In the Interest of A.A. Jr. and K.A., Children v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00084-CV

IN THE INTEREST OF A.A., JR. AND K.A., CHILDREN

From the County Court at Law
Hill County, Texas
Trial Court No. CV328-22CCL

MEMORANDUM OPINION

The mother of A.A., Jr. and K.A. appeals a judgment that terminated her parental

rights to her children. 1 The mother complains that the evidence was legally insufficient

for the trial court to have found that she committed the predicate ground set forth in

Section 161.001(b)(1)(D) (endangering conditions) or that termination was in the best

interest of the children. See TEX. FAM. CODE §161.001(b)(1)(D), 161.001(b)(2). Because we

find no reversible error, we affirm the judgment of the trial court.

STANDARD OF REVIEW

The standard of review for legal sufficiency of the evidence in cases involving the

1 The father’s rights were also terminated, but he did not appeal the trial court’s judgment.
termination of parental rights is well established and will not be repeated here. See In re

J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002). The trial court, as factfinder, is the sole judge of

the witnesses' credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

Additionally, if the evidence is sufficient as to one predicate act, it is not necessary to

address the other predicate acts because sufficient evidence as to only one predicate act

in addition to the best interest finding is necessary to affirm a termination judgment. In

re N.G., 577 S.W.3d 230, 232-33 (Tex. 2019).

PREDICATE ACTS

In her first issue, the mother complains that the evidence was legally insufficient

for the trial court to have found that she committed the predicate ground in Section

161.001(b)(1)(D). The termination judgment reflects that the mother’s parental rights

were terminated based on three predicate grounds: endangering environment

(Subsection (D)); endangering conduct (Subsection (E)); and failure to comply with a

court-ordered service plan (Subsection (O)). See TEX. FAM. CODE § 161.001(b)(1)(D), (E),

& (O). The mother acknowledges in her brief that the evidence was legally sufficient as

to endangering conduct and the failure to complete her service plan. By failing to

challenge all of the trial court's predicate ground findings, the mother has waived any

complaint about the sufficiency of the evidence to support the judgment as to predicate

grounds. See In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019) (per curiam) (stating that "only

one ground is required to terminate parental rights"). Because the mother has not

challenged the sufficiency of the evidence as to Section 161.001(b)(1)(E) or (O), we find
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that there was sufficient evidence as to one ground to support the termination of her

parental rights.

Generally, we are required to address the sufficiency of the evidence as to

Subsection (D) or (E) due to potential collateral consequences in the future. See In re N.G.,

577 S.W.3d at 236‒37 ("allowing a challenged section 161.001(b)(1)(D) or (E) finding to

stand unreviewed...creates the risk that a parent will be automatically denied the right to

parent other children even if the evidence supporting the section 161.001(b)(1)(D) or (E)

finding were insufficient"). However, we are not required to address that complaint

because the unchallenged ground pursuant to Subsection (E) satisfies this requirement.

See id. We overrule issue one.

BEST INTEREST

In her second issue, the mother complains that the evidence was legally

insufficient for the trial court to have found that termination was in the best interest of

the children. In determining the best interest of a child, a number of factors have been

consistently considered which were set out in the Texas Supreme Court's opinion, Holley

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply

identifies factors that have been or could be pertinent in the best interest determination.

Id. There is no requirement that all of these factors must be proved as a condition

precedent to parental termination, and the absence of evidence about some factors does

not preclude a factfinder from reasonably forming a strong conviction that termination is

in the children's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The Holley
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factors focus on the best interest of the children, not the best interest of the parent. Dupree

v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995,

no writ). 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 children's

best interest. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet). Evidence

relating to the predicate grounds under section 161.001(b)(1) also may be relevant to

determining the best interest of the children. See C.H., 89 S.W.3d at 27-28.

The children were removed from the mother and father due to an incident

involving domestic violence and alcohol in the presence of the children, who were almost

4 years old and 20 months old. The mother took a hair test during the investigation which

showed a high amount of alcohol. The caseworker testified that she was told that the

high number indicated excessive, chronic alcohol abuse. The mother and father had an

on-again, off-again relationship. The mother finally split from the father approximately

six months into the proceedings after an incident involving the father and the mother’s

boyfriend.

