in the Interest of A.H., A.H., and A.H.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00416-CV

IN THE INTEREST OF A.H., A.H., and A.H., Children

From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-00033
Honorable Brenda Chapman, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: November 25, 2015

AFFIRMED

This is an accelerated appeal from the trial court’s order terminating appellant father’s

(“Father”) and appellant mother’s (“Mother”) parental rights to their three children, Annie, April

and Ariel. 1 Although Father and Mother separately appeal the trial court’s order, neither parent

challenges the sufficiency of the evidence to support the trial court’s findings relating to the

statutory grounds for termination. Rather, both parents contend the evidence is legally and

factually insufficient to support the trial court’s finding that termination was in the children’s best

interests. We affirm the trial court’s order of termination.

1
All three children share the same first and last initials. Therefore, in order to refer to the children individually when
necessary and to protect their identity, we shall refer to each of the children by the above referenced pseudonyms. See
TEX. FAM. CODE § 109.002(d) (West 2014); In re E.A.T., No. 04-14-00705-CV, 2013 WL 694929, at *1 (Tex. App.—
San Antonio Feb. 18, 2015, no pet.) (mem. op.).
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BACKGROUND

Raquel Rodriguez is an investigator with the Texas Department of Family and Protective

Services (“the Department”). She became involved with the family after receiving reports of

negligent supervision and physical neglect regarding two of the family’s three children, Annie and

April. At that time, Annie and April were approximately two and one and a half-years-old,

respectively, and Ariel, the family’s third child, was not yet born. According to Ms. Rodriguez,

the Department implemented a family-based service plan and placed Annie and April with a

relative. During this time, Mother and Father were allowed supervised access to the children. At

some point during the course of the family-based service plan, the children were left unsupervised,

and April suffered a serious leg injury. According to Mother, the family was visiting her father,

and she put the children down for a nap in one of the bedrooms. The mattress, which was three

and a half feet from the floor, rested on a larger bed frame, creating a gap. The record reflects that

April somehow fell through the gap and seriously fractured her leg. April was taken to the hospital,

and the Department was immediately alerted about the incident.

Thereafter, the Department initiated legal proceedings, ultimately seeking to terminate

Mother’s and Father’s parental rights to Annie and April. The trial court granted the Department

temporary emergency conservatorship, and service plans were created for the parents. During this

time, Mother gave birth to Ariel, and the Department amended its petition, seeking to terminate

Mother’s and Father’s rights to her as well. Over the next couple of months, the required statutory

hearings were conducted, and during this time period, the children stayed with two foster families.

All three children were ultimately placed with one of those families.

The case proceeded to a bench trial, and the trial court heard testimony from ten witnesses,

including Mother and Father. At the conclusion of the trial, the trial court rendered an order

terminating Father’s and Mother’s rights, finding both parents had violated sections
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161.001(1)(D), (E) and (O) of the Texas Family Code (“the Code”) and that termination was in

the children’s best interests. 2 See TEX. FAM. CODE. ANN. §§ 161.001(1)(D), (E), (O), (2) (West

2014). Thereafter, Mother and Father perfected their appeals.

ANALYSIS

As previously noted, neither Mother nor Father contest the trial court’s findings under

section 161.001(1) of the Texas Family Code. Mother and Father raise the same single issue,

arguing 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

A trial court may order the termination of a parent-child relationship if the trial court finds

by clear and convincing evidence that: (1) the parent committed one of the grounds listed under

subsection one of section 161.001 of the Code; and (2) termination is in the best interest of the

child. 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). “Clear and convincing evidence”

is defined 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. A heightened standard of review

is applied because termination of a parent’s rights to his or her child results in severe and

permanent changes to the parent–child relationship, implicating due process concerns. E.A.G.,

373 S.W.3d at 140. Furthermore, a termination decision cannot be based on only the grounds

2
Specifically, the trial court found both parents knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered the children’s physical or emotional well-being; engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered the children’s physical or
emotional well-being; and failed to comply with the provisions of a court order that established the actions necessary
for the parents to obtain the return of the children. See TEX. FAM. CODE. ANN. §§ 161.001(1)(D), (E), (O).

