Opinion filed August 15, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-19-00088-CV
                                    __________

                  IN THE INTEREST OF J.O., A CHILD


                     On Appeal from the 106th District Court
                             Dawson County, Texas
                       Trial Court Cause No. 17-12-20119


                      MEMORAND UM OPI NI ON
      This is an appeal from an order in which the trial court, based upon the jury’s
verdict, terminated the parental rights of the mother and the father of J.O. The father
appeals. In his sole issue on appeal, Appellant challenges the factual sufficiency of
the evidence. We affirm.
                         Termination Findings and Standards
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). 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.
       After being instructed in accordance with Section 161.001(b), the jury
answered the questions posed in the trial court’s charge to the jury and determined
that Appellant’s parental rights should be terminated. The trial court found that
Appellant had committed three of the acts listed in Section 161.001(b)(1)—those
found in subsections (E), (M), and (Q). Specifically, the trial court found 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 previously had his parental rights terminated with respect to
another child based on subsections (D) or (E), 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.
       On appeal, Appellant challenges the factual sufficiency of the evidence with
respect to the best interest finding; he does not challenge the sufficiency of the
evidence to support a finding under subsection (E), (M), or (Q). To determine if the
evidence is factually sufficient in a parental termination case, 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). We note that the trier of
fact is the sole judge of the credibility of the witnesses at trial and that we are not at
liberty to disturb the determinations of the trier of fact as long as those
determinations are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).


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         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.
                                   Background Facts
         The record reflects that the Department of Family and Protective Services
became involved with the family in this case when J.O.’s older brother was born.
Both the mother and J.O.’s older brother tested positive for illegal drugs at that time.
The mother told the Department that she and Appellant had smoked
methamphetamine together the day that J.O.’s older brother was born. The older
brother was removed after the family-based safety plan failed. The parents’ rights
to J.O.’s older brother were eventually terminated, and the final order of termination
contained a finding, pursuant to subsection (E), that Appellant had endangered that
child.
         While the case involving J.O.’s older brother was pending, however, the
mother became pregnant with J.O. Ten months after J.O.’s older brother was born,
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J.O. was born addicted to methamphetamine and benzodiazepines. As a result, he
spent approximately three weeks in the NICU at the hospital and was removed from
the parents. J.O.’s mother admitted that she smoked methamphetamine while
pregnant with J.O. Ultimately, she voluntarily relinquished her parental rights to
J.O.
       Appellant has never even seen J.O. Appellant was incarcerated at the time of
J.O.’s birth and remained incarcerated at the time of the final hearing on termination.
Appellant’s legal troubles began when he was eleven years old and continued into
adulthood.   He was thirty-three years old at the time of trial and had been
incarcerated most of his adult life. Appellant admitted to numerous arrests and
convictions for various offenses, including criminal mischief, theft, burglary of a
building, unauthorized use of a motor vehicle, bail jumping and failure to appear,
evading arrest (multiple), assault, interference with an emergency request, driving
without a valid license, assault of a family member, and aggravated assault with a
deadly weapon. On February 2, 2018, Appellant’s community supervision was
revoked, and he was sentenced to a term of confinement for four years for the offense
of assault family violence, with previous convictions. Furthermore, the mother had
told the Department that Appellant was violent toward her, that he used
methamphetamine, that he provided methamphetamine for the mother to use, and
that she “really never did meth before she met him.”
       Appellant did not want his parental rights to be terminated and believed that
he would be a good father to J.O. In support of this assertion, Appellant testified
that, in the past fifteen months, he had “made a complete change around,” had
completed courses as requested by the Department, and was attending college while
he was in prison. Appellant also testified that he would never hurt his son and that
he would “be there for him.” At trial, Appellant acknowledged that he had a thirteen-
year-old son with whom he had spent little time because he was incarcerated for
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most of that child’s life. Appellant testified that he and his thirteen-year-old son
were “close” nonetheless, but Appellant agreed that his incarcerations had
“probably” affected that son.
      The conservatorship supervisor, the caseworker, the child’s guardian ad litem,
and the child’s attorney ad litem believed that termination of Appellant’s rights
would be in the best interest of J.O. The conservatorship supervisor indicated that
Appellant’s proclivity for criminal conduct endangered J.O.
      J.O. had been placed in foster care after he was released from the hospital.
Those foster parents were able to provide special care for J.O.’s medical conditions,
which were attributed to the mother’s use of methamphetamine while she was
pregnant. J.O. remained in the same foster home at the time of trial; he was fifteen
months old at that time. The Department’s plan for J.O. was adoption by the foster
parents, with whom J.O. was very bonded. The foster mother testified that she loved
J.O. and that she and her husband wanted to adopt J.O. The record reflects that all
of J.O.’s needs were being met by the foster parents and that the foster parents would
be able to meet any medical needs that might arise in the future.
                                      Analysis
      We have considered the record as it relates to the desires of the child (who
was too young to express a desire), 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 Appellant and of the persons with whom the child
was placed, the Department’s plans for the child, Appellant’s inability to provide a
safe home for the child, Appellant’s use of methamphetamine with the child’s
mother while she was pregnant, Appellant’s providing methamphetamine to the
mother, Appellant’s commission of domestic violence against the child’s mother and
others, and Appellant’s extensive criminal history. The trier of fact could reasonably
have formed a firm belief or conviction, based on the clear and convincing evidence
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presented at trial and the Holley factors, that termination of Appellant’s parental
rights would be in J.O.’s best interest. See Holley, 544 S.W.2d at 371–72. Therefore,
we hold that the evidence is sufficient to support the finding that termination of
Appellant’s parental rights is in J.O.’s best interest. See id. We overrule Appellant’s
sole issue on appeal.
                                         This Court’s Ruling
        We affirm the trial court’s order of termination.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


August 15, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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