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Click here for the full text of this decision FACTS:Jaculynn Rochelle Jackson and James Monroe Jr. (James Jr.) are the biological parents of J.A.M.J. While Jaculynn was pregnant with J.A.M.J., she decided to give the baby up for adoption. Jaculynn contacted Alternatives in Motion (AIM), an adoption agency, and executed an affidavit of status naming James Jr. as the father of J.A.M.J. Ronald Landry, an employee of AIM, attempted to contact James Jr. on several occasions but the Monroes James Jr.’s parents and the paternal grandparents of J.A.M.J. refused to allow James Jr. to speak with Landry, because James Jr. was only 17 years old at the time. AIM filed this suit in September 2003, seeking to terminate the parent-child relationships between Jaculynn, James Jr. and J.A.M.J. and to have AIM appointed sole managing conservator of J.A.M.J. Jaculynn gave birth to J.A.M.J. on Nov. 24, 2003. Shortly thereafter, Jaculynn executed an affidavit of voluntary relinquishment of parental rights, designating AIM as managing conservator of J.A.M.J. On Nov. 26, 2003, AIM placed J.A.M.J. with Corey and Angela Williams (the Williamses), the prospective adoptive parents chosen by Jaculynn and pre-approved by AIM. The Williamses live in North Dakota. After J.A.M.J. was born, the trial court issued sanctions to force James Jr. to submit to a paternity test. DNA testing confirmed James Jr.’s paternity in December 2004. In June 2005, the Monroes intervened in the suit, seeking to be appointed joint managing conservators of J.A.M.J. The Williamses intervened in this suit as well, seeking to adopt J.A.M.J. In October 2005, James Jr. executed an affidavit of voluntary relinquishment of parental rights, naming his parents as managing conservators and prospective adoptive parents. The trial court held a bench trial in November 2005. At the conclusion of the trial, the court terminated the parental rights of both Jaculynn and James Jr., and appointed AIM as the sole managing conservator of J.A.M.J. HOLDING:Affirmed. In their first issue, James Jr. and the Monroes contended that the trial court erred in failing to appoint the Monroes as joint managing conservators of J.A.M.J. in accordance with James Jr.’s managing conservator designation in his affidavit of voluntary relinquishment of parental rights. Texas Family Code �161.001 authorizes a trial court to terminate a parent-child relationship if the court finds by clear and convincing evidence that the parent has executed an unrevoked affidavit of relinquishment of parental rights and that termination is in the best interest of the child. Under �153.374, a parent may designate a competent person, authorized agency or licensed child-placing agency to serve as managing conservator of the child in an unrevoked or irrevocable affidavit of relinquishment of parental rights. The person or agency designated to serve as managing conservator, the court stated, shall be appointed managing conservator unless the court finds that the appointment would not be in the best interest of the child. The court found no evidence in the record that James Jr. believed he was executing his affidavit of relinquishment on the express condition that the court appoint the Monroes as managing conservators of J.A.M.J. The court further held that a designation of a managing conservator in a relinquishment affidavit does not, standing alone, conclusively establish a lack of voluntariness where the parent is informed that he has no further say concerning the child. Citing the Texas Supreme Court’s 1976 opinion Holley v. Adams, 544 S.W.2d 367, the court enumerated nine nonexclusive factors to determine the best interest of the child, including: 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, which 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. In addition, the court considered a list of factors from �263.307, which states that “the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.” Considering the pertinent factors from Holley and �263.307, the court concluded that legally and factually sufficient evidence supported the trial court’s finding that appointment of the Monroes as managing conservators would not be in the best interest of J.A.M.J. In explaining its finding, the court stated that J.A.M.J. was two years old at the time of the termination trial. J.A.M.J. had spent her entire life with the Williams family in North Dakota. AIM pre-approved the Williamses as prospective adoptive parents and Jaculynn chose them to raise the child. All the reports that AIM received regarding J.A.M.J. stated that she was in good health and progressing normally. J.A.M.J. had bonded with the Williams family, and the court feared it would be traumatic and detrimental to move J.A.M.J. away from the Williamses. Viewing all the evidence in the light most favorable to the verdict, and considering the pertinent