in the Interest of D. v. a Child

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
No. 08-15-00037-CV
§
Appeal from
IN THE INTEREST OF §
65th District Court
D.V., A CHILD. §
of El Paso County, Texas
§
(TC # 2013DCM9201)
§

OPINION

This is an appeal from an order terminating the parent-child relationship between D.V.

and his mother. The relationship between the little boy and his father was also terminated, but

the father has not appealed. Because of recurrent family violence between the parents, we will

refer to Father’s behavior where necessary to explain the factual circumstances.1

Mother brings seven issues for review. The first five challenge the legal and factual

sufficiency of the evidence supporting the statutory grounds for termination. Issue Six

challenges the sufficiency of the evidence to support a finding that termination is in the child’s

best interest. Issue Seven complains of the trial court’s refusal to grant a new trial. For the

reasons that follow, we affirm.

1
Mother and father were not married, but Father did not dispute paternity.
 FACTUAL SUMMARY

We begin by noting that Mother has been diagnosed with bipolar disorder accompanied

by anxiety and depression. Herself a victim of abuse and neglect leading to foster care, she was

22 years old at the time of trial. She did not finish high school. Case notes from her

psychological records indicate she “used to live under a bridge and work as a stripper and then a

guy gave me a lift and I landed in El Paso.” There is also reference to her engaging in

prostitution in return for drugs.

On December 10, 2013 the Department received an intake alleging the neglectful

supervision of D.V. According to the affidavit attached to the petition, Mother had used illegal

drugs while caring for the infant, who was only nineteen days’ old at the time. Department

worker Michelle Carillo met with Mother at her home.2 The child was crying but Mother was

initially reluctant to bring him downstairs. When Mother finally acquiesced, Carillo discovered

that the infant was on oxygen because he was congested and had been hospitalized. The child

also was monitored by a sleep apnea machine. Mother admitted that she had not followed up

with the pediatrician. She refused a drug test. The next day, Carillo was assigned the case due to

allegations that Mother was using drugs and alcohol while caring for the baby. She attempted to

contact Mother, but Mother was no longer in the home and her whereabouts were unknown. On

December 12, Carillo learned that Mother was staying at the Opportunity Center and had left

D.V. with his father. When Carillo arrived at Father’s home, she was told that the baby had been

there for two days while Mother looked for a place to live. Carillo noticed that the child was not

on oxygen. Father explained that he had been applying the oxygen treatments in the morning

and at night but he did not know how to use it or the sleep apnea machine properly. There was

also a smell of cigarette smoke in the home and Father admitted there were smokers in the home.
2
Mother was residing in a home with two other individuals who had open CPS cases.

2
Father submitted to a drug test and tested positive for PCP and THC. He was unable to identify a

family member to care for the infant.

Carillo then spoke by telephone with Mother, who indicated that she did not have any

family members to care for D.V. Carillo contacted the Child Crisis Center which had no space

because they were at capacity. Consequently, the baby was transported to Del Sol Medical

Center for evaluation since he had been in a smoke filled environment and had not been on

hospital recommended oxygen. It was also unknown if D.V. had special needs due to Mother’s

drug and alcohol use while pregnant. The infant was evaluated and placed in a foster home. On

January 31, 2014, the Department was informed that D.V. was admitted into Providence

Memorial Hospital, with a diagnosis of Respiratory Syncytial Virus (RSV) and whooping cough.

He was discharged on February 3, 2014, with oxygen and a sleep apnea machine.