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listed under subsection one of section 161.001 of the Code; both elements must be established.

Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.3d 531, 533 (Tex. 1987); In re C.B., 440 S.W.3d

756, 767 (Tex. App.—El Paso 2013, no pet.).

When reviewing the evidence for legal sufficiency, we view all the evidence in the light

most favorable to the trial court’s findings and judgment, and we determine whether the evidence

is such that a fact finder could reasonably form a firm belief that termination was in the best interest

of the child. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We resolve any disputed facts in

favor of the trial court’s findings so long as a reasonable fact finder could have done so, and we

disregard all evidence a reasonable fact finder could have disbelieved. Id. In other words, 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 do not weigh witness

credibility if it depends on the appearance and demeanor of the witness because such issues are

within the domain of the trier of fact. Id. Even if credibility issues are found in the appellate

record, we must defer to the fact finder’s reasonable determinations. Id.

When reviewing the evidence for factual sufficiency, we consider whether the evidence is

such that a reasonable fact finder could have reasonably formed a firm belief or conviction in the

truth of the trial court’s findings. Id. (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We

give due deference to the fact finder’s findings and avoid substituting that judgment for our own.

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Just as in a legal sufficiency review, the

determination of a witness’s credibility and demeanor is made by a trier of fact, and we cannot

second guess the fact finder’s resolution of factual disputes. Id.

Best Interests — Substantive Law

Courts take into account a number of presumptions and factors when determining whether

the termination of the parent-child relationship is in the best interest of a child. In re R.R., 209
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S.W.3d 112, 116 (Tex. 2006) (per curiam); see also TEX. FAM. CODE ANN. § 263.307(a). As for

applicable presumptions, there is a strong presumption that maintaining the parent–child

relationship is in a child’s best interest. R.R., 209 S.W.3d at 116. Courts also presume, however,

that promptly and permanently placing a child in a safe place in a timely manner is in the child’s

best interest. See TEX. FAM. CODE ANN. § 263.307(a). Accordingly, although parental rights are

of constitutional magnitude, they are not absolute. Jordan v. Dosey, 325 S.W.3d 700, 729 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied).

As for applicable factors to consider, in Holley v. Adams, the Texas Supreme Court set

forth the following nonexclusive factors (collectively, “the Holley factors”) that courts may take

into account when reviewing the sufficiency of the evidence to support a best interest finding. 544

S.W.2d 367, 371–72 (Tex. 1976). These factors 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 the existing parent–child
relationship is not a proper one; and

9. any excuse for the acts or omissions of the parent.

Id. These factors are nonexhaustive, and evidence is not required on all of them to support a

finding that termination of parental rights is in a child’s best interest. See In re C.H., 89 S.W.3d

17, 27 (Tex. 2002); Holley, 544 S.W.2d at 371–72. The absence of evidence as to some of the
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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. C.H., 89 S.W.3d at 27. In some cases, evidence

of merely one factor may suffice as support of a finding that termination is in the best interest of a

child. Jordan, 325 S.W.3d at 729 (citing C.H., 89 S.W.3d at 27). Moreover, the same evidence

used to prove acts or omissions under section 161.001(1) of the Code may be probative in

determining the best interest of a child. C.H., 89 S.W.3d at 28 (citing Holley, 544 S.W.2d at 370;

Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)).

Section 263.307(b) of the Texas Family Code also sets out factors courts may consider

when evaluating whether a parent is willing and able to provide the child with a safe environment,

including: (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.
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§ 263.307(b); R.R., 209 S.W.3d at 116; 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.).

Finally, when conducting a best interest analysis, courts “may consider circumstantial

evidence, subjective factors, and the totality of the evidence as well as the 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)). A fact finder may judge a parent’s future conduct by her past conduct to determine

whether termination of the parent–child relationship is in the best interest of the child. Id.

Best Interests — Application

As indicated above, Mother and Father assert the evidence is legally and factually

insufficient to support the trial court’s finding that termination was in the children’s best interests.

According to Father, the Department’s case was based on the children’s alleged failure to thrive,

April’s leg injury, and allegations of domestic violence, each of which he contends was not proven

by sufficient evidence. Mother, however, argues there was no evidence as to several of the Holley

factors, and therefore, there was insufficient evidence to support the trial court’s finding that

termination was in the children’s best interests. We disagree with Father and Mother.