Holley and �263.307 factors, the court held that the evidence presented at the termination trial would enable reasonable and fair-minded people to reach the verdict under review. Considering all the evidence supporting and contradicting the finding, the court could not say the finding was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The court held that 1. legally sufficient evidence supported the trial court’s presumed finding that James Jr. executed the affidavit of relinquishment voluntarily; 2. the trial court did not abuse its discretion in denying conservatorship rights to the Monroes; and 3. the trial court did not abuse its discretion in denying the request for a jury trial. OPINION:Bland, J.; Radack, C.J., and Jennings and Bland, J.J. Termination of Parental Rights ” Legally and factually sufficient evidence supported the trial court’s finding that termination of Kay Adams’ parental rights was in the best interest of her two children. Adams v. Texas Department of Family & Protective Services, Houston’s 1st Court of Appeals, 01-06-00243-CV, 2-22-2007. FACTS:In September 2004, the Texas Department of Family and Protective Services (DFPS) took temporary custody of Kay Adams’ two minor children, who were living with Adams at the Houston Area Women’s Shelter, after Adams made a false call for emergency assistance. After officers responded to the call, Adams volunteered to be admitted to the Ben Taub Psychiatric Ward. DFPS subsequently filed its petition to terminate Adams’ parental rights to her two children. During the trial, Adams testified that Shazizz Mateen is the father of both children and that she had two pregnancies before the births of the two children. She further testified that her first pregnancy ended upon a self-inflicted gunshot wound to her stomach, which she described as a suicide attempt. At the time that she inflicted the gunshot wound, Adams was not aware that she was pregnant. She also testified that her second pregnancy ended in an abortion. Adams has criminal convictions for unlawfully carrying a weapon and misdemeanor theft. Since 1999, she has moved residences approximately 12 times, living in Galveston, Houston and Louisiana. Adams further testified that she felt as though she had made progress during the year and a half that her children were in foster care pending the trial. Although she was not stable at the time of trial, she told the trial court that she was “getting there” and “doing the best to [her] ability.” If her children were returned to her, Adams stated that she would meet all DFPS’ requirements. Adams admitted that she had a mental illness but did not want her parental rights terminated. Mandi Norris, a clinical psychologist, testified that she began serving as Adams’ individual therapist on Dec. 14, 2004. Norris explained that Adams, who is diagnosed with Psychotic Disorder Not Otherwise Specified (NOS), a catchall term for psychotic disorders that are not fully diagnosed or do not fall into a specific type of psychotic disorder, had not accepted her mental illness and that acceptance is a necessary first step in making progress. While under Norris’ treatment, Adams was hospitalized three times during a 10-month period after psychotic episodes. Norris further testified that she was concerned, because Adams’ psychiatric symptoms did not stabilize over her course of treatment and because Adams’ most recent psychiatric hospitalization may have been precipitated by Adams’ discontinuing her medication regimen. In her most recent therapy report provided to DFPS, Norris indicated that Adams had made minimal to moderate progress in reaching her stated treatment goals. In regard to several goals specifically relating to Adams’ parenting failures, the report indicated that Adams had made minimal progress. Adams, Norris said, did not understand the impact her psychological problems had on the children and felt that she was a very good mother. Norris did not recommend that the children live with Adams and explained that, although it may be possible for Adams at some point to be fit as a parent, it would be dependent on many variables and, importantly, her own insight into her mental illness. Daniel J. Neuls, a licensed professional counselor, testified that he had been meeting with the two children every other week for 45-minute sessions since December 2004. When he began working with the children, Neuls became concerned that they had experienced some kind of trauma. Part of Neuls’ concern stemmed from the fact that the younger child told him “very matter of factly” that his uncle had murdered his father. As a result, Neuls worried that the child had become numb to violence. Adams later told Neuls that no murder occurred. Additionally, the younger child told Neuls about a “fire inside of him.” Neuls also noted the older child’s issues with having her hair washed, bathing and coming into contact with water. Neuls