Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00712-CV
IN THE INTEREST OF A.F., C.J. Jr., Christina J., and Christal J., Children
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02455
Honorable Charles E. Montemayor, Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: April 1, 2015
AFFIRMED
Appellant father (“Father”) and appellant mother (“Mother”) separately appeal the trial
court’s order terminating their parental rights. On appeal, Father contends the evidence is legally
and factually insufficient to support the trial court’s findings that he violated subsections (O) and
(P) of section 161.001(1) of the Texas Family Code, and that termination was in the best interests
of his children, C.J. Jr., Christina J., and Christal J. Mother does not challenge the sufficiency of
the evidence to support the trial court’s findings under section 161.001(1) of the Texas Family
Code, but contends the evidence is legally and factually insufficient to support the trial court’s
1
The Honorable Richard Price is the presiding judge of the 285th District Court, Bexar County, Texas. However, the
termination order was signed by Associate Judge Charles E. Montemayor.
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finding that termination was in the best interests of her children, A.F., C.J. Jr., Christina J., and
Christal J. We affirm the trial court’s order of termination.
BACKGROUND
In 2013, the Texas Department of Family and Protective Services (“the Department”) filed
a petition to terminate Father’s and Mother’s parental rights. 2 Pursuant to the Department’s
request, the children, who were all in Father’s care — including A.F. — were removed from
Father. According to the record, the Department became involved because Father was neglectful
in his supervision of the children.
Ultimately, a termination hearing was held before the trial court. At the time of trial, A.F.
was eight-years-old, Christina J. was seven-years-old, Christal J. was five-years-old, and C.J. Jr.
turned four the day after the trial began. After the hearing, the trial court ordered Father’s parental
rights terminated, finding he failed to comply with the order that set out the steps he had to take to
be reunited with his children, and he used a controlled substance in a manner that endangered the
health and safety of his children. See TEX. FAM. CODE ANN. §§ 161.001(1)(O)–(P) (West 2014).
The trial court also ordered Mother’s parental rights terminated, finding she constructively
abandoned all four children, failed to comply with the order that set out the steps she had to take
to be reunited with her children, and used a controlled substance in a manner that endangered the
health and safety of her children. See id. §§ 161.001(1)(N)–(P). The trial court also found
termination of Father’s and Mother’s parental rights would be in the best interests of the children.
See id. § 161.001(2). Thereafter, Father and Mother each perfected an appeal.
2
The petition also included a request to terminate the parental rights of A.F.’s father, J.F. His rights were terminated,
and he has not filed an appeal challenging the order of termination.
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ANALYSIS
On appeal, Father raises three issues. In his first two issues, he challenges the legal and
factual sufficiency of the evidence to support the trial court’s finding that he violated subsections
(O) and (P) of section 161.001(1) of the Family Code. He contends in his third issue that the
evidence is legally and factually insufficient to support the trial court’s finding that termination
was in the children’s best interests. As noted above, Mother does not challenge the evidence with
regard to the trial court’s findings under section 161.001(1). Rather, she raises a single issue in
which she contends the evidence is legally and factually insufficient to support the trial court’s
finding that termination was in the best interests of the children.
Standard of Review
Under the Texas Family Code, a court has authority to terminate a parent’s rights to her
children only upon proof by clear and convincing evidence that she committed an act prohibited
by section 161.001(1) of the Texas Family Code (“the Code”), and that termination is in the best
interests of the children. Id. § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In
re E.A.G., 373 S.W.3d 129, 140 (Tex. App.—San Antonio 2012, pet. denied). The Family Code
defines “clear and convincing evidence” as “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 J.O.A., 283 S.W.3d at 344; E.A.G., 373 S.W.3d at 140.
This heightened standard of review is required because termination of a parent’s rights to her child
results in permanent and unalterable changes for parent and child, implicating due process. E.A.G.,
373 S.W.3d at 140. Therefore, when reviewing a trial court’s termination order, we must
determine whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction that the grounds for termination were proven and that the termination was in the best
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interest of the child. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)).
With regard to legal sufficiency challenges in termination cases, we view the evidence in
the light most favorable to the trial court’s finding and judgment, and any disputed facts are
resolved in favor of that court’s findings, if a reasonable fact finder could have so resolved them.
