in the Interest of L.L.B, J.A.B, J.A.B, A.J.B., and B.B.L., Children ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00369-CV
IN THE INTEREST OF L.L.B., J.A.B., J.A.B., A.J.B., and B.B.L., Children
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2020PA01007
Honorable Linda A. Rodriguez, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: February 16, 2022
AFFIRMED
J.B. and A.L. appeal the trial court’s order terminating their parental rights to their five
children, L.L.B. (born 2009), J.A.B. (born 2012), J.A.B. (born 2015), A.J.B. (born 2018), and
B.B.L. (born 2020). 1 We affirm the trial court’s order.
BACKGROUND
On May 19, 2020, the Texas Department of Family and Protective Services removed the
children from J.B. and A.L.’s care 2 primarily because of its concerns about domestic violence in
the home. The Department obtained temporary managing conservatorship over the children, placed
1
To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX.
FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
2
B.B.L. was not yet born when the Department removed the older four children from the care of J.B. and A.L. The
Department removed B.B.L. from their care shortly after her birth in July of 2020.
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them with their maternal grandparents, and filed a petition to terminate J.B.’s and A.L.’s parental
rights. The Department created family service plans for J.B. and A.L., setting out conditions for
reunification including: psychological evaluation and participation in individual counseling;
completion of a drug assessment, engagement in any requested drug treatment, and submission to
random drug testing; completion of parenting and domestic violence classes; and demonstration
of stable housing and employment. The Department ultimately pursued termination of J.B. and
A.L’s parental rights.
In June of 2021, the trial court held a two-day bench trial over Zoom at which J.B. and
A.L. appeared. The trial court heard testimony from five witnesses: (1) the Department’s
investigator; (2) the Department’s caseworker; (3) the children’s grandmother; (4) J.B.; and (5)
A.L. At the conclusion of trial, the court signed an order terminating J.B’s parental rights pursuant
to section 161.001(b)(1)(D), (E), (N), (O), and (P), A.L’s parental rights pursuant to section
161.001(b)(1)(D) and (O), and its finding that termination of J.B. and A.L.’s parental rights was
in the best interest of the children. J.B. and A.L. appealed.
ANALYSIS
Jurisdiction
In his first issue, J.B. argues the order of termination is void because the trial court did not
properly extend its jurisdiction pursuant to section 263.401(b) of the Family Code.
Standard of Review and Applicable Law
Texas Family Code section 263.401 encourages prompt resolution of suits in which the
Department requests termination of the parent-child relationship or requests that the Department
be named conservator of a child. TEX. FAM. CODE ANN. § 263.401. Section 263.401 does this by
requiring courts to commence the trial on the merits within, essentially, one year after the initial
temporary order. See In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). In extraordinary
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circumstances, trial courts may extend that one-year dismissal date. See id. “But if the trial court
neither commences trial by the dismissal date nor extends it in accordance with section 263.401(b),
the statute dictates a dire consequence: the trial court’s jurisdiction over the suit ‘is terminated and
the suit is automatically dismissed.’” Id. (quoting TEX. FAM. CODE § 263.401(a)).
“Whether a trial court has subject matter jurisdiction is a question of law which we review
de novo.” In re J.K.B., No. 04-20-00261-CV, 2021 WL 2942447, at *3 (Tex. App.—San Antonio
July 4, 2021, no pet.) (mem. op.); see also In re E.O., No. 01-20-00212-CV, 2020 WL 4458897,
at *4 (Tex. App.—Houston [1st Dist.] Aug. 4, 2020, no pet.) (mem. op.).
Application
Here, the trial court rendered its order appointing the Department temporary managing
conservator of the oldest four children on May 19, 2020. Calculated as the statute requires, the first
anniversary of that date was May 24, 2021. Therefore, unless the trial court either commenced the
trial on the merits, or granted an extension under Subsection (b), the court’s jurisdiction over the
case would terminate and the suit would be automatically dismissed without a court order on May
24, 2021. See TEX. FAM. CODE § 263.401(a). Here, trial commenced June 18, 2021, so the trial
court retained jurisdiction to render a final order only if it granted an extension under subsection
(b). It did.
