in the Interest of S.E.S., a Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00847-CV
IN THE INTEREST OF S.E.S., a Child
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02682
Honorable Richard Garcia, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 30, 2018
AFFIRMED
This is an appeal from a trial court’s order terminating appellant mother’s (“Mother”)
parental rights to her child, S.E.S.1 On appeal, Mother does not challenge the grounds for
termination; rather, Mother merely contends the evidence is legally and factually insufficient to
support the trial court’s finding that termination was in the child’s best interest. We affirm the
order of termination.
BACKGROUND
The Texas Department of Family and Protective Services (“the Department”) received a
referral regarding S.E.S. just after her birth on November 26, 2016. The referral reported that
1
The trial court also terminated the parental rights of S.E.S.’s father (“Father”), but he did not file a notice of appeal
challenging the trial court’s order. Accordingly, he is not a party to this appeal.
04-17-00847-CV
Mother had engaged in neglectful supervision and physical abuse based on the fact that S.E.S.
tested positive at birth for amphetamines, Benzodiazepines, and marijuana. Mother also tested
positive for amphetamines and marijuana at the time of S.E.S.’s birth. Mother claimed Father
forced her to take “Ice” and Xanax to force her into labor at home; he did not want Mother to leave
the house. However, it is undisputed Mother gave birth in the hospital.
Six days after S.E.S.’s birth, the Department removed the infant from the hospital and
placed her with her foster parents. S.E.S. has been with those same foster parents since the initial
placement. Subsequently, the Department filed a petition to terminate Mother’s parental rights to
S.E.S. Almost a year to the day after the child’s birth, the matter moved to a final hearing.
At the hearing, the trial court heard testimony from (1) Monica Camacho, the Department
caseworker who worked with Mother throughout the course of the case; and (2) Mother. Ms.
Camacho testified about the child’s birth and the withdrawal symptoms she suffered thereafter.
She advised the trial court that Mother was arrested a week after she gave birth to S.E.S. for an
aggravated robbery committed by Mother just five days after the birth. Mother was later convicted
of the aggravated robbery and sentenced to six-years’ confinement in the Texas Department of
Criminal Justice — Institutional Division (“TDCJ”). Earlier that same year, Mother had been
arrested for “assault bodily injury-married/cohab.” That offense involved a domestic violence
incident with a man with whom Mother had an intimate relationship.
As for her service plan, which took into account Mother’s prior history with the Department
and her criminal history, Mother completed all the services available to her in the Bexar County
Jail prior to her transfer to TDCJ. She was unable to complete certain services — drug tests,
psychiatric evaluation, drug assessment, visitation — due to her incarceration and the
unavailability of the services in the jail. However, Ms. Camacho testified that even though Mother
-2-
04-17-00847-CV
completed numerous services, she failed to successfully address the reasons for the initial removal,
continuing to blame Father for her situation.
The Department also presented evidence of prior parental terminations. Without objection,
the trial court admitted into evidence a 2013 order of termination. In that order, Mother’s parental
rights to three other children — ages thirteen, twelve, and six at the time — were terminated.
At the conclusion of the hearing, the trial court terminated Mother’s parental rights, finding
she: (1) knowingly placed or knowingly allowed S.E.S. to remain in conditions or surroundings
that endangered her physical or emotional well-being; (2) engaged in conduct or knowingly placed
S.E.S. with people who engaged in conduct that endangered her physical or emotional well-being;
(3) had her parental rights terminated with respect to another child based on a finding that her
conduct violated sections 161.001(b)(1)(D) or (E) of the Code; (4) constructively abandoned
S.E.S.; (5) knowing engaged in criminal conduct that resulted in her conviction of an offense and
confinement or imprisonment and inability to care for S.E.S. for not less than two years from the
date the petition was filed; and (6) was the cause of S.E.S. being born addicted to a controlled
substance, other than one legally obtained by prescription. See TEX. FAM. CODE ANN.
