in the Interest of R.M.P.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-17-00666-CV

IN THE INTEREST OF R.M.P. and J.A.P., Jr., Children

From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00286
Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice

Delivered and Filed: June 13, 2018

AFFIRMED

Appellant appeals the trial court’s order terminating his parental rights to his two children

R.M.P. and J.A.P., Jr., who we will refer to in this opinion by the pseudonyms “Ruth” and “John.”

Appellant challenges the sufficiency of the evidence to support the trial court’s finding that

termination was in the children’s best interest. Appellant also contends the trial court abused its

discretion by failing to include a jury question regarding conservatorship. We affirm the trial

court’s order.

BACKGROUND

On February 4, 2016, no family member could be located to care for Ruth and John after

Appellant’s arrest. Ruth and John were in fifth and second grade, respectively. Both children had

special needs and attended special education classes. Although Appellant was allowed to pick the
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children up after he was released from police custody the same day, 1 the children were removed

from his care the following day after Ruth made an outcry of sexual abuse. Ruth later recanted

the outcry, and her counselor testified she did not believe Appellant had sexually assaulted Ruth.

A jury trial began on August 7, 2017. Appellant, who is seventy-seven years old, was

present and testified at trial. The children’s mother, Roseanna, 2 was not present; her attorney

informed the jury during opening and closing arguments that Roseanna was incarcerated and

suffering from severe health issues, including diabetes and cancer “that is probably going to take

her life within the next year or so.” At the time of trial, Ruth was thirteen, and John was nine.

After hearing two days of testimony from eight witnesses, the jury found both Appellant’s and

Roseanna’s parental rights should be terminated.

STANDARD OF REVIEW AND STATUTORY REQUIREMENTS

To terminate parental rights pursuant to section 161.001 of the Code, the Department has

the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in

subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX.

FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017); In re A.V., 113 S.W.3d 355, 362

(Tex. 2003). The jury was charged on both requirements and found Appellant’s parental rights

should be terminated.

In a legal sufficiency review of findings in a parental termination case, 3 we “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

1
The charge against Appellant was dismissed. Appellant testified he was arrested because he had the same name as
the suspect.
2
Roseanna is not a party to this appeal.
3
Although Appellant challenges both the legal and factual sufficiency of the evidence, he waived his right to complain
about the factual sufficiency of the evidence because he did not file a motion for new trial. TEX. R. CIV. P. 324(b)(2);
In re E.M., 494 S.W.3d 209, 225 (Tex. App.—Waco 2015, pet. denied); In re A.C., 394 S.W.3d 633, 639 (Tex. App.—
Houston [1st Dist.] 2012, no pet.).

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256, 266 (Tex. 2002). “To give appropriate deference to the factfinders conclusions and the role

of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable

to the judgment means that 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 addition, we defer to the factfinder’s

determinations of witness credibility and weight of the evidence as long as they are not

unreasonable. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re F.M., No. 04-16-00516-

CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (“The [trier of fact]

is the sole judge of the weight and credibility of the evidence, including the testimony of the

Department’s witness[es].”). “[W]itness credibility issues that depend on appearance and

demeanor cannot be weighed by the appellate court; the witnesses are not present.” In re J.P.B.,

180 S.W.3d at 573 (internal quotation omitted).

BEST INTEREST FINDING

Appellant challenges the sufficiency of the evidence to support the jury’s finding that

termination was in the best interest of the children. In determining the best interests of a child,

courts apply the non-exhaustive Holley factors to shape their analysis. 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 of 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
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of the parent. Id. The foregoing factors are not exhaustive, and “[t]he absence of evidence about

some of [the factors] would not preclude 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 trier of fact may measure a parent’s future conduct by his past conduct [in] determin[ing]

whether termination of parental rights is in the child’s best interest.” In re E.D., 419 S.W.3d 615,

620 (Tex. App.—San Antonio 2013, pet. denied).

A. Desires of the Children

Appellant testified both children told him they wanted to return home. Ruth told her

counselor she wanted to return home with her brother and father; however, she also told her

counselor she likes her foster home where she had been living since her removal by the

Department. When phone visits were established between Ruth and Appellant, Ruth began

urinating on herself, and her counselor believed there was a correlation. Based on Ruth’s IQ and

special needs, both Ruth’s counselor and the Department’s caseworker testified Ruth is not capable

of deciding where she should live. Although Ruth was thirteen, Ruth’s counselor explained Ruth

has the maturity level of a seven-year-old. Both children want to live with each other.

B. Present and Future Emotional and Physical Needs of and Danger to the Children

Although Appellant testified he understood the children had special needs, he told the

caseworker he believes the children are normal.

Ruth was in fifth grade when she was removed by the Department and has an IQ of 60.

