in the Interest of N.M.H. and J.K.H., and J.J.W.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00264-CV
IN THE INTEREST OF N.M.H., J.K.H., and J.J.W., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02357
John D. Gabriel Jr., Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: August 22, 2018
AFFIRMED
Appellant mother (“Mother”) appeals the trial court’s order terminating her parental rights
to her children, N.M.H., J.K.H. and J.J.W. 2 On appeal, Mother contends the evidence is legally
and factually insufficient to support the trial court’s finding that termination of her parental rights
is in the best interest of her children. We affirm the trial court’s order of termination.
BACKGROUND
The Texas Department of Family and Protective Services (the “Department”) became
involved with the family after Mother posted a video to Facebook showing herself and a cousin in
1
The Honorable Michael E. Mery is the presiding judge of the 37th Judicial District Court, Bexar County Texas. The
Honorable John D. Gabriel Jr., retired, was sitting by assignment and signed the termination order at issue in this
appeal.
2
The trial court also terminated the parental rights of J.J.W.’s father and the unknown father of N.M.H. and J.K.H.
However, neither father filed a notice of appeal challenging the trial court’s termination order. Accordingly, they are
not parties to this appeal.
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a car smoking marijuana and drinking while N.M.H., J.K.H., and J.J.W. were in the back seat. At
the time the Department investigation began, N.M.H. and J.K.H were fifteen months old and J.J.W.
was three months old. 3
The children were removed and placed with a foster family. The children remained with
the foster family during the course of the investigation. After the removal, the Department created
a service plan for Mother, requiring her to: (1) complete a drug assessment; (2) complete individual
therapy; (3) complete a psychological evaluation and follow all recommendations based on the
evaluation; (4) submit to all random drug tests; (5) maintain legal, verifiable employment and
provide check stubs proving employment; (5) complete a parenting course; and (6) maintain safe,
stable housing. The service plan goals required that Mother demonstrate a willingness and ability
to protect her children, manage her anger, appropriately cope with daily stresses, and place the
needs of her children before her own. Mother completed the mandated drug assessment and
recommended outpatient drug treatment. She also completed individual therapy, a psychological
evaluation, and a parenting course. However, Mother failed to comply with certain portions of her
service plan. More specifically, Mother failed to follow recommendations made as a result of her
psychiatric evaluation, did not provide proof of safe housing, failed to submit to some of the
requested drug tests, tested positive for marijuana at her last random drug test — which was taken
a week prior to trial, and provided only one employment paystub over the course of a year and a
half. Ultimately, the Department filed a petition to terminate Mother’s parental rights.
At the final hearing, the Department presented evidence in support of its petition seeking
to terminate Mother’s parental rights. The Department caseworker, Alkeshia Daniels, testified the
Department’s primary concerns with Mother were her continued drug use and her failure to comply
3
N.M.H., J.K.H., and J.J.W. are Mother’s three youngest children. There is evidence in the record to suggest Mother
lost custody of her three older children.
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with her psychiatrist’s recommendations with regard to medication to treat her bipolar disorder.
Ms. Daniels also stated the Department had considered returning the children to Mother, but
decided against it after Mother was arrested for possession of marijuana and then later tested
positive for marijuana use. Ms. Daniels opined it was in the best interests of the children for
Mother’s parental rights to be terminated.
The children’s foster father also testified. He advised the court that the children were
developmentally behind when they first came to live with his family. However, since the
placement, they have shown great improvement and are now doing very well. He also stated he
and his wife desire to adopt the children if Mother’s parental rights are terminated.
Mother also testified, along with a one of her friends, Courtland. Both testified that
although Mother had made poor decisions in the past, she had learned from her mistakes and
desired and deserved to have her children returned.
At the conclusion of the hearing, the trial court terminated Mother’s parental rights finding
she: (1) failed to support her children in accordance with her ability; (2) failed to comply with the
provisions of a court order that specifically established the actions necessary for her to obtain the
return of the children; and (3) used a controlled substance in a manner that endangered the health
or safety of her children and continued to use a controlled substance after completing a court-
ordered substance abuse treatment program. See TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (O),
(P) (West Supp. 2017). The trial court further found termination of Mother’s parental rights would
be in the best interests of the children. See id. § 161.001(b)(2). Based on its findings, the trial
court rendered an order terminating Mother’s parental rights. Thereafter, Mother timely perfected
this appeal.
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ANALYSIS
On appeal, Mother does not challenge the evidence regarding the trial court’s findings
under section 161.001(b)(1) of the Texas Family Code (“the Code”). See id. § 161.001(b)(1)(F),
(O), (P). Rather, Mother contends the evidence is legally and factually insufficient to support the
trial court’s finding that termination of her parental rights was in her children’s best interests. See
id. § 161.001(b)(2). According to Mother, the State ignored many of the Holley factors when
presenting its case. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Mother states she
has a strong bond with her children, never used drugs in the children’s presence, never abused or
neglected the children, and has a job and safe housing. Therefore, she argues, it is in the best
interests of the children to return them to her.