Mother has a significant criminal history. In 2011, she was arrested for drunk and

disorderly conduct and for carrying brass knuckles. That same year she was arrested for assault

on a public servant. In 2012, she was arrested for the sale of cocaine. She was arrested again in

2013 for drunk and disorderly conduct coupled with false identification that she provided to a

police officer. She received probation beginning March 6, 2013 which was due to end on March

5, 2017. When she was five month’s pregnant, Mother was arrested for possession of a

controlled substance and driving while intoxicated, with a blood alcohol level of .15. She was

required to enter Aliviane Residential for treatment but was unsuccessfully discharged. At the

time the child was removed from the home, Probation Officer Carla Pineda stated that Mother

had failed to report and was being evaluated for violation of probation. She was ordered to enter

the West Texas Court Residential Treatment Center in February 2014. In March, the facility

allowed Mother to leave for a doctor’s appointment and she failed to return. When she did

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return, she tested positive for heroin and was arrested for violation of probation. After a month-

long incarceration in jail, she was given a second chance to complete treatment at the facility

rather than a prison sentence. She was discharged in July 2014, at which point she was to begin

participating in the Department’s service plan. Yet during a meeting with her case worker a

month later, Mother tested positive for opiates and demonstrated a blood alcohol content of .08.

Another relapse followed. According to psychological reports, she appeared before a judge on

December 14, 2014 in connection with her probation. She was ordered to give a urine sample

which came back “dirty.” She was jailed and released on December 16. Her progress notes

indicate that she had not told the CPS caseworker because it would affect her case.

Margarita Guerra was the caseworker assigned to D.V. by Child Protective Services. She

explained the circumstances of the child’s removal. Significantly, this was not the first child

removed from Mother’s care. In 2012, she relinquished her rights to the baby’s older half-

brother. D.V. was placed in foster care with his brother as the Department began services. It

requested that Mother complete an OSAR substance abuse evaluation and follow all

recommendations, submit to random alcohol and drug screenings as deemed appropriate by the

Department, allow the caseworker access to her home at least once monthly, participate in and

complete individual therapy with a focus on anger management, undergo a psychological

evaluation, participate in and complete parenting classes, and participate in and complete

domestic violence classes. Guerra testified to Mother’s fulfillment of her service plan, or lack

thereof:

Q. And in regard to those services that we were talking about, has [Mother]
completed any of the services within her service plan?
A. The only service that she completed was the anger management.
Q. So was she ordered to do parenting, for example?
A. Yes.
Q. Did she complete that?

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 A. No.
Q. Did she complete the domestic violence counseling?
A. No.
Q. Did the department order her to do a psychological evaluation?
A. Yes.
Q. Have we been able to verify whether or not she completed that?
A. No.

Mother did sign a release and provided the doctor’s name and her rehabilitation specialist with

Emergence Health Network, the entity providing mental health services. In December, Mother

contacted Guerra, asking for a referral for the psychological evaluation with Dr. Schutte. She

was referred on December 15, 2014 and the appointment was scheduled the Monday before trial.

Guerra had not been able to verify whether she attended.

Questioning of Guerra then turned to domestic violence, which was a significant issue to

the Department. Mother reported that she had been in a series of abusive relationships. After

her discharge from the treatment center, Mother resumed her relationship with Father and there

had been several incidents of domestic violence between them. Guerra testified that at one point,

Mother told her that she had been hospitalized because she had fallen down the stairs. But the

medical records indicated that the fall was not accidental and charges remain pending against

Father.

The psychological assessments from Emergence are also enlightening. On October 17,

2014, case notes reflect Mother had bruises on her left arm and a bruise on her left eye. She

explained, “My boyfriend and I were horseplaying and he accidentally elbowed me.” Entries

from October 24 reflect other statements she made to her mental health care provider:

 [S]he has been depressed because she has been having a hard time
understanding her boyfriend and why he hits her and makes her feel bad.
[She] states, I try to change and I have but he continues to treat me like
shit and I am tired of it; I sometimes think that he going to change but the
hitting has only gotten worse.

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  [M]y boyfriend is always telling me that I better not flirt with the people in
my class and tells me that if he passes by my classroom door and sees me
talking or looking at a guy he will hurt me. I am trying to help him be
better and he just does not give a fuck about me.

