Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00520-CV
In the Interest of N.R.T., C.C.T., A.T., Children
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-16-59
Honorable Selina Nava Mireles, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: January 2, 2019
AFFIRMED
Appellant Mother appeals the trial court’s order terminating her parental rights to her
daughters, Cara and Alice. 1 Mother challenges the sufficiency of the evidence supporting the trial
court’s finding that termination was in the children’s best interest as well as the sufficiency of the
evidence supporting the statutory predicate grounds for termination. We affirm the trial court’s
order.
1
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents
as “Mother” and “Father” and the children by aliases. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P.
9.8(b)(2). We refer to N.R.T. as “Nathan,” C.C.T. as “Cara,” and A.T. as “Alice.” At the time of the original petition,
Nathan was seventeen years’ old. Nathan turned eighteen before the trial and was no longer a subject of the suit. A
fourth child, who was over the age of eighteen at the time of the original petition and also not a subject of the suit, is
referred to as “Matthew.”
04-18-00520-CV
BACKGROUND
On March 14, 2016, the Texas Department of Family and Protective Services
(“Department”) filed a petition to terminate parental rights. In the supporting affidavit,
Department caseworker Celia Banda states the Department received a referral on March 8, 2016,
alleging neglectful supervision against Mother. According to the affidavit, Nathan, Cara, and
Alice informed Banda they witnessed “significant domestic violence.” Nathan and Cara also told
Banda that they witnessed their parents using marijuana, and Cara reported finding cut straws with
powder residue in her parents’ laundry. Banda further asserted in the affidavit that Mother evicted
the children and Father from their home and put the children’s clothing in the front yard.
The Department developed a service plan for Mother, which became the trial court’s order
on May 13, 2016. The service plan required that Mother successfully complete parenting, anger
management, and Turning Points 2 classes; undergo psychological evaluation and substance abuse
assessment and follow through with the resulting recommendations, including substance abuse
counseling; submit to random drug testing; participate in individual counseling; take part in parent-
child visitation; establish a stable, safe, and drug-free home; and refrain from criminal activity.
The trial court held a bench trial, and on July 6, 2018, signed an order which awarded
Father possessory conservatorship of Cara and Alice and terminated Mother’s parental rights to
both children. This appeal followed.
ANALYSIS
Mother contends the evidence is legally and factually insufficient to support the trial court’s
finding of statutory grounds for termination of her parental rights pursuant to Texas Family Code
sections 161.001(b)(1)(D), (E), and (O). Mother additionally contends the evidence is legally and
2
During her testimony, caseworker Barbara Bernal explained that Turning Points facilitates domestic violence classes.
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factually insufficient to support the trial court’s finding that termination of her parental rights is in
the best interest of the children.
Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family 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 children.
See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In this case, the trial court found evidence of three predicate grounds to terminate Mother’s parental
rights. 3 The trial court also found termination of Mother’s parental rights was in the best interest
of the children.
When reviewing the sufficiency of the evidence, we apply the well-established standards
of review for both legal and factual sufficiency. See TEX. FAM. CODE ANN. §§ 101.007,
161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency); In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).
Statutory Grounds for Termination
“Only one predicate finding under Section 161.001[(b)](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best interest.”
In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.) (citing In re A.V., 113
S.W.3d at 362). “If multiple predicate grounds are found by the trial court, we will affirm based
on any one ground because only one is necessary for termination of parental rights.” In re K.W.,
3
The trial court found evidence Mother “knowingly placed or knowingly allowed the children to remain in conditions
or surroundings which endanger the physical or emotional well-being of the children[;] … engaged in conduct or
knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-
being of the children,[;] … [and] failed to comply with the provisions of a court order …[.]” See TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E), (O).
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335 S.W.3d at 769 (quoting In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.)).
In her brief, Mother challenges only the sufficiency of the evidence relating to the trial court’s
findings with respect to subsections 161.001(b)(1)(D) and (E). Mother does not challenge the trial
court’s finding with respect to subsection 161.001(b)(1)(O). Because this ground can support the
order of termination, it is unnecessary for us to review the legal and factual sufficiency arguments
as to the other grounds. Id. at 769–70; In re D.P.R.V., No. 04–09–00644–CV, 2010 WL 2102989,
at *1 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.) (citing In re A.V., 113 S.W.3d
at 362); In re D.S., 333 S.W.3d at 388–89 (appellate court bound by unchallenged findings
supporting termination).
Accordingly, we overrule Mother’s complaints regarding the sufficiency of the evidence
to support the trial court’s findings of statutory grounds for termination of her parental rights.
Best Interests
In determining whether a child’s parent is willing and able to provide the child with a safe
environment, we consider the factors set forth in Family Code section 263.307(b). See TEX. FAM.