As mentioned above, a court need not find evidence of each Holley factor before it

terminates a parent–child relationship. See C.H., 89 S.W.3d at 27. The absence of evidence as to

one or more of the Holley factors does not prohibit a court from reasonably forming a strong

conviction or belief that termination is in a child’s best interest. Id. Here, we hold the evidence

that does exist is legally and factually sufficient to support the trial court’s finding that it was in

the children’s best interests to terminate both Mother’s and Father’s parental rights.

1. Desires of the Child

At the time of trial, Annie, April, and Ariel were three, two, and one-year-old, respectively,

and unable to indicate their desires as to placement. See TEX. FAM. CODE ANN. § 263.307(b)(1)
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(child’s age and physical and mental vulnerabilities); Holley, 544 S.W.3d at 371–72. According

to the children’s foster mother, the children never talked about Mother, Father, or returning home.

The children’s foster mother testified that before visiting Mother and Father, the children did not

express any opinion as to whether they wanted to visit their parents. And, although sometimes the

children became a little reluctant when they arrived to see their Mother and Father, for the most

part, the children were indifferent. Thus, the children’s ages render the first Holley factor — the

children’s desires — immaterial. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.3d

at 371–72; see also In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no

pet.) (concluding that age of child — one-year-old — rendered consideration of desire neutral).

2. Emotional and Physical Needs of Child Now and in the Future

With regard to the children’s emotional and physical needs, the Department produced

evidence that two of the children were malnourished as a result of their parents’ neglect. See TEX.

FAM. CODE ANN. § 263.307(b)(4) (child’s age and physical and mental vulnerabilities); id.

§ 263.307 (b)(12) (child’s family demonstrates adequate parenting skills); Holley, 544 S.W.3d at

371–72. The record reflects the Department became involved with the family after receiving

reports that Annie and April were significantly underweight. As part of its investigation, the

Department visited the family and took photographs of the children, which were forwarded to Dr.

Shalon Nienow, a pediatrician who specializes in child abuse and neglect at the San Antonio

Children’s Hospital.

Dr. Nienow testified that after reviewing the photographs, she asked to examine Annie and

April. Dr. Nienow testified she examined the children during the course of the family-based

service plan and concluded they were “extraordinarily underweight.” The doctor stated their

weight conditions were “very concerning” because the children ranked well below the third

percentile of other children their age. With regard to April, Dr. Nienow pointed out she
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“especially, was really little [and] had hanging skin folds in her armpits, and her butt skin was kind

of sagging which we see in kids who have no subcutaneous fat.”

In addition to these physical signs of malnourishment, Dr. Nienow testified Annie and

April exhibited signs of developmental delay. Specifically, April, who was two-years-old at the

time of the visit, could not speak and just started walking, an ability most children achieve when

they are between ten and fourteen-months-old. Dr. Nienow also testified April was not crawling,

cruising, or pulling herself to stand, indicating she was considerably developmentally delayed.

According to Dr. Nienow, the children’s growth charts indicated the children’s malnourishment

must have existed for a prolonged period of time because they measured significantly below

normal in all areas of growth — weight, height, and head circumference.

The record reflects that as a result of the exams, Dr. Nienow admitted Annie and April to

the hospital for four days where they received nutritional supplements and gained “exorbitant

amounts of weight.” When the children were discharged from the hospital, the parents were given

a prescription for Pediasure, a nutritional supplement, and referred to the Women, Infants, and

Children’s Program (“WIC”) to obtain the supplement at no cost and to Early Childhood

Intervention (“ECI”) services so the children could receive physical and occupational therapy.

According to Dr. Nienow, she saw the children for a follow-up visit and learned the parents had

not made arrangements with WIC or ECI for the children to receive their nutritional supplements

and therapy. Dr. Nienow testified she called the WIC office that day and made arrangements for

the parents to receive the prescribed Pediasure; however, the parents never went to the WIC office

to retrieve it. Dr. Nienow testified she was highly concerned the parents took no responsibility for

the children’s malnutrition. Dr. Nienow stated she asked Mother whether the children were being

fed differently, and Mother informed her the children were eating just as they had before,

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suggesting no changes had been made. Dr. Nienow testified she did not see the children again

before the Department was granted temporary custody.

