in the Interest of S. L. Jr. and A. A.

• Court: Court of Appeals of Texas
• Decided: January 19, 2017
• Docket: 09-16-00323-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-16-00323-CV ________________

IN THE INTEREST OF S.L. JR. AND A.A.

__________________________________________________________________

On Appeal from the 88th District Court Hardin County, Texas Trial Cause No. 56203 __________________________________________________________________

MEMORANDUM OPINION

Appellant A.A. 1 appeals from an order terminating her parental rights to her

minor children, S.L. Jr. and A.A. The trial court found, by clear and convincing

evidence, that statutory grounds exist for termination of appellant’s parental rights,

and that termination of appellant’s parental rights is in the best interest of the

children. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (2) (West Supp.

2016). In two appellate issues, appellant challenges the legal and factual

sufficiency of the evidence. We affirm the trial court’s order.

1 We will refer to the appellant mother as “appellant[,]” and we will refer to the minor child A.A. as “A.A.” 1 PERTINENT EVIDENCE

Raymonica Scypion of the Department of Family and Protective Services

(“the Department”) testified that a family plan of service was developed for

appellant, but appellant had not adequately and appropriately complied with the

family plan of service. A copy of the family plan of service for appellant was

admitted into evidence, and Scypion testified that the plan contained specific tasks

appellant would be required to complete in order to obtain return of the children.

According to Scypion, the family plan of service ordered appellant to undergo drug

testing, but appellant never did so. Scypion also testified that appellant failed to

sign a release of information as required by the family plan of service, and

appellant failed to maintain contact with Scypion despite Scypion sending letters to

appellant, trying to call appellant, and attempting to visit appellant’s home.

According to Scypion, appellant had only attended approximately three

scheduled visits with the children. In addition, Scypion testified that she was

unable to verify that appellant had maintained a safe, stable, and drug-free home

environment, as required by the order. Scypion further explained that appellant had

not done the services required of her under the order, such as attending NA or AA

meetings, completing individual counseling, participating in and successfully

completing a psychological evaluation, and completing a drug and alcohol

2 assessment. Scypion testified that appellant is unable to provide the children with

basic care and a safe and stable home environment, and she testified that she

believes remaining in their current placement is in the best interest of the children.

Scypion explained that the Department’s goal for the children is adoption by their

foster parents, who have cared for the children since they came into the

Department’s care.

Appellant testified that the trial judge should not have found sufficient

evidence to place her children under the care of the Department. Appellant

explained that the Department reviewed the family plan of service with her, but she

did not understand what was being asked of her because she “felt like there was no

need for it.” Appellant testified that she was working to obtain the children’s

return, but she did not see a need to rearrange her life to comply with the terms of

the family plan of service. Appellant testified that she had proven that the

allegations that led to the removal of the children were false, so the children should

have been returned to her. According to appellant, she did not attend family visits

with the children because she “could tell . . . that they weren’t okay, they were

acting different, they were acting out of behavior, and they didn’t understand why

they were being taken from me[.]”Appellant testified that she feared that she would

emotionally damage the children by coming in and out of their lives. In addition,

3 appellant testified that she did contact Scypion, but Scypion did not answer.

During cross-examination, appellant testified that she had two other children who

had both been adopted after the Department became involved. In addition,

appellant testified that she has not seen S.L. Jr. and A.A. or provided for their

support for more than six months. Appellant further testified that she had refused

to take drug screens.

Dorothy Stanley, the children’s guardian ad litem, testified that she has

visited with appellant, but appellant has not been cooperative. Stanley testified that

appellant always has an excuse for everything and believes that nothing is her

fault. According to Stanley, the children are currently placed in a foster home,

where they are healthy, happy, and having their needs met. Stanley explained that

the foster parents are willing to adopt the children and are able to meet the

children’s physical and emotional needs, educate them, offer them a stable home,

and promote their best interest. Stanley testified that she believes termination of

appellant’s parental rights and adoption by their foster parents are in the children’s

best interest. According to Stanley, the children would be in emotional or physical

danger if they were placed back into appellant’s home, and appellant lacks the

necessary skills to parent the children in a safe and stable home environment. Amy

Babineaux, the Department’s supervisor in the case, testified that appellant

4 understood the necessary steps to obtain the children’s return, but appellant failed

to comply with the family plan of service.

The children’s foster mother, R.F., testified that the children are happy and

healthy, and their needs are being met. R.F. testified that she and her husband

wanted to adopt the children. R.F. testified, “I want everything for them. I want

them to go to college and have their dreams met.” At the conclusion of R.F.’s

testimony, the Department rested.

Appellant called her father J.A. to testify. J.A. testified that appellant called

him and told him that a female, R.R., had taken off with the children by car and

then R.R. called CPS. A CPS worker called J.A. and asked “[w]here’s your

daughter?” J.A. explained that he told the CPS worker that R.R. did not have

permission to take the children. J.A. testified that he was willing to take care of the

children, but CPS “wouldn’t talk to [him].” According to J.A., no one from CPS

seemed interested in investigating the truth about what occurred.