Case notes from November 4 reflect, “I also talked to my boyfriend and told him that I was

going to leave him if he ever touched me and hit me.” She then related that Father had been

treating her better, took her to a restaurant of her choice, and proposed to her. The proposal

meant a lot to her and made her happy that he wanted something more serious with her. As

recently as a month before trial, Mother and Father were still together. At the service plan

meeting, she was wearing the engagement ring. Guerra testified:

Q. How do you know that it was from him?
A. She told me.
Q. She told you that she had an engagement ring from Father?
A. Yes.
Q. And when’s the last time you saw her wearing that ring?
A. The day of the service plan meeting, December 15th.
Q. Less than a month ago?
A. Yes.

The Department had other issues with Mother, who only attended six visits throughout

the pendency of the case. Even then, she terminated the visits early because she became

frustrated and could not handle D.V. when he cried. She never brought toys or clothing. The

missed appointments caused the Department to suspend her visitation four different times.3

Upon her release from treatment in July 2014, she enrolled in technical school and frequently

used school as a reason for missing visitation. Guerra asked for a school schedule to facilitate

visitation, but Mother did not provide it for several months. Mother has not seen her son since

July 30, 2014 and never contacted Guerra about bringing the baby a birthday present or a

Christmas present.

3
The Department will suspend visitation if a parent misses three consecutive visits.

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 Guerra also expressed concerns about Mother’s ability to parent. She had not bonded

with D.V. nor completed any services to ensure his safety. There were also problems

maintaining contact with Mother, despite a requirement that she contact the caseworker at least

once monthly. The Department could not verify that she had a stable living environment, that

she had maintained sobriety, or that she was working her service plan toward reunification. In

short, Guerra opined that returning the baby to Mother was not in his best interest.

Guerra also testified that a criminal history and drug possession are endangering factors

to a child.

If she is selling drugs or even using them, then that’s going to impede her ability
to take care of [D.V]. Basically she’s involving herself in criminal activity that
can land her in jail. And, also, obviously the people that she’s hanging around
with is not going to be the best influence on [D.V.]

Domestic violence is another element of endangerment, according to Guerra. The level of

violence between the parents had escalated to actual injury, posing a threat to D.V. if he

happened to be nearby. She gave the example of Mother having been “thrown down the stairs”

and the possibility that she could have been holding the baby in her arms. Family violence

presents a danger to the child’s emotional well-being as well, because, “seeing that his parents

are fighting and the verbal - even just the verbal altercations can influence his development and

his attachment to them.”

Turning to the baby’s foster placement and progress, Guerra testified that he has

“flourished”. At trial, he was one year old, living in a foster home with his half-brother, and

doing very well:

Well, [D.V.], when he came into care, he had a lot of needs and subsequently he
ended up very sick with whooping cough and RSV. He flourished. I mean he did
literally a 360 in the home. After he’s received his treatment, every month I
would go see him. His symptoms had started to subside. Eventually, I mean, he’s
a normal child. He hasn’t had any albuterol treatments for four or five months

7
 now. He’s now walking. He’s -- I would say he’s developmentally on target at
this point. He’s bonded very well with all of the family members including his
brother and he’s doing really well.

The foster parents have adopted the brother and Guerra related that it is their intent to adopt D.V.

as well, in order to keep the brothers together.

The only other witness to testify was M.M., D.V.’s foster mother and the adoptive mother

of D.V.’s older brother. She explained that D.V. was very ill when he first came to them but he

is now a very healthy, developing, normal little boy. He has been discharged by his

gastroenterologist and has no more reflux disease. She had not heard from Mother on the boy’s

birthday or at Christmas. She and her husband “would love to adopt” the child.

The CASA representative then offered his recommendation concerning this little boy:

Based on the actions and inactions of the parents throughout the life of this case,
as well as the significant criminal and drug issues that have been historically
throughout the case and the case before, it’s CASA’s recommendation that
[D.V.]’s best interest would best be served by terminating the parental rights of
[Mother] and [Father] freeing him up for adoption. He’s in a beautiful home. He
has flourished. He is part of their family. He is loved. He is safe. And again
he’s with his brother so he will never be alone; he will always have family. I
think that would be the best way to serve his best interest.