Id. We are required to disregard all evidence that a reasonable fact finder could have disbelieved,
and we must consider undisputed evidence even if such evidence is contrary to the trial court’s
findings. Id. In summary, we consider evidence favorable to termination if a reasonable fact finder
could, and we disregard contrary evidence unless a reasonable fact finder could not. Id.
We remain mindful that we may not weigh a witness’s credibility because it depends on
appearance and demeanor, and these are within the domain of the trier of fact. J.P.B., 180 S.W.3d
at 573. Even when such issues are found in the appellate record, we must defer to the fact finder’s
reasonable resolutions. Id.
In a factual sufficiency review, we also give due deference to the trier of facts findings,
avoiding substituting our judgment for the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006). “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 [in the truth of its finding], then the evidence is factually
insufficient.” Id. (quoting J.F.C., 96 S.W.3d at 266).
Father — Drug Use Endangering Health or Safety of Children
As set out above, Father challenges the trial court’s finding that he used a controlled
substance, endangering his children’s health and safety. Under section 161.001(1)(P) of the
Family Code a trial court may terminate the parent-child relationship if the court finds by clear
and convincing evidence that the parent has “used a controlled substance” — as that term is defined
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pursuant to Chapter 481 of the Texas Health & Safety Code — “in a manner that endangered the
health or safety of the children,” and:
(i) failed to complete a court-ordered substance abuse treatment
program; or
(ii) after completion of a court-ordered substance abuse treatment
program, continued to abuse a controlled substance.
See TEX. FAM. CODE ANN. § 161.001(1)(P). Father argues the Department failed to present any
“credible evidence” that he used a controlled substance in the manner described by section
161.001(1)(P). More specifically, he contends there was no evidence his alleged drug use
endangered the children.
At trial, the Department presented a single witness, Department caseworker Sandra
Alvarez. Ms. Alvarez testified Father tested positive for cocaine and methamphetamine. Contrary
to Father’s assertion, Ms. Alvarez specifically stated that while Father was under the influence,
“the children had gotten out and they got lost.” She agreed, when asked, that the children were
running around in the street, unsupervised and alone in conditions and surroundings that put them
in danger. Ms. Alvarez testified Father had not completed drug treatment. No evidence was
presented to contradict Ms. Alvarez’s testimony.
We agree that the burden of proof is on the Department to prove its allegations by clear
and convincing evidence. Id. § 161.001(1), (2); J.O.A., 283 S.W.3d at 344; E.A.G., 373 S.W.3d at
140. We also agree that conclusory testimony, even if contradicted, does not constitute legally
sufficient evidence. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.).
However, we do not find the caseworker’s testimony in this case to be conclusory so that it amounts
to no evidence. Ms. Alvarez testified Father tested positive for two specific illegal drugs, failed to
complete a drug treatment program, and that while he was under the influence, the children —
ages seven and younger at the time — left the home and were running around the streets alone,
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without supervision. We hold this evidence is such that the trial court could have reasonably
formed a firm belief or conviction that Father used a controlled substance, failed to complete drug
treatment, and Father’s drug use endangered the health and safety of his children. See J.P.B., 180
S.W.3d at 573. Accordingly, we overrule Father’s contention that the evidence was legally and
factually insufficient to support termination pursuant to section 161.001(1)(P).
Father — Failure to Comply with Court Order
Father also contends the evidence is insufficient to establish he failed to comply with the
provisions of a court order that established the actions necessary for him to obtain the return of his
children. See id. §§ 161.001(1)(N), (O). In other words, Father contends the evidence is
insufficient to establish he failed to complete the plan of service prepared by the Department.
As stated by the supreme court, “Only one predicate finding under section 161.001(1) is
necessary to support a judgment of termination,” assuming 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). Thus, to succeed on
appeal, an appellant must establish all of the grounds upon which the trial court based its
termination order lacked sufficient evidence or that there is insufficient evidence to support the
best interests finding. See id. at 363. Here, we have determined the evidence is legally and
factually sufficient to support the trial court’s decision to terminate Father’s parental rights on
grounds of drug use pursuant to section 161.001(1)(P), and as we explain below, the evidence is
also sufficient to support the trial court’s best interests finding. Accordingly, we need not address
whether the evidence was sufficient to support the trial court’s finding under section
161.001(1)(O). See id.
