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

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00667-CV
IN THE INTEREST OF A.E.S., a Child
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02849
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: April 9, 2018
AFFIRMED
This is an accelerated appeal from the trial court’s order terminating Appellant’s parental
rights to her son, A.E.S. Appellant challenges the sufficiency of the evidence in support of the
trial court’s findings with regard to the statutory grounds for termination as well as its finding that
termination of her parental rights was in the child’s best interest. See TEX. FAM. CODE ANN.
§ 161.001(b)(2) (West Supp. 2017). We affirm the trial court’s Order of Termination.
BACKGROUND
A bench trial was conducted on August 4, 2017. The caseworker for the Texas Department
of Family and Protective Services (“the Department”) testified that the Department became
involved with A.E.S. due to allegations of physical abuse and neglectful supervision. Appellant’s
roommate at the Battered Women’s Shelter reported that Appellant had fallen asleep on top of then
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seven-month-old A.E.S. Appellant had a prescription for Benzodiazepines, but a pill count
indicated that she was taking much more than prescribed. She was 39 pills past what she should
have been on that date. The roommate was unable to wake Appellant, and had to forcibly move
her off the baby. The Department was awarded temporary managing conservatorship of A.E.S.
The Department offered services to Appellant, with substance abuse and mental health being the
top priorities. Appellant was required to attend a substance abuse assessment, but she did not
attend.
The caseworker testified the Department attempted to reunify A.E.S. with Appellant in
May 2015. At the end of a weekend visit, A.E.S. had a very high fever of which Appellant was
unaware. In addition, A.E.S. smelled of cigarette smoke, and the Department had informed
Appellant that she could not smoke near the child because he suffers from asthma. Appellant was
unprepared for another weekend visit with A.E.S.; Appellant picked him up without any diapers
or clothing. Appellant was required to complete random drug tests and on five occasions in 2015
the results indicated continued drug use. At the end of July 2015, the Department ceased
unsupervised weekend visits. In April of 2016, Appellant’s other child was removed from
Appellant’s care by the Department. At that time, Appellant refused to comply with the
Department’s request for additional drug testing. According to the caseworker, Appellant had not
successfully completed either of her two family service plans. The caseworker opined that it was
not safe for A.E.S. to be in Appellant’s care. Appellant last saw A.E.S. in August 2015. Appellant
had not provided proof of housing or employment. Appellant had limited participation in therapy
but had not addressed the concerns of removal.
The caseworker testified that the Department planned for A.E.S. to be adopted by his foster
family if parental rights were terminated. A.E.S. had been living with the same foster family for
the majority of the case; the family wanted to adopt him. The foster home appeared to be stable
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and loving. The caseworker stated that A.E.S. did not have a bond with Appellant and did not
know who Appellant was.
The court appointed special advocate (CASA) volunteer stated that she has observed A.E.S.
in the foster home and that he is a very happy four year-old. She had not observed A.E.S. interact
with Appellant, but nevertheless opined that it was in the best interest of A.E.S. that parental rights
be terminated.
A.E.S.’s foster father testified that A.E.S. has been living with him for almost three years;
he would like to adopt A.E.S. The foster father stated that on one occasion A.E.S. returned from
a weekend visit with Appellant reeking of cigarette smoke and covered in animal hair. A.E.S. was
sick and not very clean.
Appellant testified that she completed her two service plans and that she attempted to visit
A.E.S. by contacting the Department and the foster parents. Appellant has financially supported
A.E.S. during the case, paying $156 per month in child support. The child support is garnished
from her wages; Appellant is employed at Cardinal Senior Care. She stated she has lived in the
same apartment for the last two years, but the Department caseworker has never visited her home.
The caseworker never gave Appellant the contact information needed to visit a psychiatrist.
Appellant stated that A.E.S. had a fever when he arrived for the weekend visit, and that she
contacted the caseworker to let her know. She stated she has everything in her possession needed
to care for A.E.S., including diapers and clothing. Appellant stated it had been a year and a half
since she had last seen her child. She conceded she had some issues with drugs during the
pendency of the case. She tested positive for cocaine on approximately five occasions in 2015.