After hearing testimony from Dr. Nienow, the trial court heard testimony from Mother

regarding the children’s weight. Mother testified she recognized Annie and April were

underweight and addressed the issue with the family’s pediatrician. Mother testified the family

pediatrician instructed her to switch baby formulas for Annie; however, it made the situation

worse, so she switched Annie back to her old formula. Mother added she believed Annie’s weight

issues had been resolved prior to Annie’s exam with Dr. Nienow. When asked about April, Mother

could not recall what steps were taken to address April’s weight issues. However, as indicated

above, Dr. Nienow testified both children were significantly underweight at the time of the exam.

Lastly, Mother testified she was unable to utilize WIC or ECI services due to transportation issues.

Here, the evidence undisputedly shows Annie and April displayed signs of dramatic weight

loss and lack of growth — specifically height and head circumference. Such evidence indicates

they were deprived of proper nourishment for a prolonged period of time. The evidence also

establishes that neither parent fully understood the significance of Annie’s and April’s

malnourishment. Thus, consideration of the second Holley factor — emotional and physical needs

of the children now and in the future — weighs in favor of termination. See TEX. FAM. CODE ANN.

§ 263.307(b)(4); id. § 263.307 (b)(12); Holley, 544 S.W.3d at 371–72.

3. Emotional and Physical Danger to Child Now and in the Future

A child’s emotional and physical well-being is endangered when he or she is exposed to

loss or injury or his or her emotional or physical health is jeopardized. In re T.R.M., No. 14-14-

00773-CV, 2015 WL 1062171, at *6 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, no pet.)

(mem. op.). Here, in addition to testimony of neglect in the context of malnourishment, the trial

court heard evidence regarding child endangerment, including additional instances of neglect,
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domestic violence, and Father’s dangerous lifestyle. See TEX. FAM. CODE ANN. § 263.307(b)(4)

(whether child victim of repeated harm after Department intervention); id. § 263.307(b)(7) (history

of abusive or assaultive conduct by child’s family); Holley, 544 S.W.3d at 371–72.

a. Additional Instances of Neglect

As mentioned above, the Department discontinued family-based services and initiated the

termination action after April severely injured her leg. During trial, both parents testified April

fell off a bed; however, Dr. Nienow testified the parents’ explanation was unlikely.

Mother testified she put the children down for a nap, but soon after, Father informed her

the children were awake. Mother testified that when she and Father went to check on the children,

they discovered April on the floor, crying. According to Father, April must have been trying to

climb off the bed and her leg became caught in the gap between the mattress and bed frame.

However, after reviewing April’s X-rays, Dr. Nienow testified Father’s explanation was highly

unlikely because April could not walk, and therefore, would not have been able to climb off the

bed “feet first.” Dr. Nienow opined April would “go head first and would suffer some injury to

the head or arms.”

Nevertheless, whether Father or Dr. Nienow was correct, the evidence shows the young

children were left unsupervised on an adult bed which was several feet off the ground and had a

large gap between the mattress and bedframe. Such evidence suggests parental failure to protect

the children from danger. See TEX. FAM. CODE ANN. § 263.307(b)(4); id. § 263.307 (b)(12);

Holley, 544 S.W.3d at 371–72; see also In re J.P., No. 02-12-00121-CV, 2012 WL 5949492, at

*10 (Tex. App.—Fort Worth Nov. 29, 2012, no pet.) (mem. op.) (concluding evidence of child

suffering tibia fracture as result of neglectful supervision was sufficient evidence for best interest

finding).

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b. Domestic Violence

Moreover, the Department produced evidence that Annie and April were exposed to

episodes of domestic violence between Mother and Father. See TEX. FAM. CODE ANN.

§ 263.307(b)(7). San Antonio Police Officer Matthew Porter testified he met Mother after

responding to a domestic violence call. Officer Porter testified Mother was visibly upset and

shaken because according to Mother, she and Father had been arguing all day. Officer Porter

testified Mother told him Father slapped her on the right side of her face and punched her in her

throat. Officer Porter added that Mother’s injuries were visible, particularly the redness and

swelling on her face.

