Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00646-CV
IN THE INTEREST OF N.A.V., P.A.V., A.J.V., L.V., and J.G., Children
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-PA-00244
Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: March 17, 2020
AFFIRMED
This is an appeal from a judgment terminating Mother’s and Father’s parental rights to
their five children, N.A.V., P.A.V., A.J.V., L.V., and J.G. (“the children”). 1 In five issues, Mother
challenges the sufficiency of the Department of Family and Protective Service’s (“the
Department”) pleadings and the sufficiency of the evidence to support the trial court’s judgment.
In one issue, Father challenges the sufficiency of the evidence to support trial court’s judgment.
We affirm.
1
To protect the identity of the minor children in an appeal from a judgment terminating parental rights, we refer to the
children’s parents as “Mother” and “Father,” to the children by their initials, and to one of the children’s caretakers
by an alias, “Gina.” See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-19-00646-CV
BACKGROUND
This appeal arises from the Department’s second suit to terminate Mother’s and Father’s
parental rights to the children. The first termination suit, which the Department filed in February
2015, resulted in an agreed judgment appointing the Department permanent managing conservator
and Mother and Father possessory conservators. Signed on June 17, 2016, the agreed judgment
(“the prior judgment”) states that all relief not expressly granted was denied, and that the
Department “waived all termination grounds for purposes of this trial” and “reserve[d] the right to
re-plead those grounds, if necessary, in a modification proceeding.”
On January 30, 2018, the Department filed a second suit seeking to terminate Mother’s and
Father’s parental rights. In its amended pleadings, the Department asked the trial court to terminate
Mother’s and Father’s parental rights based on both section 161.001 and section 161.004 of the
Texas Family Code. The trial court held a non-jury trial. At trial, Mother and Father did not appear
in person, but both of them were represented by counsel. The Department presented testimony
from three witnesses: a caseworker who had handled the case before the prior judgment and two
caseworkers who had handled the case after the prior judgment.
Events from the February 2015 Removal to the June 17, 2016 Judgment
The evidence showed that the children were removed from Mother’s and Father’s home in
February 2015 because of domestic violence and drug use by both parents. The three oldest
children, who were four, five, and six years old, were placed with a relative. The two youngest
children, a two-year-old and a newborn, were placed with another relative. The Department
prepared service plans for both parents; however, before Father participated in any of his services,
he went to prison to serve his sentence for a family violence conviction. Mother completed some
but not all the services in her service plan.
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After the children were removed from Mother’s and Father’s home, the oldest child, who
was six years old at the time, told a caseworker that she and her siblings had frequently seen their
parents have sex. The child also engaged in sexual behavior which she directed at her siblings.
Additionally, the three oldest children behaved aggressively and had violent tantrums. The
Department arranged for the oldest children to participate in therapy. Maintaining funding for the
children’s therapy was the reason the Department decided not to pursue termination of Mother’s
and Father’s parental rights in its first suit.
The prior judgment granted Mother and Father visitation “at times mutually agreed to in
advance by the parties” and, “in the absence of mutual agreement,” visitation “supervised at
KidShare or similar facility.” The visitation order further stated, “All visits shall occur at the
recommendation of the therapist(s) for the children.”
Events from the June 17, 2016 Judgment to the September 11, 2019 Judgment
About six months after the prior judgment, the Department conducted a formal
investigation into allegations of sexual abuse involving some of the children. The Department
ultimately concluded that the three oldest children had been sexually abused and that the
perpetrator of the abuse was Father.
The three oldest children did not remain in their initial placement with a relative. By the
time of trial, they had been placed in four different homes, including the homes of relatives and
foster caregivers. The three oldest children participated in therapy until they were discharged in
August 2018. However, they returned to therapy in August 2019. The two youngest children had
more consistency, remaining in their initial placement with a relative until the second lawsuit went
to trial.
When Father was released from prison, the Department prepared a service plan, which
required Father’s participation in a drug assessment, domestic violence classes, and parenting
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classes. The Department explained the service plan to Father, but he failed to complete any of the
services in the plan.
In the more than three years that elapsed between the prior judgment and the termination
trial, Mother gave birth to three more children. The Department received a referral for these
children and opened a case for them. After the Department provided family-based services to
Mother, the case was closed, and the children in that case continued to live with Mother.