Appellant stated she is no longer using drugs.
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STANDARD OF REVIEW
On appeal, Appellant challenges the sufficiency of the evidence in support of the trial
court’s findings under section 161.001(b)(1)(D), (E), (N), (O), and (P) of the Texas Family Code
(“the Code”). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (P) (West Supp. 2017).
In addition to challenging each of the statutory grounds for termination, Appellant also challenges
the sufficiency of the evidence in support of the trial court’s finding that termination was in the
best interest of her child. See id. § 161.001(b)(2).
To terminate a parent’s right to his or her child, a court must find 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. See id. § 161.001(b)(1) (West Supp. 2017). “Clear
and convincing evidence” refers to 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.” Id. § 101.007 (West 2014). Courts require this heightened standard of review
because termination of a parent’s rights to her 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. 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) (West 2014
& Supp. 2017); 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).
STATUTORY TERMINATION GROUNDS
Appellant challenges the sufficiency of the evidence in support of the trial court’s findings
with regard to each of the statutory grounds for termination. Specifically, Appellant argues the
evidence is insufficient to support the trial court’s findings that she: (1) knowingly placed or
knowingly allowed A.E.S. to remain in conditions or surroundings that endangered A.E.S.’s
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physical or emotional well-being; (2) engaged in conduct or knowingly placed A.E.S. with persons
who engaged in conduct that endangered A.E.S.’s physical or emotional well-being; (3)
constructively abandoned A.E.S.; (4) failed to comply with the provisions of a court-ordered
family service plan; and (5) used a controlled substance in a manner that endangered the health or
safety of A.E.S and failed to complete a court-ordered substance abuse treatment program. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), and (P).
“Parents frequently fall short of strict compliance with a family-service plan’s
requirements.” In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014). “But whether a parent has done
enough under the family-service plan to defeat termination under subpart (O) is ordinarily a fact
question.” Id. Here, the caseworker stated that the primary focus of Appellant’s service plan was
substance abuse and mental health. Although Appellant’s family service plan required her to
remain drug-free, she admitted testing positive for cocaine on five occasions in 2015. She did not
complete a substance abuse assessment. She did not visit with a psychiatrist. She was
unsuccessfully discharged from individual therapy.
Based on this record, we conclude the trial court could have formed a firm conviction and
belief that Appellant knowingly failed to comply with the provisions of a court order specifying
the actions necessary for her to obtain the return of A.E.S. Accordingly, we hold the evidence is
legally and factually sufficient to support the trial court’s finding under section 161.001(b)(1)(O).
Because we hold the evidence is sufficient to support the trial court’s finding under section
161.001(b)(1)(O), we need not address the trial court’s remaining findings under section
161.001(b)(1) since a single finding under section 161.001(b)(1) of the Code is sufficient to
support an order of termination when there is also a finding that termination is in the child’s best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re A.L.H., 515 S.W.3d 60, 88 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied).
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BEST INTEREST
Appellant also challenges the sufficiency of the evidence that termination of her parental
rights was in the child’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). However, when
the court considers factors related to the best interest of the child, “the prompt and permanent
placement of the child in a safe environment is presumed to be in the child’s best interest.” TEX.
FAM. CODE ANN. § 263.307(a) (West Supp. 2017). In determining whether a child’s parent is
willing and able to provide the child with a safe environment, we consider the factors set forth in
section 263.307(b) of the Code. See id. § 263.307(b) (West Supp. 2017).
We also apply the non-exhaustive Holley factors to our analysis. 1 See Holley v. Adams,
544 S.W.2d 367, 371-72 (Tex. 1976). A best-interest finding does not require evidence concerning
every Holley factor. The Texas Supreme Court has recognized “that [the Holley] considerations
are [not] exhaustive [and] that [not] all such considerations must be proved as a condition
precedent to parental termination.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (emphasis in
original). “The absence of evidence about some of [the Holley] considerations would not preclude
a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s
best interest, particularly if the evidence were undisputed that the parental relationship endangered
the safety of the child.” Id. The ultimate question before us is whether the evidence, as a whole,
is sufficient for the trial court to have formed a strong conviction or belief that termination of
Appellant’s parental rights was in the best interest of the child. See id.
