Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00253-CV
IN THE INTEREST OF M.M., a Child
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-00921
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: July 2, 2014
AFFIRMED
A.H. appeals the trial court’s order terminating her parental rights to her daughter, M.M.
The sole issue raised on appeal is a challenge to the sufficiency of the evidence to support the trial
court’s finding that termination of A.H.’s parental rights was in M.M.’s best interest. We affirm
the trial court’s order.
BACKGROUND
M.M. was born in June of 2012, and was placed with her maternal aunt in December of
2012, while the Texas Department of Family and Protective Services attempted to work with A.H.
in Family Based Safety Services. A few months later, the Department discovered that A.H. was
dating T.G., a known gang member and drug user who supplied A.H. with drugs. A.H. denied the
relationship. The Department further discovered that A.H. had been accompanied to a parenting
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session by a male who was “shooting up” in the bathroom during the session. In March of 2013,
A.H. tested positive for marijuana, and she and T.G. were subsequently arrested together on March
30, 2013. A.H. was charged with resisting arrest and possession of illegal drugs. The Department
filed its petition seeking termination of A.H.’s parental rights on April 16, 2013.
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. See TEX. FAM. CODE ANN. § 161.001(1),
(2) (West 2014); In re A.V., 113 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).
In reviewing the legal sufficiency of the evidence to support the termination of parental
rights, the court must “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. “[A] reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id.
“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.” Id.
In reviewing the factual sufficiency of the evidence to support the termination of parental
rights, a court “must give due consideration to evidence that the factfinder could reasonably have
found to be clear and convincing.” Id. “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
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factfinder could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.” Id.
PREDICATE FINDINGS
A.H. does not challenge the sufficiency of the evidence to support the predicate findings,
which included findings that A.H. had:
(1) constructively abandoned [M.M.] who ha[d] been in the permanent or
temporary managing conservatorship of the [Department] for not less than six
months and: (1) the [Department] ha[d] made reasonable efforts to return [M.M.]
to [A.H.]; (2) [A.H.] ha[d] not regularly visited or maintained significant contact
with [M.M.]; and (3) [A.H.] ha[d] demonstrated an inability to provide [M.M.] with
a safe environment; and
(2) failed to comply with the provisions of a court order that specifically established
the actions necessary for [A.H.] to obtain the return of [M.M.] who ha[d] been in
the permanent or temporary managing conservatorship of the [Department] for not
less than nine months as a result of [her] removal from [A.H.]
BEST INTEREST FINDING
A.H. contests the trial court’s finding that terminating her parental rights is in M.M.’s best
interest. In reviewing the sufficiency of the evidence to support the best interest finding, we apply
the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include:
(1) the desires of the child; (2) the present and future emotional and physical needs of the child;
(3) the present and future emotional and physical danger to the child; (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 held by the individuals seeking custody for the child;
(7) the stability of the home of the parent and the individuals seeking custody; (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. Id. The foregoing factors
are not exhaustive, and “[t]he absence of evidence about some of [the factors] would not preclude
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a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s
best interest.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
A bench trial on the merits of the underlying cause was held on March 6, 2014. After the
conclusion of the trial, the trial court entered extensive findings of fact and conclusions of law.
A.H. does not specifically challenge the sufficiency of the evidence to support the trial court’s
findings of fact in this appeal.
M.M. has resided with her maternal aunt in a relative placement since December of 2012,
when she was five months old. M.M. is very bonded to her maternal aunt, who wants to adopt her.
M.M. identifies her maternal aunt as her mother and also is very bonded to her maternal aunt’s
children.
A.H. has visited with M.M. only twice since the Department filed its petition. Those visits
were arranged by M.M.’s maternal aunt while A.H. was in jail. M.M. has not had any contact with
A.H. since July of 2013.
While the Department attempted to coordinate services with A.H., she tested positive for
marijuana and was arrested. After her arrest in March of 2013, A.H. was incarcerated and
subsequently placed in a Substance Abuse Felony Punishment Program. While in jail, money was
placed in A.H.’s account to enable her to call and check on M.M; however, A.H. never called to
check on M.M. At the time of trial, A.H. had been living in a half-way house for two months and
would not be released until May of 2014. A.H. did not request any visits with M.M. after being
placed at the half-way house, but she did attempt to contact T.G.
At the time of trial, A.H. had not completed her service plan. The caseworker for the
Department testified that termination of A.H.’s parental rights was in M.M.’s best interest because
A.H. had “not shown that she could put [M.M.’s] needs ahead of hers.”
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Based on the foregoing evidence, the trial court could have formed a firm belief or
conviction that it was in M.M.’s best interest that A.H.’s parental rights be terminated.
CONCLUSION
The order of the trial court is affirmed.
Catherine Stone, Chief Justice
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