Meanwhile, two caseworkers told Mother that she was permitted to visit the children in the
present case according to the terms of the prior judgment; however, Mother never exercised
visitation. Mother refused to allow a caseworker to come to her home to see if it would be an
appropriate place for visits to take place. Mother warned the caseworker that she would never
allow her to see the children who were currently living in her home.
Two weeks before trial, Mother told a caseworker that she felt that the children in the
present case would be better off without her because she had not seen them in a long time and she
“was still working on herself” and “becoming a better person.”
After hearing the evidence, the trial court signed a judgment terminating Mother’s and
Father’s parental rights as to all five children. The judgment shows the trial court terminated
parental rights based on section 161.001 of the Texas Family Code. In the judgment, the trial court
found by clear and convincing evidence that Mother had constructively abandoned the children;
had failed to comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children; and had used a controlled substance in a
manner that endangered the health or safety of the children and either had failed to complete a
court-ordered substance abuse treatment program or after the completion of a court-ordered
substance abuse program had continued to abuse a controlled substance. See TEX. FAM. CODE
§ 161.001(b)(1)(N),(O),(P). The trial court found by clear and convincing evidence that Father had
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knowingly placed or allowed the children to remain in conditions or surroundings which
endangered their physical or emotional well-being; had engaged in conduct or knowingly placed
the children with persons who engaged in conduct which endangered the children’s physical or
emotional well-being; had failed to comply with the provisions of a court order that specifically
established the actions necessary for him to obtain the return of the children; and had used a
controlled substance in a manner that endangered the health or safety of the children, and either
had failed to complete a court-ordered substance abuse treatment program or after completion of
a court-ordered substance abuse program had continued to abuse a controlled substance. See id.
§ 161.001(b)(1)(D),(E),(O),(P). Finally, the trial court found by clear and convincing evidence that
the termination of Mother’s and Father’s parental rights would be in the children’s best interest.
See id. § 161.001(b)(2).
Both Mother and Father appeal the judgment terminating their parental rights.
ISSUES PRESENTED ON APPEAL
In her first issue, Mother argues the trial court erred in modifying the prior judgment
appointing her possessory conservator because the Department failed to plead a proper basis for
modification and the evidence was undisputed that nothing had changed. In her second, third, and
fourth issues, Mother argues the evidence was legally or factually insufficient to support the
findings of statutory grounds under section 161.001(b)(1). See TEX. FAM. CODE
§ 161.001(b)(1)(N),(O),(P). In her fifth issue, Mother argues the evidence was legally or factually
insufficient to support the finding that termination of her parental rights was in the children’s best
interest. See id. § 161.001(b)(2).
In his sole issue, Father argues the evidence was legally and factually insufficient to support
the trial court’s finding that termination of his parental rights was in the children’s best interest.
See id.
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TERMINATION OF PARENTAL RIGHTS AFTER A JUDGMENT DENYING TERMINATION
In her first issue, Mother contends the trial court erred by modifying the prior judgment
“because the Department failed to plead a proper basis for said modification and the evidence was
undisputed that nothing had changed.” Mother’s argument is based on the faulty premise that the
Department was required to plead and prove a material and substantial change in circumstances
since the prior judgment denying termination.
“Termination can be achieved after a prior order denying termination of the parent-child
relationship through either section 161.004 or section 161.001.” In re H.L.H., No. 10-16-00254-
CV, 2018 WL 1321750, at *13 (Tex. App.—Waco March 14, 2018, no pet.). When the Department
seeks termination after a prior judgment denying termination, a trial court may terminate parental
rights (1) under section 161.001, which requires clear and convincing evidence of acts or omissions
having occurred since the prior denial of termination, or (2) under section 161.004, which requires
clear and convincing evidence of an act or omission under section 161.001 that occurred prior to
the denial and evidence of a material and a substantial change since the prior denial of termination. 2
In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); In re J.R.I.,
No. 04-14-00102-CV, 2014 WL 4346291, at *1 (Tex. App.—San Antonio 2014, no pet.); In re
K.G., 350 S.W.3d 338, 352 (Tex. App.—Fort Worth 2011, pet. denied) (rejecting Mother’s
contention that section 161.004 provided the only vehicle for terminating her parental rights after
an earlier judgment denying termination). Therefore, to succeed in terminating Mother’s parental
2
Section 161.004 of the Texas Family Code provides that after the rendition of an order that previously denied
termination of the parent-child relationship, a trial court may terminate the parent-child relationship if: (1) the petition
seeking to terminate parental rights is filed after the date the order denying the termination was rendered; (2) “the
circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the
order denying termination have materially and substantially changed since the date that the order was rendered;” (3)
“the parent committed an act listed under Section 161.001 before the date the order denying termination was
rendered;” and (4) the “termination is in the best interest of the child.” See TEX. FAM. CODE § 161.004(a). Under
section 161.004, the trial court may consider evidence presented at hearings in a previous termination suit involving
the same parent and child. Id. § 161.004(b).
