in the Interest of N.N.R., a Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00410-CV
IN THE INTEREST OF N.N.R., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2019-PA-01112
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Beth Watkins, Justice
Delivered and Filed: January 27, 2021
AFFIRMED
Appellant P.P. appeals the trial court’s order terminating his parental rights to his child,
N.N.R., 1 born 2017. P.P. argues the evidence is legally and factually insufficient to support the
trial court’s finding that termination is in N.N.R.’s best interest. We affirm the trial court’s order.
BACKGROUND
In May of 2019, the Department of Family and Protective Services removed N.N.R. from
the home of her mother, A.R., after receiving reports that A.R. used drugs around the child and
was living with a suspected drug dealer and gang member. A.R. identified P.P. as N.N.R.’s father,
but she told the Department she did not know his phone number or address. On May 31, 2019, the
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To protect the privacy of the minor child, we refer to the child and the parents by their initials. TEX. R. APP. P.
9.8(b)(2).
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Department filed a petition to terminate the parental rights of both A.R. and P.P. It also obtained
temporary managing conservatorship over N.N.R. and placed her in foster care.
P.P. personally appeared at a June 10, 2019 hearing in this case. The Department created a
service plan for him, which he signed on July 12, 2019. The service plan required P.P. to, inter
alia, undergo substance abuse and psychological assessments, attend parenting classes, and follow
the recommendations of his psychological assessment.
Fourteen months after removal, the trial court held a one-day bench trial at which P.P.
appeared. Both A.R. and P.P. filed motions for continuance, but the trial court denied those
motions, stating, “A lot of the causes of delay have been brought on by the parents. . . . This is our
third setting. And the not readies are denied. We’re going forward today.” The trial court then
heard testimony from: (1) Christina Gallegos-Atarigbe, the Department’s caseworker who initially
removed N.N.R.; (2) Martine Arreola, the Department’s legal caseworker; and (3) P.P. The trial
court also took judicial notice of the service plans for both A.R. and P.P. and admitted them as
exhibits. After hearing the evidence, the trial court signed an order terminating A.R.’s and P.P.’s
parental rights. The trial court terminated P.P.’s rights pursuant to Texas Family Code section
161.002(b)(1) and, “in the alternative,” pursuant to Texas Family Code section 161.001(b)(1),
finding that P.P. engaged in conduct under subsections (N), (O), and (P) and that termination of
P.P.’s parental rights was in N.N.R.’s best interest. P.P. appealed, but A.R. did not.
ANALYSIS
While P.P. primarily challenges the legal and factual sufficiency of the evidence supporting
the trial court’s best interest finding, he also briefly states he “do[es] not believe that the
Department met their burden in” showing his parental rights should be terminated under section
161.001(b)(1)(N) or (O). However, P.P. does not challenge the sufficiency of the evidence
supporting the trial court’s findings under section 161.001(b)(1)(P). Accordingly, subsection (P)
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is a valid ground upon which the trial court’s judgment could be based. See In re A.V., 113 S.W.3d
355, 362 (Tex. 2003) (holding only one predicate finding under section 161.001(1) is necessary to
support a termination order). Consequently, to the extent P.P.’s brief challenges the trial court’s
findings under subsections (N) and (O), we need not consider that challenge. See id. We will
therefore consider only whether the evidence supports the trial court’s best interest finding. 2
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 P.P.’s parental rights and
that termination was in the best interest of the child. TEX. FAM. CODE ANN. § 161.206; In re A.V.,
113 S.W.3d at 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 ANN. § 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 TEX. FAM. CODE §§ 101.007,
161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). To determine whether the Department
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P.P. also failed to challenge the trial court’s finding that termination was warranted under section 161.002(b)(1).
However, we need not address that issue because the parties did not raise it and it is not necessary to the final
disposition of this appeal. TEX. R. APP. P. 47.1.