PARENTAL TERMINATION

A parent’s rights may be involuntarily terminated through proceedings brought under

Section 161.001 of the Texas Family Code. See TEX.FAM.C ODE ANN. § 161.001 (West 2008).

Under this provision, the petitioner must (1) establish one or more of the statutory acts or

omissions enumerated as grounds for termination, and (2) prove that termination is in the best

interest of the child. See id. Both elements must be established and termination may not be

based solely on the best interest of the child as determined by the trier of fact. Texas Department

of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

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 The natural right of a parent to the care, custody, and control of their children is one of

constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also Santosky v.

Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (acknowledging

that a parent’s rights to “the companionship, care, custody, and management” of their children

are constitutional interests, “far more precious than any property right”). Not only is a parent’s

interest in maintaining custody of and raising her children “paramount;” it is quite possibly the

oldest fundamental liberty recognized by our courts. See In the Interest of M.S., E.S., D.S., S.S.,

and N.S., 115 S.W.3d 534, 547 (Tex. 2003) (noting that Texas courts recognize that “a parent’s

interest in maintaining custody of and raising his or her child is paramount”); Troxel v.

Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (in discussing the

constitutional stature of parental rights, the United State Supreme Court said, “the interest of

parents in the care, custody, and control of their children--is perhaps the oldest of the

fundamental liberty interests recognized by this Court”); see also In re M.S., 115 S.W.3d at 549

(“Termination of parental rights is traumatic, permanent, and irrevocable.”). Although parental

rights are of constitutional magnitude, they are not absolute. In the Interest of C.H., 89 S.W.3d

17, 26 (Tex. 2002) (“Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional and physical

interests of the child not be sacrificed merely to preserve that right.”).

Burden of Proof

Because of the importance of parental rights, and the severity and permanency of

termination, the quantum of proof required in a termination proceeding is elevated from a

preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 747, 102

S.Ct. at 1391; accord Holick, 685 S.W.2d at 20-21; see In re M.S., 115 S.W.3d at 547 and In the

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Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.)

(cases recognizing that involuntary termination of parental rights is a drastic remedy which

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.); see also In the Interest of

B.L.D. and B.R.D., 113 S.W.3d 340, 353-54 (Tex. 2003) (noting that because of the severity and

permanency of termination, due process requires the party seeking to terminate parental rights

prove the necessary elements by the heightened burden of proof of clear and convincing

evidence).

“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 (West 2008); see In the Interest of

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616

(Tex. 2007) (contrasting the standards applied in termination proceedings and the standards

applied in modification proceedings); In the Interest of C.D. and K.D., No. 02-10-00070-CV,

2011 WL 1743688, at *4 (Tex.App.--Fort Worth May 5, 2011, no pet.). This intermediate

standard falls between the preponderance of evidence standard of ordinary civil proceedings and

the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570

(Tex.1979); In the Interest of D.T., 34 S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet.

denied) (op. on reh’g). Although the proof must be more than merely the greater weight of the

credible evidence, there is no requirement that the evidence be unequivocal or undisputed.

Addington, 588 S.W.2d at 570.

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 Standards of Review

The Supreme Court has clearly articulated the applicable standards of legal sufficiency

review in termination cases. Accordingly, we consider all of the evidence in the light most

favorable to the trial court’s finding, “to determine whether a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true.” In the Interest of J.P.B., 180

S.W.3d 570, 573 (Tex.2005), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the

fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that

finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. Id.; In re J.F.C., 96 S.W.3d at 266. We disregard any

evidence that a reasonable fact finder could have disbelieved, or found to have been incredible,

but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96

S.W.3d at 266. A legal sufficiency or no evidence point will only be sustained when the record

discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or evidence from giving weight to the only evidence offered to prove a

vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or

(4) the evidence establishes conclusively the opposite of a vital fact. See Swinney v. Mosher, 830

S.W.2d 187, 194 (Tex.App.--Fort Worth 1992, writ denied).

