in the Interest of D.M.A., L.G.S., K.D.T., and M.A., Children ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00441-CV
IN THE INTEREST OF D.M.A., L.G.S., K.D.T., and M.A., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2020-PA-01981
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: February 2, 2022
AFFIRMED
D.H. appeals the trial court’s order terminating her parental rights to her youngest child,
M.A. 1 In addition to M.A., D.H. is the mother of three older children who were also the subject
of the underlying proceeding, D.M.A., L.G.S, and K.D.T. 2 On July 16, 2021, the trial court held
a bench trial where the caseworker, maternal grandfather, and D.H. testified. Following the
proceeding, the trial court signed a Final Order in Suit Affecting the Parent-Child Relationship and
Order of Termination naming D.H. possessory conservator of the three eldest children and
terminating D.H.’s parental rights to M.A. We affirm.
1
To protect the privacy of minor children, we use initials to refer to the children and their biological parents. TEX.
FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). M.A. was born on October 28, 2019.
2
These children were born on January 10, 2007; December 1, 2008; and September 1, 2010, respectively.
04-21-00441-CV
STANDARD OF REVIEW
When reviewing the sufficiency of the evidence, we apply the well-established standards
of review. See TEX. FAM. CODE §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per
curiam) (legal sufficiency). The trier of fact is the sole judge of the credibility of witnesses and
the weight to be given their testimony. J.P.B., 180 S.W.3d at 573. In a bench trial, such as here,
“the trial judge is best able to observe and assess the witnesses’ demeanor and credibility, and to
sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record
on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(citation omitted). We therefore defer to the trial court’s judgment regarding credibility
determinations. While we must detail the evidence relevant to the issue of parental termination
when reversing a finding based upon insufficient evidence, we need not do so when affirming a
verdict of termination. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
To terminate parental rights pursuant to Family Code section 161.001, the Department has
the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in
subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX.
FAM. CODE §§ 161.001(b), 161.206(a). In this case, the trial court found evidence of two predicate
grounds to terminate D.H.’s parental rights, specifically section 161.001(b)(1) subsections (N) and
(O). The trial court also found termination of her parental rights was in M.A.’s best interest. In
D.H.’s sole issue on appeal, she contends the evidence is legally and factually insufficient to
support the trial court’s finding that termination of her parental rights is in M.A.’s best interest.
BEST INTEREST
When considering the best interest of the child, we recognize the existence of a strong
presumption that the child’s best interest is served by preserving the parent-child relationship. In
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re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, we also presume that prompt
and permanent placement of the child in a safe environment is in the child’s best interest. TEX.
FAM. CODE § 263.307(a). The Department has the burden to rebut these presumptions by clear
and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d 92, 97 (Tex. App.—San Antonio
2017, no pet.). “‘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 § 101.007; R.S.-T., 522 S.W.3d at 97. To determine
whether the Department satisfies its burden, the Texas Legislature has provided several statutory
factors 3 for courts to consider regarding a parent’s willingness and ability to provide a child with
a safe environment, and the Texas Supreme Court has provided a similar list of factors 4 to
determine a child’s best interest. TEX. FAM. CODE § 263.307(b); Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976).
A best-interest finding, however, does not require proof of any particular factors. See In
re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.—San Antonio Apr. 29,
3
These factors include, inter alia: “(1) the child’s age and physical and mental vulnerabilities; (2) the frequency and
nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4)
whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5)
whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological,
or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the
child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have
access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have
access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and
ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate
an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates
adequate parenting skills [. . .]; and (13) whether an adequate social support system consisting of an extended family
and friends is available to the child.” TEX. FAM. CODE § 263.307(b).
4
Those factors 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
individuals seeking custody; (5) the programs available to assist those individuals to promote the best interest of the
child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent that may indicate 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 371-72.