The trial court held a hearing on April 21, 2021. The docket entries for that day include
“JUDGES DOCKET NOTES” providing:
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The notes themselves are file stamped on the same date and include a notation extending the
dismissal date until “11/20/21”. When trial on the merits started on June 18, 2021, the court and
the parties discussed that extension:
Section 101.026 of the Family Code “permits trial courts to render orders orally in the
presence of the court reporter or in writing on its docket sheet or by a separate written instrument.”
In re G.X.H., 627 S.W.3d at 299; TEX. FAM. CODE ANN. § 101.026. Here, the trial court extended
the dismissal date in accordance with section 263.401(b) and thus remained vested with
jurisdiction over the suit when it entered the order of termination. See In re R.J.R., No. 04-21-
00246-CV, 2021 WL 5813827, at *2 (Tex. App.—San Antonio Dec. 8, 2021, no pet. h.) (mem.
op.); In re P.Z.F, ___ S.W.3d ___, 2021 WL 3941667, at *3 (Tex. App.—Dallas Sept. 2, 2021, no
pet.).
We overrule J.B.’s first issue.
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Termination
In J.B.’s second issue and A.L.’s sole issue, they argue legally and factually insufficient
evidence supports the trial court’s finding that termination of their parental rights was in the
children’s best interest.
Standard of Review
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination
proceedings in favor of the parent.” Id. The Department had the burden to prove, by clear and
convincing evidence, both that a statutory ground existed to terminate J.B’s and A.L.’s parental
rights and that termination was in the best interest of the children. TEX. FAM. CODE ANN.
§ 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). “‘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; In re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court’s order of
termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002). In reviewing the legal sufficiency of the evidence to support the trial court’s findings,
we look “‘at all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was true.’” In
re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d at 266). In reviewing
the factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. “‘If, in
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light of the entire record, the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.’” Id. (quoting In re J.F.C., 96
S.W.3d at 266). The factfinder is the sole judge of the weight and credibility of the evidence. Id.
at 346.
Applicable Law
There is a strong presumption that a child’s best interest is served by maintaining the
relationship between a child and the natural parent, and the Department has the burden to rebut
that presumption 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.). To determine whether the Department satisfied this
burden, the Texas Legislature has provided several 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 used a similar list of factors 4 to determine a child’s best interest. TEX. FAM. CODE ANN.
§ 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
3
These factors are: “(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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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, 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.). Additionally,
in determining whether termination of the parent-child relationship is in the best interest of a child,
a factfinder may judge a parent’s future conduct by his past conduct. In re E.D., 419 S.W.3d 615,
620 (Tex. App.—San Antonio 2013, pet. denied).
Application-J.B.
J.B. and A.L. came to the attention of the Department because of concerns about domestic
violence. The Department presented evidence that J.B. and A.L. had fought, in front of the
children, for years. See In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.)
(considering evidence that children had been exposed to domestic violence); Holley, 544 S.W.2d
at 371–72 (the emotional and physical danger to the child now and in the future; the stability of
the home or proposed placement; the acts or omissions of the parent that may indicate the existing
parent-child relationship is not a proper one). J.B. had also admitted to drug use, and this history
of drug use and violence went back to “2015, 2016.” See In re M.R., 243 S.W.3d at 820(considering evidence that children had been exposed to parent’s drug use); see also TEX. FAM.
CODE § 263.307(b)(3), (7), (8), (12)(D). J.B. and A.L. did not cooperate with the Department’s
attempts to contact them. At the time of removal, J.B. was arrested on an outstanding warrant.
The caseworker testified that J.B. completed much of his service plan, including the family
violence prevention program, but he continued to act aggressively toward the maternal
grandparents, a therapist, and much of the Department’s staff, including the caseworker herself.
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The CASA volunteer even requested to be removed from the case due to the “threatening and
aggressive behavior” of J.B. TEX. FAM. CODE § 263.307(b)(10), (11).