§ 161.001(b)(1) (D), (E), (M), (N), (Q), (R) (West Supp. 2017). The trial court further found
termination of Mother’s parental rights would be in S.E.S.’s best interest. 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.
ANALYSIS
As noted above, in this 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) (D), (E), (M), (N), (Q), (R). Mother argues only that the evidence is legally and
-3-
04-17-00847-CV
factually insufficient to support the trial court’s finding that termination was in her daughter’s best
interest. See id. § 161.001(b)(2).
Standard of Review
A trial court may terminate a parent’s right to a child 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 interest of the child. Id. § 161.001(b). “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 rights to a child results in
permanent and severe changes for both the parent and child, thus, implicating due process
concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). 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 such that the trier of fact could reasonably
form a firm belief or conviction that termination 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. J.P.B.,
180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer 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 v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). In analyzing the evidence within the Holley
-4-
04-17-00847-CV
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. 2012). In other
words, 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 a child’s best interest.
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.
Additionally, evidence that proves one or more statutory grounds for termination may be
probative to prove termination is in the child’s best interest. 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 State of burden to prove best interest). In conducting a best interest analysis, a
court may consider in addition to direct evidence, 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, two witnesses testified at the final hearing — Ms. Camacho, the
Department caseworker, and Mother. Ms. Camacho testified S.E.S. had just turned a year old at
-5-
04-17-00847-CV
the time of the final hearing. Thus, S.E.S. was too young to express an opinion on her 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 unable to
express her desires, the fact finder may consider that she has bonded with her 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)). Here, the evidence showed that although the Department scheduled a
visitation for Mother prior to her arrest, she did not exercise it. Thereafter, she was incarcerated
based on her arrest for aggravated robbery and visitations were impossible. Ms. Camacho testified
she visited Mother each month she was incarcerated in the Bexar County Jail, providing her with
pictures and videos of S.E.S. Ms. Camacho stated Mother always asked about S.E.S. and appeared
to be concerned about her, but because there was no visitation between Mother and child, there is
no attachment or bonding.
On the other hand, S.E.S. is thriving in her foster home. The evidence shows S.E.S. is
bonded with her foster family, which includes her foster parents, foster brother, and foster
grandparents. J.D., 436 S.W.3d at 118. This is the only family S.E.S. has known since she was a
week old. Her foster family is able to meet all of S.E.S.’s needs, including the special needs that
resulted from her exposure to drugs while in the womb. See TEX. FAM. CODE ANN.
§ 263.307(b)(1); Holley, 544 S.W.2d at 371–72. As a result of her drug exposure, S.E.S. receives
occupational therapy four times a month, physical therapy two times a month, and specialized
skills training three times a month. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544
S.W.2d at 371–72. Because of the care of her foster parents, S.E.S. is now “performing at her age
level.”
-6-
04-17-00847-CV
With regard to the emotional and physical danger to the child — now and in the future —
there is evidence that Mother engaged in domestic violence, assaulting a man with whom she was
intimate. See TEX. FAM. CODE ANN. § 263.307(b)(7) (history of abusive or assaultive conduct by
child’s family); Holley, 544 S.W.2d at 371–72. This resulted in a criminal charge of “assault
bodily injury-married/cohab” in 2016. At trial, evidence of other criminal activity was presented.
At the time of the final hearing, Mother was in TDCJ, having been sentenced to six years’
confinement for an aggravated robbery committed just days after she gave birth to S.E.S. 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; 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). Mother testified she will not be eligible
for parole for at least two years. Moreover, Mother has three prior arrests for marijuana possession
in 1997, 2014, and 2015, and an arrest for vehicle theft in 2002. Combined with the more recent
arrests for assault and aggravated robbery, Mother has quite an extensive criminal history. See
TEX. FAM. CODE ANN. § 263.307(b)(7); id. § 263.307(b)(8) (history of substance abuse by child’s
family); id. § 263.307(b)(11) (willingness and ability of child’s family to effect positive
environmental and personal changes within reasonable period of time); id. § 263.307(b)(12);
Holley, 544 S.W.2d at 371–72; M.L.C., 2017 WL 649282, at *5. A parent’s criminal conduct,
prior convictions, and incarceration affects the parent’s life and her ability to parent, subjecting
her child to potential emotional or physical danger, now and in the future. M.L.C., 2017 WL
649282, at *5.
