in the Interest of A.O., a Child ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00390-CV
IN THE INTEREST OF A.O., a Child
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-PA-01910
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 14, 2012
AFFIRMED
Mary O. appeals the trial court’s order terminating her parental rights to A.O. Mary
asserts the evidence adduced at trial was not legally or factually sufficient to find that A.O. was
removed from her care under Texas Family Code Chapter 262 for abuse or neglect. For the
reasons discussed below, we affirm the trial court’s order.
BACKGROUND
A. Department Referral
On June 18, 2011, the Department of Family and Protective Services received a referral
alleging that A.O. was suffering from physical abuse and neglectful supervision. A.O. was
living with her father, Frank O., but not with her mother Mary O. Frank and Mary were married
but had been separated for several years and were living apart. The referral alleged that one of
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Frank’s housemates gave nine-year-old A.O. an alcoholic beverage. The Department
investigated; the investigator’s report stated that Frank’s housemate was using drugs because
“she was seen with ‘fresh track marks.’” During the Department’s investigation, Frank and his
two housemates tested positive for methamphetamines and amphetamines.
B. A.O.’s Removal
On June 22, 2011, at the Department’s initiative, A.O. was removed from Frank’s home
to live with family friends in accordance with a Protective Child Safety Placement. On July 29,
2011, when the friends could no longer care for A.O., the Department petitioned for
conservatorship of A.O. and to remove A.O. from the home. In the investigator’s affidavit in
support of the Department’s petition, the investigator stated that Frank’s housemate had given
A.O. alcohol to drink, and the investigator believed it was not in A.O.’s “best interest to be in the
care of her parents Frank [O.] or Mary [O].” In its July 29, 2011 protective order, the trial court
found A.O. had been the victim of neglect or abuse; it ordered A.O. removed and awarded
temporary sole managing conservatorship of A.O. to the Department. The court also ordered
both Frank and Mary to comply with their service plan requirements, which included attending
counseling sessions, submitting to drug testing, signing release of medical information
authorization forms, and other requirements.
C. Bench Trial
After a series of permanency hearings over several months, the case was set for trial. At
the bench trial on May 29, 2012, the Department did not introduce any exhibits into evidence.
Its caseworker testified that neither Mary nor Frank complied with all the provisions of their
service plans. She testified that Mary tested positive for methamphetamines, failed to sign the
release of medical information forms, and failed to complete her counseling—all violations of
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her service plan. Both the caseworker and the Court Appointed Special Advocate (CASA)
worker assigned to A.O. recommended terminating both Mary’s and Frank’s parental rights. At
the conclusion of the trial, the court terminated Mary’s and Frank’s parental rights to A.O. In its
oral pronouncement from the bench, the court stated it found by clear and convincing evidence
that termination of Mary’s and Frank’s parental rights was in A.O.’s best interest; it terminated
Mary’s rights on two grounds: (O), that she failed to comply with her service plan, and (P), that
she engaged in continued drug use that endangered her child. See TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2012). In its written order, all of the listed bases for termination of
Mary’s parental rights were struck through except for those corresponding to subsections (F),
(O), and (P). Mary appeals the trial court’s order.
STANDARD OF REVIEW
When a parent challenges the legal sufficiency of a finding on which the trial court relied
to terminate her parental rights to her child, we review “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 [the court’s] finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002); In re T.N.S., 230 S.W.3d 434, 438 (Tex. App.—San Antonio 2007, no pet.). We
disregard evidence that a reasonable fact-finder could disregard, but we consider undisputed
facts. In re J.F.C., 96 S.W.3d at 266; see In re T.N.S., 230 S.W.3d at 438. When a finding is
challenged for its factual sufficiency, we “give due consideration to evidence that the
fact[-]finder could reasonably have found to be clear and convincing.” In re J.F.C., 96 S.W.3d
at 266; accord In re T.N.S., 230 S.W.3d at 438. If we determine that the “disputed evidence is
such that a reasonable fact[-]finder could not have resolved that disputed evidence in favor of its
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finding . . . then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266; accord In
re T.N.S., 230 S.W.3d at 438.
ANALYSIS
A. Applicable Law
1. Requirements for Termination of Parental Rights
A court may terminate a parent’s rights to her child “if the court finds by clear and
convincing evidence” that (1) the parent has met one or more of the statutory grounds for
termination and (2) “termination is in the best interest of the child.” TEX. FAM. CODE ANN.
§ 161.001; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). “Only one predicate finding under
section 161.001(1) is necessary to support a judgment of termination when there is also a finding
that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362; accord In re S.F.,
32 S.W.3d 318, 321 (Tex. App.—San Antonio 2000, no pet.). One of the statutory grounds for
termination is when the parent has
(O) failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child
who has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the abuse or
neglect of the child.
TEX. FAM. CODE ANN. § 161.001(1)(O); see In re J.F.C., 96 S.W.3d at 284. To support
termination on subsection (O) grounds, the Department must prove the child was removed due to
abuse or neglect. TEX. FAM. CODE ANN. § 161.001(1)(O); In re A.A.A., 265 S.W.3d 507, 515
(Tex. App.—Houston [1st Dist.] 2008, pet. denied). “However, subsection (O) does not require
that the parent who failed to comply with a court order be the same parent whose abuse or
neglect of the child warranted the child’s removal.” In re D.R.A., 374 S.W.3d 528, 532 (Tex.