Statutory Predicates

The termination order here was based on TEX.FAM.CODE ANN. § 161.001(1)

(D)(E)(N)(O) and (P), with the court finding that Mother had:

• Knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;

• Engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child;

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 • Constructively abandoned the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective Services or an
authorized agency for not less than six months and: (1) the Department or authorized
agency has made reasonable efforts to return the child to the mother; (2) the mother has
not regularly visited or maintained significant contact with the child; and (3) the mother
has demonstrated an inability to provide the child with a safe environment;

• Failed to comply with the provisions of a court order that specifically established the
actions necessary for the parent to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the child’s removal from
the parent under Chapter 262 for the abuse or neglect of the child; and

• Used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a
manner that endangered the health or safety of the child, and (1) failed to complete a
court-ordered substance abuse treatment program; or (2) after completion of a court-
ordered substance abuse treatment program continued to abuse a controlled substance.

Both subsections (D) and (E) require proof of endangerment, which means to expose to loss or

injury, or to jeopardize a child’s emotional or physical health. Doyle v. Texas Department of

Protective and Regulatory Services, 16 S.W.3d 390, 394 (Tex.App.--El Paso 2000, pet. denied).

While endangerment means more than a threat of metaphysical injury or the possible ill effects

of a less-than-ideal family environment, it is not necessary that the conduct be directed at the

child or that the child actually suffer injury. Doyle, 16 S.W.3d at 394. Subsections (D) and (E)

differ in one respect: the source of the physical or emotional endangerment to the child. See In

Interest of B.S.T., 977 S.W.2d 481, 484 (Tex.App.--Houston [14th Dist.] 1998, no pet.); In

Interest of S.H.A., 728 S.W.2d 73, 83-84 (Tex.App.--Dallas 1987, writ ref’d n.r.e.). Subsection

(D) requires a showing that the environment in which the child is placed endangered the child’s

physical or emotional health. Doyle, 16 S.W.3d at 394. Conduct of a parent or another person in

the home can create an environment that endangers the physical and emotional well-being of a

child as required for termination under Subsection D. Id.; see In re W.S., 899 S.W.2d 772, 776

(Tex.App.--Fort Worth 1995, no writ) (“environment” refers to the acceptability of living

12
conditions, as well as a parent’s conduct in the home). Inappropriate, abusive, or unlawful

conduct by persons who live in the child’s home or with whom the child is compelled to

associate on a regular basis in his home is a part of the “conditions or surroundings” of the

child’s home under subsection (D). In re M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.--Fort Worth

2009, no pet.). The fact finder may infer from past conduct endangering the child’s well-being

that similar conduct will recur if the child is returned to the parent. Id. Thus, subsection (D)

addresses the child’s surroundings and environment rather than parental misconduct, which is the

subject of subsection (E). Doyle, 16 S.W.3d at 394; B.S.T., 977 S.W.2d at 484; S.H.A., 728

S.W.2d at 84.

Under subsection (E), the cause of the danger to the child must be the parent’s conduct

alone, as evidenced not only by the parent’s actions but also by the parent’s omission or failure

to act. Doyle, 16 S.W.3d at 395; B.S.T., 977 S.W.2d at 484; S.H.A., 728 S.W.2d at 83-84. The

conduct to be examined includes what the parents did both before and after the child was born.

In Interest of D.M., 58 S.W.3d 801, 812 (Tex.App.--Fort Worth 2001, no pet.); Dupree, 907

S.W.2d at 84. To be relevant, the conduct does not have to have been directed at the child, nor

must actual harm result to the child from the conduct. Dupree, 907 S.W.2d at 84; In Interest of

C.D., 664 S.W.2d 851, 853 (Tex.App.--Fort Worth 1984, no writ). Additionally, termination

under subsection (E) must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required. In Interest of K.M.M., 993

S.W.2d 225, 228 (Tex.App.--Eastland 1999, no pet.). The specific danger to the child’s well-

being need not be established as an independent proposition, but may be inferred from parental

misconduct. In Interest of N.K., 99 S.W.3d 295, 300 (Tex.App.--Texarkana 2003, no pet.).

