Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00654-CV
IN THE INTEREST OF L.A.A., L.B.A., and K.S., Children
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02644
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: March 11, 2015
AFFIRMED
Appellant Saddie B. (Mother) appeals the trial court’s order terminating her parental rights
to her three children. We affirm the judgment of the trial court.
BACKGROUND
The final termination hearing in this matter was held on September 4, 2014. The only
witness at the hearing was Antonio Villegas, the caseworker with the Texas Department of Family
and Protective Services. Mother did not appear at the termination hearing. Villegas testified that
Mother and her youngest child, K.S., both tested positive for benzodiazepines when K.S. was born
on July 1, 2013. K.S. and Mother’s other children, L.A.A. and L.B.A., were removed by the
Department on October 31, 2013. See TEX. FAM. CODE ANN. § 262.104 (West 2014) (authorizing
the Department’s emergency removal of a child based on immediate danger to the physical health
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or safety of the child). A family service plan was designed for Mother which permitted her to visit
the children three times per month. Villegas testified that during the almost one year pendency of
the Department’s case, Mother failed to comply with the parts of her family service plan that
required her to engage in counseling for anger management, domestic violence, empowerment,
and parenting, individual counseling and in-patient drug treatment for thirty days. Mother
“mostly” exercised her visitation rights with the children, although she “tended to cancel a lot.”
Finally, Villegas testified that during the pendency of the case the three children have been in a
safe and stable foster home, and have bonded with the family and are doing well. In addition, the
foster family has expressed a desire to adopt the children.
At the end of the termination hearing, the trial court found the following two statutory
grounds for termination of Mother’s parental rights: (i) constructive abandonment of the children
who have been in the permanent or temporary managing conservatorship of the Department
for not less than six months; and (ii) failure to comply with the provisions of a court order
establishing the specific actions necessary for return of the children. See id. §§ 161.001(1)(N), (O)
(West 2014). The trial court further found that termination was in the best interest of the children.
See id. § 161.001(2) (West 2014). Mother now appeals.
ANALYSIS
Mother asserts on appeal that the evidence is legally and factually insufficient to support
the court’s findings of the two statutory grounds for termination and its finding that termination of
her parental rights is in the children’s best interest.
Standard of Review
To terminate parental rights pursuant to section 161.001 of the Family Code, the
Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);
and (2) that termination is in the best interest of the child. Id. § 161.001(1), (2); In re A.V., 113
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S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard.
TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
“‘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 2014). Due process demands this
heightened standard because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d at 263; see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)
(contrasting standards for termination and modification of conservatorship order).
In reviewing the legal sufficiency of the evidence to support the termination of parental
rights, we view all the evidence in the light most favorable to the trial court’s findings and
judgment to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that the findings are 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, and we
disregard all evidence that a reasonable factfinder could have disbelieved. Id. We defer to the
factfinder’s determinations of witness credibility and weight of the evidence as long as they are
not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re E.D., 419 S.W.3d 615,
619 (Tex. App.—San Antonio 2013, pet. denied) (noting reviewing court may not disregard
evidence that does not support the trial court’s best interest finding).
In reviewing factual sufficiency, we examine the entire record to determine whether the
disputed evidence is such that a reasonable factfinder could not have resolved that disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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, then
the evidence is factually insufficient.” Id.
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Statutory Grounds
In her first two issues, Mother challenges the legal and factual sufficiency of the evidence
to support the two statutory grounds of constructive abandonment and failure to comply with the
family service plan. See TEX. FAM. CODE ANN. §§ 161.001(1)(N), (O). Even though multiple
grounds under subsection 161.001(1) may be alleged, the Department is required to prove only
one statutory ground, along with best interest, to support a termination order. In re A.V., 113
S.W.3d at 362; In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).
We turn first to the court’s finding that Mother failed to comply with the provisions of a
court order establishing the actions necessary for the children’s return, i.e., the family service plan.
See TEX. FAM. CODE ANN. § 161.001(1)(O). Mother asserts the evidence was insufficient in two
respects: (i) there was no testimony to establish the Department had been temporary managing
conservator of the children for not less than nine months as required by subsection 161.001(1)(O),
and (ii) there was no testimony that the caseworker made all the referrals and authorizations
necessary for Mother to participate in the required family services.
