in the Interest of A.H. III, a Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00523-CV
IN THE INTEREST OF A.H. III, a Child
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-PA-01990
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Patricia O. Alvarez, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: January 25, 2023
AFFIRMED
A.F. appeals the trial court’s order terminating her parental rights to her child A.H. III (born
2014). 1 A.F. argues the evidence is legally and factually insufficient to support the trial court’s
finding that termination is in the best interest of A.H. III. We affirm.
BACKGROUND
On September 4, 2018, the Texas Department of Family and Protective Services removed
A.H. III from A.F.’s care due to allegations of physical abuse and drug use by the mother. The
Department obtained temporary managing conservatorship over A.H. III, placed him in a foster
home, and filed a petition to terminate A.F.’s parental rights. The Department also created a family
1
To protect the privacy of the minor child, we use initials to refer to the child and his biological parents. TEX. FAM.
CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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service plan requiring A.F. to, inter alia, complete a psychological evaluation, attend individual
therapy, complete a domestic violence/anger management course, undergo a drug assessment and
treatment evaluation, refrain from illegal drug use and alcohol abuse, submit to random drug
testing, and participate in a parenting class as a condition of reunification. The Department
ultimately pursued termination of A.F.’s parental rights.
On February 18, 2020, June 1, 2020, September 25, 2020, and October 9, 2020, the trial
court held a four-day bench trial (the “original trial”). On January 27, 2021, the trial court rendered
a written order denying termination and naming A.F. and the father as possessory managing
conservators but allowing the Department to preserve the grounds for termination. Although the
trial court originally denied termination, trial courts may terminate parental rights after the denial
of a prior petition to terminate under certain circumstances enumerated by statute. See TEX.
FAMILY CODE § 164.004. Among other things, the trial court may consider evidence presented at
a previous hearing in a suit for termination of parental rights with respect to the same child. Id.
§ 164.001(b).
On December 2, 2021, the Department filed a motion to modify the prior order and again
sought termination of A.F.’s parental rights. On August 4, 2022, the trial court held a one-day
bench trial at which A.F. appeared. The trial court heard testimony from two witnesses: (1) the
Department’s caseworker, Dietra Marquez; and (2) A.F. After the conclusion of trial, the court
signed an order terminating A.F.’s parental rights pursuant to section 161.001(b)(1)(N) and (O)
and its finding that termination of A.F.’s parental rights was in the best interest of A.H. III. A.F.
appealed.
ANALYSIS
A.F. challenges the legal and factual sufficiency of the evidence on which the trial court
relied to conclude that termination was in the best interest of A.H. III.
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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 A.F.’s parental rights and
that termination was in the best interest of A.H. III. TEX. FAM. CODE § 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 § 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). To determine whether the Department presented clear and convincing evidence, a
legal sufficiency review requires us 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.” Id. at 266. We “assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so.” In re R.S.-T., 522 S.W.3d 92,
98 (Tex. App.—San Antonio 2017, no pet.). “A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” In re J.F.C., 96 S.W.3d at 266. Nevertheless, “we may not simply disregard
undisputed facts that do not support the finding; to do so would not comport with the heightened
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burden of proof by clear and convincing evidence.” In re S.L.M., 513 S.W.3d 746, 748 (Tex.
App.—San Antonio 2017, no pet.). If a reasonable factfinder could form a firm belief or conviction
that the matter that must be proven is true, then the evidence is legally sufficient. Id. at 747.
In contrast, in conducting a factual sufficiency review, we must review and weigh all the
evidence, including the evidence that is contrary to the trial court’s findings. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). We consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the challenged finding. In re J.F.C., 96 S.W.3d at
266. The evidence is factually insufficient only if “in 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.” Id.
In both legal and factual sufficiency review, the trial court, as factfinder, is the sole judge
of the weight and credibility of the evidence. In re A.F., No. 04-20-00216-CV, 2020 WL 6928390,
at *2 (Tex. App.—San Antonio Nov. 25, 2020, no pet.) (mem. op.). We must defer to the
factfinder’s resolution of disputed evidentiary issues and cannot substitute our judgment for that
of the factfinder. See, e.g., In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual
sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).
Best Interest
Applicable Law
A.F. challenges the legal and factual sufficiency of the trial court’s order that termination
of her parental rights was in the best interest of A.H. III. 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 at 97. To determine whether the Department satisfied
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this burden, the Texas Legislature has provided several factors 2 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 provided a similar list of factors 3 to determine a child’s best interest. TEX. FAM. CODE
§ 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
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.). “A trier of
fact may measure a parent’s future conduct by his past conduct [in] determin[ing] whether
termination of parental rights is in the child’s best interest.” In re E.D., 419 S.W.3d 615, 620 (Tex.
App.—San Antonio 2013, pet. denied). Finally, drug use can destabilize the home and expose
children to physical and emotional harm if not resolved. See, e.g., In re K.J.G., 2019 WL 3937278,
2
These factors include, inter alia: “(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).
3
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 v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976).
