in the Interest of K.N.D., a Child

Opinion issued August 14, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00584-CV
———————————
IN THE INTEREST OF K.N.D., A CHILD

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2011-03002 J

MEMORANDUM OPINION ON REHEARING

Appellant A.D. appealed the trial court’s decree terminating her parental

rights to her daughter, K.N.D. In three issues, A.D. argued that the evidence was

insufficient to support the termination of her parental rights and the appointment of

the Texas Department of Family and Protective Services as sole managing

conservator.
 Following prior precedents of this court, we previously held that the

evidence was legally insufficient to establish that the child was removed from her

mother “under Chapter 262 for the abuse or neglect of the child,” as is required to

support termination under the sole ground found by the trial court, section

161.001(1)(O). In re K.N.D., 403 S.W.3d 277, 286 (Tex. App.—Houston [1st

Dist.] 2012), rev’d, No. 13-0257, 2014 WL 185037 (Tex. Jan. 17, 2014). In light of

its subsequent decision in In re E.C.R., 402 S.W.3d 239 (Tex. 2013), the Supreme

Court of Texas concluded that “K.N.D. was removed for abuse or neglect under

chapter 262 of the Texas Family Code,” In re K.N.D., 424 S.W.3d 8, 10 (Tex.

2014), and it remanded the case to this court for further proceedings.

On remand we conclude that the evidence was legally and factually

sufficient to support termination of A.D.’s parental rights under section 161.001(O)

and to support the trial court’s conclusion that termination of A.D.’s parental rights

was in the best interest of K.N.D. Accordingly, we affirm. 1

Background

A.D. is the mother of S.L.A.D. and K.N.D. Before K.N.D. was born,

S.L.A.D. was removed from the mother’s care for neglectful supervision and

medical neglect. The caseworker who testified in this trial was familiar with both

1
Appellant A.D. moved for rehearing of our June 12, 2014 opinion and
judgment. We deny the motion for rehearing. We withdraw our prior opinion
and judgment and issue the following opinion and judgment in their stead.

2
S.L.A.D. and K.N.D. She testified that domestic violence was an issue in the

removal of S.L.A.D., as was the mother’s ability to provide and maintain stable

living conditions and employment. In addition, the mother failed to maintain

contact with the Department after S.L.A.D. was removed from her care. When the

child required brain surgery in 2010, the mother could not be located to consent to

the operation. Later it was determined that around the same time that S.L.A.D.

required surgery, the mother had been arrested in Florida for the misdemeanor

offense of prostitution, as punishment for which she paid a fine. Just before the

trial regarding termination of her parental rights as to S.L.A.D., A.D. relinquished

her rights, placing that child for adoption. S.L.A.D. was later adopted.

Less than two years later, A.D. became pregnant with K.N.D. When she was

37 weeks pregnant, she became involved in an altercation at her apartment

complex. According to the caseworker, A.D. claimed that she had fought with a

roommate and was injured when she fell down. But she denied involvement in a

physical altercation, saying she “felt dizzy and fell down.” She told a hospital

social worker that she was being chased by the male roommate and he stepped on

her house shoe which caused her to fall.

According to an employee of the apartment complex, A.D. came to the

apartment office and asked how she could have someone removed from her

apartment. When A.D. saw the man approaching the office, she left through the

3
side door. The apartment manager also saw the man, who was not listed as a tenant

on the lease, chase A.D. in the parking lot, “stomp” on her, and hit her.

The apartment complex employee called the police, who escorted the man

off the premises. A.D. was taken to the hospital by ambulance, and she gave birth

to K.N.D. that same day. According to the caseworker, “a lady claiming to be a

prostitute” came to the hospital while A.D. was giving birth to K.N.D. and said that

A.D. was a prostitute and that they had gotten into a fight with a pimp. A.D. denied

this account, but she said that the man had brought the woman to the apartment a

few weeks earlier and that the woman was supporting her.

The day after K.N.D. was born, a report of “Neglectful Supervision” was

referred to Child Protective Services. An investigation ensued, and the Department

filed an original petition seeking conservatorship of K.N.D. and termination of the

rights of her biological parents. In support of that petition, a CPS investigator

summarized by affidavit the circumstances that precipitated K.N.D.’s removal, 2

explaining the altercation, the information regarding A.D.’s involvement with

prostitution, the Department’s prior involvement with and A.D.’s relinquishment

2
The record does not reflect that the affidavit of removal was offered into
evidence at trial or judicially noticed by the trial court. Nevertheless,
because it was evidence that could have been considered by the trial court in
support of its finding that K.N.D. was removed based on abuse or neglect,
see In re E.C.R., 402 S.W.3d 239, 240–41 (Tex. 2013), we include it for the
purpose of providing background and context for this opinion.