Ms. Rodriguez, the Department caseworker, also testified that during the course of the

service plan, Mother called her, stating Father confronted her at her work, knocked items off the

shelves, and told her he was going to “mess up her CPS case.” Ms. Rodriguez testified Mother

acknowledged Father would physically abuse her while the children were in her care, and as a

result, she was fearful because Father was controlling. At trial, however, Mother retracted her

prior claims of domestic violence, claiming she lied to Officer Porter about Father’s actions

because Father did not intentionally hit her, and with regard to the work incident, she called the

police only because her supervisor requested she call.

The trial court also heard evidence from two domestic violence counselors who met with

the couple. In accordance with the service plan, both Father and Mother were required to attend

domestic violence counseling sessions; however, Father only attended three sessions before

“disappearing,” resulting in his discharge from the program. At trial, both counselors testified

Father was reluctant to participate in the counseling sessions and exhibited signs of denial about

the abuse. As a result, Father did not make any progress during any of his counseling sessions.

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As for Mother, both counselors testified Mother showed “some progress,” but lacked the ability to

protect her children given she reunited with Father during the course of the treatment.

Evidence of the parents’ history of domestic violence supports the trial court’s best interests

finding. See In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

(stating domestic violence supports finding that termination is in child’s best interest even when

child is not victim of violence). “A parent’s abusive or violent conduct can produce a home

environment that endangers a child’s well-being.” T.R.M., 2015 WL 1062171, at *6. Specifically,

instances of domestic violence may be considered evidence of endangerment. Id. Moreover, a

parent’s continued exposure to the other parent’s dangerous conduct is also evidence of

endangerment and a relevant consideration in determining a child’s best interest. In re O.N.H.,

401 S.W.3d 681, 684–85 (Tex. App.—San Antonio 2013, no pet.) (considering parent’s exposure

to other parent’s drug habits as relevant factor in determining child’s best interest).

In this case, the trial court could have reasonably concluded that Father’s refusal to address

the domestic violence issue, and Mother’s willingness to remain in a violent relationship,

suggested similar conduct would occur in the future, thereby constituting evidence of emotional

and physical danger to the children now and in the future. See TEX. FAM. CODE ANN.

§ 263.307(b)(7); Holley, 544 S.W.3d at 371–72. We conclude such evidence weighs against any

finding that Father or Mother have the ability to provide the children with a safe environment. See

TEX. FAM. CODE ANN. § 263.307(b)(7); Holley, 544 S.W.3d at 371–72; see also In re J.D., No.

02-11-00328-CV, 2012 WL 3115804, at *19 (Tex. App.—Fort Worth Aug. 2, 2012, no pet.) (mem.

op.) (construing Mother’s willingness to remain with abusive partner as sufficient evidence of

Mother’s inability to provide child with safe environment); In re K.A.S., 131 S.W.3d 215, 226

(Tex. App.—Fort Worth 2004, pet. denied) (concluding ongoing abuse between Father and Mother

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resulted in emotional problems for children and weighed against parents’ ability to provide danger-

free environment).

c. Father’s Dangerous Lifestyle

Finally, the record contains evidence that Father was engaged in a dangerous lifestyle.

Father testified he could not recall how many times he had been arrested — “[m]aybe like two or

three times” — during his adult lifetime. The Texas Supreme Court has recognized that a pattern

of arrest is a relevant factor in a best interests analysis. See Boyd, 727 S.W.2d at 534; see also In

re M.A.R, No. 04-01-00573-CV, 2002 WL 31015267, at *2 (Tex. App.—San Antonio Sept. 11,

2002, no pet.) (not designated for publication). Here, Father testified he had been arrested for

theft, possession of marijuana and cocaine, possession of an illegal weapon, and failure to identify.

The evidence also established Father, as well as Father’s family, has a history of gang

involvement. This court has held that a parent’s criminal background, gang affiliation, and

violence is evidence relevant to a best interest determination. See M.A.R., 2002 WL 3105267, at

*2. The record reflects Father was involved in several incidents in which he and his family were

violently attacked. Father testified four men shot his father when Father was visiting his family,

and on another occasion, his half-brother stabbed his brother and father and also tried to shoot him.

