in the Interest of P.L.F., a Child

• Court: Court of Appeals of Texas
• Decided: September 19, 2018
• Docket: 10-18-00153-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00153-CV

IN THE INTEREST OF P.L.F. III, A CHILD

From the County Court at Law No. 2 Johnson County, Texas Trial Court No. CC-D20170269

MEMORANDUM OPINION

In four issues, appellant, P.L.F. II, challenges the trial court’s order terminating his

parental rights to his son, P.L.F. III. Specifically, appellant contends that the Texas

Department of Family & Protective Services failed to proffer clear and convincing

evidence in support of the predicate and best-interest grounds for termination of his

parental rights. Because we overrule appellant’s issues on appeal, we affirm the

judgment of the trial court.

I. STANDARD OF REVIEW

In an involuntary termination proceeding brought under section 161.001 of the

family code, the Department must establish: (1) at least one ground under subsection (1) of section 161.001; and (2) that termination is in the best interest of the child. TEX. FAM.

CODE ANN. § 161.001(West Supp. 2017); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both

elements must be established; termination may not be based solely on the best interest of

the child as determined by the trier of fact. See Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

Termination decisions must be supported by clear and convincing evidence. TEX.

FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017). 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 allegations sought to be established.” Id. § 101.007 (West 2008). Due

process demands this heightened standard because termination results in permanent,

irrevocable changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002);

see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting the standards for termination

and modification).

In evaluating the evidence for legal sufficiency in parental-termination cases, we

determine whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding

and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable

factfinder could have done so. Id. We disregard all contrary evidence that a reasonable

factfinder could have disbelieved. Id. We consider undisputed evidence even if it is

In the Interest of P.L.F., a child Page 2 contrary to the finding. Id. In other words, we consider evidence favorable to termination

if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable

factfinder could not. Id. We cannot weigh witness-credibility issues that depend on the

appearance and demeanor of the witnesses, for that is within the province of the

factfinder. Id. at 573-74. And even when credibility issues appear in the appellate record,

we defer to the factfinder’s determinations as long as they are reasonable. Id. at 573.

In reviewing for factual sufficiency, we give due deference to the factfinder’s

findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105,

108 (Tex. 2006). We determine whether, on the entire record, a factfinder could

reasonably form a firm conviction or belief that the parent committed the predicate

ground alleged and that the termination of the parent-child relationship would be in the

best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1); see In re C.H., 89 S.W.3d

17, 28 (Tex. 2002). 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 in the truth of its finding, then the

evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.

II. THE PREDICATE GROUNDS FOR TERMINATION OF APPELLANT’S PARENTAL RIGHTS

In his first three issues, appellant contends that the evidence supporting the

predicate grounds for termination—sections 161.001(b)(1)(D), (b)(1)(E), and (b)(1)(O) of

the Family Code—is insufficient. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (b)(1)(E), In the Interest of P.L.F., a child Page 3 (b)(1)(O). However, a review of the Clerk’s Record reveals that the trial court’s order of

termination also included an additional predicate ground for termination under section

161.001(b)(1)(P) that appellant does not challenge on appeal.1

A finding of only one ground for termination alleged under section 161.001(b)(1)

is sufficient to support a judgment of termination. In re A.V., 113 S.W.3d 355, 362 (Tex.

2003). Therefore, to be successful on appeal, appellant is required to establish that the

trial court’s findings on all of the Department’s pleaded grounds are unsupported by the

evidence. See Fletcher v. Dep’t of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—

Houston [1st Dist.] 2009, no pet.). When a parent does not challenge an independent

ground that may support an order of termination, we do not address the sufficiency of

the evidence of any of the predicate grounds for termination. See In re A.V., 113 S.W.3d

at 361-62. Rather, we must overrule the challenges the parent has chosen to assert. See

In re A.V., 113 S.W.3d at 361-62; Fletcher, 277 S.W.3d at 64.

1Section 161.001(b)(1)(P) provides that the court may terminate the parent-child relationship if it finds by clear and convincing evidence that the parent:

used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:

(i) failed to complete a court-ordered substance abuse treatment program; or

(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance . . . .

TEX. FAM. CODE ANN. § 161.001(b)(1)(P) (West. Supp. 2017).

In the Interest of P.L.F., a child Page 4 Because appellant does not challenge every ground upon which the trial court

could have based its decision to terminate his parental rights, we do not address the

unchallenged findings or the grounds raised in his brief. 2 Accordingly, we overrule

appellant’s first three issues.

III. BEST INTEREST

In his fourth issue, appellant complains that the Department did not proffer clear

and convincing evidence demonstrating that termination of his parental rights is in the

best interest of P.L.F. III. In other words, appellant argues that the evidence supporting

the best-interest ground is not supported by legally- and factually-sufficient evidence.

We disagree.

In a parental-rights-termination case, the best interest of the child is assessed using

a non-exhaustive list of factors. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).