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rights to the children, the Department was not required to plead and prove a material and
substantial change in circumstances.
The Department’s live pleading plainly shows it was seeking termination of Mother’s
parental rights under both section 161.001 and section 161.004. This pleading separately alleges
the statutory elements for termination under both section 161.001 and section 161.004. And, while
the Department’s live pleading does not expressly mention section 161.004, it does expressly
mention section 161.001. 3 Furthermore, the judgment shows that the trial court terminated
Mother’s parental rights based only on section 161.001, which does not require proof of a material
and substantial change in circumstances. See TEX. FAM. CODE § 161.001(b).
To the extent Mother’s first issue complains the trial court erred because the Department
failed to prove a material and substantial change in circumstances, her argument lacks merit.
Evidence of a material and substantial change in circumstances is necessary only when the trial
court terminates parental rights under section 161.004. Here, the trial court’s judgment shows that
it terminated Mother’s parental rights solely under section 161.001. Therefore, the Department
was not required to present evidence of a material and substantial change in circumstances. We
overrule Mother’s first issue.
3
Because Mother did not file written special exceptions alleging a defect in the Department’s pleadings, she has waived
her complaint about the sufficiency of the Department’s pleadings. See TEX. R. CIV. P. 90 (requiring a party to
specially except to pleading defects before the judgment is signed); TEX. R. APP. P. 33.1(a) (providing complaints not
timely raised in the trial court are not preserved for appellate review); In re A.A.M., 464 S.W.3d 421, 425 (Tex. App.—
Houston [1st Dist.] 2015, no pet.) (concluding father waived any complaint about the perceived lack of notice from
the omission of a specific reference to section 161.004 in the pleadings when he failed to specially except to the
pleadings). Therefore, to the extent Mother complains about a defect in the Department’s pleadings, her complaint is
not preserved for appellate review.
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LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE—STATUTORY GROUNDS
In her second, third, and fourth issues, Mother argues the evidence was legally and factually
insufficient to support each of the trial court’s statutory ground findings under section 161.001.
See TEX. FAM. CODE § 161.001(b)(1)(N),(O),(P).
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, at least one of the statutory
grounds in section 161.001(b)(1) and that termination is in the children’s best interest. See id.
§§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Here, the trial court found,
by clear and convincing evidence, three separate statutory grounds to terminate Mother’s parental
rights. The trial court also found, by clear and convincing evidence, that termination of Mother’s
parental rights was in the children’s best interest.
When reviewing the sufficiency of the evidence to support a judgment terminating parental
rights, we apply the well-established standards of review for legal and factual sufficiency. See TEX.
FAM. CODE §§ 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). Both sufficiency
review standards require us to determine if the factfinder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations. In re J.F.C., 96 S.W.3d 256, 264-68
(Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
After a trial court has previously rendered a judgment denying a petition to terminate the
parent-child relationship, a judgment terminating the same parent-child relationship under section
161.001 requires evidence of acts or omissions that occurred after the prior judgment denying
termination. In re A.L.H., 515 S.W.3d at 89; In re J.R.I., 2014 WL 4346291, at *1. The Amarillo
court of appeals explained:
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[W]hen section 161.004 does not appear to have served as a basis for the
termination order . . . we are unable to consider the previously presented evidence
of acts or omissions occurring prior to the trial court’s order denying termination;
we cannot evaluate the evidence against statutory elements which did not form a
basis for the trial court’s order of termination. Instead, our review of the evidence
must be limited to evidence of predicate acts or omissions under section 161.001
which would support termination and which have occurred or come to pass in the
time between the trial court’s [previous] order denying termination and the hearing
[] leading to the instant appeal. That is, we review the sufficiency of the evidence
presented under the specific statutory grounds found by the trial court in its
termination order.
In re D.N., 405 S.W.3d 863, 871 (Tex. App.—Amarillo 2013, no pet.) (internal quotations
omitted).