In light of the evidence set forth above, we conclude the evidence reasonably supports a trial

court’s finding that it would not be in the children’s best interests to remain with Father and

Mother. See TEX. FAM. CODE ANN. § 263.307(b)(7); Holley, 544 S.W.3d at 371–72.

4. Parental Abilities

As to Mother’s and Father’s parental abilities, the evidence shows Mother and Father failed

to demonstrate a positive change during the course of their involvement with the Department. See

TEX. FAM. CODE ANN. § 263.307(b)(11) (willingness and ability of child’s family to effect positive

environmental and personal changes within reasonable time period); id. § 263.307(b)(12) (whether
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child’s family demonstrates adequate parenting skills); Holley, 544 S.W.3d at 371–72. A volunteer

with Child Advocates of San Antonio (“CASA”) testified she observed the parents during their

visits with the children at the Department’s offices. She testified the parents did not play or interact

with the children and would need to be regularly reminded to change the children’s diapers. The

volunteer opined neither parent exhibited any proactive parenting skills and both appeared

overwhelmed. She also testified Father failed to attend any visits when Mother and Father had

temporarily separated. Similarly, Ms. Rodriguez testified the parents were distant and Father did

not regularly see the children during the scheduled visitation time. Such evidence indicates neither

Mother nor Father were able to provide appropriate care for their children. See TEX. FAM. CODE

ANN. § 263.307(b)(11); id. § 263.307(b)(12); see also In re Z.R.M., No. 04-15-00063-CV, 2015

WL 4116049, at *6–*7 (Tex. App.—San Antonio July 8, 2015, no pet.) (concluding that evidence

of mother arriving late or failing to attend visits impacted child’s emotional well-being).

Ms. Rodriguez also testified Mother, who was pregnant with a fourth child, 3 did not receive

prenatal care until five months into her pregnancy and did not regularly follow up with a doctor

during the course of her pregnancy. Mother’s failure to obtain prenatal care in a timely manner in

combination with her failure in obtaining the nutritional supplements for her current children

demonstrates her lack of parental abilities. See Smith v. Tex. Dep’t of Family and Protective Servs.,

Nos. 01-09-00173-CV & 01-09-00390-CV, 2009 WL 4359267, at *12 (Tex. App.—Houston [1st

Dist.] Dec. 3, 2009, no pet.) (mem. op.) (holding that Mother’s failure to obtain prenatal care for

child weighed in favor of termination). Accordingly, we hold the evidence produced was sufficient

3
At the beginning of trial, the trial court learned Mother gave birth to a fourth child, who is not subject to this
termination proceeding. However, the Department initiated termination proceedings as to this fourth child, and at the
conclusion of the trial, the trial court appointed the Department as temporary managing conservatorship of this child.

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for the trial court to conclude that Mother’s and Father’s lack of parental abilities weighed in favor

of termination.

5. Programs Available to Assist Parents

The record establishes that when the Department became involved with the family, it

provided Mother and Father with a family-based service plan, outlining the tasks they needed to

complete to avoid termination of their parental rights. See TEX. FAM. CODE ANN. § 263.307(b)(10)

(willingness and ability of child’s family to seek out, accept, and complete counseling services);

id. § 263.307(b)(11); Holley, 544 S.W.3d at 371–72. However, both parents failed to adhere to

the family-based service plan implemented by the Department and as a result, April was injured.

At that time, the parents were allowed supervised visits with Annie and April, who were being

cared for by a relative. Nevertheless, the record reflects neither parent was supervised by the

relative when April was injured.

The record also establishes that when the trial court granted the Department temporary

custody of the children, the Department provided Mother and Father with a service plan, detailing

the steps they needed to take to attain reunification with the children. See TEX. FAM. CODE ANN.

§ 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.3d at 371–72. The plan provided

information concerning resources and providers to assist the parents in completing the plans. The

evidence, however, shows Mother and Father failed to complete several tasks outlined in their

service plans and failed to comply with certain directions in the plans. The record reflects Father

failed to successfully complete his service plan and expressed reluctance to participate in numerous

services offered to him. According to Father, he was unable to actively participate in the service

plan due to work obligations; however, both Ms. Rodriguez and the CASA volunteer testified

Father was disengaged, often blaming the Department for his current situation. And, as indicated

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above, Father did not complete his domestic violence counseling sessions, and both counselors

reported his lack of progress.