Father and Mother — Best Interests
Both Father and Mother contend the evidence is legally and factually insufficient to support
the trial court’s finding that termination was in the best interests of the children. Courts indulge
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in the strong presumption that maintaining the parent-child relationship is in a child’s best interest.
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). We also presume, however, that
permanently placing a child in a safe place in a timely manner is in the child’s best interest. TEX.
FAM. CODE ANN. § 263.307(a) (West 2014). In determining whether a parent is willing and able
to provide the child with a safe environment, the court should consider that factors set out in section
263.307(b), which include: (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 or other agency; (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. Id.
§ 263.307(b); see In re A.S., No. 04-14-00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San
Antonio Nov. 12, 2014, pet. denied) (mem. op.).
Courts may also take into account the factors set forth by the Texas Supreme Court in
Holley v. Adams: (1) the desires of the child; (2) the emotional and physical needs of the child now
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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 these
individuals to promote the best interest of the child; (6) the plans for the child by these individuals
or by the agency seeking custody; (7) the stability of the home or proposed placement; (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. 544 S.W.2d 367, 371–72
(Tex. 1976). These considerations, i.e., “the Holley factors,” are neither all-encompassing nor
does a court have to find evidence of each factor before terminating the parent-child relationship.
See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Thus, lack of evidence as to some of the Holley
factors does not preclude a trier of fact from reasonably forming a strong conviction or belief that
termination is in a child’s best interest. Id.
Additionally, although proof of acts or omissions under section 161.001(1) of the Texas
Family Code does not relieve the Department from proving the best interest of the child, the same
evidence may be probative of both issues. Id. at 28 (citing Holley, 544 S.W.2d at 370; Wiley v.
Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)). Moreover, in conducting a best interest analysis, a
court may consider circumstantial evidence, subjective factors, and the totality of the evidence, in
addition to direct evidence. A.S., 2014 WL 5839256, at *2 (citing In re E.D., 419 S.W.3d 615,
620 (Tex. App.—San Antonio 2013, pet. denied)). Finally, a fact finder may judge a parent’s
future conduct by his or her past conduct in determining whether termination of the parent-child
relationship is in the best interest of the child. Id.
As noted above, the Department called a single witness in support of its allegations,
Department caseworker Sandra Alvarez. A review of her testimony shows there is limited
evidence on either the statutory or Holley factors. Despite this, we hold there is sufficient evidence
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that would have allowed the trial court to have reasonably formed a firm belief or conviction that
termination was in the best interests of the children. See J.P.B., 180 S.W.3d at 573.
Obviously, Ms. Alvarez testified the parents committed acts or omissions under section
161.001(1) — failure to complete service plans, drug use endangering the children, and
abandonment. See C.H., 89 S.W.3d at 28 (holding that proof of acts or omissions under section
161.001(1) of Family Code may be probative of best interest determination). Both parents failed
to complete their service plans — Mother did nothing; Father completed only his psychological
testing. TEX. FAM. CODE ANN. § 263.307(b)(10) (willingness of parent to complete services and
cooperate with agency supervisors relevant to best interest determination); C.H., 89 S.W.3d at 28.
Ms. Alvarez testified the service plan programs were free to the parents, but they failed to
take advantage of them. See TEX. FAM. CODE ANN. § 263.307(b)(10); C.H., 89 S.W.3d at 28.
Father and Mother tested positive for cocaine and methamphetamine. TEX. FAM. CODE ANN.
§ 263.307(b)(8) (history of substance abuse relevant to best interest determination); C.H., 89
S.W.3d at 28. Ms. Alvarez also testified Father “had a drinking problem.” See TEX. FAM. CODE
ANN. § 263.307(b)(8) (history of substance abuse relevant to best interest determination). Mother
left the children with Father — even A.F. who was not Father’s biological child. On one of the
occasions, while all four children were in his care, Father was under the influence and “the children
had gotten out and they got lost.” See id. § 263.307(b)(8), (12) (history of substance abuse and
inadequate parenting skills regarding safe physical home environment relevant to best interest
determination); Holley, 544 S.W.2d at 371–72 (physical danger to child relevant to best interest
determination). Ms. Alvarez did not elaborate on this incident, but she did agree the children
were in “conditions and surroundings that endangered them.” See TEX. FAM. CODE ANN.