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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.” In re J.F.C., 96 S.W.3d 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 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 E.X.G., No. 04-18-00659-CV, 2018 WL
6516057, at *1 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (mem. op.). We must defer
to the factfinder’s resolution of disputed evidentiary issues and cannot substitute our judgment for
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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).
Applicable Law
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 this burden, the Texas Legislature has provided
several factors 3 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 4 to
determine a child’s best interest. TEX. FAM. CODE ANN. § 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
3
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 ANN. § 263.307(b).
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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. Id.
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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.). Additionally,
evidence that proves a statutory ground for termination is probative on the issue of best interest.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Finally, “[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).
Application
P.P. argues the trial court “ignored” several of the statutory and Holley factors and, as a
result, the evidence is legally and factually insufficient to show termination was in N.N.R.’s best
interest. For the following reasons, we disagree.
Legal Sufficiency
This court has previously considered a parent’s delays in beginning his service plan in
reviewing a trial court’s best interest determination. See In re R.L.L., No. 04-18-00240-CV, 2018
WL 6069866, at *15–16 (Tex. App.—San Antonio Nov. 21, 2018, pet. denied) (mem. op.); see
also In re A.F., No. 04-20-00216-CV, 2020 WL 6928390, at *3 (Tex. App.—San Antonio Nov.
25, 2020, no pet.) (mem. op.). Here, the record shows P.P. first appeared in this case on June 10,
2019 and signed his service plan on July 12, 2019. The Department presented evidence that when
its legal caseworker, Arreola, took over the case in October of 2019, P.P.’s engagement with his
service plan was “nonexistent” and he “went back and forth about the idea of engaging in services”
because “he was concerned about the child support.” Arreola testified that between October of
2019 and April of 2020, she contacted P.P. every month to try to engage him in his services, but
he did not respond to most of those attempts. See TEX. FAM. CODE § 263.307(b)(10) (court may
consider parent’s willingness to cooperate with Department in best interest analysis); In re A.F.,
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2020 WL 6928390, at *3 (same). She testified that when he did respond, “he stated that he didn’t
want to engage in services.” See TEX. FAM. CODE § 263.307(b)(10). Arreola testified P.P. did not
engage in services until late April or early May of 2020, approximately eleven months after the
Department first sought to terminate his rights. See In re R.L.L., 2018 WL 6069866, at *15. Based
on her observations of P.P.’s “lack of engagement, his indecision during the whole time of this
case,” Arreola testified that she believed reunification with P.P. would not “be in [N.N.R.’s] best
interest for permanency.” See id. at *15–16.
Additionally, a parent’s failure to visit a child “on a consistent, regular basis” can support
a finding that the parent “was not ready, willing, or able to be a parent to the child.” A.C. v. Tex.
Dep’t of Family & Prot. Servs., 577 S.W.3d 689, 706 (Tex. App.—Austin 2019, pet. denied); see
also In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (parent’s past
conduct is probative of future conduct in best interest analysis). Here, the Department presented
evidence that P.P. did not have any visits with N.N.R. between August of 2019 and May of 2020;
he visited with N.N.R. three times out of a possible thirty visits that were available to him in 2020;
and N.N.R. “has a difficult time during the visits.” Moreover, Arreola testified that while P.P. had
engaged in parenting classes, he had only completed six out of fourteen sessions. See A.C., 577
S.W.3d at 706.
Finally, evidence that a parent fails “to fully engage in and complete drug treatment” can
support a finding that termination is in a child’s best interest. In re A.M.M., No. 04-19-00806-CV,
2020 WL 2139308, at *4 (Tex. App.—San Antonio May 6, 2020, pet. denied) (mem. op.). Here,
the Department presented evidence that although P.P. completed the psychological and substance
abuse assessments required by his service plan, he did not attend the substance abuse treatment
sessions or complete the counseling sessions recommended as a result of those assessments. See
id. Additionally, Arreola testified that although P.P. told her he was receiving mental health
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treatment, he did not comply with her requests for paperwork confirming that treatment. See In re
N.T., 474 S.W.3d 465, 478–79 (Tex. App.—Dallas 2015, no pet.) (considering parent’s failure to
demonstrate compliance with mental health treatment).
