E. Case Law on Best Interest When Seeking Termination of Parental Rights

The Holley factors (Holley v. Adams, 544 S. W. 2d 367 (Tex. 1976)) are a non-exclusive list of factors to consider, including:

DESIRES OF CHILD

The desires of the child can be inferred by evidence other than the child's testimony. A factfinder may infer the preferred placement of a child too young to articulate her own desire by assessing the quality and extent of the relationships between the child and the prospective placements. L.Z. v. Tex. Dep't of Family and Protective Serv., No. 03-12-00113-CV, 2012 WL 3629435, at *10 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.)

EMOTIONAL & PHYSICAL DANGER TO CHILD NOW & IN FUTURE

Past conduct can be used to measure future conduct. “Evidence of past misconduct or neglect can be used to measure a parent's future conduct.” Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ.)

Conflict and dysfunction between a parent and child does not establish danger to the child. Evidence that a child ran away from a parent and engaged in reckless behavior was factually insufficient to support termination when there was evidence the child loved her parent, was concerned about her health, and no evidence was provided that the parent was unable to meet the child's needs or was the cause of the child's reckless behavior. In the Interest of K.D., 471 S.W.3d 147, 176 (Tex. App.—Texarkana 2015)

PARENTAL ABILITIES

Past conduct can be used to measure future conduct. In reviewing the parental abilities of a parent, a factfinder can consider the parent's past neglect or past inability to meet the physical and emotional needs of their children. D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 356 (Tex. App.—Austin 1993, no writ.)

Inability to meet the child's needs cannot be based on economic disadvantage. Evidence a parent could have difficulty financially providing for a child when the evidence indicates the difficulty would be due to economic disadvantage and not due to any misconduct on the part of the parent, cannot be included in a best interest analysis. In the Interest of G.A.L., No. 05-19-00844-CV, at *25 (Tex. App.—Dallas Feb. 6, 2020)

PROGRAMS AVAILABLE TO ASSIST PARENTS

Parent's initiative to pursue programs is relevant. A factfinder can infer from a parent's failure to take the initiative to avail herself of the programs offered to her by the Department that the parent “did not have the ability to motivate herself to seek out available resources needed…now or in the future.” In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.)

PLANS FOR THE CHILD BY INDIVIDUALS SEEKING CUSTODY OR AGENCY

The feasibility of competing plans may be compared. A factfinder may compare the parent's and the Department's plans for the child and consider whether the plans and expectations of each party are realistic or weak and ill-defined. D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 356 (Tex. App.—Austin 1993, no writ.)

STABILITY OF HOME OR PROPOSED PLACEMENT

Stability is paramount for the child. Stability and permanence are paramount in the upbringing of children. In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied)

Stability is a compelling government interest. The goal of establishing a stable, permanent home for a child is a compelling interest of the government. Hann v. Tex. Dep't of Protective and Regulatory Servs., 969 S.W.2d 77, 83 (Tex. App.—El Paso 1998, pet. denied)

Past conduct can be used to measure future stability. Parent's failure to show that he is stable enough to parent a child for any prolonged period entitles the factfinder “to determine that this pattern would likely continue and that permanency could only be achieved through termination and adoption.”). D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no writ.)

Consequence of not terminating may be considered. A factfinder may also consider the consequences of its failure to terminate parental rights, and that the best interest of the child may be served by termination so that adoption may occur rather than the impermanent foster care arrangement that would result if termination were not obtained. In re B.S.W., No. 14-04- 00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.)

ACTS OR OMISSIONS

Acts or omissions of a parent indicating the existing parent-child relationship is not a proper one and any excuse for the acts or omissions of a parent are also considered as Holley factors.

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