law-best-interest-of-the-child | Holley v. Adams factors | family law cases | termination of parental rights
standard | termination case law from Houston courts of appeals   

BEST INTEREST FACTORS APPLIED BY TEXAS COURTS IN PROCEEDINGS
INVOLVING CHILDREN
(SAPCR PROCEEDINGS)

In Interest of XCB (Tex.App.- Houston [14th Dist.] July 30, 2009)(Subst. op. by Anderson)  
(
termination of parental rights, intervenor, effect of paternity testing, Holley v. Adams best  interest factors),
appointment of DFPS as sole managing conservator)  
AFFIRMED: Opinion by
Justice Anderson  
Before Justices Anderson, Guzman and Boyce  
14-08-00851-CV  In the Interest of X.C.B., AKA X.C, I.C.B., AKA I.C., S. B.C., and J.W.C AKA J. W. W.   
Appeal from 315th District Court of Harris County
Trial Court Judge: MICHAEL H. SCHNEIDER

Best Interest of the Child (Holley - not Holly - v. Adams Factors)

[1] A non-exhaustive list of factors courts may examine in determining the best interest of a child include: (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 individual
seeking custody; (5) the programs available to assist the individual; (6) the plans for the child by the parent
and the individual seeking custody; (7) the stability of the home; (8) the parent’s acts or omissions that
indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parent’s acts
or omissions.  Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).  A trial court may also consider “any
other relevant factor” in its determination.  Tex. Fam. Code Ann. § 153.134(7) (Vernon 2008).  

A court is required to apply the Holley factors in examining whether termination of a parent’s rights is in the
best interest of the child.  See Vasquez v. Tex. Dep’t of Prot. & Reg. Servs., 190 S.W.3d 189, 196 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied) (citing Holley, 544 S.W.2d at 371–72).  No such requirement exists,
however, when—as here—the court is deciding primary managing conservatorship and neither parent’s
fitness is at issue.
Singh v. Singh (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Bland)
(
divorce with children, conservatorship SAPCR, division of marital property, denial of Motion for Continuance
and
motion for new trial)

Appellant also contends the evidence is factually insufficient to support the trial court's finding that termination
is in S.J.'s best interest.  There is a
strong presumption that preserving the parent-child relationship is in the
best interest of a child.  See In re J.I.T.P., 99 S.W.3d at 846 (citing Tex. Fam. Code Ann.  §§ 153.131(b),
153.191, 153.252 (Vernon 2008)).  The Department bears the burden to rebut this presumption.  Id. (citing
Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121, 122- 23 (Tex. Civ. App.- Houston [14th Dist.] 1976,
no writ)).In re SJ, No. 14-07-00785-CV (Tex.App.- Houston [14th Dist.] Feb. 24, 2009)(Seymore) (
termination
of parental rights)

The Texas Supreme Court has compiled non-exclusive factors to consider when determining the best interest
of a child including (1) the child's desires, (2) the child's emotional and physical needs 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 proper, and (9) any excuse for the acts or omissions of the parent.  
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see In re J.I.T.P., 99 S.W.3d at 846.  In this case, the
record contains evidence pertinent to all factors except the first because S.J. was too young to express her
desires.  We will discuss together the evidence pertaining to these factors, rather than divide our discussion
according to each factor, because the evidence is overlapping relative to the various factors.

Best Interest of the Child

In his fifth issue, appellant challenges the legal and factual sufficiency of the trial court's finding that
termination was in the children's best interest pursuant to section 161.001(2).

There is a
strong presumption that the best interest of the child is served by keeping the child with its natural
parent, and the burden is on the Department to rebut that presumption.  In re S.M.L., 171 S.W.3d at 480; In re
U.P., 105 S.W.3d at 230.  The same evidence of acts or omissions used to establish grounds for termination
under section 161.001(1) may be probative in determining the best interest of the child.  In re A.A.A., 2008 WL
2548802, at *8.  In reviewing the sufficiency of the evidence to support the second prong, a court examines
several factors, including (1) the desires of the child, (2) the present and future physical and emotional needs
of the child, (3) the present and future emotional and physical danger to the child, (4) the parental abilities of
the persons seeking custody, (5) the programs available to assist those persons seeking custody in promoting
the best interest of the child, (6) the plans for the child by the individuals or agency seeking custody, (7) the
stability of the home or proposed placement, (8) acts or omissions of the parent which may indicate the
existing parent‑child relationship is not appropriate, and (9) any excuse for the parent's acts or omissions.  
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re S.M.L., 171 S.W.3d at 480; In re U.P., 105 S.W.3d at
230.  This list is not exhaustive, nor is evidence required on all nine factors to support a finding terminating a
parent's rights.  Holley, 544 S.W.2d at 372; In re U.P., 105 S.W.3d at 230.  With these considerations in mind,
we review the evidence below.
In Interest of SN, SMN, DAN (Tex.App.- Houston [14th Dist.] Oct 14, 2008)(Yates)
(termination, constitutionality)
We begin by considering the desires of the children.


We consider the following factors in determining the best interest of the child: (1) the child’s desires; (2) the
child’s emotional and physical needs 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 proper; and (9)
any excuse for the acts or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In
re C.M.C., 273 S.W.3d at 876.  “Best interest” neither requires proof of any unique set of factors, nor limits
proof to any specific factors.  In re S.M.L., 171 S.W.3d at 480.  The same evidence of acts or omissions used
to establish a ground for termination under section 161.001(1) may be probative in determining the best
interest of the child.  In re A.A.A., 265 S.W.3d at 516.
In Interest of JSG, NO. 14-08-00754-CV (Tex.App.-
Houston May 7, 2009)(Hedges) (
termination of parental rights, best interest factors, parental presumption)



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