In the interest of M.R.A., a child--Appeal from 35th District Court of Brown County

Opinion filed November 29, 2007

In The

Eleventh Court of Appeals

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 No. 11-06-00147-CV

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 IN THE INTEREST OF M.R.A., A CHILD

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CV 05-05-204

M E M O R A N D U M O P I N I O N

Donald and Francis Allgood appeal from the trial court=s order terminating their parental rights to M.R.A. We affirm.

The trial court found that Donald and Francis knowingly placed or knowingly allowed M.R.A. to remain in conditions or surroundings that endangered the physical or emotional well-being of the child. Tex. Fam. Code Ann. ' 161.001(1)(D) (Vernon Supp. 2007). The trial court further found that termination was in the best interest of M.R.A. Tex. Fam. Code Ann. ' 161.001(2) (Vernon Supp. 2007).

The Allgoods argue in two issues on appeal that the evidence is legally insufficient to support the trial court=s findings. The burden of proof at trial in parental termination cases is by clear and convincing evidence. Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2007); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review.

When determining legal sufficiency, we review all the evidence in the light most favorable to the finding Ato determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.@ J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact-finder=s conclusions, we must assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. Id. We disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in conducting a legal sufficiency review in a parental termination case, we must consider all of the evidence, not only that which favors the verdict. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

M.R.A. was born on March 2, 2000. The Texas Department of Family and Protective Services (the Department) was contacted to investigate the neglectful supervision of M.R.A. when he was four days old. Sharon Owens, who worked for the Department, testified that she went to the Allgood home and that the home was an unsafe environment for M.R.A. Owens testified that there were several animals in the home and that the home contained a lot of animal feces on the floor. She stated that the home also contained a lot of trash and debris. The Department did not remove M.R.A. at that time, but referred the family for services. The Department assisted the Allgoods in cleaning and sanitizing the home.

The Department again investigated the Allgood family in January 2001. Allison Martinez testified that she went to the Allgood home and that the home again contained a lot of trash and other health hazards for M.R.A. Martinez stated that there was a large amount of animal feces that was accessible to M.R.A. Martinez stated that there was animal feces underneath M.R.A.=s baby swing and that M.R.A.=s toys were piled on top of trash. The Department created a safety plan in which the Department instructed the Allgoods not to let M.R.A. crawl on the floor because of the animal feces and other dangerous objects. The family was again referred for services with the Department.

M.R.A. began attending school in 2004. Amy Adams, M.R.A.=s teacher, testified that M.R.A. had a distinct odor and lack of cleanliness. M.R.A. told Adams that the odor was A[c]at s--t.@ Adams testified that the odor was Aintolerable@ and Anauseating.@ Adams stated that the school tried on several occasions to clean M.R.A.=s shoes to eliminate the odor but that eventually they could not clean the shoes anymore. The school contacted the Allgoods to discuss M.R.A.=s hygiene. Francis Allgood told the school that there were several cats in the home and that the odor could be cat urine and feces. The school requested that M.R.A. keep an extra pair of shoes at school to wear while at school. Those shoes remained at the school. Adams stated that the other children did not want to play with M.R.A. because of the odor. Adams testified that M.R.A.=s hygiene endangered his emotional well-being because it affected his social interaction.

The Department again investigated the Allgood family in April 2005 after reports of M.R.A.=s poor hygiene at school. Dallas Kennedy, who worked for the Department, testified that Francis was very uncooperative in the Department=s attempts to investigate the welfare of M.R.A. Kennedy spoke with M.R.A. at school. M.R.A. told Kennedy that M.R.A.=s parents instructed him not to talk to the Department employees if they came to school. M.R.A. also told Kennedy that the family was going to move out of state because of the Department=s investigation. The Allgoods withdrew M.R.A. from school in early May 2005. The trial court issued an order for protection of M.R.A. to remove him from the Allgood home on May 10, 2005.

Shortly after M.R.A. was removed from the home, Linda Brumbelow, M.R.A.=s court-appointed guardian ad litem, visited the Allgood home. Brumbelow testified that the home was Aunlivable.@ Brumbelow stated that there was cat feces on the floor, trash and garbage stacked all over the house, and hazardous materials throughout the house. Brumbelow further stated that there were Adead frozen cockroaches in the freezer@ and that there was molding food in the refrigerator. Brumbelow testified that the home had a Anauseating@ smell that makes one physically ill. Brumbelow had fleas on her person after a visit in the home. Brumbelow testified that the house was unsanitary and unhealthy for M.R.A.

Leatha Warden testified that she counseled the Allgoods. Warden began counseling the Allgoods in October 2005. Warden visited the Allgood home, and she testified that she was able to smell a terrible odor before she entered the house. Warden stated that, upon entering the home, the smell was so overwhelming it Aburned [her] eyes@ and Anauseated@ her. Warden saw five cats in the kitchen area of the home and cat feces on the floor. Warden stated that a child should not live in such conditions and that the house was harmful to a child=s health. Warden further stated that the home endangered the child=s physical well-being.

Donald Allgood testified that the home was unsanitary at the time M.R.A. was removed. Donald stated that the home was not a healthy place to live and that it was not Aright@ for M.R.A. to live in those conditions. Francis testified that the home contained cat feces and urine and that the condition of the home at the time M.R.A. was removed endangered his health. Francis further testified that M.R.A. has asthma and that it was dangerous for him to live in the house with cats.

Stephanie Hartman, who also worked for the Department, testified that the she worked with the Allgood family on preparing a family service plan after M.R.A.=s removal. Hartman stated that, after M.R.A. was removed, the condition of the Allgoods= home improved but that the smell remained. However, the conditions of the home began to deteriorate again. Hartman stated that the Allgoods do not have a physical or mental disability preventing them from keeping the home clean.

After viewing all of the evidence, we find that the evidence supports the trial court=s finding that the Allgoods knowingly placed or knowingly allowed M.R.A. to remain in conditions or surroundings that endangered the physical or emotional well-being of the child. AEndanger@ means more than a threat of metaphysical injury or a less-than-ideal environment, but the conduct need not actually injure the child, nor is it necessary that the conduct be directed at the child. Phillips v. Tex. Dep=t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.C Eastland 2004, no pet.). The evidence supports the trial court=s finding that the unsanitary conditions of the home endangered the physical and emotional well-being of M.R.A.

Texas courts have generally considered nine nonexclusive, nonexhaustive factors set out in Holley v. Adams in determining the best interest of the child. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors are (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. Holley, 544 S.W.2d at 372.

There was testimony at trial that M.R.A. never talked about Donald and Francis after his removal. M.R.A. did not act Aexcited@ when taken for a visit with Donald and Francis, and M.R.A. was reluctant to attend visitation. There was also testimony that M.R.A. had stated he considers his foster parents to be Amom@ and Adad.@

There was testimony that the Allgood home endangered the emotional and physical well-being of M.R.A. The Allgoods continued to allow the conditions of the home to deteriorate after the Department assisted them in cleaning and sanitizing the home, and the Allgoods became uncooperative with the Department. The evidence is legally sufficient to support the trial court=s finding that termination is in M.R.A.=s best interest. The Allgoods= issues are overruled.

The order of the trial court is affirmed.

JIM. R. WRIGHT

CHIEF JUSTICE

November 29, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.