Moreover, it is undisputed that both Mother and S.E.S. tested positive for drugs at the time
of S.E.S.’s birth. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); In re L.R.G.,
498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that parent’s
-7-
04-17-00847-CV
drug use supports finding that termination is in child’s best interest). As set out above, S.E.S.
tested positive at birth for amphetamines, Benzodiazepines, and marijuana; Mother tested positive
for amphetamines and marijuana. Mother sought to excuse the drug issues by claiming Father
forced her to take “Ice” and Xanax so Mother would give birth at home. However, it is undisputed
Mother gave birth in the hospital. Moreover, it does not explain the positive test for marijuana.
As stated above, the evidence also showed that Mother has had previous involvement with
the Department, which ultimately resulted in termination of her parental rights to three other
children. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12);
Holley, 544 S.W.2d at 371–72. The Department introduced, and the trial court admitted into
evidence, a certified copy of a 2013 order of termination. That order establishes Mother’s parental
rights to three other children were terminated because Mother: (1) knowingly placed or allowed
her children to be placed in conditions that endangered their physical or emotional well-being; and
(2) failed to comply with the provisions of a court-ordered service plan that set out the action
necessary to obtain the return of her children. The endangerment ground stemmed from domestic
violence, apparently a continuing issue in Mother’s life. Courts have recognized that prior
terminations are relevant in determining whether a parent’s rights to the child at issue should be
terminated. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013); M.L.C., 2017 WL 649282, at *5. In
re E.A.F., 424 S.W.3d 742, 751 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Accordingly, in this case, the prior termination of Mother’s parental rights to her other children
was evidence the trial court could consider in determining whether termination was in S.E.S.’s
best interest. See E.C.R., 402 S.W.3d at 248; E.A.F., 424 S.W.3d at 751; M.L.C., 2017 WL 649282,
at *5.
The foregoing evidence is also relevant to Mother’s parenting abilities. See TEX. FAM.
CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at
-8-
04-17-00847-CV
371–72. Mother has a history of drug use and criminality, having been arrested for drug
possession, vehicle theft, assault, and aggravated robbery. See TEX. FAM. CODE ANN.
§ 263.307(b)(7); id. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id.
§ 263.307(b)(12); Holley, 544 S.W.2d at 371–72. And as discussed above, she also had her rights
to three other children terminated. See TEX. FAM. CODE ANN. § 263.307(b)(7); id. § 263.307(b)(8);
id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.
Although Mother completed as many services on her plan as available given her
incarceration, and expressed her desire and willingness to complete any other services mandated,
Ms. Camacho opined that termination was in the best interest of the child given Mother’s decision
to engage in criminal behavior just days after her daughter’s birth, her current incarceration, and
the lack of a bond between Mother and child. Given the evidence, the trial court could have
determined Mother lacks the abilities needed to parent her infant daughter. See TEX. FAM. CODE
ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.
CONCLUSION
After considering all the evidence in the light most favorable to the trial court’s best interest
finding, we conclude the trial court reasonably could have formed a firm belief or conviction that
termination of Mother’s parental rights was in her child’s best interest. See J.P.B., 180 S.W.3d at
573; H.R.M., 209 S.W.3d at 108. Thus, we hold the evidence is sufficient to support the trial
court’s finding that termination of Mother’s parental rights was in S.E.S.’s best interest and affirm
the trial court’s termination order.
Marialyn Barnard, Justice
-9-