4
of S.L.A.D., and its concerns regarding the home environment, domestic violence,

and A.D.’s prior unwillingness to complete services.

In addition, the investigator included information from her discussion with

the caseworker who had been involved with S.L.A.D. The caseworker had not

been aware of A.D.’s pregnancy. She advised the investigator that A.D. was “a

flight risk” with untreated “mental health issues” and that she “will say that she

will comply with agency recommendations, but then will not make herself

available once it is time to work the services.” The affidavit included the

Department’s concern that A.D. was a “flight risk,” saying, “[t]here is prior CPS

history where she has moved before the investigation could be completed and

subsequent CPS history has been validated warranting the removal of her other

daughter [S.L.A.D.].”

On the day the original petition was filed, the trial court entered its order for

protection of a child in an emergency and appointed a guardian ad litem for K.N.D.

Fourteen days later the trial court held an adversary hearing and named the

Department as temporary managing conservator of the child. A.D. attended this

hearing in person. In its May 17, 2011 “Temporary Order Following Adversary

Hearing,” the trial court ordered A.D. to comply with “each requirement set out in

the Department’s original, or any amended, service plan during the pendency of

this suit.”

5
 Approximately one month later, the Department filed its service plan. It

required A.D. to complete certain tasks, including (1) submit to a mental health

evaluation, (2) maintain and obtain suitable and legal employment, (3) obtain

stable housing, (4) obtain a GED or high school diploma, (5) complete domestic

violence counseling, (6) participate in individual counseling, and (7) complete a

parenting class.

About a week later, the court held a status hearing and signed two orders.

The first order was called “Additional Temporary Orders to Obtain Return of

Children.” It recited that a hearing was held on June 30, 2011 and that the parents

were ordered to take certain actions. However, on the line beside the word

“parents” appeared the word “father” and a box which was checked. 3 The word

“mother” did not appear on this document. Among other things, the actions

required by the order included: (1) complete a psychological examination and

follow all recommendations; (2) complete parenting classes; (3) maintain stable

housing; (4) maintain stable employment; and (5) complete all services outlined in

the Family Plan of Service.

The second order was a “Status Hearing Order.” It also recites that a status

hearing was held on June 30, 2011. The order advised A.D. that her failure to

3
Other evidence in the record suggests that the name of the father was not
known with certainty, though it was believed to be Bickinson Emile. The
father of K.N.D. did not appear in this case.

6
demonstrate that she could provide K.N.D. with a safe environment could result in

the termination of her parental rights, and it incorporated the Department’s service

plan:

2.6. The Court finds that [A.D.] “has . . . reviewed and does . . .
understand[] the service plan and has . . . been advised that unless she
is willing and able to provide the child with a safe environment, even
with the assistance of a service plan, within the reasonable period of
time specified in the plan, her parental and custodial duties and rights
may be subject to restriction or to termination or the child may not be
returned to her.

....

3.1. IT IS ORDERED that, except as specifically modified by this
order, the permanency plans and recommendations for the child, set
out in the service plans filed with the Court, are approved and adopted
by the Court as if set out verbatim in this order.

In addition, after a status hearing in 2012, the court ordered A.D. to remain

in the courtroom and submit to drug testing. She did not comply; instead she left

after the hearing. The Department ultimately filed its permanency plan and

progress report which indicated that K.N.D.’s foster parents, who had adopted

S.L.A.D., were willing to adopt her.

A.D. was represented by counsel at trial, but she did not attend the

proceeding in person. The only live witness at the trial was the CPS caseworker

who was familiar with the cases of both S.L.A.D. and K.N.D. The caseworker

testified that A.D.’s parental rights with respect to S.L.A.D. were terminated when

she relinquished her rights just before trial was scheduled to begin in that case.

7
 She testified about the circumstances that formed the basis for removal of

K.N.D. and A.D.’s performance of the actions the court had required her to

complete in order to obtain return of K.N.D. The caseworker stated that A.D. never

provided proof of stable living conditions or stable employment, which was a

concern of the Department in both this case and the prior case involving S.L.A.D.