Standard of Review
A trial court may terminate a parent’s rights to her children only if it finds by clear and
convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the
Code and termination is in the best interests of the children. See TEX. FAM. CODE ANN.
§ 161.001(b)(1), (b)(2). “Clear and convincing evidence” is defined as “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.” Id. § 101.007. Courts require this heightened standard of review because
termination of a parent’s right to her children results in permanent and severe changes for both the
parent and children, thus, implicating due process concerns. See In re A.B., 437 S.W.3d 498, 502
(Tex. 2014).
When reviewing the legal and factual sufficiency of the evidence, we apply the well-
established standards of review. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (factual sufficiency). In sum, an appellate court must determine whether the evidence is
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such that a trier of fact could reasonably form a firm belief or conviction that termination of
parental rights was in the child’s best interest. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
In conducting a sufficiency review, we may not weigh a witness’s credibility because it
depends on appearance and demeanor, and these are within the domain of the trier of fact. In re
J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must refer
to the fact finder’s reasonable resolutions. Id.
Best Interests — Applicable Law
In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley, 544
S.W.2d at 371–72. In analyzing the evidence within the Holley framework, we note that evidence
of each Holley factor is not required before a court may find that termination is in a child’s best
interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). In other words, and contrary to Mother’s
argument in this case, the absence of evidence as to some of the Holley factors does not preclude
a fact finder from reasonably forming a strong conviction or belief that termination is in the child’s
best interest. See id. Moreover, in conducting our review of a trial court’s best interest
determination, we focus on whether termination is in the best interest of the child — not the best
interest of the parent. In re D.M., 452 S.W.3d 462, 468–69 (Tex. App—San Antonio 2014, no
pet.).
In addition to the Holley factors, we recognize there is a strong presumption that keeping
a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
However, promptly and permanently placing a child in a safe environment is also presumed to be
in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a). Thus, to determine whether a
child’s parent is willing and able to provide the child with a safe environment, we also consider
the factors set forth in section 263.307(b) of the Code. Id. § 263.307(b).
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Additionally, evidence that proves one or more statutory grounds for termination may be
probative to prove termination is in the child’s best interest. In re C.H., 89 S.W.3d at 28 (holding
same evidence may be probative of both section 161.001(1) grounds and best interest, but such
evidence does not relieve the State of its burden to prove best interest). In conducting a best
interest analysis, a court may consider not only direct evidence, but circumstantial evidence,
subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—
San Antonio 2013, pet. denied). Finally, a trier of fact may measure a parent’s future conduct by
her past conduct in determining whether termination of parental rights is in the child’s best interest.
Id.
Application
As indicated above, the trial court heard testimony from four witnesses at the final hearing:
Ms. Daniels — the Department caseworker, the foster father, Mother, and Mother’s friend,
Courtland. The foster father testified the twins, N.M.H. and J.K.H., were approximately two and
a half at the time of the final hearing; J.J.W., the youngest child, was one and a half years old.
Thus, they are too young to express their desires with regard to conservatorship. See TEX. FAM.
CODE ANN. § 263.307(b)(1) (child’s age and physical and mental vulnerabilities); Holley, 544
S.W.2d at 371–72. However, when a child is too young or unable to express his desires, a fact
finder may consider that he has bonded with his foster family, is well cared for by them, and has
spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (citing In re J.M., 156 S.W.3d 696, 706 (Tex. App.—Dallas 2005, no pet.));
In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Mother, Ms. Daniels and the foster father all testified Mother had a bond with her children.
However, Ms. Daniels stated that although Mother was permitted visitation with her children twice
a month by court order, she did not attend all of the visits afforded to her. According to Ms.
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Daniels, some of the reasons Mother gave for not attending visits were that she did not want to
have to take the children with her to a housing appointment or on the bus with her. This concerned
Ms. Daniels because it demonstrated Mother’s lack of ability to care for the children in everyday
situations. Ms. Daniels and the foster father both testified that following visits with Mother, the
children were often returned hungry, tired, dirty, and without proper attire for the weather
conditions. The foster father further stated the children seemed agitated after visits with Mother.
On the other hand, the children are thriving in their foster home. The evidence shows the
children are bonded with their foster family, including their foster parents and foster brothers. See
In re J.D., 436 S.W.3d at 118; In re U.P., 105 S.W.3d at 230. The children have been with their
foster family for more than half of their lives. Id. According to Ms. Daniels, the children see their
foster parents as “mom” and “dad” and they are the ones the children turn to when they are hurt,
crying, hungry, or sick. Ms. Daniels testified the children’s current placement meets their physical
and emotional needs. Ms. Daniels also stated the children are comfortable and safe with their
foster family and if Mother’s parental rights are terminated, she saw no reason they could not be
placed permanently with the foster family.
