in the Interest of Z.R.F.M., Z.T.P., Z.R.N.R., and Z.J.A.P., Children ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00217-CV
IN THE INTEREST OF Z.R.F.M., Z.T.P., Z.R.N.R., and Z.J.A.P., Children
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2021PA00613
Honorable Susan D. Reed, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: August 3, 2022
AFFIRMED
In this parental rights termination case, the trial court terminated Mom’s parental rights to
her children Z.R.F.M., Z.T.P., Z.R.N.R., and Z.J.A.P. 1
Mom challenges the legal and factual sufficiency of the evidence for the trial court’s
finding on the best interests of the children.
Because the evidence was legally and factually sufficient to support the trial court’s
findings under the elevated evidentiary standards, we affirm the trial court’s order.
BACKGROUND
In this case, Mom is the only appellant, and we limit our recitation of the facts to those
pertaining to Mom and the children.
1
We use aliases to protect the children’s identities. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8.
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In early 2020, when Mom became homeless and was not able to care for her four children,
then ages eleven, six, four, and two, Mom asked her mother, Grandma, to care for them.
A. Grandma Cares for Children
Grandma took them in, and they lived with her for about one year. In March 2021, Mom
went to her mother’s home to try to pick up the children. Grandma resisted because Mom could
not care for the children: she was homeless, unemployed, her car was uninsured, and she had no
car seats for the children. As the Department investigated, Grandma cooperated only minimally.
This raised concerns with the Department because Grandma had prior removal history, and
Grandma tested positive for marijuana.
B. Children Removed, Service Plan Created
On April 8, 2021, the Department petitioned for conservatorship, and it took the children
into care. The Department created a service plan for Mom, which included the following required
actions: complete psychological and psychosocial evaluations, engage in individual counseling,
submit to and fully cooperate with a drug and alcohol assessment, engage in drug treatment classes,
complete a drug treatment program and maintain sobriety, complete a parenting course, provide
proof of income and employment status, obtain and maintain stable housing and employment, and
demonstrate the ability to care for her children. Mom’s service plan was approved by the court,
and it ordered her to comply with the plan.
C. Mom’s Plan Compliance
Mom completed the psychological evaluation and the substance abuse assessment. Mom
claimed she completed the iParent course, but the Department could not confirm that. For other
ordered services, Mom was uncooperative.
When the Department tried to talk with Mom about drug testing and treatment, she
repeatedly refused to be tested, and she sometimes threw objects at the case worker, slammed the
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door, or stormed out of the office. In one meeting, she became very aggressive, “made a big scene
in the office,” and was cursing at the case worker.
D. Bench Trial
After a virtual bench trial on the merits, the trial court found by clear and convincing
evidence that Mom’s course of conduct met the grounds in Family Code subsections
161.001(b)(1)(N), (O), and (P), and that terminating Mom’s parental rights was in the children’s
best interests. The trial court terminated Mom’s parental rights to Z.R.F.M., Z.T.P., Z.R.N.R., and
Z.J.A.P., and it appointed the Department as the children’s permanent managing conservator.
E. Mom’s Appeal
Mom filed a notice of appeal. She challenges the legal and factual sufficiency of the
evidence on the best interests of the children. Before we address Mom’s sole issue, we briefly
recite the applicable evidentiary and appellate review standards.
EVIDENCE REQUIRED, STANDARDS OF REVIEW
“[I]n a bench trial, the judge as the trier of fact weighs the evidence, assesses the credibility
of witnesses and resolves conflicts and inconsistencies.” In re S.J.R.-Z., 537 S.W.3d 677, 691
(Tex. App.—San Antonio 2017, pet. denied); accord In re F.M., 536 S.W.3d 843, 844 (Tex.
App.—San Antonio 2017, no pet.).
On review, an appellate court must not “substitute its own judgment for that of a reasonable
factfinder.” In re Commitment of Stoddard, 619 S.W.3d 665, 668 (Tex. 2020); accord In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.
2005).
The evidentiary standard i the Department must meet and the statutory grounds ii the trial
court must find to terminate a parent’s rights to a child are well known, as are the legal iii and
factual iv sufficiency standards of review. We apply those standards here.
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BEST INTERESTS OF THE CHILDREN
In her only issue, Mom argues the evidence was legally and factually insufficient to support
the trial court’s finding that terminating her parental rights was in her children’s best interests. See
TEX. FAM. CODE ANN. § 161.001(b)(2). We review the bases for the trial court’s order.
A. Unchallenged Statutory Grounds Findings
A single statutory ground finding, when accompanied by a best interest of the child finding,
is sufficient to support a parental rights termination order. In re A.V., 113 S.W.3d 355, 362 (Tex.
2003); In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.).