Although A.D. provided the Department with “an intent to hire letter stating that

she would be employed by [a] credit counseling service,” she was never actually

employed by that service. The caseworker testified that the only documentation

regarding employment that A.D. had provided was a single pay stub reflecting a

$40 payment from a home health care service. The caseworker opined that A.D.

was unable to support K.N.D.

The family service plan also required A.D. to submit to a psychiatric

evaluation and complete domestic violence counseling and parenting classes. A.D.

did submit to a psychiatric evaluation, but MHMRA determined that A.D. did not

qualify for services. She also completed a parenting class, as required by the plan

of service. However, the caseworker testified that during supervised visits, A.D.

required prompting to meet basic needs like diapering and feeding. On the other

hand, the caseworker recalled that A.D. attempted to bond with K.N.D. by playing

with her.

8
 Although she conceded that K.N.D. was not directly harmed by A.D.’s

actions, the caseworker testified that she believed termination of A.D.’s parental

rights to K.N.D. was in the child’s best interest. She believed that A.D.’s exposure

to domestic violence, her relationships with men who engaged in domestic

violence, and her long-term lack of employment endangered K.N.D. She also

testified that A.D. had failed to comply with “the most important” of the

requirements from the family plan of service: securing stable housing and

employment and completing domestic violence counseling. The Department’s plan

for K.N.D. was adoption by the foster family, who had already adopted S.L.A.D.

And the caseworker testified that K.N.D. was doing well in that placement and had

bonded with her sister and the foster parents. The only special needs that the

caseworker noted were seasonal allergies and chronic ear infections.

On cross-examination, the caseworker testified that she spoke to A.D.

approximately one month before the hearing. A.D.’s attorney asked, “Did she

indicate having any interest in having her child returned?” and the caseworker

replied, “Not verbally.” A.D. told her that she had recently become employed part-

time at a home health care firm and that she was living with a man she had known

for six months.

K.N.D.’s attorney ad litem also questioned the caseworker, eliciting

testimony that the violence involving the man in her apartment would endanger the

9
child. A.D. had “gone through the family service plan somewhat” but not

“sufficiently enough to set aside the potential endangerment of placing this child

back with her.” The child had bonded with her sister and foster parents, who

wished to adopt her. The caseworker believed adoption by the foster family was in

K.N.D.’s best interest.

The Department also presented several exhibits at trial which were admitted

without objection. The trial court admitted into evidence the family service plan,

an order requiring A.D. to remain in the courtroom and submit to drug testing, and

records pertaining to A.D.’s criminal history, specifically an arrest in Florida in

2010 for the misdemeanor offense of prostitution, for which she paid a fine, and a

dismissed charge of assault-family violence in 2009. The June 30, 2011 Status

Hearing Order was not admitted into evidence.

The Department sought termination of A.D.’s parental rights under

subsections 161.001(1)(D), (E), and (O) of the Family Code. The trial court

rendered a decree terminating the mother’s parental rights to K.N.D., finding “by

clear and convincing evidence” that termination was in the child’s best interest and

that A.D. “failed to comply with the provisions of a court order that specifically

established the actions necessary for the mother to obtain the return of this

child . . . pursuant to §161.001(1)(O), Texas Family Code.” The court further

found that appointment of a parent as K.N.D.’s managing conservator was not in

10
the child’s best interest, and it appointed the Department as the sole managing

conservator. The trial court did not make any findings concerning subsections

161.001(1)(D) or (E).

A.D. filed a motion for new trial, arguing that the evidence was legally and

factually insufficient to support the trial court’s conclusion that A.D. “failed to

comply with 161.001(1)(O), Texas Family Code.” A.D. provided an affidavit with

her motion for new trial in which she averred, “I am employed, have housing, took

my parenting class, submitted myself to [the Mental Health and Mental

Retardation Authority] as directed by CPS and they rejected me, and visited with

my child.” Her affidavit provided no detail about her employment or housing

situation. The trial court denied the motion for new trial, and A.D. appealed.

After we issued our original opinion in this case, the Supreme Court decided

In re E.C.R., holding that the words “abuse or neglect of the child” are “used

broadly” in subsection O and include “the harm suffered or the danger faced by

other children under the parent’s care.” 402 S.W.3d at 248. The Supreme Court

also reversed this court’s earlier opinion, holding that “K.N.D. was removed for

abuse or neglect under chapter 262 of the Texas Family Code,” In re K.N.D., 424

S.W.3d at 10, and remanding the case to this court for further proceedings.