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2015, no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and
“[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest.” In re J.B.-F., No. 04-18-00181-CV,
2018 WL 3551208, at *3 (Tex. App.—San Antonio July 25, 2018, pet. denied) (mem. op.).
Evidence that proves a statutory ground for termination is probative on the issue of best interest.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). “A trier of fact may measure a parent’s future conduct
by [her] past conduct [in] determin[ing] whether termination of parental rights is in the child’s best
interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). This
conduct can include drug use, which can destabilize the home and expose children to physical and
emotional harm if not resolved. See, e.g., In re K.J.G., 04-19-00102-CV, 2019 WL 3937278, at
*8 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.). In analyzing these factors,
the court must focus on the best interest of the child, not the best interest of the parent. Dupree v.
Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ).
BACKGROUND
The case was first referred to the Department on October 29, 2019, the day after M.A.’s
birth, because D.H. tested positive for benzodiazepines, amphetamines, and methamphetamines.
Valerie Mendiola, the Department caseworker, said that “[a]t the very beginning of the case, [D.H.]
admitted that she had prior drug use and was willing to work services during the legal stage.”
Mendiola stated the Department provided Family Based Services, but D.H. did not engage.
During the pendency of the case, D.H. was incarcerated three times: (1) in December 2020
for assault-bodily-injury; (2) in January 2021 for aggravated assault with a deadly weapon; and (3)
in May 2021 for possession of a controlled substance. D.H. was released on the first two
allegations, but remained in custody on the third at the time of the bench trial. When not
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incarcerated, D.H. engaged in only one service—in-patient drug treatment while she resided at
Haven for Hope. She was unsuccessfully discharged from the program when it was discovered
she was not using the bus passes to go to the doctor but instead was found walking around the
Haven for Hope area. According to Mendiola, M.A. does not know her mother and, after D.H.
was released from her second incarceration, she attended only one parent-child visitation in March
of 2021. Mendiola stated D.H. has engaged in no other services and provided no explanation for
why she did not engage in her services.
Mendiola testified D.H. did not have her own residence, stayed “here and there with
different friends and family,” and did not provide for the support or care of her children.
Additionally, she did not know how D.H. supported herself. Mendiola stated D.H. had not made
changes in her life to warrant the return of her children or that she could take care of the physical
and emotional needs of the children.
After her birth, M.A. was placed with another caregiver, but the Department later
discovered this person “wasn’t taking great care of her, so the [fictive kin] took over placement,
because she was already caring for [M.A.] from the very beginning.” In March 2021, M.A. was
placed with fictive kin who has demonstrated she can provide for M.A.’s physical and emotional
needs, and has bonded with M.A. who is doing well. Although M.A. has been with fictive kin
since only March 2021, Mendiola believed M.A. is better served staying with her because this
person “was like the babysitter or the secondary,” she was the one taking M.A. to all her
appointments, and she was “practically around her 24/7.” Fictive kin is willing to adopt M.A., but
she has not yet begun the process to have her home licensed.
D.H.’s three eldest children were placed with their maternal grandfather and doing well.
The grandfather could not adopt the children because he has an extensive criminal history. When
asked why M.A. was not placed with her grandfather, Mendiola said M.A. had already been placed
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with fictive kin and it would be traumatic to move her to her grandfather. According to Mendiola,
the grandfather was willing to take M.A., but the Department did not believe it would be in her
best interest. She stated that although the grandfather asked for all four children at the beginning
of the case, he said “he did not want to deal with the mother in any manner.”
Mendiola testified she visited with D.H. while D.H. was in custody at the Bexar County
jail. During the last visit, about one week before trial, D.H. did not mention she was in a drug
treatment program, known as ROARS, while in custody. Mendiola had not looked into any
programs in which D.H. could engage while in custody because D.H. told her she would work her
services once she was out of custody, which D.H. said would be “soon.” When asked if she had
looked into D.H.’s family and friends who might provide help, Mendiola said she was aware of
only the grandfather and D.H.’s brother, and D.H. did not provide any other names. Mendiola said
the brother was not appropriate for the children because he and D.H. were in a car together when
she was arrested. Mendiola said D.H. told her that she wanted to work her services, maintain a
relationship with her children, and she wanted all four children with her father.
Although she recommended terminating parental rights as to M.A., Mendiola
recommended D.H. be appointed possessory conservator of the three oldest children and be
required to pay child support because the grandfather did not qualify for any financial support.