CODE ANN. § 263.307(b). We also apply the non-exhaustive Holley factors to our analysis. 4 See
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Evidence that proves one or more statutory
ground for termination may also constitute evidence illustrating that termination is in the child’s
best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative
of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the
State of its burden to prove best interest). “A best interest analysis may consider circumstantial
4
These factors include: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any
present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6)
the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper;
and (9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In
re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
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evidence, subjective factors, and the totality of the evidence as well as the direct evidence.” See
In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact
may measure a parent’s future conduct by his past conduct and determine whether termination of
parental rights is in the child’s best interest.” Id.
DISCUSSION
Mother testified her household was normally peaceful and loving. Mother acknowledged
her behavior was not always the best for her children, but she explained that when she used
marijuana or fought with Father, it was outside the children’s presence. The affidavit in support
of removal, however, relates that Nathan and Cara told Banda that they saw Mother using
marijuana and witnessed physical fights between Mother and Father.
Mother “possibly” recalled that she was arrested in February 2016 following a physical
altercation with Father. However, Mother declared the incident occurred “in our private quarters”
and stated “[i]f I’m at home I have the pleasure of doing whatever I want whenever I want.”
Mother admitted she slapped Matthew – an incident Matthew described as Mother punching him.
Mother further admitted she bit Matthew and Nathan. Mother excused her behavior as having
occurred while she was intoxicated. Mother explained she apologized to her children, but asserted
she was defending herself.
Matthew characterized Mother as becoming frequently enraged and described an incident
during which Mother became physically violent with Father. When Matthew intervened, Mother
began throwing kitchen utensils, dishes, and knives. Matthew attempted to subdue Mother, and
Mother bit him. Nathan then intervened, and Mother bit Nathan as well.
Bernal testified Mother was involved in domestic violence altercations for which the police
were called in both November and December 2016. Mother also admitted she was arrested
following a physical altercation with Father as recently as September 2017. Mother acknowledged
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she grabbed and kicked Father’s genitalia, scratched his neck, ripped his shirt, and slapped his
face. At the time, Mother was already on probation for a previous domestic violence incident. See
In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (relying in
part on “history of assaultive conduct between the mother and the father” in affirming best-interest
finding).
Clinical dependency counselor Alissa Garcia testified the Department referred Mother for
substance abuse counseling in March 2017. A. Garcia testified the last time she met with Mother
was in November 2017. According to A. Garcia, Mother had not demonstrated a change in
behavior. Counselor Lisa Garcia began individually counseling Mother in October 2017, in the
areas of parenting and anger management. L. Garcia testified Mother stopped attending counseling
sessions in December 2017 without providing a reason. L. Garcia also testified she recommended
Mother complete a psychiatric assessment because Mother exhibited signs of paranoia and
delusional thoughts. According to L. Garcia, Mother did not follow through on that
recommendation. Bernal additionally testified Mother did not complete a substance-abuse
treatment program as recommended. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (evidence
that the appellant failed to comply with the court-ordered service plan supported the trial court’s
best-interest determination); see also In re A.H., No. 04–15–00416–CV, 2015 WL 7565569, at *9
(Tex. App.—San Antonio Nov. 25, 2015, no pet.) (mem. op.) (holding failure to complete family
service plan is indicative of failure to prioritize child)
Counselor Paula Mersing testified she began counseling Cara and Alice in March 2016.
Mersing testified Cara and Alice expressed they love Mother. At the time of the trial, Cara was
approximately a month from turning eighteen and close to graduating high school. Mersing
testified Cara informed Mersing that she does not want to be returned to Mother’s care. According
to Mersing, Alice initially stated that she wanted to go home, but “[n]ow … if she doesn’t go back
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home, she’s okay with it.” See In re I.A.M., No. 04-16-00095-CV, 2016 WL 4208126 at *9 (Tex.
App.—San Antonio Aug. 10, 2016, no pet.) (mem. op.) (noting evidence that children expressed
their wishes to remain in their current placement when affirming the trial court’s best-interest
finding).
Mother testified she lived in a trailer belonging to her mother and that she became
employed during the pendency of the trial. Bernal, however, expressed concern regarding
Mother’s ability to provide a stable home, noting that Mother had lived in ten different places since
the date of the original referral. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (concluding
short duration improvements do not necessarily negate long history of irresponsible choices); In
re J.R.W., XX-XXXXXXX-CV, 2013 WL 507325, at *9 (Tex. App.—Houston [14th Dist.] Feb. 12,
2013, pet. denied) (mem. op.) (“A parent who lacks stability, income, and a home is unable to
provide for a child’s emotional and physical needs.”).
Having reviewed the record and considered all the evidence in the appropriate light for
each standard of review, we conclude the trial court could have formed a firm belief or conviction
that termination of Mother’s parental rights was in the children’s best interest. See TEX. FAM.
CODE ANN. § 161.001(b)(2); In re H.R.M., 209 S.W.3d at 108; In re J.P.B., 180 S.W.3d at 573;
see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing an appellate court
need not detail the evidence if affirming a termination judgment).
CONCLUSION
For the foregoing reasons, we affirm the trial court’s order terminating Mother’s parental
rights.
Irene Rios, Justice
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