Ms. Daniels also testified that Mother has not provided monetary support for the children
since she took over the case. See TEX. FAM. CODE ANN. § 263.307(b)(12) (whether child’s family
demonstrates adequate parenting skills); Holley, 544 S.W.2d at 371-72. Mother provided only one
paycheck stub to the Department. The paycheck stub was for a call-center job she started months
after the children were removed. Prior to that, Mother had been generally unemployed or failed
to provide paycheck stubs for the few sporadic jobs she claimed to have. Mother claims she
recently leased a new apartment, but was unable to provide a copy of the lease or any other form
of proof that she was leasing the property. See Doyle v. Tex. Dep’t of Protective & Regulatory
Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso, 2000, pet. denied) (holding that parent’s failure
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to provide stable home and provide for child’s needs contributes to finding that termination of
parental rights is in child’s best interest). This evidence demonstrates Mother’s inability to
maintain a stable home and provide economically for the children. See Doyle, 16 S.W.3d at 398;
In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). On this basis, the trial
court could have determined Mother lacks the abilities needed to parent her young children. See
Holley, 544 S.W.2d at 371–72.
With regard to emotional and physical danger to the children, there is evidence Mother
engaged in substance abuse, has not followed her psychiatrist’s recommendations with regard to
treating her bipolar disease, and has her phone number and photos posted on multiple escort
websites. See TEX. FAM. CODE ANN. § 263.307(b)(6) (results of psychiatric or psychological
evaluations of child’s parents); id § 263.307(b)(8) (history of substance abuse by child’s family);
id. § 263.307(b)(10) (willingness and ability of child’s family to accept and complete counseling
services); id. § 263.307(b)(11) (willingness and ability of child’s family to effect positive
environmental and personal change); Holley, 544 S.W.2d at 371–72. Although Mother completed
outpatient drug treatment, she was subsequently arrested for marijuana possession and thereafter
tested positive for marijuana during a random drug test just a week before the final hearing. See
TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371–72; In re L.R.G., 498 S.W.3d
195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that parent’s drug use
supports finding that termination is in child’s best interest); In re M.L.C., No. 04-17-00459-CV,
2017 WL 6597828, at *5 (Tex. App.—San Antonio Dec. 27, 2017, pet. denied) (mem. op.)
(holding parent’s criminal activities and history are relevant to best interest analysis). Moreover,
the trial court could have reasonably determined that because of her drug use, Mother would be
unable to properly care for her children. See In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied) (stating parental drug use reflects poor judgement, which
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demonstrates inability to provide adequate care for child); In re E.D., 419 S.W.3d at 620
(highlighting that trial court may measure parent’s future conduct by past conduct when making
best interest determination); see also TEX. FAM. CODE ANN. § 263.307(b)(12) (whether child’s
family demonstrates adequate parenting skills). Thus, based on evidence of Mother’s drug use
and inability to complete important aspects of her service plan, the trial court could have
reasonably determined termination was in the best interest of the children. Id.
Accordingly, after considering all the evidence in the light most favorable to the best
interests finding, we conclude the trial court could have reasonably formed a firm belief or
conviction that termination of Mother’s parental rights was in her children’s best interests. See In
re J.P.B., 180 S.W.3d at 573; In re H.R.M., 209 S.W.3d at 108. Although Mother argues the
Department failed to produce evidence as to each Holley factor, the law is clear that evidence of
each Holley factor is not required before a court may find that termination is in a child’s best
interest. See, e.g., In re C.H.L., No. 04-17-00525-CV, 2017 WL 6597827, at *5 (Tex. App.—San
Antonio Dec. 27, 2017, no pet.) (mem. op.) (citing In re C.H., 89 S.W.3d at 27); In re M.L.C.,
2017 WL 6597828, at *3; In re S.J.R.-Z., 537 S.W.3d 677, 691 (Tex. App.—San Antonio 2017,
pet. denied) (“In fact, evidence of only one factor may be sufficient for a fact finder to reasonably
form a firm belief or conviction that termination is in a child’s best interest.); see also In re C.H.,
89 S.W.3d at 27.
In addition, Mother has not challenged the trial court’s findings that she: (1) failed to
support her children in accordance with her ability; (2) failed to comply with the provisions of a
court order that specifically established the actions necessary for her to obtain the return of her
children; and (3) used a controlled substance in a manner that endangered the health or safety of
her children and continued to use a controlled substance after completing a court-ordered substance
abuse treatment program. See TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (O), (P). Although not
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dispositive, grounds for termination are nevertheless probative on the issue of best interest. In re
C.H., 89 S.W.3d at 28. We therefore hold the evidence is sufficient to support the trial court’s
finding that termination of Mother’s parental rights was in the best interests of her children.
CONCLUSION
Based on the foregoing, we overrule Mother’s sufficiency challenge. We affirm the trial
court’s termination order.
Marialyn Barnard, Justice
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