Mendiola added that D.H. has not paid child support in this case, does not have a job, and has no
source of income.
Johnny Slack, the maternal grandfather, testified his relationship with D.H. “has been a
rough one over the 20 years, but when she [is not] on [anything], she’s fine.” He was not in favor
of naming D.H. possessory conservator for any of her children because D.H. did not pay any child
support and it was a waste of time to ask for support. However, he believed the children loved
D.H. and he thought she should remain in contact with them.
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Slack was again asked if he would approve of D.H. being named possessory conservator
and he again stated:
No, no, no. Don’t want none of that, because that’s what happened the last time
I had to let my kids go, because of her habits. And I hated to do that, but now that
I got them back, I don’t want to go through that again.
He said he would take M.A. and believed all four children should be together.
D.H. testified that her three oldest children should be placed with her father. She also
wanted M.A. placed with her father. She said she did not want the court to terminate her parental
rights because she wanted a second chance, she was enrolled in a treatment program, was looking
forward to her father having custody of all four children, she was willing to work her services, and
she had a bond with all the children. She wanted joint custody with her father “because [her]
mental [sic] and [her] arrangements for financial [sic] [was] not so good.” Upon release from
incarceration, she was willing to pay child support.
On cross-examination, D.H. denied she told the caseworker she did not want her children
with her father because she had “other issues” with her father, including that he tried to have sex
with her when he was drunk. She admitted she would not be able to pay child support because her
father told her she would not need to and she had never before paid any support when her children
were in her parents’ care before her mother’s death. She said the last time she held a job was two
years in the past.
In its order, the trial court found D.H. constructively abandoned her children, failed to
comply with the provisions of a court order that established the actions necessary for her to obtain
the return of her children, the Department had made reasonable efforts to reunify M.A. with D.H.,
and termination of D.H.’s parental rights as to M.A. was in the child’s best interest. On appeal,
D.H. challenges the sufficiency of the evidence only as to the best interest finding.
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ANALYSIS
As stated above, a best-interest finding does not require proof of any particular factors and
none of the factors we consider are exhaustive. See G.C.D., 2015 WL 1938435, at *5; J.B.-F.,
2018 WL 3551208, at *3. “Evidence of a single factor may be sufficient for a factfinder to form
a reasonable belief or conviction that termination is in the child’s best interest”; J.B.-F., 2018 WL
3551208, at *3; and evidence proving a statutory ground for termination is probative on the issue
of best interest. C.H., 89 S.W.3d at 28. “A trier of fact may measure a parent’s future conduct by
[her] past conduct [in] determin[ing] whether termination of parental rights is in the child’s best
interest.” E.D., 419 S.W.3d at 620.
One of the grounds on which the court terminated D.H.’s parental rights was her failure to
comply with the provisions of a court order that established the actions necessary for her to obtain
the return of her children. The evidence shows D.H. failed to comply with requirements of the
family plan that sought to assure the children would have a safe and stable environment. D.H. did
not have a residence of her own, was not employed, and had never paid any child support. The
trial court therefore could have reasonably credited this evidence as supporting its best-interest
finding. See In re O.N.H., 401 S.W.3d 681, 687 (Tex. App.—San Antonio 2013, no pet.)
(noncompliance with service plan is probative of child’s best interest).
Of the Family Code statutory factors, the trier of fact can consider that M.A.’s age made
her vulnerable and that D.H. has a history of substance abuse. See TEX. FAM. CODE § 263.307(b);
see In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (considering
parent’s substance abuse, failure to provide a stable home, and failure to comply with service plan
in holding evidence supported best-interest finding).
The Holley factors indicate M.A. is too young to express her desires. When a child is too
young to express her desires, the factfinder may consider whether the child has bonded with her
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caregivers, is well-cared for by them, and whether the child has spent minimal time with a parent.