On remand we consider the arguments that A.D. raised in her brief but

which we did not address in our earlier opinion. Specifically, we must determine

11
whether (1) there was legally and factually sufficient evidence of a court order that

specifically established the actions necessary for A.D. to obtain return of K.N.D.

and (2) the evidence was legally and factually sufficient to support the court’s

determination that termination of A.D.’s parental rights was in K.N.D.’s best

interest.

Analysis

I. Sufficiency of evidence to terminate parental rights

In her first issue, A.D. argues that the evidence was legally and factually

insufficient to support termination of her parental rights under Family Code

section 161.001(1)(O) because there was no clear and convincing evidence of a

court order that specifically established the actions necessary for her to complete in

order to obtain return of K.N.D.

Termination proceedings are strictly scrutinized on appeal. Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support the

decision to terminate parental rights. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex.

2002); see also Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–

92 (1982). “Clear and convincing evidence” is “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

12
(West 2014); In re J.F.C., 96 S.W.3d at 264; see also Holick, 685 S.W.2d at 20

(citing Santosky, 455 U.S. at 747, 102 S. Ct. at 1391).

Because of this heightened burden of proof, both legal and factual

sufficiency review of a decree terminating parental rights require a reviewing court

to consider all of the evidence to determine whether the factfinder could have

formed a firm belief or conviction about the truth of the matters as to which the

Department bore the burden of proof. In re J.P.B., 180 S.W.3d 570, 573 (Tex.

2005) (per curiam) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)

(factual sufficiency).

In a legal sufficiency review, we view the evidence in the light most

favorable to the finding. J.P.B., 180 S.W.3d at 573; J.F.C., 96 S.W.3d at 266. To

do this, we “consider all of the evidence, not just that which favors the verdict,”

J.P.B., 180 S.W.3d at 573; J.F.C., 96 S.W.3d at 266, and we “assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so.” J.P.B., 180 S.W.3d at 573 (quoting J.F.C., 96 S.W.3d at 266); see

also Jordan v. Dossey, 325 S.W.3d 700, 712–13 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). We also “disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible.” J.P.B., 180 S.W.3d at

573 (quoting J.F.C., 96 S.W.3d at 266); see also Jordan, 325 S.W.3d at 712–13.

13
 In a factual sufficiency review, we consider the entire record, including

evidence both supporting and contradicting the finding. See C.H., 89 S.W.3d at 25.

“‘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.’” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per

curiam) (quoting J.F.C., 96 S.W.3d at 266).

In order to justify the termination of parental rights pursuant to

section 161.001, the Department must establish, by clear and convincing evidence,

(1) that the parent committed one or more of the enumerated acts or omissions

justifying termination and (2) that termination is in the best interest of the child.

TEX. FAM. CODE ANN. § 161.001 (West 2014); C.H., 89 S.W.3d at 23. 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. Tex. Dep’t of Human Servs.

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

The trial court found only one predicate act satisfied in this case: that A.D.

“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 . . . as a result of the child’s removal from the

14
parent under Chapter 262 for the abuse or neglect of the child.” TEX. FAM. CODE

ANN. § 161.001(1)(O). The order need not bear a title stating that it is an order “to

obtain return of a child”; rather, it will be sufficient under subsection (O) so long

as it directs a parent to perform specific acts and advises the parent that failure to

provide a safe environment within a reasonable time period could result in

termination of her parental rights. See J.F.C., 96 S.W.3d at 277 & n.74. A trial

court may direct a parent to perform specific acts by ordering her to comply with a

family service plan created by the Department. See In re A.A., No. 01-13-00542-

CV, 2013 WL 6569922, at *9 (Tex. App.—Houston [1st Dist.] Dec. 12, 2013, no

pet.) (mem. op.); In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *2 (Tex.

App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.); In re A.W.B.,

No. 14-11-00926-CV, 2012 WL 1048640, *3–4 (Tex. App.—Houston [14th Dist.]

Mar. 27, 2012, no pet.) (mem. op.). Partial or substantial compliance with a court

order is not enough to avoid a termination finding under section 161.001(1)(O).

See In re M.C.G., 329 S.W.3d 674, 675–76 (Tex. App.—Houston [14th Dist.]

2010, pet. denied); In re T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied).