As to Mother’s first complaint, the record contains the trial court’s order appointing the
Department as temporary managing conservator of the children on November 12, 2013, more than
nine months before the termination hearing on September 4, 2014. “A trial court may take judicial
notice of its own records in matters that are generally known, easily proven, and not reasonably
disputed.” In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San Antonio 2012, no pet.). Even with
a silent record, we may presume the trial court took judicial notice of its own order contained in
its court file without any request being made or any announcement on the record that it did so. Id.
at 869-70. Thus, we may presume the trial court took judicial notice of its November 12, 2013
order in which it appointed the Department as temporary managing conservator of the children.
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See id. at 870 (holding trial court could properly take judicial notice that it signed an order adopting
the family service plan and of the requirements of the plan).
As to Mother’s second complaint regarding the necessary referrals and authorizations for
her family services, the caseworker testified that Mother did submit to the required psychological
assessment and drug and alcohol evaluation, which recommended in-patient treatment. The
caseworker further testified that Mother did enter an in-patient drug treatment facility; however,
she only completed twenty of the thirty days required by her family service plan. Mother also
failed to follow the psychological recommendations. Finally, Villegas testified that Mother was
set up for thrice monthly scheduled visitations with the children. She did not, however, attend all
the visitations; indeed, she missed two of the three scheduled visits in the month preceding the
final termination hearing. This evidence establishes that the necessary authorizations were made
for Mother to engage in at least some of the services required by her family service plan, but that
she failed to successfully complete those services.
We conclude the evidence is legally and factually sufficient to support the challenged
elements of subsection 161.001(1)(O), failure to comply with the family service plan, as a
predicate ground for termination of Mother’s parental rights. Because only one statutory ground
under subsection 161.001(1) is necessary to support a judgment of termination, we need not
address the sufficiency of the evidence under subsection 161.001(1)(N). See In re S.F., 32 S.W.3d
at 320.
Best Interest
Mother also challenges the evidence as legally and factually insufficient to support the trial
court’s finding that termination of her parental rights is in the children’s best interest. See TEX.
FAM. CODE ANN. § 161.001(2) (requiring clear and convincing evidence “that termination is in the
best interest of the child”). There is a strong presumption that keeping a child with a parent is in
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the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). At the same time, prompt
and permanent placement of the child in a safe environment is also presumed to be in the child’s
best interest. See TEX. FAM. CODE ANN. § 263.307(a) (West 2014).
We review the entire record to determine a child’s best interest. In re E.C.R., 402 S.W.3d
239, 250 (Tex. 2013). The same evidence may be probative of both a statutory ground under
subsection (1) and best interest under subsection (2) of section 161.001. Id. at 249; In re C.H., 89
S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the trier of fact in a termination case may
also use in determining the best interest of the child 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 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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations
omitted); see In re E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest finding, “we
consider, among other evidence, the Holley factors”). These factors are not exhaustive; some listed
factors may be inapplicable to some cases. In re C.H., 89 S.W.3d at 27. Furthermore, undisputed
evidence of just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the presence of meager
evidence relevant to each factor will not support such a finding. Id.
i. Children’s desires and plans for the children
L.A.A. and L.B.A. are both three years old, and K.S. is one year old. No direct evidence was
admitted regarding the children’s desires. When children are too young to express their desires,
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the factfinder may consider that the children have bonded with the foster family, are well-cared
for by them, and have spent minimal time with a parent. See In re J.D., 436 S.W.3d 105, 118 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Villegas, the caseworker, testified that, as of the
hearing date, the children have been together in the care of a foster family for almost one year,
have bonded with the foster parents, and are doing well. Villegas also testified that the foster
parents can provide the children with a safe and stable home which meets the children’s needs. He
further testified that the foster family is a suitable, long-term placement and the family has
expressed a desire to adopt the children.