See In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. denied). At the time
of trial, M.A. was almost twenty-one months old, had been with fictive kin for about three months,
but had the opportunity to bond with fictive kin since removal. D.H. said she had seen M.A. “a
couple times at the CPS office,” but Mendiola testified about only one visitation before D.H.’s
incarceration. Mendiola testified M.A. was doing well, the current caregiver was meeting M.A.’s
needs, and she anticipated this home to be a long-term placement for M.A. if D.H.’s parental rights
were terminated.
The evidence of D.H.’s participation in drug counseling was disputed. Mendiola testified
D.H. did not complete her service plan and was unsuccessfully discharged from in-patient
treatment before her incarceration. D.H. testified she was in treatment classes while incarcerated
and would continue drug treatment upon her release. We defer to the trial court’s determinations
of credibility. See J.P.B., 180 S.W.3d at 573. The trial court reasonably could have believed
Mendiola’s testimony that D.H. did not or would not complete her drug treatment.
Evidence as to the other Holley factors also supports the trial court’s best-interest finding.
D.H. tested positive for controlled substances when M.A. was born and failed to complete drug
treatment. Illicit drug use is relevant to multiple Holley factors, including a child’s emotional and
physical needs now and in the future, the emotional and physical danger to the child now and in
the future, D.H.’s parental abilities, the lack of stability of D.H.’s home, and the acts or omissions
that may indicate an improper parent-child relationship. See Holley, 544 S.W.2d at 371-72.
“Additionally, a parent’s illegal drug use exposes [a] child to the possibility that the parent may be
impaired or imprisoned.” See In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex.
App.—San Antonio Dec. 11, 2019, pet. denied) (mem. op.) (explaining drug use implicates
multiple Holley factors). A parent’s criminal history is also relevant to a best-interest finding. See
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In re A.M.M., 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.—San Antonio May 6, 2020,
pet. denied) (mem. op.) (considering criminal history in determining whether termination of
parental rights was necessary to protect child in the future and was in child’s best interest); In re
A.L.T., 04-17-00452-CV, 2017 WL 5162173, at *3 (Tex. App.—San Antonio Nov. 8, 2017, pet.
denied) (mem. op.) (parent’s criminal history and drug use indicated he had not and could not
provide for child’s physical and emotional needs or provide her with a safe and stable
environment).
The trial court also could have inferred from D.H.’s past drug use and failure to complete
drug treatment and her services that she lacked parental abilities, including the motivation to seek
out and utilize available resources. See In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied) (“A fact finder may infer from a parent’s failure to take the initiative
to complete the services required to regain possession of [her] child that [she] does not have the
ability to motivate [herself] to seek out available resources needed now or in the future.”); see also
TEX. FAM. CODE § 263.307(b)(10), (11) (providing courts may consider willingness and ability of
child’s family to seek out, accept, and complete counseling services and willingness and ability of
child’s family to effect positive environmental and personal changes within a reasonable period of
time).
Evidence of D.H.’s instability in employment and housing also supports the best-interest
finding. “A child’s need for permanence through the establishment of a ‘stable, permanent home’
has been recognized as the paramount consideration in a best-interest determination.” In re L.G.R.,
498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Mendiola testified
D.H. lived from place-to-place, she was not employed, and her last job was two years in the past.
The trial court reasonably could have determined that any stability D.H. might achieve was
unlikely to last. Cf. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (“[E]vidence of improved
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conduct, especially of short-duration, does not conclusively negate the probative value of a long
history of . . . irresponsible choices.”).
Viewing all of the evidence in the light most favorable to the best-interest finding and
applying the appropriate factors, we conclude the trial court could have formed a firm belief or
conviction that termination of D.H.’s parental rights was in M.A.’s best interest. We further
conclude that any disputed evidence, viewed in light of the entire record, could have been
reconciled in favor of the trial court’s best-interest finding or was not so significant that the trial
court could not reasonably have formed a firm belief or conviction that termination was in M.A.’s
best interest. Therefore, we hold the evidence is legally and factually sufficient to support the trial
court’s best-interest finding.
CONCLUSION
We overrule M.A.’s sole issue and affirm the trial court’s Final Order in Suit Affecting the
Parent-Child Relationship and Order of Termination.
Lori I. Valenzuela, Justice
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