Because here there was a prior judgment denying termination of the same parent-child
relationships, the evidence we consider in our sufficiency review of the statutory grounds is limited
to Mother’s acts and omissions occurring after the prior judgment denying termination. See id.
(limiting the evidence included in a sufficiency review to predicate acts or omissions occurring
after a prior judgment denying termination); In re F.M.E.A.F., 572 S.W.3d 716, 724 (Tex. App.—
Houston [14th Dist.] 2019, pet. denied) (recognizing that because the Department had asked for
termination under both section 161.001 and section 161.004, and the trial court had made findings
as to both statutes, the record for sufficiency analysis included evidence pre-dating the prior order
denying termination).
In her second issue, Mother argues the evidence was legally and factually insufficient to
support the trial court’s finding that she constructively abandoned the children under section
161.001(b)(1)(N). To terminate the parent-child relationship based on section 161.001(b)(1)(N),
the trial court must find by clear and convincing evidence that the parent has:
constructively abandoned the child who has been in the permanent or temporary
managing conservatorship of the Department [] for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the
parent;
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(ii) the parent has not regularly visited or maintained significant contact
with the child; and
(iii) the parent has demonstrated an inability to provide the child with a
safe environment.
TEX. FAM. CODE § 161.001(1)(b)(N).
The following evidence was presented with respect to Mother’s constructive abandonment
of the children. A Department caseworker, Diana Torres, testified that she became involved in this
case after the prior judgment had been rendered and Mother was appointed possessory conservator
of the children. Torres said she was the possessory managing conservator caseworker. In July
2016, about a month after the prior judgment was rendered, Mother called Torres and asked her if
she could visit the children. Torres told Mother that she could visit the children. Torres explained
to Mother that the visits could take place at KidShare and that Mother was responsible for
contacting KidShare and scheduling the visits. Torres also told Mother to talk to her lawyer about
visiting the children and to follow the visitation order in the prior judgment. Torres remained on
the case for about two years, but Mother never called her again to ask about visiting the children.
According to Torres, Mother never scheduled a visit with the children through KidShare.
The subsequent caseworker, Norma Rodriguez, testified that she handled the case after
Torres. Rodriguez testified the children were discharged from therapy in August 2018. At the time,
the therapist’s recommendation was to allow Mother to visit the children, but not to allow Father
to visit them. Therefore, according to Rodriguez, Mother could have visited the children.
Rodriguez testified that for a three-year period, from June 2016 to July 2019, Mother did not ask
about visiting the children. In the year Rodriguez was assigned to the case, she had monthly phone
contact with Mother. Mother would ask how the children were doing and would ask to have a
video chat with them, but Mother did not ask to visit the children in person. In July 2019, after all
the children were living in placements in San Antonio, Mother asked Rodriguez how she could
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visit the children. Rodriguez told Mother that before a visit could take place, she would have to
meet with Mother and review the prior judgment and the service plan. Mother refused to meet with
Rodriguez, telling her she was not going to do anything for the Department. During two phone
calls, Rodriguez asked Mother if she could come to Mother’s home to see if it was safe for the
children to go there for visits. Mother refused Rodriguez’s requests for a home evaluation. On one
occasion, Mother told Rodriguez to “F-off.” On the other occasion, Mother told Rodriguez that
the Department was never coming into her home again and that caseworkers were never going to
see the children that were living in her home.
On appeal, Mother does not dispute that the children in this case were in the permanent
managing conservatorship of the Department for six months or more. However, Mother does
challenge the sufficiency of the evidence to show (1) that Mother constructively abandoned the
children; (2) that the Department made reasonable efforts to return the children to her; (3) that she
had not regularly visited or maintained significant contact with the children; and (4) that she had
demonstrated an inability to provide the children with a safe environment.
Constructive Abandonment/Regular Visits or Significant Contact
Mother argues the evidence was insufficient to establish that she had constructively
abandoned the children and that she had not regularly visited or maintained contact with the
children. The crux of Mother’s argument is that visitation was not possible because it was
contingent on a therapist’s recommendation and a therapist’s recommendation was never obtained.
Mother contends that because visitation was not possible, she did not miss any visits with her
children and, therefore, she could not have constructively abandoned them. We are not persuaded
by Mother’s argument.