The mother participated in services and the children were returned to the mother

on a monitored return. The mother was residing with her father at that time, who was a

registered sex offender. The mother’s father had been convicted of sexually assaulting

the mother’s sister when she was a young teenager, although the mother did not believe

that her father was guilty. The mother informed the caseworker that she had concerns

about the father developing dementia. The department informed the mother that her
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father was not allowed to be a caregiver of the children by himself.

Ten days after the children were returned, the mother was arrested for driving

while intoxicated, with an alcohol concentration over .15. The children were in the care

of the mother’s father in violation of the department’s stipulation. The children were

removed from the mother again. The children told a caseworker that the mother and her

father would drink together every day.

The mother was required to participate in drug and alcohol testing throughout the

case, but many of the tests were either missed or diluted samples were given. In the time

after the second removal, the mother completed an evaluation that recommended

outpatient treatment. The mother did not take her required drug and alcohol tests. When

she did finally complete a test almost 3 months after the second removal, the mother

tested positive for alcohol. A couple of weeks after that test, the mother went to an

inpatient facility for 30 days, which she successfully completed. The discharge summary

from the facility recommended intensive outpatient services and for her to attend

Alcoholics Anonymous. The mother complied with attending AA but did not participate

in any intensive outpatient services. The mother denied being told that she was required

to do so but acknowledged that it was included in the written discharge summary

admitted into evidence.

In the two months after the completion of the inpatient treatment, the mother

failed to submit to regular testing seven times, submitted two diluted samples, and tested

negative twice for alcohol. She was placed on 12 months of community supervision for
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the DWI less than two months before the termination trial and was required to blow into

a home interlock device three times a day as a condition of her community supervision.

The mother had not violated her community supervision as of the time of the trial, but

had only reported to the community supervision office once and had not yet met her

probation officer.

Early in the case, the children were placed with fictive kin and had remained in

that home except for the short time the children were returned to the mother. The

caregivers wanted to adopt the children if the parents’ rights were terminated. The

children were very bonded to the placement, were taken care of well and were thriving

in the placement.

The mother had over 20 cases with the department since 2008 and had participated

in services in at least three of them. She had seven children, one of whom was an adult.

All seven of them had resided outside of her home, and the six minors were placed or

resided outside her home at the time of the final trial.

The caseworker testified that the mother had never acknowledged that she had a

serious problem with alcohol. At trial, the mother did not know her diagnosis but stated

that “[p]retty much I’d drink socially and I drink excessively when I do drink.” This was

demonstrated by her “bad mistake” of leaving her just-returned young children with her

sex-offender father to go drinking at a birthday party which led to her arrest for driving

while intoxicated with a very high concentration of alcohol in her blood. After the second

removal of her children, rather than demonstrating to the department that she was
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serious about doing whatever was necessary to have her children returned and knowing

that her parental rights were in serious jeopardy, she failed to submit to testing for over

two months and tested positive for alcohol when she did finally take a test. Even after

she completed the inpatient treatment, she still failed to comply with testing when

requested by the department. It was reasonable for the trial court to find that her failure

to comply with testing demonstrated a lack of concern as to the return of the children to

her.

The mother claimed at the trial that she was no longer around people who drink

since being placed on community supervision shortly before the trial. Also, the mother

contended that in the future, she was not going to be around people who drink. The

mother stated that this included not allowing her father, who still lived with her at the

time of the trial, to drink around her. However, we cannot say that this contrary evidence

of recent improvement is "so significant" that the factfinder could not have formed a firm

belief or conviction that termination of the mother's parental rights was in the children's

best interest. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

The trial court, as factfinder, observed the mother’s credibility, and heard her

excuses and explanations for her behavior and actions. Based on the record before us, we

find that the evidence was legally sufficient to support the trial court’s finding that

termination was in the best interest of the children. We overrule issue two.

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CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 8, 2024
[CV06]

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