1
These factors include: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any
present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6)
the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper;
and (9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In
re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
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Finally, evidence that proves one or more statutory ground for termination may constitute
evidence illustrating that termination is in the child’s best interest. Id. at 28 (holding same evidence
may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does
not relieve the State of its burden to prove best interest). A best interest analysis may consider
circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct
evidence. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). A
trier of fact may measure a parent’s future conduct by her past conduct and determine whether
termination of parental rights is in the child’s best interest. Id.
This case began when Appellant was found sleeping on top of A.E.S. when he was seven
months old. Appellant had been prescribed Benzodiazepines, but had taken much more than the
prescribed dosage. Appellant admitted she tested positive for cocaine five times during the
pendency of the case. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.]
2016, pet. denied) (noting parent’s drug use supports a finding that termination is in the best
interest of the child).
When A.E.S. was removed from Appellant’s care, the Department implemented a family
service plan to help Appellant improve her parenting; the trial court ordered Appellant to comply
with the requirements of the plan and the return of A.E.S. was conditioned upon completion of the
plan. Requirements of the plan included attending individual counseling and a substance abuse
assessment, as well as completing a psychological evaluation and following any recommendations
made on the evaluation. Although Appellant believed she had done all that was required of her
under her service plan, the Department caseworker testified Appellant had not completed her
service plan. See In re S.B., 207 S.W.3d at 887-88 (noting failure to comply with family service
plan supports finding that termination is in child’s best interest); see also In re A.H., No. 04–15–
00416–CV, 2015 WL 7565569, at *9 (Tex. App.—San Antonio Nov. 25, 2015, no pet.) (mem.
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op.) (holding failure to complete family service plan is indicative of failure to prioritize child).
Notably, Appellant failed to maintain her sobriety and to complete a substance abuse assessment.
She also failed to follow up with a psychiatric appointment after the psychological evaluation.
Appellant admitted it had been one and a half years since she had last seen her son.
Evidence indicated A.E.S. had no bond with Appellant and that A.E.S. did not know Appellant
was his mother. See In re J.A.W., No. 06–09–00068–CV, 2010 WL 1236432, at *5 (Tex. App.–
Texarkana Apr. 1, 2010, pet. denied) (mem. op.) (relying on parent’s failure to visit children for
six months before trial as evidence to support best interest finding).
Appellant testified she had a stable home and employment, but did not provide proof of
either to the Department. We must defer to the factfinder’s evaluation of Appellant’s credibility
and its resolution of any evidentiary conflicts because they are supported by the record. See Harris
v. Tex. Dep’t of Family & Protective Servs., 228 S.W.3d 819, 822-23 (Tex. App.—Austin 2007,
no pet.). A.E.S. had been living with the same foster family for the majority of his young life and
the family wished to adopt him. The CASA volunteer testified A.E.S. appeared to be very happy
in the home. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)
(noting “[s]tability and permanence are paramount in the upbringing of a child”).
Viewing the evidence related to the Holley factors in the light most favorable to the trial
court’s finding, we conclude the evidence is legally sufficient to support a firm belief or conviction
that termination of Appellant’s parental rights was in A.E.S.’s best interest. See Holley, 544
S.W.2d at 372. Having given due consideration to the disputed evidence in the case, we reach the
same conclusion regarding the factual sufficiency of the evidence. Any evidence favoring a
decision contrary to the trial court’s decision “is not so significant that no reasonable juror could
have formed a firm belief or conviction” that termination of Appellant’s parental rights is in the
best interest of the child. See In J.P.B., 180 S.W.3d at 573; In re H.R.M., 209 S.W.3d at 108.
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CONCLUSION
We overrule Appellant’s issues on appeal and affirm the trial court’s Order of Termination.
Rebeca C. Martinez, Justice
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