At the time of trial, J.B. was subject to a no-contact order with the current caregivers, the
grandparents. J.B. tested positive for drugs just two weeks before trial. See In re K.J.G., No. 04-
19-00102-CV, 2019 WL 3937278, at *8 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied)
(mem. op.) (considering parent’s past illegal drug use); see also TEX. FAM. CODE § 263.307(b)(8);
Holley, 544 S.W.2d at 371–72 (the acts or omissions of the parent that may indicate the existing
parent-child relationship is not a proper one). Because J.B. had been ordered to have clean drug
tests as a condition of visitation with his children, his last contact before the June trial was in April.
See, e.g., In re L.F.B., No. 07-17-00080-CV, 2017 WL 3045829, at *1–2 (Tex. App.—Amarillo
July 18, 2017, pet. denied) (mem. op.). The caseworker testified that L.L.B. expressed that she did
not want any contact with her dad, “because of the abuse to her mother.” See In re A.O.G., No. 04-
19-00630-CV, 2020 WL 908026, at *4 (Tex. App.—San Antonio Feb. 26, 2020, pet. denied)
(mem. op.) (considering evidence that child had been exposed to violence); TEX. FAM. CODE
§ 263.307(b)(5); Holley, 544 S.W.2d at 371–72 (the desires of the child). The caseworker also
testified that L.L.B. had stated she would “run away” if placed with either of her parents.
Meanwhile, the children’s caregivers, their material grandparents, were ensuring that their
needs were met. The caseworker testified, “Before the children actually entered into care, their
actual educational levels were very low.” See TEX. FAM. CODE § 263.307(b)(6). The caseworker
also testified that “[n]ow that they are in a stable home, they are definitely performing very well.”
Holley, 544 S.W.2d at 371–72 (the stability of the home or proposed placement). The Department
also presented evidence that the grandparents intend to adopt the children. See In re A.L.B., No.
01-17-00547-CV, 2017 WL 6519969, at *7 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, no
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pet.) (mem. op.); see also TEX. FAM. CODE § 263.307(a). And on January 29, 2021, they became
licensed caregivers.
The caseworker testified that L.L.B. was “coming along great.” She also testified that
J.A.B. and J.A.B. had been struggling with reading, writing, and knowing numbers, but “that has
improved tremendously since being stable in placement with the grandparents.” TEX. FAM. CODE
§ 263.307(b)(6), (12)(F). The Department also presented evidence that B.B.L. had “completed her
ECI” and “is excelling beyond her milestones.” The caseworker testified that the children
“expressed wanting to remain where they are at and do not want to leave the home of their
grandparents.” See TEX. FAM. CODE § 263.307(a); Holley, 544 S.W.2d at 371–72 (the desires of
the child).
At trial, J.B. himself admitted “there was domestic violence” and the Department’s actions
were the “consequences.” He also acknowledged that despite his struggle with drugs over the
years, he had not reached out to the caseworker to engage in drug treatment. TEX. FAM. CODE
§ 263.307(b)(10), (11). He apologized for his aggressive emails and said he had abided by the no
contact order. Id. He knew he was required to test clean to visit his children, and that he had not
complied. Holley, 544 S.W.2d at 371–72 (the acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one). He also stated he knew that placement with
the grandparents was a better place for the children to be “for the moment.” He said he missed
some drug tests because of work but acknowledged some of them would have been “dirty.” TEX.
FAM. CODE § 263.307(b)(8).
On appeal, however, J.B. argues that he is able and willing to meet the children’s physical
and emotional needs and provide a safe and stable home. He is employed as a plumber, and he has
stable housing. Id. § 263.307(b)(12), (A)-(D). The classes and therapy have helped him to think
before he acts rather than the other way around. Id. § 263.307(b)(10), (11); Holley, 544 S.W.2d at
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371–72 (the programs available to assist those individuals to promote the best interest of the child).
He notes that the children’s grandmother testified she would not allow him any contact with the
children, even if he were doing well, and he believes that “is not considering the best interest of
the children.” According to J.B., the Department failed to carry its burden of clear and convincing
evidence that termination is in the children’s best interest. TEX. FAM. CODE § 161.001(b)(2).