Here, the trial court found Mom constructively abandoned the children, failed to comply
with her Family Service Plan, used a controlled substance in a way that endangered the children,
and failed to complete a court-ordered substance abuse treatment program. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(N), (O), (P). Mom does not challenge any of those findings, and we need
not address them. See TEX. R. APP. P. 38.1(f), (i); In re N.G., 577 S.W.3d 230, 235 (Tex. 2019).
Instead, she challenges only the best interests finding.
B. Best Interest of the Child Factors
The Family Code statutory factors v and the Holley factors vi for best interest of the child are
well known. Applying the standards of review and the applicable statutory and common law
factors, we examine the evidence pertaining to the best interests of the children.
The trial court heard the following testimony regarding the children’s ages and
vulnerabilities, Mom’s course of conduct, and the children’s placement.
C. Children’s Ages, Vulnerabilities, and Desires
At the time of trial, the children were twelve, seven, five, and four years old. Although the
children do not have any special needs, they are not able to provide for themselves; they are living
with Mom’s sister, their aunt. They are strongly bonded to their aunt, they are very happy living
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with her, and they all want to continue being placed with their aunt. The oldest child “is very, very
bonded to the [aunt],” and she stated she does not want to return to live with Mom. See TEX. FAM.
CODE ANN. § 263.307(b)(1), (5), (12); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (factors
(A), (B), (D), (G)).
D. Mom’s History of Substance Abuse
Because of Mom’s history of drug abuse, her service plan required her to submit to, and
fully cooperate with, a drug and alcohol assessment; engage in drug treatment classes; and
complete a drug treatment program and maintain sobriety. In a status hearing, Mom admitted
using methamphetamines throughout the case. At trial, Mom initially denied, but then admitted,
using methamphetamines during the case. Despite the trial court’s order for her to submit to
random drug testing, and the Department’s repeated requests for Mom to be tested, Mom submitted
to only one drug test over the period of about one year; it was positive for methamphetamine. See
TEX. FAM. CODE ANN. § 263.307(b)(1), (7), (8), (10), (11), (12); Holley, 544 S.W.2d at 372 (factors
(B), (C), (D), (H)); see also In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no
pet.) (“A factfinder may infer that past conduct endangering the well-being of a child may recur in
the future if the child is returned to the parent.”); Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (same).
E. Mom’s Untreated Mental Illness
Mom was diagnosed with ADHD, depression, bipolar disorder, and intensive anger
disorder. She first denied, then admitted, that she has cut herself and has said she wanted to kill
herself. Her psychological evaluation recommended a psychiatric evaluation and treatment, but
Mom did not complete the psychiatric evaluation, treatment, or counseling.
Mom resisted any type of help with arranging or receiving services. When asked why she
is not getting mental health counseling, Mom said “I talk to my friends how I feel, and I tell the
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counselor how I feel, so it’s the same thing.” She also rejected taking prescription medications for
her mental illness because she does not want to “be a zombie or drugged up.” See TEX. FAM. CODE
ANN. § 263.307(b)(1), (6), (8), (10), (11), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D),
(H)); see also In re D.M., 452 S.W.3d 471 (past conduct may recur); Walker, 312 S.W.3d at 617(same).
F. Prior Department, Criminal History
Mom had been referred to family-based safety services for negligent supervision three
times prior to the children’s removal. Mom has also had multiple assault charges and some charges
for possession of a controlled substance. See TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (7), (8),
(10), (11), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (H)); see also In re D.M., 452
S.W.3d at 471; Walker, 312 S.W.3d at 617.
G. Mom’s Visits with Children
Mom’s service plan called for weekly visits with the children. From the time the children
were removed until trial, Mom attended about half of her scheduled visits. Explaining her missed
visits, Mom said she had COVID, which caused her to miss two months of visits, and other times
she missed visits because her car broke down. For the visits she made, she repeatedly refused to
follow the rules. She “would want to argue with [the case worker] during the visits instead of
focusing on her time with the children.” Further, during her visits (with the three youngest
children), Mom paid attention to the youngest child, but she gave little attention to the older two.
See TEX. FAM. CODE ANN. § 263.307(b)(1), (10), (11), (12); Holley, 544 S.W.2d at 372 (factors
(B), (C), (D), (H)).
H. Stable Housing
Before the children were removed, they had been living with Grandma for about one year
because Mom was unemployed and homeless. To address that need, Mom’s service plan required
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her to locate and maintain stable housing for the children. Mom said she had been on the San
Antonio Housing Authority waiting list for over two years, but she had still not been able to arrange
for stable housing for the children. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12); Holley v.
Adams, 544 S.W.2d 367, 372 (Tex. 1976) (factors (B), (C), (G), (H), (I)).
