, completed many of the services required of her by the

Department, was employed and had an apartment, remained drug-free and actively

participated in Narcotics Anonymous during the months before trial. 4 However, we give

deference to the trial court’s weighing of the evidence. The trial court reasonably could

have viewed that evidence as weakened by the evidence, also undisputed, that K.A.P.

had remained drug-free for a time when the children were first removed from her care,

but relapsed after they were returned. And, in any event, we conclude that the evidence

K.A.P.’s lifestyle stabilized and improved during the months leading up to trial, though

undisputed, is not so significant that the trial court could not reasonably have formed a

firm belief or conviction that termination was in the children’s best interests. In re J.F.C.,

4 At the final hearing, the children’s attorney ad litem only reluctantly argued for termination.

7 96 S.W.3d at 266; see In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) ("evidence of

improved conduct, especially of short-duration, does not conclusively negate the

probative value of a long history of drug use and irresponsible choices").

As noted, at the time of trial, one of the boys had been residing for several

months in a residential treatment facility, made necessary by his volatile behavior. The

girl and the older boy reside in different places. P.P. is in a foster home while C.P.

remains in a group home. The court heard testimony that all three will require

counseling and treatment for “some time in the future.” The evidence permitted the

court to reach a firm conclusion that K.A.P., despite her improved stability, was unlikely

to be able to provide the kind of care these children require. And, so long as their

conservatorship remained undecided, the resulting uncertainty and instability hindered

their progress toward emotional well-being. The evidence that termination of K.A.P.’s

parental rights was in the best interests of the children also was factually sufficient.

Conclusion

In sum, we find that legally and factually sufficient evidence supported a

conclusion termination is in C.P., P.P., and I.P.’s best interests. We overrule K.A.P.’s

sole issue on appeal and affirm the judgment of the trial court.

James T. Campbell Justice