After reviewing the evidence under the appropriate standards of review, we conclude a
reasonable factfinder could have formed a firm belief or conviction that termination of J.B.’s
parental rights was in the best interest of the children. In re J.F.C., 96 S.W.3d at 266. We therefore
hold legally and factually sufficient evidence supports the trial court’s best interest finding, and
we overrule J.B.’s arguments to the contrary.
Application-A.L.
Again, J.B. and A.L. came to the attention of the Department because of domestic violence.
The Department presented evidence that the children had been living in a violent environment—
one in which their parents regularly fought and drug use was ongoing—for years. TEX. FAM. CODE
§ 263.307(b)(7), (8); Holley, 544 S.W.2d at 371–72 (the emotional and physical danger to the child
now and in the future). The Department presented evidence that at the time of removal, A.L. was
transported to a mental health facility. At the time, A.L. stated that she was hearing voices and that
she had been using methamphetamine and marijuana.
The caseworker testified that A.L.’s whereabouts were unknown during the summer of
2020, but that she finally found A.L. at a shelter in September of 2020. A.L. engaged in services
and stabilized with medication. TEX. FAM. CODE § 263.307(b)(10), (11); Holley, 544 S.W.2d at
371–72 (the programs available to assist those individuals to promote the best interest of the child).
She participated in visitation with the children. But when she left the shelter to live at a relative’s
home, she did not consistently engage with the services the Department offered. A.L. lacked a
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personal phone, and the Department was not able to contact her from December 2020 until March
of 2021. According to the caseworker, the children know who A.L. is, but they are “having trouble
with the bonding, because, again, they see her and then they don’t see her.” See In re J.A.M., No.
04-21-00146-CV, 2021 WL 4296044, at *4 (Tex. App.—San Antonio Sept. 22, 2021, no pet.)
(mem. op.) (considering parent’s inconsistent visitation in best interest analysis); see also TEX.
FAM. CODE § 263.307(b)(1), (12)(B).
When the trial commenced in June of 2021, A.L. had engaged in the services the
Department offered but had not completed any of them. TEX. FAM. CODE § 263.307(b)(10), (11).
At the time of trial, she was living at a shelter and unemployed. Id. § 263.307(b)(12)(B), (C), (D);
Holley, 544 S.W.2d at 371–72 (the stability of the home or proposed placement).
The grandmother testified that when the children came to live with her in May 2020, they
told her that J.B. and A.L. “used to fight almost every night, [and] dad was always aggressive with
mom.” See TEX. FAM. CODE § 263.307(b)(3), (7). She agreed with the Department’s efforts at
termination of her daughter’s rights to the children because J.B. and A.L are “on and off. They go
back together, off and on.” They also “go back and forth” with doing drugs. “They go get on it;
they get off it.” She wants “to make sure that the kids are safe at all times.” Id. § 263.307(a), (b)(1),
(12); Holley, 544 S.W.2d at 371–72 (the plans for the child by these individuals or the agency
seeking custody).
A.L. argues that she is a victim of domestic abuse and that she has made progress by staying
away from J.B. since May 2020. Similarly, she argues that she was making progress with her
service plan and “was able to get her mental health finally stabilized with the medications needed.”
See TEX. FAM. CODE § 263.307(b)(10), (11). She points out that the caseworker testified she does
not presently have “concerns with the children and [A.L.].” According to A.L., she has complied
with the housing and stability requirements, as she is currently in stable housing at the shelter, and
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she is working to obtain a disability rating. Id. She is sober, seeing a psychiatrist, and taking her
medications. Id.; Holley, 544 S.W.2d at 371–72 (the programs available to assist those individuals
to promote the best interest of the child). However, A.L. herself acknowledged that at this point in
her life, her parents are the more stable caregivers for the children.
After reviewing the evidence under the appropriate standards of review, we conclude a
reasonable factfinder could have formed a firm belief or conviction that termination of A.L.’s
parental rights was in the best interest of her children. In re J.F.C., 96 S.W.3d at 266. We therefore
hold legally and factually sufficient evidence supports the trial court’s best interest finding, and
we overrule A.L.’s arguments to the contrary.
CONCLUSION
We affirm the trial court’s orders of termination.
Beth Watkins, Justice
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