These factors are: (1) the child’s wishes; (2) his emotional or physical needs now and in

the future; (3) emotional or physical danger to the child now and in the future; (4) the

parenting abilities of the parties seeking custody; (5) programs available to help those

parties; (6) plans for the child by the parties seeking custody; (7) the stability of the

2The Department points out that the trial court orally pronounced the predicate grounds for termination being under subsections (D), (E), and (O); however, the signed termination order also included subsection (P) as a predicate termination ground as pled by the Department. Nevertheless, as we outline in the best-interest section of this memorandum opinion, there is ample evidence establishing by clear and convincing evidence the predicate grounds for termination under subsections (D), (E), and (O). Therefore, we are not persuaded by appellant’s challenges to the sufficiency of the evidence supporting the predicate grounds for termination.

In the Interest of P.L.F., a child Page 5 proposed placement; (8) the acts or omissions of the parent that indicate that the existing

parent-child relationship is not proper; and (9) any excuses for the acts or omissions of

the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Department need

not prove all nine Holley factors as a “condition precedent” to termination; the absence of

some factors does not bar the factfinder from finding that termination is in the child’s best

interest. In re C.H., 89 S.W.3d at 27. And while no one factor is controlling, the analysis

of a single factor may be adequate in a particular situation to support a finding that

termination is in the child’s best interest. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—

Waco 2001, no pet).

The record reflects that P.L.F. III was five years old at the time of trial and that he

is currently placed with his maternal grandmother, K.B., and his two half-siblings. CPS

caseworker Mary Bertelsen testified that P.L.F. III has bonded with his half-siblings and

K.B. and that the child desired to remain in K.B.’s home. Both K.B. and Bertelsen stated

that P.L.F. III has little to no bond with appellant and is not even aware that appellant is

his father. Bertelsen stated that the current placement is in the best interest of P.L.F. III.

Additionally, P.L.F. III has special needs on account of his diagnosis of ectodermal

dysplasia, which prevents him from regulating his own temperature and causes him to

have very thin hair, no teeth, and difficulty sweating. As a result of his diagnosis, P.L.F.

III requires special medical care, adequate air conditioning, and close monitoring from

his caregiver. A failure to provide the foregoing could be fatal.

In the Interest of P.L.F., a child Page 6 At the time of trial, appellant’s whereabouts were unknown, and despite multiple

opportunities for visitation, appellant has only seen P.L.F. III once or twice a year for

several years.3 During the course of the child’s life, appellant has been unable to maintain

a steady residence and has lived in several different states, including Florida, California,

Colorado, Texas, and Georgia. K.B. noted that appellant has not provided any financial

support for this child, other than “ridiculous presents, nine pounds of gummy bears. Just,

you know, toys and stuff like that, yes. Stuff that he enjoys a lot but.” On the other hand,

the child’s needs are being met at the current placement with K.B. She takes the child to

his doctor’s appointments, provides stability, and has enrolled him in the Head Start pre-

kindergarten program.

And finally, the record demonstrates that appellant has engaged in domestic

violence and drug abuse shortly before and after P.L.F. III’s birth. Indeed, while she was

pregnant with P.L.F. III, the birth mother reported that appellant pushed her and jumped

on top of her, causing her to give birth to P.L.F. III thirteen weeks prematurely. The

domestic violence allegedly continued once the child was released from the hospital and

the family moved to Florida. While in Florida, appellant pushed the birth mother,

causing a television to almost fall on P.L.F. III. After this incident, the birth mother

returned to Texas with the child.

3 Appellant’s attorney, not appellant, was present for the trial in this matter.

In the Interest of P.L.F., a child Page 7 Upon returning to Texas, the birth mother began using illegal drugs. Bertelsen

testified that appellant admitted to providing the birth mother with needles so that she

could abuse heroin. K.B. recounted that appellant “took pills, he did crack, he did

methamphetamines, and heroin, and marijuana, and even some synthetic type of

marijuana, too . . . .” In any event, during the pendency of this case, appellant was

ordered to complete a service plan that included participation in a mental-health

assessment, which he failed to do, and completion of a drug-treatment program.

Appellant successfully completed the drug-treatment program in February 2017;

however, in May 2017, appellant submitted to a drug test and tested positive for

marihuana.

Based on our review of the record, we find that the above-mentioned evidence

touches on several of the Holley factors. See 544 S.W.2d at 371-72. We therefore conclude

that the evidence presented was legally- and factually-sufficient for a factfinder to

reasonably form a firm belief or conviction that termination of appellant’s parental rights

was in the best interest of P.L.F. III. See In re J.P.B., 180 S.W.3d at 573; see also In re H.R.M.,

209 S.W.3d at 108; In re C.H., 89 S.W.3d at 28. Accordingly, we overrule appellant’s fourth

issue.

IV. CONCLUSION

Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.

In the Interest of P.L.F., a child Page 8 AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed September 19, 2018 [CV06]

In the Interest of P.L.F., a child Page 9