Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00651-CV
IN THE INTEREST OF A.B.S., a Child
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2018PA01300
Honorable Richard Garcia, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: February 19, 2020
AFFIRMED
R.O. appeals the trial court’s order terminating her parental rights to A.B.S. The sole issue
presented on appeal is whether the evidence is legally and factually sufficient to support the trial
court’s finding that termination was in A.B.S.’s best interest. 1 We affirm the trial court’s order.
BACKGROUND
On June 15, 2018, the Texas Department of Family and Protective Services filed a petition
to terminate R.O.’s parental rights to A.B.S. On August 2 and 29, 2019, a bench trial was held.
The trial court terminated R.O.’s parental rights, and she appeals.
1
R.O. also contends that if “the trial court’s termination order is reversed on appeal, the trial court’s conservatorship
order should also be reconsidered.”
04-19-00651-CV
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
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 child.
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 clear and convincing evidence of the following four predicate
grounds under subsection 161.001(b)(1) to terminate R.O.’s parental rights: (1) knowingly placed
or knowingly allowed A.B.S. to remain in conditions or surroundings which endangered her
physical and emotional well-being; (2) engaged in conduct or knowingly placed A.B.S. with
persons who engaged in conduct which endangered her physical or emotional well-being; (3) had
her parent-child relationship terminated with respect to another child based on a finding that her
conduct was in violation of subsection 161.001(b)(1)(D) or (E) of the Texas Family Code, or a
substantially equivalent provision of the law of another state; and (4) failed to comply with the
provisions of a court order establishing the actions necessary to obtain A.B.S.’s return. See TEX.
FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (M), (O); see also In re C.H., 89 S.W.3d 17, 28 (Tex.
2002) (noting evidence that proves one or more statutory grounds for termination may be probative
in proving termination is in the child’s best interest). The trial court also found clear and
convincing evidence that terminating R.O.’s parental rights was in A.B.S.’s best interest.
We evaluate the legal and factual sufficiency of the evidence to support the trial court’s
findings under the standards of review established by the Texas Supreme Court in In re J.F.C., 96
S.W.3d 256, 266-67 (Tex. 2002). Under these standards, “[t]he trial court is the sole judge of the
weight and credibility of the evidence, including the testimony of the Department’s witnesses.” In
re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017,
no pet.) (mem. op.).
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BEST INTEREST FINDING
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 at 27. “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.B.S. was removed from R.O.’s care on June 15, 2018, when she was seven months old.
Two months before A.B.S.’s removal, R.O.s’ rights were terminated to five of her other children,
and A.B.S.’s father, A.S., was the father of two of those children. The order terminating R.O.’s
parental rights to those children was admitted as evidence. R.O.’s rights were terminated under
subsections 161.001(b)(1)(D), (E), and (P), 2 and R.O. testified the termination was due to domestic
violence between A.S. and her.
2
As previously noted, R.O.’s rights to A.B.S. were also terminated under subsections 161.001(b)(1)(D) and (E).
Subsection 161.001(b)(1)(P) relates to the use of a controlled substance, and the Department’s caseworker testified
drug use by R.O. was not a concern in the instant case.
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At the time of trial, A.B.S. was almost two years old and too young to express her desires.
However, A.B.S. lived with the same foster family since her removal, and the Department’s
caseworker and A.B.S.’s foster mother testified regarding the strong bond that exists between
A.B.S. and her foster family. In re M.D.M., 579 S.W.3d 744, 770 (Tex. App.—Houston [1st Dist.]
2019, no pet.) (“Evidence that a child is well-cared for by a foster family or a proposed adoptive
placement, is bonded to the proposed placement, and has spent minimal time in the presence of
the child’s parent is relevant to the best interest determination and, specifically, is relevant to the
child’s desires.”).
A.B.S.’s occupational therapist testified A.B.S. is developmentally delayed due to sensory
issues and described A.B.S. as a special needs child in need of elevated parenting. A.B.S.’s foster
mother, who has a background in nursing, first identified A.B.S.’s sensory issues and requested
the occupational therapy. Because of her sensory issues, a regular, consistent routine and a calm
environment with minimal distractions and extraneous stimuli are important for A.B.S.’s
development. A.B.S. is progressing in therapy, but her sensory issues are ongoing. A.B.S.’s
occupational therapist testified that experiencing trauma, such as domestic violence, contributes to
a child’s sensory issues and would cause any progress to relapse.