attempted to schedule several family sessions with Adams. On the single occasion when he was able to meet with Adams, Adams and the children interacted well with each other. Neuls told the trial court that children tend to take on the same behaviors as their parents. As a result, he noted that Adams’ behavior could affect the way the children view the world, view themselves and interact with other individuals. Neuls further testified that the children needed a consistent, stable and nurturing environment. If Adams could not provide this environment, Neuls felt her parental rights should be terminated. Ginger Tenorio, the court-appointed guardian ad litem for the children, testified that during the approximately 18 months that she had been on this case, the children displayed numerous behavioral problems. Tenorio explained that she did not believe it was in the children’s best interest to have any further contact with Adams, due to her behavior being “damaging to the children emotionally and physically.” She recommended to the trial court that it was in the best interest of the children that Adams’ parental rights be terminated. Nicole Newsome, a DFPS caseworker assigned to the children, testified that Adams had not demonstrated significant progress during counseling. Newsome further testified that terminating Adams’ parental rights and allowing the children to be adopted by Dorothy Williams, the sister of Shazziz Mateen, was in the best interest of the children. Dorothy Williams testified that the children were placed in her care in August 2005. She stated that the children are “doing great” and that the older child is doing well in school, but the younger child has “some behavioral problems” that they are working on. Williams explained that she loves the children and, if the court terminated their biological parents’ parental rights, she would adopt them and provide a home for them until they are grown. Following the bench trial, the trial court signed a decree terminating Adams’ parental rights to the children on grounds that it was in the children’s best interest. The court also found by clear and convincing evidence that Adams knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being and engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children, pursuant to �161.001(1)(E) of the Texas Family Code. The court also found that Adams had a mental or emotional illness or a mental deficiency that rendered her unable to provide for the physical, emotional and mental needs of her children. HOLDING:Affirmed. In determining whether termination of Adams’ parental rights was in the children’s best interest, the court considered several factors, including: 1. the children’s desires; 2. the current and future physical and emotional needs of the children; 3. the current and future physical danger to the children; 4. the parental abilities of the person seeking custody; 5. whether programs are available to assist the person seeking custody in promoting the best interests of the children; 6. plans for the children by the person seeking custody; 7. the stability of the home; 8. acts or omissions of the parent that may indicate that the parent-child relationship is not proper; and 9. any excuse for acts or omissions of the parent. The court went through each factor. For example, addressing the desires of the children, the court noted Newsome’s testimony that both children expressed a desire to remain with Williams. Also, the court noted that Tenorio stated that the children appeared to have bonded with Williams and seemed happy. This factor, the court found, demonstrated that termination of Adams’ parental rights is in the best interest of the children. In addition, addressing the factor relating to the stability of the home, the court noted that Adams moved residences approximately 12 times since 1999. On the other hand, the court found that both the guardian ad litem and DFPS caseworkers indicated that Williams was able to provide a stable and nurturing home. This factor, the court found, demonstrated that termination of Adams’ parental rights is in the best interest of the children. After analyzing all nine factors, the court found only one that weighed in Adams’ favor. No evidence in the record, the court stated, indicated that programs were available to assist Williams in promoting the best interests of the children In conclusion, the court found that a fact finder could have formed a firm conviction or belief that termination of Adams’ parental rights was in the children’s best interest. Accordingly, the court held that the evidence was legally and factually sufficient to support the trial court’s finding under Texas Family Code �161.003(a)(5) that termination of Adams’ parental rights was in the best interest of the children. OPINION:Jennings, J.; Radack, C.J., and Jennings and Bland, J.J.

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