Evidence of criminal conduct, convictions, and imprisonment and its effect on a parent’s life and

13
ability to parent may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d at

133. Imprisonment alone does not constitute an endangering course of conduct but it is a fact

properly considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34; In re R.W., 129

S.W.3d at 743-44. Routinely subjecting a child to the probability that he will be left alone

because his parent is in jail, endangers the child’s physical and emotional well-being. See In the

Interest of S.D., 980 S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet. denied). However,

“the relationship of the parent and child, as well as efforts to improve or enhance parenting skills,

are relevant in determining whether a parent’s conduct results in ‘endangerment’ under section

161.001(1)(E), even where the parent is incarcerated.” In the Interest of D.T., 34 S.W.3d 625,

640 (Tex.App.--Fort Worth 2000, pet. denied).

Termination under subsections (N) (O) and (P) are inherently fact-driven. The

Department has the burden to establish the statutory elements of constructive abandonment,

failure to comply with a service plan, or failure to address substance abuse issues that endanger

the health or safety of the child. We bear in mind that “[o]nly one predicate finding under

Section 161.001(1) is necessary to support a judgment 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).

Consequently, we will address Mother’s point of error related to subsection E. We will not

repeat here the full details described above, but highlight Mother’s parental deficiencies.

The evidence establishes a pattern that has burdened Mother most of her life. She suffers

from bipolar disorder. She is a drug user, at best, or drug abuser, at worst. She has been arrested

on drug charges, but most significant to this analysis is her drug usage both during pregnancy

and after this little boy was born. Indeed, this led to revocation of probation on pending drug

charges. In fact, on the day the Department checked on D.V., Mother refused a drug test. D.V.,

14
who was 19 days’ old, had just been released from the hospital, and was supposed to be

receiving oxygen and using a sleep apnea machine. Mother admitted that she had not followed

up with the pediatrician.

Mother’s visitation with her son was suspended four times because she was grossly

inconsistent in keeping her appointments. Even when she arrived, she frequently left early

because she had little ability to relate to or comfort the baby. She has already had her parental

rights to another child terminated, but she continues to repeat her mistakes.

The issue of family violence was of considerable importance to the Department. Mother

reported that she had been in a series of abusive relationships. After her discharge from the

treatment center, she resumed her relationship with Father and there had been several incidents

of domestic violence between them. The caseworker testified that at one point, Mother told her

that she had been hospitalized because she had fallen down the stairs. But the medical records

indicated that the fall was not accidental and charges remain pending against Father. Despite

recurring discussions of abuse with her mental health provider, Mother was sporting an

engagement ring just before trial commenced and happily admitted that she and Father were now

engaged. These themes weave throughout the record. In addition to her drug problems and her

inability to extract herself from a violent relationship, she has repeatedly demonstrated poor

judgment, poor parenting skills, and an inability to give priority to her son. Because the

evidence is both legally and factually sufficient to support the finding, we overrule Issue Two

and do not consider Issues One, Three, Four, and Five.

Best Interest of the Children

A determination of best interest necessitates a focus on the child, not the parent. See In

the Interest of R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). However, there is a

15
strong presumption that it is in the child’s best interest to preserve the parent-child relationship.

Swate v. Swate, 72 S.W.3d 763, 767 (Tex.App.--Waco 2002, pet denied). The Texas Supreme

Court has enumerated certain factors which should be considered: the child’s desires; the child’s

emotional and physical needs now and in the future; the emotional and physical danger to the

child now and in the future; the parenting abilities of the individuals seeking custody; the

programs available to assist those individuals to promote the child’s best interest; the plans for

the child by those individuals or the agency seeking custody; the stability of the home or

proposed placement; the parent’s acts or omissions that may indicate that the existing parent-

child relationship is not a proper one; and any excuse for the parent’s acts or omissions. Holley

v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (“the Holley factors”). Also, permanence is of

paramount importance in considering a child’s present and future needs. Dupree v. Texas

Department of Protective & Regulatory Services, 907 S.W.2d 81, 87 (Tex.App.--Dallas 1995, no

pet.).