Prior to A.B.S.’s removal, the Department developed a safety plan for A.B.S. The
Department’s caseworker testified one of the issues requiring a safety plan was domestic violence.
When the safety plan was implemented, R.O. was living at her mother’s apartment, and the
manager of the apartment complex agreed to be a part of the safety plan which required no contact
with A.S. The day after the safety plan was implemented, A.S. was seen with R.O. at the complex,
and one of employees of the complex, who knew about the terms of the safety plan, reported A.S.’s
presence to the Department. R.O. denied violating the safety plan and stated the Department failed
to tell A.S. he was not allowed to return to the complex.
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When asked about the reason A.B.S. was removed from her care, R.O. testified she got into
a fight with her little brother, and the Department removed A.B.S. the following day based on its
belief that she was involved in an altercation with A.S. R.O. admitted, however, that A.S. was
arrested for assaulting her.
On June 20, 2019, R.O. was involved in a fight with the mother of another of A.S.’s
children. R.O. was four or five months pregnant at that time with another child fathered by A.S.
Around July 4, 2019, while living at her mother’s apartment, R.O. was a witness to a crime
when a person kicked in the door to another resident’s apartment. The next day, R.O. was a witness
to a second crime when someone shot at the other resident’s apartment. R.O. denied being present
at the other resident’s apartment at the time of the shooting; however, the manager of the apartment
complex testified R.O. was inside the apartment at the time of the shooting. A.S. was also present
on both days.
Although A.S. abused R.O., the evidence established she continued to be in an ongoing
relationship with him. See In re K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at *24 (Tex.
App.—Houston [1st Dist.] Mar. 19, 2019, no pet.) (mem. op.) (“The children’s exposure to
domestic violence in the home undermines the safety of the home environment and is relevant in
determining the best interest of the children.”). On August 15, 2019, which was two weeks before
the second day of trial, A.S. drove R.O. to her visit with A.B.S. A week before the second day of
trial, R.O. prematurely gave birth to another baby, and A.S. is the father of the baby. Although
the baby remained hospitalized, R.O. was released from the hospital two days after the birth. The
Department’s investigator for the baby’s case saw R.O. and A.S. together at the hospital, and the
hospital reported additional concerns regarding A.S. to the Department.
R.O.’s counselor testified R.O. has not been successful in her treatment plan or in reaching
her treatment goals, which included maintaining financial stability and a stable home and learning
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appropriate parenting skills. R.O. began treatment with the counselor on January 15, 2019.
Although R.O. estimated she missed five appointments due to medical issues relating to her
pregnancy and transportation issues, the counselor testified R.O. had eight no-shows in sixteen or
seventeen appointments. R.O.’s last appointment was on June 7, 2019, almost two months before
trial. The counselor had concerns about whether R.O. understood the impact of domestic violence
on herself and on her children. The counselor did not believe R.O. would be a safe and protective
parent of A.B.S. At trial, R.O. testified she did not consider A.S. to be a threat to A.B.S.
The Department’s caseworker testified R.O. had not completed her service plan, which
required R.O. to maintain stable housing and employment and complete counseling. In re J.L.C.,
582 S.W.3d 421, 432-33 (Tex. App.—Amarillo 2018, pet. denied) (noting parent’s inability to
provide a stable home and failure to comply with service plan support a finding that termination
is in the child’s best interest). On the first day of trial, R.O. testified she was renting an RV in
New Braunfels; however, she could not provide a lot number because she had only been living
there a week. After the first day of trial, the Department’s caseworker attempted to find the RV
park where R.O. stated she lived, but no RV park was located at the address R.O. provided to the
court.
A.B.S.’s foster family wants to adopt A.B.S., and A.B.S.’s foster mother testified about the
family’s extensive support network. She further testified she quit her job in nursing to stay home
and meet A.B.S.’s needs. A.B.S.’s occupational therapist has observed A.B.S.’s interactions with
her foster parents and believes they are dedicated to meeting A.B.S.’s needs. See In re Z.C., 280
S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (noting stability and permanence are
important to upbringing of a child and affirming finding that termination was in child’s best interest
when child was thriving in current placement).
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Having reviewed the record, we hold the evidence is legally and factually sufficient to
support the trial court’s finding that terminating R.O.’s parental rights was in A.B.S.’s best interest.
CONCLUSION
The order of the trial court is affirmed.
Liza A. Rodriguez, Justice
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