Although Ruth was in special education classes, Appellant did not know the reason she was in the

classes. Appellant believed Ruth’s only diagnosis was for seizures, and “[w]hen she gets over

[the] seizures, she’s okay.” Ruth’s counselor testified Ruth’s diagnoses included bipolar disorder

and depressive disorder with psychotic features. Although thirteen years old, Ruth had the

maturity level of a seven-year-old when dealing with people. As a result, Ruth did not understand
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strangers can be dangerous, and many of her behaviors were to seek attention. Ruth’s counselor

testified Ruth told her that she engaged in attention-seeking behaviors because “she wants people

to talk to her, she wants them to notice her.” Rather than trying to address the reason for the

behaviors, Appellant would give Ruth extra attention. Because of these behaviors, Ruth’s

counselor testified Ruth needs constant supervision.

John was in the second grade when he was removed. Appellant believed John’s diagnoses

were seizures and autism. Appellant denied John had ADHD even though John’s pediatrician

listed ADHD as one of his diagnoses and John was taking medication for ADHD when he was

removed. Appellant denied John was having behavior problems in school; however, the

caseworker testified John’s school records documented problems including his history of

aggression and hitting other students and computers. The caseworker further testified the school

records showed Appellant had signed documents informing him about John’s issues and rages at

school, and the school records showed John was hospitalized in 2014 because of his behavior.

John’s pediatrician recalled that she was told by Appellant that John was doing well in school.

Although Appellant took the children to their medical appointments, Dr. August Saravia, who

treated the children’s seizures, testified doctors are only aware of issues with children if they are

reported. Appellant denied John was ever physically violent and did not recall telling CPS John

just had to ride out the fits when he had them; however, John was so physically aggressive when

he was removed by the Department that he had to be hospitalized, and the Department placed him

at its highest level of care. The caseworker explained the Department has four levels of care: basic,

moderate, specialized, and intense, and John was initially placed at the intense level. The

caseworker testified John became physically aggressive when told “no.” When the caseworker

was transporting John from the hospital to the first residential treatment facility where he was

placed, she told John “no,” and she had to chase him down in the parking lot. After he was in the
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car, John started throwing toys and hitting the car window, almost breaking it, before the

caseworker pulled over. John’s pediatrician also testified John had “significant behavioral

problems,” including “problems with aggression and oppositional behaviors,” and noted Appellant

sometimes gave John extra doses of his medication because of his behavior. John’s pediatrician

also testified John was obese.

Although Appellant testified the caseworker never explained the children’s diagnoses to

him, the caseworker testified the diagnoses were explained to Appellant at family group

conferences, and she had attempted to discuss the children’s special needs with Appellant on

numerous occasions. Appellant was also sent a written copy of the family service plan that listed

all the medical diagnoses of the children and the medications they were taking. The caseworker

testified Appellant does not understand the children’s diagnoses or how to care for them.

C. Parenting Abilities/Programs Available to Assist/Parent’s Acts or Omissions

The Appellant had a history with the Department for neglectful supervision beginning in

2008. On two prior occasions, Appellant was offered services by the Department, and each time

he failed to complete his counseling.

On the day of Appellant’s arrest, he allowed the Department’s investigator to go to his

home to retrieve the children’s medication while he was still in police custody. The investigator

discovered Roseanna in the home which appeared to have been broken into. Because of

Roseanna’s condition and behaviors, the investigator instructed Appellant not to return to the home

with the children after he was released from police custody. Appellant did not follow those

instructions but instead returned with the children to the home. The following day, when the

investigator arrived for a follow-up visit, she observed Roseanna yelling and screaming, crawling

around in front of the house, and throwing things at Appellant and Ruth. Although Appellant

denied Roseanna lived at the home, the children stated she lived there, and the investigator
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observed Roseanna’s belongings in the home. After the children were removed, Appellant denied

on-going contact with Roseanna; however, he allowed Roseanna to talk to Ruth during some of

his telephone calls with Ruth, stating Roseanna was present for the phone calls because “she went

to pick up her mail.” 4 He also took Roseanna with him on one of his monthly visits with John.

Finally, one of Appellant’s therapists testified Roseanna accompanied Appellant to some of his

sessions.

When Appellant was offered services by the Department after the removal, he did not

believe he had anything to learn through services. As a result, Appellant was not receptive to any

of the services offered. Appellant was discharged by three therapists because he refused to engage

in counseling. Appellant was unable to understand that even if Ruth’s outcry was false, the outcry

meant Ruth had issues that needed to be addressed. 5 The caseworker testified Appellant was

unable to process that issues existed that needed to be addressed or that he needed to gain

knowledge regarding the children’s special needs. One of Appellant’s therapists stated Appellant

“didn’t believe he had anything to work on in counseling and didn’t need any support in parenting.”