ii. Needs of the children, Mother’s parenting abilities, and stability of the home
There was no evidence that any of the children have special needs, except that K.S. tested
positive for benzodiazepines when he was born. As to Mother’s parenting abilities, Villegas
testified that Mother is a drug user who failed to complete the thirty days of in-patient drug
treatment and the anger management, domestic violence, empowerment, and parenting counseling
treatment required by her family service plan. In addition, Mother has “for the most part” attended
the three visits allowed with her children each month, but has also “tended to cancel a lot” and
only saw them once during the month preceding the final termination hearing. Finally, Villegas
testified that Mother has not shown that she can provide the children with a safe and stable home.
iii. Present and future emotional and physical danger to the children
The same evidence may be probative of both subsection 161.001(1) grounds and best
interest, although such evidence does not relieve the State of its burden to prove best interest. See
In re C.H., 89 S.W.3d at 28. Thus, the trial court was free to consider the evidence of Mother’s
drug abuse and failure to complete treatment and counseling for her drug addiction issues. As
noted, K.S. tested positive for benzodiazepines when he was born. During the approximately one
year period after the children were removed by the Department, Mother failed to address her drug
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abuse issues by submitting to the thirty-day in-patient drug treatment and addiction counseling
required by her family service plan. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (stating
“a parent’s use of narcotics and its effect on his or her ability to parent may qualify as an
endangering course of conduct”). In addition, as noted, Mother was ordered to undergo anger
management and domestic violence counseling but failed to do so.
iv. Availability of assistance
This factor considers whether programs are available to assist the person seeking custody
in promoting the best interests of the child. See Holley, 544 S.W.2d at 372. Villegas stated that a
family service plan was created for Mother which listed the actions necessary for the Department
to return her children to her care. Villegas testified that Mother did complete a psychological
evaluation and a drug and alcohol assessment, which resulted in a recommendation for in-patient
drug treatment for thirty days. Mother completed only twenty days of the in-patient drug treatment
and did not follow up on the psychological recommendations. Mother also failed to complete
other services in her family service plan, including counseling for anger management, domestic
violence, empowerment, and parenting, as well as individual counseling. Villegas testified that
overall Mother made “no progress” on her family service plan.
v. Parental acts or omissions
These factors consider acts and omissions by the parent that indicate the existing parent-
child relationship is not a proper one, and any excuses therefor. See id. As detailed above, the
evidence raised concerns regarding Mother’s drug use and lack of willingness to submit to in-
patient drug treatment and the recommended counseling services in order to obtain the return of
her children. In addition, despite being informed of the date of the final termination hearing,
Mother did not attend the termination hearing. Villegas testified that when he reminded her of the
hearing date the week before, Mother stated she did not want to attend if her parental rights were
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going to be terminated. Villegas testified that, if the children were to be returned to Mother, there
would be a “continued concern for their welfare based on her inability to remedy the issues” that
brought the children into the Department’s care. Villegas stated that, in his opinion, it was in the
children’s best interest to terminate Mother’s parental rights.
In sum, as to the children’s best interest, there was no evidence that Mother has the ability
to provide the children with a safe and stable home environment. See In re T.G.R.-M., 404 S.W.3d
7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Stability is important in a child’s emotional
and physical development.”). To the contrary, the evidence established that Mother has drug abuse
and addiction issues which she chose not to address by failing to complete the recommended in-
patient drug treatment and counseling services listed in her family service plan. One of her
children, K.S., tested positive for drugs at his birth. In addition to failing to complete her family
service plan, Mother chose not to attend the termination hearing at which her children’s future was
decided. The caseworker testified that Mother is not able to provide the children with a safe and
stable home. Finally, there was evidence that the three children have been together in a safe and
stable foster home during the one-year pendency of the Department’s case, they are doing well in
the foster home, and the foster family has indicated a desire to adopt all three children.
Based on this record, we conclude that the evidence is legally and factually sufficient to
support the court’s finding that termination of Mother’s parental rights is in the children’s best
interest. See TEX. FAM. CODE ANN. § 161.001(2); Holley, 544 S.W.2d at 371-72.
CONCLUSION
Based on the foregoing reasons, we overrule Mother’s issues on appeal and affirm the trial
court’s order terminating her parental rights to her three children.
Rebeca C. Martinez, Justice
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