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In re L.N.H.

State of Texas in the Eleventh Court of Appeals
Jan 8, 2016
No. 11-15-00161-CV (Tex. App. Jan. 8, 2016)

Opinion

No. 11-15-00161-CV

01-08-2016

IN THE INTEREST OF L.N.H., A CHILD


On Appeal from the 35th District Court Brown County, Texas
Trial Court Cause No. CV 13-10-448

MEMORANDUM OPINION

This is an appeal from an order in which the trial court terminated the parental rights of the mother and the father of L.N.H. L.N.H.'s father filed a notice of appeal, but the mother, who voluntarily relinquished her rights, did not appeal. On appeal, Appellant presents five issues: four that involve the legal and factual sufficiency of the evidence and one that relates to Appellant's request for a jury trial. We affirm.

We note that the trial court's order of termination also involves L.N.H.'s half brother, A.J.D. However, neither of A.J.D.'s parents filed a notice of appeal. --------

I. Termination Standards and Findings

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).

After the final hearing in this case, the trial court found that Appellant had committed three of the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (Q). Specifically, the trial court found that Appellant had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child, that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, 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 in this case. 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.

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.

II. Analysis

A. Section 161.001(b)(1)(Q)

In his third issue, Appellant challenges the legal and factual sufficiency of the evidence to support the trial court's finding under subsection (Q). To support a finding under subsection (Q), the record must show that the parent will be incarcerated or confined and unable to care for the child for at least two years from the date the termination petition was filed. FAM. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006).

The Department of Family and Protective Services produced clear and convincing evidence from which the trial court could reasonably have formed a firm belief that Appellant had knowingly engaged in criminal conduct, that he was duly convicted and imprisoned for that conduct, and that his imprisonment and inability to care for the child would continue for more than two years after the date that the petition was filed. The Department filed the original petition in this case on October 24, 2013. The evidence showed that Appellant had an extensive criminal history, which included multiple felony convictions. In 2010, Appellant was sentenced to serve a fifteen-year term of imprisonment for the offense of engaging in organized criminal activity. At the time of trial in May 2015, Appellant remained incarcerated for that crime. Appellant testified that he could get out of prison in "January" and be paroled back to Brown County at that time.

Thus, even if Appellant were to be released on parole at the earliest date possible, which—based upon his testimony—would be January 2016, more than two years would have elapsed from the date the petition was filed to the date of Appellant's release. Furthermore, the record contains no evidence to indicate that anyone was willing to care for L.N.H. on Appellant's behalf during his incarceration. See H.R.M., 209 S.W.3d at 110.

We hold that the evidence is legally and factually sufficient to support the trial court's finding under subsection (Q). See id. at 108-10. Consequently, we overrule Appellant's third issue. 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 Appellant's first and second issues, which relate to the sufficiency of the evidence with respect to the trial court's findings under subsections (D) and (E). See TEX. R. APP. P. 47.1.

B. Best Interest

In his fourth issue, Appellant challenges the trial court's finding that termination of his rights would be in the best interest of the child. 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 in the best interest of the child. See Holley, 544 S.W.2d at 371-72. With respect to the child's best interest, the record reflects that she had been placed with relatives and was doing very well in that placement. Appellant was incarcerated when L.N.H. was born and had been incarcerated for all but six or eight months of L.N.H.'s life. At the time of trial, L.N.H. was eight years old, and Appellant had had very little involvement in her life. She has never lived with Appellant or visited him on a regular basis, not even during the six or eight months that he was not incarcerated. Representatives from the Department and CASA recommended that, based upon L.N.H.'s best interest, Appellant's parental rights be terminated. They also recommended that the relatives with whom L.N.H. had been placed be allowed to adopt her. Based upon our review of the entire record, we hold that the evidence is both legally and factually sufficient to support the finding that termination of Appellant's parental rights is in the best interest of L.N.H. See id. We overrule Appellant's fourth issue.

C. Jury Demand

In his final issue, Appellant argues that the trial court abused its discretion when it denied Appellant the right to a trial by jury. The record reflects that, although Appellant did initially request a jury in this case, he subsequently entered into a Rule 11 agreement after he filed his jury demand. See TEX. R. CIV. P. 11. The agreement states, "All parties agree to withdraw any jury trial demand." The agreement was signed by Appellant and Appellant's trial attorney. We note that Appellant did not object to the lack of a jury when the case was called for a bench trial. The trial court did not violate Appellant's right to a jury trial and did not abuse its discretion when it proceeded to trial without a jury. We overrule Appellant's fifth issue.

III. This Court's Ruling

We affirm the trial court's order of termination.

MIKE WILLSON

JUSTICE January 8, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.


Summaries of

In re L.N.H.

State of Texas in the Eleventh Court of Appeals
Jan 8, 2016
No. 11-15-00161-CV (Tex. App. Jan. 8, 2016)
Case details for

In re L.N.H.

Case Details

Full title:IN THE INTEREST OF L.N.H., A CHILD

Court:State of Texas in the Eleventh Court of Appeals

Date published: Jan 8, 2016

Citations

No. 11-15-00161-CV (Tex. App. Jan. 8, 2016)