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at *8 (Tex. App.—San Antonio Aug. 21, 2019, pet denied). Evidence that proves a statutory
ground for termination is also probative on the issue of best interest. In re C.H., 89 S.W.3d 17, 28
(Tex. 2002).
Application
The Department initiated this case due to concerns about allegations of physical abuse to
A.H. III’s sibling (who is no longer part of this case) and A.F.’s alleged drug use. On appeal, A.F.
argues that because this is a case of “general neglect” not “involving extreme family violence or
out of control drug use,” she “simply needs to re-establish a relationship with the child.” She
contends the Department failed to provide sufficient evidence to justify termination of her parental
rights based on the best interest of A.H. III. According to A.F., because her rights were not
terminated after the original trial, she merely needs to spend time with A.H. III to continue the
bond that exists between them.
The Department’s caseworker, Marquez, testified that at the time of the original trial, A.F.
had mostly completed her service plan. She was still engaged in counseling and random drug
testing. After the trial court denied termination and signed a final order appointing the Department
managing conservator, the Department created a new service plan. At that time, A.F. resided in
New Mexico, while A.H. III was in a foster placement in Texas. Marquez sent A.F. a copy of the
service plan by email and followed up with a text message.
A.F.’s new service plan required A.F. to continue random drug testing, refrain from
domestic violence relationships, and continue taking mental health medications. However, A.F.
testified that she did not comply with the service plan because she believed she was not going to
get her son back even if she did. At one point, Marquez requested A.F. to report for drug testing,
and A.F. refused to do so.
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A.F. later returned to San Antonio, but according to Marquez, never communicated that
she had returned. A.F. only visited with A.H. III one time (in January 2021) between the time she
was appointed possessory managing conservator (in October 2020) and trial (in August 2022). See
In re T.T.B., No. 04-17-00190-CV, 2017 WL 3430900, at *3 (Tex. App.—San Antonio Aug. 9,
2017, no pet.) (failure to visit child for nine months supports best interest finding). A.F. did not
attend a scheduled visit in April 2021. A.F. requested another visit in July 2021, but after
consulting with the child’s ad litem, Marquez denied the request. A.F. has since neither sought to
visit nor actually visited with A.H. III. A.F.’s failure to visit A.H. III for nineteen months weighs
in favor of termination.
Marquez testified that during the pendency of the motion to modify, the father was arrested
for assault causing bodily injury to a family member. A.F. testified that the father “did get arrested
at my house” as the parents “were arguing.” However, according to A.F., the father did not assault
her, and it was simply a misunderstanding: “When the cops pulled up, I had fallen down and [the
father] was helping me up. And I had scraped myself and they thought that he had hit me.” The
trial court could have disbelieved A.F.’s testimony that the domestic violence incident with the
father was a misunderstanding by the police, and instead believed A.F. was unable to provide a
safe and stable home for A.H. III.
The trial court considered evidence that A.F. could not provide for A.H. III’s physical and
emotional well-being. Although A.F. testified at trial that she was employed and lived alone in a
home, she provided no proof of employment or stable housing to the Department. A.F. also did
not stay in contact with Marquez because A.F. did not feel comfortable talking to Marquez and
had requested another caseworker be assigned. It is uncontested that A.F. did not attempt to comply
with her new service plan; she testified, “I did nothing due to the fact that [Marquez] told me –
she’s been telling me that it’s too late to get my son back.” A.F.’s failure to comply with her service
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plan further supports a finding that termination was in the best interest of the child. See In re S.B.,
207 S.W.3d 877, 888 (Tex. App.—Fort Worth 2006, no pet.).
A.F. refused to comply with drug testing requirements, and Marquez testified that there
were no indications A.F. maintained sobriety. The trial court could have inferred from A.F.’s
refusal to test that she continued to use drugs. In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.—
Amarillo 2009, pet. denied) (“The trial court may infer from a refusal to take a drug test that
appellant was using drugs.”). Because drug use can destabilize the home and expose children to
physical and emotional harm if not resolved, its use weighs in favor of termination. See, e.g., In re
K.J.G., 2019 WL 3937278, at *8 (Tex. App.—San Antonio Aug. 21, 2019, pet denied).
A.H. III’s siblings—originally a part of this case—were placed with their paternal
grandmother. However, according to Marquez, A.H. III could not be placed with them because he
suffers from post-traumatic stress disorder triggered by a violent incident involving one of his
siblings. Marquez further testified that A.H. III expressed that he has no desire to see his mother
or siblings, and that he wishes to be adopted. A.H. III’s desire to be adopted by a “forever family”
instead of returned to his mother strongly weighs in favor of termination. See In re L.G.D., No.
04-22-00330-CV, 2022 WL 17173901, at *4 (Tex. App.—11 San Antonio, Nov. 23, 2022, no pet.)
(finding eight-year-old child’s desire not to return to mother’s custody strongly weighs in favor of
termination).
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.F.’s
parental rights was in the best interest of A.H. III. 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.F.’s arguments to the contrary.
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CONCLUSION
We affirm the trial court’s order of termination.
Lori I. Valenzuela, Justice
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