Full Opinion (html_with_citations)

Opinion filed December 15, 2022




                                                  In The


            Eleventh Court of Appeals
                                              __________

                                       No. 11-22-00211-CV
                                           __________

                      IN THE INTEREST OF N.V., A CHILD


                   On Appeal from the 1st Multicounty Court at Law
                                Nolan County, Texas
                          Trial Court Cause No. CC-7767


                            MEMORANDUM OPINION
        This is an appeal from an order in which the trial court terminated the parental
rights of N.V.’s father. 1 On appeal, the father presents one issue in which he asserts
that his “due process rights . . . as to the fundamental interest in his parental rights
were violated by the Department” and that this court should therefore find that the



        1
         We note that this is the second appeal from an order terminating N.V.’s father’s rights. See In re
N.V., No. 11-21-00132-CV,
2021 WL 5778560
, at *1 (Tex. App.—Eastland Dec. 6, 2021, no pet.) (mem.
op.) (holding that trial court’s failure to appoint counsel to represent N.V.’s father at the termination hearing
constituted reversible error).
evidence was insufficient “to support a finding of best interest.” We affirm the order
of the trial court.
                         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 2022). 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. In this case, the trial court found
that Appellant had committed four of the acts listed in Section 161.001(b)(1)—those
found in subsections (D), (E), (N), and (O). Appellant does not challenge these
findings on appeal.
       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. See id.
§ 161.001(b)(2). Appellant’s issue on appeal relates, in part, to the sufficiency of the
evidence to support the trial court’s Section 161.001(b)(2) finding.
       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). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B.,
437 S.W.3d 498, 503
 (Tex. 2014) (citing In
re J.L.,
163 S.W.3d 79
, 86–87 (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.
                             Evidence Presented at Trial
      The record shows that the Department of Family and Protective Services
became involved with N.V. shortly after he tested positive for illegal drugs at birth.
At that time, N.V.’s mother began family-based safety services (FBSS) with the
Department. N.V.’s mother reported that Appellant “was not in the picture due to
domestic violence.” However, during the FBSS case, the mother took N.V. to
Appellant and “signed her rights over to [Appellant],” who was later determined
through DNA testing to be N.V.’s biological father. The Department received
information that both Appellant and N.V.’s mother used drugs.                When the
Department ultimately located N.V. and removed him from Appellant’s care, N.V.
was dirty, had bug bites on his head, and had dried feces on his bottom. Appellant


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refused to submit to a drug test at that time. However, he subsequently tested
positive for methamphetamine and for marihuana while this case was pending below.
Just two months before the final hearing on termination, Appellant tested “positive
for methamphetamine at a level of 11,587.”
      The Department attempted to engage Appellant in various services so that
N.V. could be returned to Appellant’s care. Appellant was ordered by the trial court
to comply with each requirement set out in the Department’s family service plan,
which included the following: maintain a lifestyle free of drug use and criminal
activity, complete a substance abuse assessment, successfully complete substance
abuse treatment, submit to random drug tests as requested by the Department, submit
to a psychological evaluation, attend counseling, successfully complete parenting
classes, maintain safe and stable housing, maintain legal employment, and notify the
Department of any changes in Appellant’s address or employment. Appellant,
however, did not cooperate with the Department, nor did he comply with any of the
requirements of the trial court’s order or the family service plan. Instead, Appellant
was difficult, complained about his rights being violated, and made constant threats
to sue the Department and its employees; Appellant did not believe that he should
be required to comply with any of the requirements of the service plan because he
was not the “offending parent” whose actions resulted in the initial involvement of
the Department with N.V.
      N.V. was placed with Appellant’s cousin when N.V. was seven months old.
He lived with that same cousin throughout the prolonged proceedings in this case
and had become part of the family there. By the time of the trial that is at issue in
this appeal, N.V. was almost four years old and had been diagnosed as having autism.
N.V.’s diagnosis came after his guardian ad litem and Appellant’s cousin noticed
that, at eleven months old, N.V. was relatively nonverbal, walked on his “tippy toes,”


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and avoided eye contact with most people. Appellant did not agree that N.V. was
autistic. The record shows that Appellant’s cousin took good care of N.Vand that
N.V. was happy and doing well in her care. Appellant’s cousin provided a safe and
loving home for N.V. and wanted to adopt N.V. Appellant’s cousin testified that
autistic children generally relate closely to one person and that she was N.V.’s
“person” and was “everything to him.”
      The Department’s plan for N.V. was for him to remain in the care of, and
ultimately be adopted by, Appellant’s cousin—with whom N.V. had been placed for
over three years. The permanency case manager and Appellant’s cousin testified
that it would be in N.V.’s best interest for Appellant’s parental rights to be terminated.
Additionally, N.V.’s attorney and guardian ad litem recommended termination and
informed the trial court that he believed the best interests of N.V. would be served
by terminating Appellant’s parental rights. Appellant, who had had only one visit
with N.V. during the pendency of this case—a 30-minute visit that occurred when
N.V. was seven months old, testified that termination would not be in N.V.’s best
interest. Appellant explained: “The reason why he’s acting out is because he misses
his dad.” When asked again why termination would not be in N.V.’s best interest,
Appellant further explained: “I want to be a father to my son. But, I mean, he needs
his dad, and I want that chance.”
                                         Analysis
      The trial court, as the trier of fact, is the sole judge of the witnesses’ credibility.
A.B.,
437 S.W.3d at 503
. We are not at liberty to disturb the determinations of the
trier of fact as long as those determinations are not unreasonable. J.P.B.,
180 S.W.3d at 573
. Giving due deference to the trial court, 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 Appellant’s parental rights would be


                                             5
in the best interest of N.V. See Holley, 544 S.W.2d at 371–72. Upon considering
the record as it relates to the desires of the child, 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 those involved, the plans for the child
by the Department, Appellant’s continued use of drugs while the case was pending
below, Appellant’s failure to visit or have any contact with his child for over three
years, and the instability of Appellant’s situation, we hold that the evidence is legally
and factually sufficient to support the finding that termination of Appellant’s parental
rights is in the best interest of N.V. See
id.
 We defer to the trial court’s finding as to
N.V.’s best interest, see C.H.,
89 S.W.3d at 27
, and we cannot hold in this case that
the trial court’s finding as to best interest is not supported by clear and convincing
evidence.
      To the extent that Appellant complains on appeal that the best interest finding
made by the trial court pursuant to Section 161.001(b)(2) of the Family Code cannot
stand because Appellant’s due process rights were violated, we note (1) that, as we
held above, clear and convincing evidence supports the trial court’s best interest
finding; (2) that, with respect to the termination hearing that occurred after this court
remanded the cause to the trial court, the record does not support a finding that
Appellant’s due process rights were violated; (3) that Appellant did not seek relief
from any of the temporary orders issued by the trial court, see In re J.W.,
645 S.W.3d 726
, 747 (Tex. 2022); and (4) that Appellant’s right to due process does not
necessarily correlate to a finding regarding N.V.’s best interest, see id. at 748. We
overrule Appellant’s sole issue on appeal.




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                                   This Court’s Ruling
       We affirm the order of the trial court.




                                                 JOHN M. BAILEY
                                                 CHIEF JUSTICE


December 15, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.




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