§ 263.307(b)(12) (inadequate parenting skills regarding safe physical home environment relevant
to best interest determination); Holley, 544 S.W.2d at 371–72 (physical danger to child relevant to
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best interest determination). Although the acts or omissions under section 161.001(1) do not
relieve the Department of its burden to establish that termination would be in the best interests of
the children pursuant to section 161.001(2), they are relevant. See C.H., 89 S.W.3d at 28.
The record shows the children were young — all eight-years-old and younger — which
bears upon their best interests. See TEX. FAM. CODE ANN. § 263.307(b)(1) (child’s age factor in
best interest determination). There was also some evidence that one of the children, five-year-old
Christal J., suffers from certain mental disorders and “suicidal ideations and homicidal threats.”
See id. (results of psychological evaluations of child and child’s mental vulnerabilities relevant to
best interest determination). She has been diagnosed with several disorders, including oppositional
defiant disorder and mood disorder. See id. In a recent episode, Christal J. “grabbed a knife and
tried to stab herself.” See id. Thus, at least one of the children is mentally vulnerable. See id.
This same child also made an allegation of physical abuse, stating her father “whipped” her,
leaving a scar on her upper thigh. See id. § 263.307(b)(7) (history of abusive or assaultive conduct
by child’s family relevant to best interest determination); Holley, 544 S.W.2d at 371–72 (physical
danger to child relevant to best interest determination).
Ms. Alvarez testified that Mother has not once visited the children. See A.S., 2014 WL
5839256, at *2 (court may consider circumstantial evidence, subjective factors, and totality of the
evidence, in addition to direct evidence). Although Father did not miss any visits beginning in
August — the month before trial — he had been inconsistent prior to that time, visiting less than
fifty percent of the time. See id. Ms. Alvarez described this as constructive abandonment. Ms.
Alvarez testified both parents were aware of the termination hearing — she spoke to Father the
week before the trial. As for Mother, she reported to A.F.’s father that “she was out in the streets
again and she was homeless . . . and that she would not be attending. . . .” The record shows neither
parent appeared at the hearing. See id.
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Ms. Alvarez testified it was her belief that neither parent would be able to provide for the
children now or in the future. As for placement, Ms. Alvarez testified that three of the children
are in foster care, and that the foster parents will decide in early December — the trial was held in
late September — whether they intend to adopt. See Holley, 544 S.W.2d at 371–72 (placement
plans for child relevant to best interest determination). Ms. Alvarez stated the children in foster
care like the home and wish to remain there and be adopted. See id. (desires of child relevant to
best interest determination). Christal J. has not been placed in a foster home given her mental
issues, but Ms. Alvarez testified she believes it would be possible to find Christal J. a permanent
placement in the future. See id. (placement plans for child relevant to best interest determination).
She concluded by stating termination would be in the children’s best interests.
Based on the evidence and application of the proper standard of review, we hold the trial
court did not err in finding termination of both Father’s and Mother’s parental rights would be in
the best interests of their respective children. The evidence is such that the trial court could have
reasonably formed a firm belief or conviction that termination was in the best interests of the
children. See J.P.B., 180 S.W.3d at 573.
CONCLUSION
We hold the evidence is legally and factually sufficient to allow the trial court to find Father
used a controlled substance, endangering the health and safety of his children. This, coupled with
our best interest holding, allows us to forego review of Father’s challenge to the sufficiency of the
evidence relating to the finding that he failed to comply with his service plan. See A.V., 113 S.W.3d
at 362. Mother did not challenge the evidence regarding the grounds for termination, but both
parents challenged the trial court’s best interest findings. We likewise hold the evidence was
legally and factually sufficient to allow the trial court to find termination of both Father’s and
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Mother’s parental rights was in the best interests of their children. Accordingly, we overrule
Father’s and Mother’s issues and affirm the trial court’s termination order.
Marialyn Barnard, Justice
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