Moreover, the evidence establishes Mother did not successfully complete the service plan

in that she: (1) failed to complete certain aspects of the plan — maintain appropriate employment,

become financially stable, or obtain appropriate housing; and (2) failed to implement the

knowledge gained from the programs she did complete. See In re M.C., No. 04-14-00805-CV,

2015 WL 2375980, at *14 (Tex. App.—San Antonio May 18, 2015, no pet.) (stating Mother’s

failure to apply knowledge learned from domestic violence classes weighs in favor of termination).

In addition, both Dr. Nienow and Ms. Rodriguez testified as to their concerns regarding Mother’s

lack of understanding regarding Annie’s and April’s nourishment issues. There was also concern

about Mother’s decision to remain in an abusive relationship with Father. Based on the foregoing

evidence, the trial court could have determined both parents failed to utilize programs offered by

the Department, which weighs against reunification. See TEX. FAM. CODE ANN. § 263.307(b)(10);

id. § 263.307(b)(11); Holley, 544 S.W.3d at 371–72.

6. Plans for Children/Stability of Home or Proposed Placement

The trial court heard evidence that all three children are in a safe and stable foster home

with a family who has demonstrated the ability to care for and manage the children. See Holley,

544 S.W.3d at 371–72. Both foster parents testified they love the children and desire to adopt

them, 4 when given the opportunity. Moreover, the CASA volunteer testified the foster home is a

“very loving atmosphere,” highlighting the fact that the children were more affectionate with their

foster parents than with their biological parents. “When a prospective adoptive parent is standing

in the wings, ready and willing to adopt the child, courts are more likely to find that termination is

4
Both foster parents also expressed interest in fostering Mother’s fourth child, who, as indicated above, is not a subject
of this appeal.

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in the children’s best interest.” See Smith, 2015 WL 4359267, at *13. Here, the evidence shows

a foster family is readily available to adopt the children and provide them with a loving home,

weighing in favor of termination. See id.

7. Parent’s Acts or Omissions

Finally, with regard to the last two Holley factors — parent’s acts or omissions that indicate

current parent-child relationship is improper and parent’s excuses for such omissions — the

evidence set forth above establishes Annie and April were unsupervised and severely

malnourished while in both parents’ custody. See Holley, 544 S.W.3d at 371–72. When the

children were removed from the parents’ custody, the Department implemented a service plan to

help Mother and Father become suitable parents. However, neither parent completed the service

plan outlined for them nor did they utilize the WIC or ECI resources provided to help their

children’s nutritional issues. Despite the fact both parents were aware the return of their children

was conditioned on completion of the service plan, both parents cited transportation issues or work

obligations as excuses for not meeting their service plan goals. Moreover, the evidence revealed

Father’s criminal history, gang involvement, as well as abusive conduct toward Mother. Both

domestic violence counselors and Ms. Rodriguez testified as to their concerns that there was

domestic violence in the home and Mother continually exposed her children to it, reuniting with

Father during the course of the Department’s involvement.

CONCLUSION

After reviewing the evidence above in light of the Holley and statutory factors, and

indulging the necessary presumptions, we conclude the trial court could have reasonably formed

a firm belief or conviction that termination was in the children’s best interests. See J.P.B., 180

S.W.3d at 573. The trial court was permitted to consider the direct and circumstantial evidence,

and when reviewing such evidence, we must defer to the trial court’s reasonable determinations.
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Id. Although Mother and Father denied the Department’s allegations of neglect and testified they

attempted to comply with the Department’s requirements, the trial court was permitted to weigh

witness credibility determinations, and again, we must resolve any conflicting testimony in favor

of the trial court’s ultimate findings. See id. We therefore hold the trial court did not abuse its

discretion in finding termination of Father’s and Mother’s parental rights would be in their

children’s best interests, and we affirm the trial court’s termination order. See A.S., 2014 WL

5839256, at *2.

Marialyn Barnard, Justice

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