The evidence showed that Mother was never denied visitation because of the lack of a
therapist’s recommendation. According to an August 2018, letter from the children’s therapist,
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there were no restrictions on Mother’s visitation. Both caseworkers communicated to Mother that
she could visit the children. Shortly after the prior judgment was rendered, Torres informed Mother
that she could visit the children by scheduling a visit through KidShare. Mother failed to follow
through and schedule a visit through KidShare. By the time of trial, Mother had not visited the
children in more than three years. Rodriguez testified that she had maintained regular phone
contact with Mother and, although Mother inquired about the children, she usually did not request
any visitation with them. Mother did not start asking Rodriguez about visiting the children until
July 2019, which was about two months before trial. Rodriguez told Mother that before a visit
could take place, they would need to meet and review the prior judgment and Mother’s service
plan. Mother, however, refused to meet with Rodriguez. Rodriguez also asked Mother if she could
come to her home to see if it was an appropriate place for visits to take place. Again, Mother
refused Rodriguez’s offer.
Mother criticizes the caseworker’s insistence on an in-person meeting before mutually
agreeing to visitation, emphasizing that such a meeting was not required by the prior judgment.
However, the trial court could have found that it was reasonable for the caseworker to insist on a
meeting with Mother before agreeing to schedule a visit, especially given Mother’s lack of
cooperation. The undisputed evidence showed that Mother had not visited the children for more
than three years. The prior judgment authorized Mother to visit the children “at times mutually
agreed to . . . by the parties.” Additionally, according to the prior judgment, Mother could have
scheduled a supervised visit through KidShare or a similar facility, but she did not pursue this
alternative. Furthermore, nothing indicates Mother made any attempts to maintain contact with the
children.
Based on all the evidence presented, we conclude the trial court could have formed a firm
belief or conviction that Mother constructively abandoned the children and that Mother had not
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regularly visited or maintained significant contact with the children. See In re K.M.B., 91 S.W.3d
18, 25 (Tex. App.—Fort Worth 2002, no pet.) (concluding a parent’s ten-month lapse in visiting
the child supported a finding of constructive abandonment).
Reasonable Efforts to Return the Children to Mother
Next, we determine if the trial court could have formed a firm belief or conviction that the
Department made reasonable efforts to return the children to Mother. This element does not
necessarily mean the Department must physically deliver the children to the parent. In re G.P.,
503 S.W.3d 531, 533 (Tex. App.—Waco 2016, pet. denied). “The State’s preparation and
administration of a service plan for the parent constitutes evidence that the State made reasonable
efforts to return the child to the parent.” In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort
Worth 2009, no pet.). “[T]he question is whether the Department made reasonable efforts, not ideal
efforts.” In re F.E.N., 542 S.W.3d 752, 767 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
Mother blames the Department for not developing a new service plan for her. But under
the circumstances presented, the Department cannot be faulted for not developing a new service
plan for Mother. On multiple occasions, one of the caseworkers, Rodriguez, asked Mother to meet
with her so they could review the prior judgment and Mother’s service plan. Mother refused to
meet with Rodriguez. In fact, Mother told the caseworker she was “not going to do anything for
the Department.” Without a meeting, the caseworker could not assess Mother’s current situation
and determine what services she needed to assist her in any reunification efforts. The trial court
could have determined that based on the circumstances of this case, the caseworker’s attempts to
meet with Mother constituted reasonable efforts to return the children to Mother. See In re K.G.,
350 S.W.3d at 354 (concluding “reasonable efforts” element was satisfied based on caseworker’s
testimony that she tried to facilitate parent-child reunification by providing services, encouraging
mother to seek help for mental health problems, and making efforts to ensure that the parent and
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child could have good visits). We conclude the trial court could have formed a firm belief or
conviction that the Department made reasonable efforts to return the children to Mother.
Inability to Provide the Children with a Safe Environment
We further conclude a reasonable factfinder could have determined that Mother
demonstrated an inability to provide the children with a safe environment. Multiple factors are
relevant to determining if a parent is willing and able to provide children with a safe environment.
TEX. FAM. CODE § 263.307(b) 4 (listing factors that may be considered in determining whether the
parent is willing and able to provide the child with a safe environment); In re G.P., 503 S.W.3d at
533-34 (applying factors listed in section 263.307(b) when conducting a “safe environment”
analysis in the context of constructive abandonment).
