Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00706-CV
IN THE INTEREST OF R.M.C., a Child
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-00998
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: March 27, 2019
AFFIRMED
This is a parental termination case in which appellants, mother (“Mother”) and father
(“Father”), separately appeal the trial court’s order terminating their parental rights to their child.
On appeal, both Mother and Father argue the evidence is legally and factually insufficient to
support the trial court’s finding that termination was in the best interest of the child. We affirm
the trial court’s order.
BACKGROUND
On May 10, 2017, the Texas Department of Family and Protective Services filed a petition
to terminate Mother’s and Father’s parental rights to R.M.C. Emergency removal was sought due
to the child testing positive for methamphetamines at birth. Mother tested positive for marijuana
and methamphetamines at the hospital.
04-18-00706-CV
Trial on the merits was held on September 25, 2018. At the time of trial, R.M.C. was
approximately sixteen months old. The Department caseworker testified that the Department
prepared a service plan for Mother which was made an order of the court. The caseworker testified
that Mother was not in compliance with her service plan and had failed to complete a domestic
violence program, substance abuse treatment, individual counseling, and had missed all but two of
her drug tests. Father was also ordered to complete a family service plan but was not in
compliance. He failed to complete a domestic violence program, substance abuse treatment,
individual counseling, and couples counseling. The caseworker had a “significant concern” that
both parents were engaging in drug use. They did not consistently test for drugs as required. Both
Mother and Father were asked to test seven times and tested twice; each tested positive for drugs
on one occasion. The caseworker stated that Father tested positive for meth and amphetamines,
and Mother tested positive for meth, amphetamines, and cocaine. Neither parent had tested again
since their positive drug tests on May 30, 2018. In the caseworker’s opinion, the parents had not
addressed their drug issues. The caseworker believed that drug use around a young child such as
R.M.C. was a safety concern. The caseworker did not believe the parents were currently capable
of providing a stable environment for R.M.C. The caseworker was also concerned about domestic
violence in the home based on Father’s prior arrest for family violence where Mother was the
victim.
The caseworker stated the parents had an appropriate home and Father was employed.
They visited their daughter weekly and there were no concerns regarding the appropriateness of
the visits; the caseworker had no concerns about the child’s safety during the visits. The child was
placed with fictive kin, and the placement was open to adopting the child. The Department
attempted to reunify the child with Mother. It is unclear from the testimony, but it appears that on
at least one occasion, the child was returned to Mother and Father for monitored return; the child
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was removed due to the parents’ refusal to drug test and not living at the residence they had
reported to the Department. The caseworker believed that termination of parental rights was in
the child’s best interest in order to establish permanency for the child.
Father testified that he completed drug treatment and family violence training and
individual counseling. He maintained regular visits with the child and had a great, “unimaginable”
bond with his daughter. He stated he missed some drug tests because he works a lot, averaging
70-80 hours a week. Father stated he would never use drugs around his daughter. He has an
apartment and has lived there approximately six months.
Father’s father also testified at trial. He stated Father is loving towards R.M.C. and always
wants to be with her. He testified that Mother was also a good parent who tends to R.M.C.’s every
need. He asked the court to allow the parents to maintain their parental rights.
After hearing the testimony and argument of counsel, the trial court terminated Mother’s
parental rights pursuant to section 161.001(b)(1)(O), (P), and (R). See TEX. FAM. CODE ANN.
§ 161.001(b)(1) (O), (P), (R). The trial court terminated Father’s parental rights pursuant to section
161.001(b)(1)(O) and (P). Id. § 161.001(b)(1)(O), (P). The trial court found that termination of
parental rights was in the best interest of the child. Mother and Father separately appealed to this
court.
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
To terminate parental rights pursuant to section 161.001 of the 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 child.
See id. §§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial
court found clear and convincing evidence of three predicate grounds to terminate Mother’s
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parental rights and two predicate grounds to terminate Father’s parental rights; the trial court also
found termination of both Mother’s and Father’s parental rights was in the best interest of the child.
We evaluate the legal and factual sufficiency of the evidence to support the trial court’s
findings under the standard of review established by the Texas Supreme Court in In re J.F.C., 96
S.W.3d 256, 266-67 (Tex. 2002). Under this standard, the trial court is the sole judge of the weight
and credibility of the evidence, including the testimony of the witnesses. In re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006) (per curiam).
DISCUSSION
Mother and Father argue the evidence is legally and factually insufficient to support the
trial court’s finding that termination was in the best interest of R.M.C. In determining the best
interest 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 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).
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Here, the evidence showed that R.M.C. was born with drugs in her system. As such, the
Department’s primary concern in attempting to reunify the child was that the parents engage in
and complete substance abuse treatment. Yet despite the requirement of drug testing, the parents
failed to submit to testing on five out of seven occasions. And the last time they tested, they were
both positive for drugs. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.]
2016, pet. denied) (noting parent’s drug use supports a finding that termination is in best interest
of the child). Their failure to retest after May 2018 supports an inference that they were continuing
to use drugs.
The evidence further showed both Mother and Father failed to complete most of the
services on their family service plans. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (in
determining the best interest of the child in termination proceedings, the trial court may properly
consider that the parent did not comply with the court-ordered family service plan for reunification
with the child); In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.)
(considering the failure to comply with a family service plan as support for finding that termination
is in child’s best interest).
Although we are sympathetic to the parents’ efforts to regain custody, we hold the trial
court could have, based on the record before us, reasonably formed a firm belief or conviction that
termination of Mother’s and Father’s parental rights is in R.M.C.’s best interest. See In re J.F.C.,
96 S.W.3d at 266. We therefore hold there is legally and factually sufficient evidence to support
the trial court’s best-interest findings.
CONCLUSION
Based on the foregoing, we affirm the trial court’s order terminating Mother’s and Father’s
parental rights.
Rebeca C. Martinez, Justice
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