G.O., who has known J.A. for several years, testified that on June 29, 2015,

he had people visiting his home for a barbecue, and appellant and her children

attended. According to G.O., the kids turned up missing later that afternoon, and

G.O. believed R.R. had taken them. G.O. testified that appellant had not given R. R.

permission for to take the children, and appellant seemed upset. G.O. testified that

5 he was “pretty shocked that [CPS] even had anything to do with the situation[,]”

and that the children were not in any danger when they were with appellant. G.O.

explained that the children seemed to be well cared for. Appellant rested at the

conclusion of G.O.’s testimony.

ISSUE TWO

In her second issue, appellant argues that the evidence was legally and

factually insufficient to establish that she failed to comply with the provisions of a

court order that specifically established the actions necessary for her to obtain the

return of the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). Because issue

two is dispositive, we address it first.

Under legal sufficiency review, we review all the evidence in the light most

favorable to the 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). We assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could and we disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. Id. If no reasonable factfinder could form a firm belief or conviction

that the matter that must be proven is true, the evidence is legally insufficient. Id.

6 Under factual sufficiency review, we must determine whether the evidence

is such that a factfinder could reasonably form a firm belief or conviction about the

truth of the Department’s allegations. Id. We give due consideration to evidence

that the factfinder could reasonably have found to be clear and convincing. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved that disputed evidence in favor of its finding. Id. 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, the evidence is factually

insufficient. Id.

The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “the measure or degree of proof that 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.” Tex. Fam. Code Ann. § 101.007 (West 2014); In the

Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the

parent committed one or more predicate acts or omissions and that termination is in

the child’s best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2016);

see also J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the

grounds is supported by legally and factually sufficient evidence and the best

7 interest finding is also supported by legally and factually sufficient evidence. In the

Interest of C.A.C. JR., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex.

App.—Beaumont May 5, 2011, no pet.) (mem. op.). The court need not consider

any excuses offered by the parent for failure to comply with court-ordered services.

In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.).

Section 161.001(b)(1)(O) allows for termination if the trial court finds by

clear and convincing evidence that the parent has “failed to comply with the

provisions of a court order that specifically established the actions necessary for

the parent to obtain the return of the child who has been in the permanent or

temporary managing conservatorship of the Department[.]” Tex. Fam. Code Ann.

§ 161.001(b)(1)(O). Regarding the children’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/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

8 367, 371-72 (Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b) (West Supp.

2016). No particular Holley factor is controlling, and evidence of one factor may

be sufficient to support a finding that termination is in the children’s best interest.

See In re 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 re N.R.T., 338 S.W.3d 667, 677 (Tex.

App.—Amarillo 2011, no pet.).

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

under subsection 161.001(b)(1)(O), we conclude that the trial court could reasonably

determine that appellant failed to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of S.L. Jr.

and A.A. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); N.R.T., 338 S.W.3d at

676. The trial court could reasonably have formed a firm belief or conviction that

appellant failed to comply with the provisions of the order that specifically

established the actions necessary for her to obtain the return of S.L. Jr. and A.A.

See id. § 161.001(b)(1)(O); N.R.T., 338 S.W.3d at 676.

With respect to the best interest finding, the trial court heard Scypion and

Stanley testify that it is in the best interest of S.L. Jr. and A.A. to remain in their

current placement, and Stanley testified that the children were healthy and happy,

9 and their needs were being met in their current placement. In addition, the trial

court heard Stanley testify that appellant lacks the necessary skills to parent the

children in a safe and stable home environment. “[T]he prompt and permanent

placement of the child in a safe environment is presumed to be in the child’s best

interest.” Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2015). As the sole judge

of the credibility of Scypion and Stanley and the weight to be given to their

testimony, the trial court could reasonably conclude that termination of appellant’s

parental rights was in the best interest of S.L. Jr. and A.A. See id. §§

161.001(b)(2), 263.307(a); see also J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d

at 371-72.

We conclude that the Department established, by clear and convincing

evidence, that appellant committed the predicate act enumerated in section

161.001(b)(1)(O) and that termination of appellant’s parental rights is in the best

interest of S.L. Jr. and A.A. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2);

C.A.C. JR., 2011 WL 1744139, at *1. We overrule issue two and need not address

issue one. See C.A.C. JR., 2011 WL 1744139, at *1; see also Tex. R. App. P. 47.1.

Accordingly, we affirm the trial court’s judgment.

AFFIRMED. ______________________________ STEVE McKEITHEN Chief Justice 10 Submitted on December 28, 2016 Opinion Delivered January 19, 2017

Before McKeithen, C.J., Kreger and Horton, JJ.