We will address the Holley factors as they are relevant to D.V. At his tender age, he of

course has expressed no desires with regard to a relationship with his mother. The emotional and

physical danger to him, both now and in the future, is of great proportion because of Mother’s

substance abuse, neglect of D.V.’s health and safety, and continued abusive relationship with

Father. Mother’s parenting abilities are woefully inadequate. She has relinquished the rights to

one son and did not bother to appear at this trial. She visited only six times during the pendency

of the case and terminated several of those early because she was frustrated and overwhelmed

with her inability to handle the infant. Her visitation was suspended four times because of her

failure to participate. She has also failed to avail herself of the programs available to improve

her parenting skills. Her only plan for the child is evidenced by a note in the CASA worker’s

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report that she wants to complete schooling to become a cosmetologist so she can provide for her

child. She had the opportunity to appear and testify concerning her other plans, but she did not

do so. The foster home offers D.V. love and stability, together with the companionship of his

half-brother. The foster parents have adopted the brother and want to adopt D.V. as well.

Mother’s acts and omissions have been detailed in full in the factual summary and we do not

repeat them here other than to say that her priorities have been drugs, alcohol, and an unstable

and abusive environment. We understand that Mother is young and carries scars from her own

childhood. While she recognizes her limitations to some degree, she lacks the willingness or the

ability to take advantage of assistance to improve her life and the life of her son. For all of these

reasons, clear and convincing evidence supports the trial court’s finding that termination is in the

child’s best interest. We overrule Issue Six.

Motion for New Trial

In Issue Seven, Mother complains of the trial court’s denial of her motion for new trial.

She maintains that she sought a new trial based on the fact she failed to appear at the final

hearing which she claims was not the result of conscious disregard, but rather, mistake. She

believed the trial had been postponed and contends that her rights would not have been

terminated if she had presented evidence at the hearing. She further suggests that because of her

mental health issues, a guardian ad litem should have been appointed. Lastly, she sought an

evidentiary hearing because evidence was not presented at trial concerning her efforts at

completing services.

It is clear from the record that Mother’s trial counsel appeared and sought a continuance

because he had not been able to contact his client. It is also clear that Mother was present at the

hearing on December 11 when the January 7 trial date was set. As the Department noted at the

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hearing, if counsel has notice of the final hearing, notice is imputed to the client. See In re

F.E.M., 2013 WL 1092716 *6 (Tex.App.--Eastland Mar. 14, 2013, pet. denied). But here,

Mother had actual notice as well.

With regard to a guardian ad litem, trial counsel did not request one. In any event, our

review of the record assures us that he presented an admirable case on Mother’s behalf, including

effective cross-examination of the Department’s witnesses. Absent a request by counsel and

evidence suggesting such an appointment was necessary, we find no abuse of discretion in the

trial court’s failure to sua sponte appoint a guardian.

As for evidence concerning Mother’s efforts to complete services and treatment,

appellate counsel advised the court:

In addition, Your Honor, my client will testify that on or about the time of the
final hearing was the period of time where she had gone back to treatment, Your
Honor. And I think it was probably the day before or the day after so [Mother]
was still in the process of doing her services and staying in rehab at the time that
that final hearing occurred, Your Honor.

At that point, the trial court reviewed the transcript of the trial and offered the following

observations:

All right. When Mr. Cox announced on behalf of the mother, he stated: “Chris
Cox on behalf of respondent parent -- mother, Judge, -- respondent mother [name
deleted] who is not present, Judge. I’m going to be forced to ask for a
continuance because I’ve not been able to talk to her since the last time we
appeared on the 11th of December. And at this point in time, I’d like to announce
not ready.”

So he didn’t -- so obviously if his client had kept in contact with him, he
would have been able to tell the court that she had just started treatment. I
do show that Mr. Cox did cross-examine Ms. Guerra at length. There was quite a
bit of cross-examination. (Emphasis added).

Finding no abuse of discretion, we overrule Issue Seven affirm the judgment of the trial court.

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June 3, 2015
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

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