In the Interest of K.D.B., a Child v. << (2016)

MEMORANDUM OPINION

After consolidating these two cases for trial, the trial court entered an order in which it terminated the parental rights of the parents of K.M.D. and K.D.B. The children's mother appeals, as does the father of K.M.D.¹ We affirm.

The mother presents one issue on appeal, and the father presents two issues.  In all three issues, the parents challenge the legal and factual sufficiency of the evidence to support termination.

The termination of parental rights must be supported by clear and convincing evidence.  Tex. Fam.Code Ann. § 161.001(b) (West Supp.2015).  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).  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)-(T) and that termination is in the best interest of the child.  Fam. § 161.001(b).

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.

In this case, the trial court found that the mother had committed three of the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O)— and that the father had committed one of the acts listed in Section 161.001(b)(1)— that found in subsection (O).  Specifically, the trial court found that the mother had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being;  that the mother had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional wellbeing;  and that the mother had 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, 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 children's removal from the parents for abuse or neglect.  The trial court found that the father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of K.M.D., who had been in the managing conservatorship of the Department for not less than nine months as a result of K.M.D.'s removal from the parents for abuse or neglect.  The trial court also found, pursuant to Section 161.001(b)(2), that termination of the mother's parental rights would be in the children's best interest and that termination of the father's parental rights would be in K.M.D.'s best interest.

The evidence at trial showed that K.M.D. was initially removed from the mother's care in 2012 when he was two months old.  K.M.D.'s removal occurred after police were dispatched to a disturbance at the mother's residence and were told by the mother that she did not want K.M.D. anymore.  A monitored return of K.M.D. to the mother's care was attempted in April 2014, a few months after K.D.B. was bom.  However, that placement lasted for only three months.

The mother had mood swings and was overwhelmed at times while taking care of her children.  She did not properly parent her children and was not bonded with them.  The mother and her mother (Kim) had a history of domestic disturbances.  In one incident of domestic violence that occurred during the monitored return, Kim grabbed the mother by her hair and drove away, dragging the mother down the road.  There was evidence that, during the monitored return, the mother left K.M.D. home alone and failed to use a car seat when transporting K.M.D. from day care.  Additionally, the mother—despite having attended parenting classes—did not know how to take care of an infant.  Based upon the incidents that occurred during the monitored return, both children were placed in a foster home in July 2014.

After K.M.D.'s removal, the trial court ordered the parents to perform certain acts and to participate fully in the Department's family service plan;  the trial court's order indicated that the parents' compliance would be necessary for them to obtain the return of the child.  The trial court entered a similar order after K.D.B. was removed.  The mother and K.M.D.'s father partially complied with the trial court's order and the service plan.  However, the evidence is undisputed that neither parent completed the service plan or fully complied with the trial court's order.

The mother did not successfully complete individual therapy, did not understand the stages of child development, and did not keep her children safe and away from domestic violence.  The father did not complete domestic violence classes or individual therapy, nor did he obtain a driver's license or stable housing.  Additionally, we note that the father did not regularly visit K.M.D. and that he failed to appear for the termination hearing.

The parents do not dispute that there was clear and convincing evidence from which the trial court could reasonably have formed a firm belief that they failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of either child.  See Fam. § 161.001(b)(1)(C)).  We note that Section 161.001(b)(1)(C)) does not “make a provision for excuses” for a parent's failure to comply with the court-ordered services.  In re J.S., 291 S.W.3d 60, 67 (Tex.App.—Eastland 2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex.App.—Waco 2006, pet. denied)) (internal quotation marks omitted).  Furthermore, the parents do not dispute that, at the time of the final hearing, the children had been in the Department's care for well over nine months.  See Fam § 161.001(b)(1)(O).