On appeal, Mother argues that her home was necessarily a safe environment because her
other children were living there at the time of trial. Mother emphasizes that the Department had
opened a case for her three younger children, had provided her with family-based services, and
had closed this case. We are not persuaded by Mother’s argument. Evidence that other children
were allowed to remain with Mother in a different case does not necessarily show that Mother
4
Under section 263.307(b) of the Texas Family Code, the factors that may be considered in determining whether the
parent is willing and able to provide the child with a safe environment are: (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 harm to the child; (4) whether the child has been the victim of repeated harm after the initial report
and intervention by the department; (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, including providing the child and other children
under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate
discipline consistent with the child’s physical and psychological development; (C) guidance and supervision
consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to
violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and
capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is
available to the child. TEX. FAM. CODE § 263.307(b).
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would be able to provide the children in this case with a safe environment. Moreover, providing
children with a “safe environment” is not simply about providing them a safe physical
environment; it encompasses a multitude of other factors. See TEX. FAM. CODE § 263.307(b); In re
G.P., 503 S.W.3d at 533-34 (considering several section 263.307(b) factors in concluding that the
trial court could have reasonably formed a firm belief or conviction that mother constructively
abandoned her child).
One of the factors that may be considered in determining if a parent is willing and able to
provide a safe environment is whether the parent demonstrates adequate parenting skills, including
providing the child with care, nurturance, and appropriate discipline consistent with the child’s
physical and psychological development, and guidance and supervision consistent with the child’s
safety. TEX. FAM. CODE § 263.307(b)(12)(B),(C). Here, the evidence indicated that Mother was
unable to provide the children in this case with the care, nurturance, and guidance they needed to
create a safe environment. Mother had not visited or had contact with the children in more than
three years and a caseworker testified that the children had no bond with Mother. Some of the
children in this case required ongoing therapy. Two weeks before trial, Mother admitted to a
caseworker that she believed the children in this case would be better off without her because she
“was still working on herself” and “becoming a better person.”
Another factor that may be considered in determining if a parent is willing and able to
provide a safe environment is whether the parent is willing and able to cooperate with and facilitate
an appropriate agency’s close supervision. Id. § 263.307(b)(10). Here, the evidence showed that,
on several occasions, Rodriguez had asked Mother to meet to review her service plan and to allow
Rodriguez to evaluate Mother’s home. But Mother refused to meet with Rodriguez in person or
allow her into her home. Specifically, Mother told Rodriguez to “‘F’-off” and stated that the
Department “was not coming into her home ever again.” Mother’s unwillingness to meet with a
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Department caseworker and allow her into her home showed that Mother was not willing and able
to cooperate with and facilitate the Department’s close supervision with regard to the children in
this case. Based on the totality of the evidence, a reasonable factfinder could have concluded that
Mother had demonstrated an inability to provide the children in this case with a safe environment.
We conclude the trial court could have formed a firm belief or conviction that Mother
constructively abandoned the children; that Mother failed to regularly visit or maintain significant
contact with the children; that the Department made reasonable efforts to return the children to
Mother; and that Mother demonstrated an inability to provide the children with a safe environment.
Having reviewed the record and considered all the evidence in the appropriate light for each
standard of review, we conclude the evidence was legally and factually sufficient to support the
trial court’s finding that Mother constructively abandoned the children. We overrule Mother’s
second issue.
Because we have determined the evidence was legally and factually sufficient to support
the trial court’s finding of a statutory ground for termination under subsection 161.001(b)(1)(N),
we need not determine if the evidence would support the trial court’s findings under subsection
161.001(b)(1)(O) or (P). See In re A.V., 113 S.W.3d at 362 (“Only one predicate finding under
section 161.001(1) is necessary to support a judgment of termination when there is also a finding
that termination is in the child’s best interest.”). Therefore, we do not address Mother’s third and
fourth issues. See TEX. R. APP. P. 47.1 (recognizing appellate courts need only address issues
necessary to the final disposition of an appeal).
LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE—BEST INTEREST
In her fifth issue, Mother argues the evidence was legally or factually insufficient to support
the trial court’s finding that termination of her parental rights was in the children’s best interest.
In his sole issue, Father argues the evidence was legally and factually insufficient to support the
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trial court’s finding that termination of his parental rights was in the children’s best interest. We
address these issues together.
In evaluating the children’s best interest, courts consider the non-exhaustive Holley
factors. 5 In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013); Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976). However, “[t]he absence of evidence about some of these [factors] would not
preclude a factfinder from reasonably forming a strong conviction or belief that termination is in
the child’s best interest, particularly if the evidence were undisputed that the parental relationship
endangered the safety of the child.” In re C.H., 89 S.W.3d at 27. Courts also consider the factors
set forth in section 263.307(b) of the Texas Family Code. TEX. FAM. CODE § 263.307(b).