Finally, we note that in a bench trial, we may “presume the trial court took

judicial notice of its record without any request being made and without any

announcement that it has done so.” In re K.F., 402 S.W.3d 497, 504 (Tex. App.—

15
Houston [14th Dist.] 2013, pet. denied); see In re S.J.S., No. 04-12-00067-CV,

2012 WL 2450817, at *6 (Tex. App.—San Antonio June 27, 2012, pet. denied)

(mem. op.); Kubosh v. State, No. 01-05-00401-CV, 2006 WL 2506498, at *2 (Tex.

App.—Houston [1st Dist.] Aug. 31, 2006) (mem. op.) (“[A] trial court may take

judicial notice of its own file at any stage of proceedings and is presumed to have

done so with or without a request from a party.”), aff’d, 241 S.W.3d 60 (Tex. Crim.

App. 2007).

In this case, A.D. argues that there is no evidence in the record establishing

the existence of a court order specifically establishing the actions necessary for

A.D. to obtain return of K.N.D. A.D. further argues that “the Status Hearing Order

does not reflect that it was served on parents or counsel” and that it was not

introduced into evidence. Thus, she argues that it is “not part of the evidence of the

case.” She further argues that the Family Service Plan is not a court order and that

the only court order that specifically sets out tasks is directed toward the father, not

A.D.

The clerk’s record includes a May 17, 2011 order that required A.D. to

comply with “each requirement set out in the Department’s original, or any

amended, service plan during the pendency of this suit.” The record reflects that

A.D. was present for the hearing that occurred on that day. A June 30, 2011 order

approved and adopted the Department’s service plans “as if set out verbatim in this

16
order” and advised A.D. that “unless she is willing and able to provide the child

with a safe environment . . . within the reasonable period of time specified in the

plan, her parental and custodial duties and rights may be subject to . . .

termination.” This order was not introduced into evidence at trial, but we presume

the trial court took judicial notice of the existence of this order which it had entered

in this case. See K.F., 402 S.W.3d at 504; S.J.S., 2012 WL 2450817, at *6; Kubosh,

2006 WL 2506498, at *2. The Department’s family service plan was admitted at

trial without objection. In addition, the caseworker testified about the contents of

the plan and the fact that A.D. partially complied with the plan, including taking

parenting classes and visiting with K.N.D. A reasonable factfinder could infer from

this that A.D. was aware of the existence and the content of the family service

plan.

Considering all of the evidence, we conclude that a reasonable factfinder, in

this case the trial court that issued the orders establishing the actions A.D. was

required to take in order to obtain return of her child, could have formed a firm

belief or conviction that such orders existed. We hold that the evidence of the

existence of an order for the purpose of section 161.001(1)(O) is both legally and

factually sufficient, and we overrule this issue. 4

4
A.D. did not challenge the sufficiency of the evidence to show that she failed to
comply with the actions specified in that order. Furthermore, we note that the

17
II. Best interest of the child

In her second issue, A.D. argues that the evidence is legally and factually

insufficient to support the trial court’s determination that termination of her

parental rights was in K.N.D.’s best interest.

A strong presumption exists that a child’s best interests are served by

maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). In determining whether termination of a

mother’s parental rights was in the child’s best interest, we consider several

nonexclusive factors, including (1) the child’s desires, (2) the current and future

physical and emotional needs of the child, (3) the current and future physical

danger to the child, (4) the parental abilities of the person seeking custody,

(5) whether programs are available to assist the person seeking custody in

promoting the best interests of the child, (6) plans for the child by the person

seeking custody, (7) stability of the home, (8) acts or omissions of the parent that

may indicate that the parent-child relationship is improper, and (9) any excuse for

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). The Department is not required to prove all of these factors, and the absence

of evidence about some factors does not preclude the factfinder from reasonably

forming a strong conviction that termination is in the child’s best interest. See

evidence is undisputed that she only partially completed the actions required by
the court’s orders.

18
C.H., 89 S.W.3d at 27. Evidence establishing one of the predicate acts under

section 161.001(1) may also be relevant to determining the best interest of the

child. See id. at 27–28.

Several of the Holley factors are neutral in our analysis of this appeal. As to

the first Holley factor, we note that K.N.D. was only one year old at the time of

trial and thus was unable to express any desire for herself. A.D. did not appear at

trial and there was no evidence of her plans for K.N.D. or an excuse for her acts

and omissions, including her failure to secure stable housing and employment.

