in the Interest of J.M.S. and A.S.A, Children

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00608-CV
IN THE INTEREST OF J.M.S. and A.S.A., Children
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-01788
Honorable Richard Garcia, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Beth Watkins, Justice
Delivered and Filed: February 13, 2019
AFFIRMED
Appellant Markie files this accelerated appeal from the trial court’s order terminating her
parental rights to her children, J.M.S. and A.S.A. Markie challenges the sufficiency of the evidence
to support the trial court’s predicate statutory findings and finding that termination is in the
children’s best interests. We affirm the trial court’s judgment.
Background
Markie is the mother of J.M.S. and A.S.A. Andre is the father of A.S.A., who was four
years old on the date of trial. Paternity could not be established for J.M.S., who was eight years
old on the date of trial. Based on reports of drug use and neglectful supervision of the children by
Markie and the children’s maternal grandmother, the Department removed both children from
Markie’s custody and filed a petition to terminate Markie’s and the fathers’ parental rights.
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On August 8, 2018, the trial court held a bench trial. Markie did not appear for trial, and
her court-appointed trial counsel announced “not ready,” explaining: “My client is not here. I
talked to her earlier this morning. She said she was on the way and I can’t reach her now; so, I
don’t know where she is.” The trial court overruled the not ready announcement, noting that
Markie had appeared at the previous hearing.
The Department presented a caseworker as its lone witness. The caseworker testified the
children had been living in a foster home since August 24, 2017 and were “doing really well”
there. The children are “very bonded to the foster family” and get along “really well” with the
other child in the home. The foster family is meeting the children’s emotional, medical, and
spiritual needs and is prepared to adopt them. The caseworker testified she believes the foster
placement is in the children’s best interests. She also testified: “The children have expressed that
they have a desire to remain in that home, as they consider that home.”
The Department prepared family service plans for both Markie and Andre. The caseworker
worked with Markie to address her plan but had no contact with Andre. Markie delayed in
addressing her service plan, telling the caseworker the delay was because she “hit rock bottom”
and “had an emotional break of some sort” after the death of someone she knew. Markie eventually
began availing herself of services in June 2018. By the time of trial in August 2018, Markie had
completed a drug assessment and parenting classes and was engaged in drug treatment, counseling,
and domestic violence courses, although she had not yet completed her service plan. Markie was
living with a friend, but the caseworker had not visited the friend’s home. Since the inception of
the case, the caseworker observed Markie’s twice monthly visits with the children, up to the week
before trial. The visits were appropriate and “go well,” and the children are bonded with Markie.
Markie never discussed drug use with the caseworker, but the results of a hair follicle test two
weeks prior to trial caused the caseworker to be concerned that Markie was continuing to use
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methamphetamines and amphetamines. The results of the hair follicle test were not offered or
admitted into evidence. On cross-examination by Markie’s counsel, the caseworker testified she
understood hair follicle tests reveal drug use going back ninety days but admitted she was not sure
if the test can indicate drug use older than ninety days. The caseworker testified the only reason
the Department sought termination of Markie’s rights was based on suspicion of continued drug
use.
At the conclusion of the caseworker’s testimony, the Department asked the trial court to
terminate Markie’s parental rights to both children on ground (O) (failure to comply with the
family service plan) only. The children’s ad litem attorney stated he agreed with the Department
but requested Markie’s parental rights also be terminated on ground (E) (endangerment) based on
Markie’s continued, suspected drug use. The trial court granted termination of Markie’s parental
rights on all three grounds asserted in the petition—(O), (E), and (P) (use of a controlled
substance)—and found termination was in the children’s best interests. Both fathers’ parental
rights were terminated as well. The trial court signed the final order of termination on September
26, 2018. On Markie’s motion, the trial court entered findings of fact and conclusions of law on
October 26, 2018. Markie appeals.
Standard of Review
To terminate parental rights, the Department has the burden to prove by clear and
convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1), and (2)
termination is in the best interests of the child. TEX. FAM. CODE ANN. §§ 161.001(b); 161.206(a);
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We review the legal and factual sufficiency of the
evidence using well-established standards of review. See TEX. FAM. CODE ANN. §§ 101.007,
161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency); In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).
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Discussion
In two issues, Markie challenges the trial court’s finding that termination is in the children’s
best interest and the trial court’s predicate statutory findings. In her third issue, Markie argues that
even if the evidence supports the trial court’s finding that Markie failed to comply with her family
service plan, Texas Family Code section 161.001(d) precludes termination.