I. Providing for Children’s Needs
Mom’s service plan required her to obtain and maintain stable employment, provide proof
of income and employment status, and demonstrate the ability to care for her children. Mom
admitted she did not have a job, but she was trying to get one. She acknowledged that, at present,
she was not receiving any kind of income, and she could not provide for her children. See TEX.
FAM. CODE ANN. § 263.307(b)(11), (12), (13); Holley, 544 S.W.2d at 372 (factors (B), (C), (D),
(G), (H), (I)).
J. Children’s Placement
The children are currently living with their maternal aunt. The aunt is ensuring all the
children’s needs are met, including their physical and emotional needs, and she will be able to
meet the children’s needs in the future. She is working on obtaining foster home licensing; the
children want to continue living with her, and she wants to adopt them. The children are very
bonded to their aunt, and they are very happy living with her. See TEX. FAM. CODE ANN.
§ 263.307(b)(1), (12), (13); Holley, 544 S.W.2d at 372 (factors (A), (B), (C), (D), (F), (G)).
K. Ad Litem’s Recommendation
The ad litem recommended that it was in the children’s best interests that Mom’s rights be
terminated so that the children could continue to live with the aunt and be adopted by her. See
TEX. FAM. CODE ANN. § 263.307(b)(1), (10), (11), (12); Holley, 544 S.W.2d at 372 (factors (B),
(C), (D), (F), (G), (H)).
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L. Sufficient Evidence
The trial court could have believed the testimony about (1) Mom’s admitted history with
the Department; (2) Mom’s criminal history; (3) Mom’s admitted history of drug abuse; (4) Mom’s
resistance to treatment for her mental health issues; (5) Mom’s failure to obtain employment and
stable housing; and (6) Mom’s problematic visits with the children. See In re S.J.R.-Z., 537 S.W.3d
at 691; In re F.M., 536 S.W.3d at 844. It could also have believed the testimony that the children
are doing well living with their aunt, she is meeting the children’s present needs, and she will meet
their future needs. See In re S.J.R.-Z., 537 S.W.3d at 691; In re F.M., 536 S.W.3d at 844.
Having reviewed the evidence under the appropriate standards, we conclude the trial court
could have “reasonably form[ed] a firm belief or conviction” that it was in the children’s best
interests for Mom’s parental rights to be terminated. See In re H.R.M., 209 S.W.3d at 108 (citing
In re C.H., 89 S.W.3d at 25). Therefore, the evidence was legally and factually sufficient to
support the trial court’s best-interests-of-the-children finding. See TEX. FAM. CODE ANN.
§ 161.001(b)(2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We overrule Mom’s sole issue.
CONCLUSION
For the reasons given above, we affirm the trial court’s order.
Patricia O. Alvarez, Justice
i
Clear and Convincing Evidence. If the Department moves to terminate a parent’s rights to a child, the Department
must prove by clear and convincing evidence that the parent’s acts or omissions met one or more of the grounds for
involuntary termination listed in section 161.001(b)(1) of the Family Code and terminating the parent’s rights is in the
best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The
same evidence used to prove the parent’s acts or omissions under section 161.001(b)(1) may be used in determining
the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re D.M., 452
S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.); see also TEX. FAM. CODE ANN. § 161.001(b). The trial
court may consider a parent’s past deliberate conduct to infer future conduct in a similar situation. In re D.M., 452
S.W.3d at 472.
ii
Statutory Grounds for Termination. The Family Code authorizes a court to terminate the parent-child relationship if,
inter alia, it finds by clear and convincing evidence that the parent’s acts or omissions met certain criteria. See TEX.
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FAM. CODE ANN. § 161.001(b). Here, the trial court found Mom’s course of conduct met subsections (N), (O), and
(P):
(N) constructively abandoned the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for not less than six
months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment; [and]
(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; [and]
(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner
that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or
(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse
a controlled substance.
Id. § 161.001(b)(1).
iii
Legal Sufficiency. When a clear and convincing evidence standard applies, a legal sufficiency review requires a
court to “‘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.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court “‘determines that [a] reasonable factfinder could form a
firm belief or conviction that the matter that must be proven is true,’” the evidence is legally sufficient. See id.
iv
Factual Sufficiency. Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d at 25;
accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider “whether disputed evidence is such that a
reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d
at 266; accord In re H.R.M., 209 S.W.3d at 108.
v
Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in
determining the best interest of a child:
(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, including providing the
child and other children under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child’s physical and
psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
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(E) protection from repeated exposure to violence even though the violence may not be
directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is
available to the child.
TEX. FAM. CODE ANN. § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors).
vi
Holley Factors. The Supreme Court of Texas identified the following factors to determine the best interest of a child
in its landmark case Holley v. Adams:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship
is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C., 384 S.W.3d 796,
807 (Tex. 2012) (reciting the Holley factors).
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