Several of the Holley factors weigh in favor of the trial court’s finding that

termination of A.D.’s parental rights was in K.N.D.’s best interest. Chief among

these is the element of stability of the home. “Stability is important in a child’s

emotional and physical development.” In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex.

App.—Houston [1st Dist.] 2013, no pet.). “Without stability, income, or a home, [a

parent] is unable to provide for the child’s emotional and physical needs.” In re

C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.).

The evidence at trial was that A.D. had failed to secure stable and legal

employment and that she was living with an unidentified man whom she had

known for six months. At the time of K.N.D.’s removal, A.D.’s home environment

was unstable. The evidence showed that she had lived with two roommates, one of

whom chased and assaulted her on the grounds of the apartment complex. There

19
was evidence that A.D. worked as a prostitute and lived with another woman who

also did so. The evidence of other employment was extremely limited—an “intent

to hire letter stating that she would be employed by credit counseling service” and

a pay stub reflecting that A.D. had been paid $40 by a home health care service.

And there was evidence that A.D. relied for financial support on others who had no

legal obligation to continue providing that support, such as the female roommate

and the man with whom she had lived for six months at the time of trial.

While the caseworker identified only seasonal allergies and chronic ear

infections as K.N.D.’s special needs, she also testified that A.D. required

prompting during supervised visits to meet her child’s most basic needs of feeding

and diapering.

The evidence at trial showed that A.D.’s first child was removed from her

custody due to medical neglect and neglectful supervision, and she eventually

relinquished custody of that child. When asked if A.D. expressed an interest in

reuniting with K.N.D., the caseworker testified, “Not verbally.” A.D. did not

personally appear at trial to oppose the appointment of the Department and to give

evidence to regain custody of her child, despite receiving notice through her

appointed counsel. She offered no explanation for her absence in her motion for

new trial. From this, a reasonable factfinder could conclude that the proceeding

was not important to her. See, e.g., In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.—

20
Texarkana 2003, no pet.) (“The absence of a parent at the trial to terminate his or

her parental rights is prejudicial to the parent. The parent’s absence could leave the

fact-finder with the impression that the proceeding is not important to the parent.”).

While the Holley factors weigh in favor of the court’s conclusion that

termination of A.D.’s parental rights was in K.N.D.’s best interest, the Holley

factors are not necessarily the only considerations relevant to determining the best

interest of the child. In re A.C., 394 S.W.3d 633, 641–42 (Tex. App.—Houston

[1st Dist.] 2012, no pet.). “[T]he prompt and permanent placement of the child in a

safe environment is presumed to be 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 a safe environment, we consider several factors, including (1) the

child’s age and vulnerabilities; (2) 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; (3) willingness and ability of the child’s family to seek, accept, and

complete counseling services and cooperate with agency supervision; (4) the

willingness and ability of the child’s family to effect positive changes within a

reasonable period of time; and (5) whether the child’s family demonstrates

adequate parenting skills. Id. § 263.307(b). Evidence establishing one of the

predicate acts under section 161.001(1) also may be relevant to determining the

best interest of the child. See C.H., 89 S.W.3d at 27–28.

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 Here, all of these factors weigh in favor of the trial court’s decision. K.N.D.

was one year old at the time of trial and, thus she was entirely dependent on others

for her care. There was a history of abusive and assaultive conduct by the men with

whom A.D. associated, including a roommate. A.D.’s failure to complete the court-

ordered services in this case and her history with the Department in S.L.A.D.’s

case show a lack of willingness to seek help and cooperate with agency

supervision. Similarly, her failure to secure stable employment and living

arrangements during the pendency of this case weigh against A.D.’s ability to

effect positive changes within a reasonable period of time. Finally, the

caseworker’s testimony that A.D. required prompting to meet K.N.D.’s basic needs

for food and diapering weigh against a finding that she demonstrated adequate

parenting skills.

Considering all of the evidence in light of the Holley and statutory factors

relevant to a determination of the best interest of the child, we conclude that a

reasonable factfinder could have formed a firm belief that termination of A.D.’s

parental rights was in K.N.D.’s best interest. We hold that the evidence was legally

and factually sufficient to support the trial court’s best interest finding, and we

overrule this issue.

Having overruled the first two issues, we need not address A.D.’s third issue

regarding the appointment of the Department as sole managing conservator.

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 Conclusion

We affirm the judgment of the trial court

Michael Massengale
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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