Although Appellant completed parenting classes, the caseworker testified he was unable to

verbalize anything he learned. When Appellant was asked what he was taught in the classes with

regard to dealing with the children’s special needs, Appellant testified “what were they going to

4
Ruth’s counselor testified Ruth faithfully called Appellant every Friday after the telephone visits were established,
but many times Appellant would not answer the calls.
5
In explaining the reason he believed Ruth made the outcry, Appellant testified when Ruth was ten or eleven, he told
her he was going to call CPS to come and take her away for a few months because she refused to listen to him. Ruth
told Appellant that if he called CPS, “she was going to say something bad about [him].” Appellant further testified as
follows:
Q. And so it’s your position that because you called CPS on [Ruth] in 2014, she waited two
whole years to get back at you for that? That’s what you’re saying?
A. Well, I don’t remember about that. Maybe so.
Q. And you believe that this 12-year-old special needs child of yours was capable of that?
A. Well, I don’t know. Maybe.
Appellant also testified he took Ruth to the hospital to be examined when she made three or four prior allegations of
sexual abuse, and the hospital “said nothing was wrong with her.” Appellant never took Ruth to a counselor to address
the allegations.

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show me that I don’t know, other than giving them the medication.” When Appellant was asked

what he would do differently if the children were returned to his care, Appellant responded, “Well,

now that the kids have grown up more, I don’t see no problem there, ma’am.” Earlier, Appellant

stated he would take care of the children like he has done since they were born. The caseworker

testified his response demonstrates that he does not understand the children’s special needs or the

care the children need.

D. Plans for the Children

Appellant did not have a support system to assist him in caring for the children when he

was arrested. During the pendency of the case, Appellant did not develop a support system.

Instead, Appellant testified he planned to move to California if the children were returned to his

care because he had family in California who would assist him. The Department’s investigator

testified Appellant never mentioned any family in California to her, and the caseworker testified

she was surprised by his testimony. Although Appellant was seventy-seven years old, he could

not recall the last time he saw a doctor and was unable to provide the Department with any

meaningful health information.

Since the children have been in the Department’s care, they have improved. Ruth’s temper

tantrums have improved, and her maturity level has increased from a five-year-old to a seven-year-

old. However, Ruth continues to struggle with attention-seeking behaviors and harming herself

by picking at the skin around her nails until it bleeds. John has also improved. In December of

2016, his level of care was decreased from intense to specialized, allowing him to be moved to a

home-based residential treatment facility. Although John was initially overweight, his last

physical revealed he is physically on target. When the caseworker visited with John the week

before trial, he was not defiant or aggressive, but was polite and well-behaved.

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The Department’s plan was to place John with Ruth in the foster home where Ruth had

lived since her removal. Because John’s condition had sufficiently stabilized, the Department’s

goal was to transition John to the foster home before the school year begins. The caseworker

testified the foster mother is “on board” with John transitioning to her home. The foster mother is

committed to keeping the children long-term but had not committed to adopting them.

Viewing the evidence in the light most favorable to the jury’s verdict, we hold the evidence

is legally sufficient to support the jury’s finding that termination was in the best interest of the

children.

JURY CHARGE

In his second issue, Appellant contends the trial court abused its discretion in failing to

include an instruction in the jury charge “stat[ing] that the Department could have been named as

the Permanent Managing Conservator of the children … [as] an alternative other than just

termination of [Appellant’s] parental rights.” The Department responds the trial court submitted

the controlling question of whether Appellant’s parental rights should be terminated in the form

approved by the Texas Supreme Court in Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647,

648-49 (Tex. 1990). Because the jury charge properly submitted the controlling question, the trial

court did not abuse its discretion in refusing to submit the requested instruction. See In re A.W.,

No. 05-13-01674-CV, 2014 WL 1410545, at *2 (Tex. App.—Dallas Apr. 10, 2014, pet. denied)

(holding trial court does not abuse its discretion in refusing to submit issue regarding

conservatorship where trial court submits controlling question of whether the parent’s rights

should be terminated); Ayala v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00121-CV,

2010 WL 3672351, at *4 (Tex. App.—Austin Sept. 16, 2010, no pet.) (same). Furthermore, given

the jury’s affirmative findings under section 161.001(b), we cannot say Appellant was harmed by

the trial court’s refusal. See TEX. R. APP. P. 44.1(a) (the omission of an instruction is reversible
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error if the omission probably caused the rendition of an improper judgment). Accordingly, we

overrule Appellant’s second issue.

CONCLUSION

The trial court’s order is affirmed.

Sandee Bryan Marion, Chief Justice

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