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App.—Houston [14th Dist.] 2012, no pet.); accord In re S.N., 287 S.W.3d 183, 188 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
2. Judicial Notice of Court’s Own Record
“[A] trial court is presumed to ‘judicially know[] what has previously taken place in the
case’ tried before it . . . .” In re J.J.C., 302 S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.]
2009, pet. denied) (second alteration in original) (quoting Vahlsing, Inc. v. Mo. Pac. R.R. Co.,
563 S.W.2d 669, 674 (Tex. Civ. App.—Corpus Christi 1978, no writ)); accord In re J.E.H., No.
04-12-00110-CV, 2012 WL 4579296, at *3 (Tex. App.—San Antonio Oct. 3, 2012, no pet. h.).
“A court may not, however, take judicial notice of the truth of allegations in its records.”
Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.—Austin 1994, no writ); accord In re
J.E.H., 2012 WL 4579296, at *3. It may not do so, inter alia, because “[a] judicially noticed fact
must be one not subject to reasonable dispute.” TEX. R. EVID. 201(b); accord In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). But a trial court may take judicial notice of its previous orders and
findings of fact from the same case. See In re J.E.H., 2012 WL 4579296, at *3; In re J.J.C., 302
S.W.3d at 446. It does not have to state on the record that it took judicial notice of its previous
findings in order to rely on them in its later judgment. See In re J.E.H., 2012 WL 4579296, at
*3; In re A.X.A., No. 04-09-00519-CV, 2009 WL 5150068, at *4 n.3 (Tex. App.—San Antonio
Dec. 30, 2009, no pet.) (mem. op.).
B. Mary’s Argument
On appeal, Mary does not contest the trial court’s findings that she failed to comply with
at least one provision of her service plan, that the Department had temporary managing
conservatorship over A.O. for at least nine months, or that termination of her parental rights was
in A.O.’s best interest. Instead, she asserts that under section 161.001(1)(O), the Department
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must prove A.O. was removed from Mary’s home under Chapter 262 for abuse or neglect. Mary
insists that the clerk’s record is not evidence, the Department adduced no evidence at trial to
show that A.O. was removed from Mary’s home for reasons of abuse or neglect, and thus the
evidence was legally and factually insufficient to support termination of her parental rights under
subsection (O).
C. Trial Court’s Findings
In its July 29, 2011 protective order, the trial court found that A.O. had been the victim of
“neglect or sexual abuse,” that “continuation in the home would be contrary to the child’s
welfare,” and appointed the Department as A.O.’s temporary managing conservator. In its
August 10, 2011 temporary order, the trial court again found that A.O.’s health or safety had
been at risk because of “an act or failure to act of the person entitled to possession” of A.O. and
it retained temporary managing conservatorship of A.O. with the Department. Finally, in its
May 29, 2012 termination order, the trial court noted that it had examined the record in
determining whether Mary had failed to comply with her service plan after A.O. was removed
for abuse or neglect.
D. Termination of Parental Rights
In the bench trial, the trial court was free to examine its own July 29, 2011 and August
10, 2011 orders. See In re J.E.H., 2012 WL 4579296, at *3; In re J.J.C., 302 S.W.3d at 446. In
those orders it found that A.O. had been removed from the home for abuse or neglect, and the
record does not show that Mary contested those findings at the adversary hearing, the
permanency hearings, or the bench trial. Mary’s complaint that the findings do not show A.O.
was removed from her home is of no effect; subsection (O) does not require A.O. to have been
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subject to abuse or neglect in Mary’s home. See In re D.R.A., 374 S.W.3d at 532; In re S.N., 287
S.W.3d at 188.
Further, the July 29, 2011 and August 10, 2011 findings are part of the trial court’s record
and the trial court was entitled to take judicial notice in the bench trial of its earlier findings. See
In re J.E.H., 2012 WL 4579296, at *3; In re J.J.C., 302 S.W.3d at 446. The findings that A.O.
was removed from the home for abuse or neglect are clear and convincing evidence of those
points. Because Mary did not challenge any of the other elements necessary to support
termination of her parental rights under subsection (O)—including the trial court’s best interest
of the child finding—we conclude that the evidence was legally and factually sufficient to
support the trial court’s termination of her parental rights under subparagraph (O). We overrule
Mary’s second issue.
E. Other Issues
Mary also complains that the evidence was not legally or factually sufficient to terminate
her parental rights under section 161.001(1)’s subsections (F) or (P). Because we have
concluded that the evidence was legally and factually sufficient to support the trial court’s
termination of her parental rights under subparagraph (O), and Mary did not challenge the trial
court’s best interest of the child finding, we need not address Mary’s other issues. See TEX.
FAM. CODE ANN. § 161.001 (authorizing termination for any one of the listed grounds); In re
A.V., 113 S.W.3d at 362 (same); see also TEX. R. APP. P. 47.1.
CONCLUSION
Viewing the evidence in the light most favorable to the trial court’s findings, we conclude
that a reasonable fact-finder could have formed a firm belief or conviction that Mary failed to
comply with her service plan after A.O. was removed under Chapter 262 for abuse or neglect.
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See In re J.F.C., 96 S.W.3d at 266. We further conclude that a reasonable fact-finder could have
resolved the disputed evidence in favor of the trial court’s finding. See id. Therefore, we affirm
the trial court’s order.
Rebecca Simmons, Justice
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