A. Best interest finding
In her first issue, Markie argues the evidence was legally and factually insufficient to
support the trial court’s finding that termination was in the children’s best interest. 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). In determining the best interest of a child, we apply the non-exhaustive
Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors include:
(1) the desires of the child; (2) the present and future emotional and physical needs of the child;
(3) the present and future physical danger to the child; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist these individuals to promote the best interest
of the child; (6) the plans held by the individuals seeking custody; (7) the stability of the home of
the parent and the individuals seeking custody; (8) the acts or omissions of the parent which may
indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions of the parent. Id.Markie argues the evidence presented at trial is insufficient to support the trial court’s best
interest finding, relying on this court’s opinion in In re A.H., 414 S.W.3d 802 (Tex. App.—San
Antonio 2013, no pet.). In A.H., the only evidence supporting the trial court’s best interest finding
was the caseworker’s testimony that the children’s foster home was a safe environment that met
the children’s needs. Id. at 807. We held that while a parent’s “‘behavior may reasonably suggest
that a child would be better off with a new family, the best interest standard does not permit
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termination merely because a child might be better off living elsewhere.’” Id. (quoting In re W.C.,
98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.)).
Here, in contrast, the evidence supporting the trial court’s best interest finding is more
substantial. The Department caseworker testified she believes termination of the parents’ rights is
in the children’s best interests because the children were “doing really well” in the foster home
they had been living in for approximately one year, were “very bonded” to the foster family, and
were getting along “really well” with the other adopted child in the home. She testified the children
considered the foster home their “home” and expressed a desire to remain in that home. Based on
her observation of the children in the foster home, the caseworker testified the foster family is
meeting the children’s emotional, medical, and spiritual needs and will be able to continue to do
so in the future. Further, in light of her concern that Markie is continuing to use methamphetamines
and amphetamines and is unable to remain sober, the caseworker testified she believes it would be
dangerous to return the children to Markie.
Because there is sufficient evidence in the record supporting the trial court’s best interest
finding, we overrule Markie’s first issue.
B. Predicate statutory findings and subsection 161.001(d)
In her second issue, Markie argues the evidence adduced at trial is legally and factually
insufficient to support the trial court’s predicate statutory findings. The trial court found by clear
and convincing evidence that Markie: (1) engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangers their physical or emotional wellbeing; (2)
failed to comply with the provisions of a family service plan; and (3) used a controlled substance
in a manner that endangered the health or safety of the children. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(E), (O), and (P). When, as here, the trial court terminates a parent’s rights on
multiple grounds, we may affirm on any one ground. In re A.V., 113 S.W.3d at 362.
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The evidence presented at trial supports the trial court’s predicate finding that Markie failed
to comply with the provisions of her family service plan. The Department caseworker testified that
although the Department initiated the case in August 2017, Markie delayed in addressing her
family service plan until June 2018, just six weeks before trial, and had not yet completed drug
treatment and domestic violence services. While Markie told the caseworker the delay was because
of her struggles following the death of someone she knew, “Section 161.001(b)(1)(O) does not
‘make provision for excuses’ for the parent’s failure to comply with the court-ordered services.”
In re S.J.R.-Z., 537 S.W.3d 677, 691 (Tex. App.—San Antonio 2017, pet. denied) (quoting In re
J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.)). Even substantial compliance with
a family service plan is not the same as complete compliance. Id. at 690 (citing In re A.M.M., No.
04-15-00638-CV, 2016 WL 1359342, at *3 (Tex. App.—San Antonio Apr. 6, 2013, no pet.)).
In her third issue, Markie argues termination is precluded by subsection 161.001(d), which
provides that a trial court may not order termination based on failure to comply with a family
service plan if the parent proves by a preponderance of the evidence that she was unable to comply
with the plan, she made a good faith effort to comply, and her failure to comply is not attributable
to any fault of her own. TEX. FAM. CODE ANN. § 161.001(d). Here, however, the suit was filed on
August 10, 2017, and subsection (d) does not apply to suits filed before subsection (d)’s effective
date—September 1, 2017. Act of May 30, 2017, 85th Leg., R.S., ch. 317 (H.B. 7), § 73(c) (codified
at TEX. FAM. CODE ANN. § 161.001(d)). Regardless, the only evidence regarding Markie’s failure
to promptly address her family service plan was the caseworker’s testimony that Markie claimed
she had “hit rock bottom” and “had an emotional break of some sort.” Markie did not put on any
evidence that she was actually unable to comply with the plan or that her failure even to begin drug
treatment until six weeks before trial is not attributable to any fault of her own.
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Because there is sufficient evidence in the record to support the trial court’s finding that
Markie failed to comply with the provisions of her family service plan, we overrule Markie’s
second and third issues.
Conclusion
Based on our review of the entire record, we conclude the evidence is legally and factually
sufficient to support the trial court’s best interest and predicate statutory findings. Accordingly,
we overrule Markie’s issues and affirm the trial court’s judgment.
Sandee Bryan Marion, Chief Justice
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