When viewed in the light most favorable to the trial court’s judgment, this evidence would
allow a reasonable factfinder to conclude that termination of P.P.’s parental rights was in N.N.R.’s
best interest. In re J.F.C., 96 S.W.3d at 266. As a result, this evidence is legally sufficient to
support the trial court’s best interest finding, and we overrule P.P.’s complaint to the contrary. See
id.
Factual Sufficiency
In reviewing the factual sufficiency of the evidence supporting the best interest finding, we
must also review evidence that is contrary to the finding. In re J.O.A., 283 S.W.3d at 345. Here,
while P.P. acknowledged that he did not engage in his services during the first eleven months of
this case, he testified this delay occurred because he was trying to obtain mental health treatment
“so [he] could be a better father for” N.N.R. He also testified he had recently started taking a new
medication that helped him move forward with his services. He disputed Arreola’s testimony about
the number of visits that were available to him in 2020, stating, “I’ve not had an opportunity to get
nowhere near 30 visits.” He also testified that his failure to respond to Arreola’s communications
occurred because Arreola had been contacting P.P.’s husband, who works out-of-town, instead of
P.P. himself. Finally, while it was undisputed that P.P. did not complete the personal and couples
counseling recommended in his psychological assessment, both he and Arreola testified that P.P.
did not receive a referral for those services until shortly before trial. While P.P. offered no reason
for his failure to engage in the recommended outpatient substance abuse treatment, he stated that
if the court gave him additional time to complete his services, he believed he could do so.
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Arreola testified P.P. has a stable home that “appears appropriate.” She also stated P.P.
showed he was “very protective” by requesting video visits with N.N.R. after his husband was
diagnosed with COVID-19. She further noted that during the three visits P.P. had with N.N.R., he
was “positive,” “really trie[d] to engage her,” and tried “to make the visit appropriate.” However,
she testified that P.P. lacks employment or a support system of his own, relying instead on the
financial and social support of “his husband and people related to his husband.” And, as noted
above, Arreola testified that N.N.R. struggled with the visits with P.P. and that the visits were
limited in number and did not occur until shortly before trial.
After reviewing the entire record, we cannot say the evidence that is contrary to the trial
court’s best interest finding “is so significant that a factfinder could not reasonably have formed a
firm belief or conviction” about the truth of that finding. In re J.F.C., 96 S.W.3d at 266. When this
case went to trial, N.N.R.—who was nineteen months old when the Department removed her from
her mother’s home—had been in foster care for more than a year. The trial court noted that this
means “[N.N.R] has spent half her life in foster care,” and it expressed concerns about the lack of
permanency in N.N.R.’s life. See TEX. FAM. CODE § 263.307(b)(2). The trial court also explained
that the trial had been reset twice due to P.P.’s “evasiveness” in deciding whether to assert his
parental rights. See id. § 263.307(b)(11). Although Arreola and P.P. offered conflicting evidence
about the reasons for the delays in this case, the trial court could have believed Arreola over P.P.,
and we must defer to that credibility determination on appeal. See In re J.M.G., 608 S.W.3d 51,
57 (Tex. App.—San Antonio 2020, pet. denied).
Based on the evidence presented at trial, the trial court could have formed a firm belief or
conviction that termination of P.P.’s parental rights was in the best interest of N.N.R. See In re
J.F.C., 96 S.W.3d at 266; In re S.L.M., 513 S.W.3d at 750. We therefore overrule P.P.’s sole issue
and hold that legally and factually sufficient evidence supports the trial court’s finding, by clear
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and convincing evidence, that termination of P.P.’s parental rights was in the best interest of
N.N.R. See In re S.L.M., 513 S.W.3d at 750.
CONCLUSION
We affirm the trial court’s order of termination.
Beth Watkins, Justice
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