What the mother and K.M.D.'s father do dispute with respect to subsection (O) is that the children were removed from the parents' care due to abuse or neglect.  The Texas Supreme Court has held that the language “abuse or neglect of the child” as used in subsection (O) “necessarily includes the risks or threats of the environment in which the child is placed” and, thus, “includes the harm suffered or the danger faced by other children under the parent's care.”  In re E.C.R., 402 S.W.3d 239, 245–46, 248 (Tex.2013).  In E.C.R., the court determined that “placing the child's physical health or safety at substantial risk” is sufficient to support a finding of “abuse or neglect.”  Id. at 240.  Based upon the supreme court's interpretation of the words “abuse or neglect” as used in subsection (O), we hold that K.M.D. and K.D.B. were both removed for “abuse or neglect.”  See id.  Additionally, the parent who fails to comply with a court order as required by subsection (O) need not be the same parent whose abuse or neglect triggered the child's removal.  In re D.R.J., 395 S.W.3d 316, 320 (Tex.App.—Fort Worth 2013, no pet.).  Thus, the mother and K.M.D.'s father were required to comply with the provisions of the trial court's orders and the respective family service plans that specifically established the actions necessary for the parents to obtain the return of K.M.D. or K.D.B. See id.;  In re D.R.A., 374 S.W.3d 528, 532 (Tex.App.—Houston [14th Dist.] 2012, no pet.).  Clear and convincing evidence established that neither parent complied.

Because a finding that a parent committed one of the acts listed in Section 161.001(b)(1)(A)-(T) is all that is required under that statute, we need not address the mother's remaining arguments regarding the sufficiency of the evidence to support the trial court's other findings under Section 161.001(b)(1).  See Tex.R.App. R 47.1.  The mother's sole issue and the father's first issue are overruled.

In his second issue, the father challenges the trial court's finding that termination of his parental rights would be in the best interest of K.M.D. We note that the mother does not challenge the best interest finding with respect to the termination of her parental rights.

The record shows that K.M.D.'s father was not active in K.M.D.'s life either before or after removal.  The father did not regularly exercise his visitation with K.M.D., and when he did, he did not demonstrate the skills that he should have learned in his parenting classes.  The results of the father's psychiatric evaluation indicated “that he didn't have any idea how to raise a child.”  The children's conservatorship caseworker, Donna Massey, testified that the father had threatened her, the judge, and others at the courthouse.

At the time of the termination hearing, K.M.D. and K.D.B. had lived together in an appropriate foster home for almost one year.  K.M.D. was happy there, had developed into a loving child, and had overcome some severe behavioral issues that he had when he first arrived at the foster home.  When he arrived, all K.M.D. would do was scream and cry.  K.M.D. was very angry.  He was also an “aggressive eater”;  he would eat until he vomited.  K.M.D.'s behavioral issues seemed to resurface after a visit with his mother.  The foster mother was not aware of K.M.D.'s father exercising any visitation while the children were in her home.  K.M.D. had bonded with his foster family.  The children's guardian ad litem and their attorney ad litem both recommended that the trial court terminate the parents' rights.  Massey testified that it would not be in the children's best interest to be returned home.  The foster parents, who had expressed an interest in adopting both children, would provide a safe and loving home and permanency for K.M.D.

We hold that, based on the evidence presented at trial and the Holley factors, the trial court could reasonably have formed a firm belief or conviction that termination of the father's parental rights would be in the best interest of K.M.D. See Holley, 544 S.W.2d at 371–72.  Upon considering the record as it relates to the emotional and physical needs of the child now and in the future;  the emotional and physical danger to the child now and in the future;  the parental abilities of the father and the foster parents;  the plans for the child by the Department;  the instability of the father's home;  the stability of the child's placement and proposed placement;  the acts and omissions indicating that the parent-child relationship was not a proper one;  the father's unwillingness to cooperate with the Department or appear for trial;  and the threats made by the father against a Department employee, the trial judge, and others at the courthouse, we hold that the evidence is sufficient to support the finding that termination of the father's parental rights is in the best interest of K.M.D. See id.  The father's second issue is overruled.

We affirm the trial court's order of termination.

FOOTNOTES

1.   We note that the father of K.D.B. has not appealed.  Therefore, for ease of reference, we refer to the father of K.M.D. as “the father” in this opinion.

PER CURIAM