Evidence that proves one or more statutory ground for termination may also constitute
evidence illustrating that termination is in the children’s best interest. In re C.H., 89 S.W.3d at 28.
A best interest analysis may consider direct and circumstantial evidence, subjective factors, and
the totality of the evidence. 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.
Therefore, in reviewing the sufficiency of the evidence to support the trial court’s best
interest finding, we do not limit the scope of our review to events occurring after the prior
judgment. See In re J.R.I., 2014 WL 4346291, at *1 (stating that “[a]fter a trial court has previously
rendered an order denying a petition to terminate parental rights, a parent’s rights to that child may
be terminated [] upon proof of one of the acts listed in section 161.001 that was committed after
5
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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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the denial of a prior petition to terminate….”) (emphasis added); In re D.N., 405 S.W.3d at 871
(providing that the limitation on the scope of a sufficiency review in a subsequent termination
proceeding applies to “predicate acts or omissions under section 161.001,” not to the best interest
finding) (emphasis added). We consider all the evidence admitted at trial in evaluating the best
interest of the children. See In re C.H., 89 S.W.3d at 27-28 (recognizing the importance of a
parent’s “historical deficiencies in parenting” and “past performance as a parent” to the best
interest determination); In re N.R.G., No. 04-19-00430-CV, 2019 WL 5927458, at *1 (Tex. App.—
San Antonio Nov. 13, 2019, no pet.) (“[I]n determining whether termination of the parent-child
relationship is in the best interest of a child, a court may judge a parent’s future conduct by her
past conduct.”).
With these standards and factors in mind, we consider the evidence as it relates to the
children’s best interest.
Desires of the Children
At the time of trial, the children ranged in age from four to ten years old. The three oldest
children were living in a foster home. The current caseworker, Rodriguez, testified that she was
aware of the desires of the three oldest children. The three oldest children wanted to be with family
and to be adopted and have a “forever home.”
The two youngest children had lived with the same relative, Gina, for about four and a half
years. Gina was the only mother the youngest child had ever known, and the second youngest child
called her “Mom.”
Emotional and Physical Needs/Emotional and Physical Danger
A Department caseworker, Ruchi Davis, stated the children were initially removed from
Mother’s and Father’s care because of domestic violence between the parents and drug use by both
parents. After the children’s removal and while they were in foster care, one of the children told
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the caseworker that she had seen Mother and Father having sex quite often. The child said that
Mother and Father would have sex in front of her and the other children. The same child began
engaging in “sexualized behaviors” that were directed toward some of her siblings. Because of the
oldest child’s outcry, the Department arranged for the three oldest children to participate in
therapy. When Davis talked to Mother about one of the children’s claims that she and Father had
frequently engaged in sex in front of the children, Mother laughed and said it was not true.
Davis testified that some of the children’s negative behaviors—their use of profanity and
their acts of aggression—mirrored the domestic violence they were exposed to when they lived in
Mother’s and Father’s home. Davis added that she was not in favor of the Department’s decision
to abandon termination in the first suit; she had recommended that the Department proceed to
terminate Mother’s and Father’s parental rights. Davis claimed her recommendation was not
followed for financial reasons. According to Davis, the three oldest children required long-term
therapy and the conservatorship provisions in the prior judgment allowed the children’s caregiver
to receive benefits to pay for this therapy.
A subsequent caseworker, Rodriguez, testified that neither parent had demonstrated that
they could satisfy the children’s physical or emotional needs. Rodriguez said that she did not see
any bond between the children and the parents. Rodriguez added that she was unable to assess the
status of the parents’ drug use and domestic violence problems because the parents had refused to
meet with her to talk about their service plans or to allow her into their home. Neither parent had
demonstrated to Rodriguez that they had eliminated the dangers of drug use and domestic violence.
Parental Abilities/Acts and Omissions/Excuses/Programs Available—Mother
At the beginning of the first case, Mother participated in three visits with the children, all
of which, according to the initial caseworker, Davis, were very chaotic and inappropriate. Davis
testified that during these visits, the children used profanity and made profane gestures.
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Specifically, the children would “cuss” at Mother, say “the ‘B’ word,” say “F-you to her,” and
“throw the finger to her.” Mother reacted to this behavior by laughing at the children. Mother once
offered each of the children a dollar to stop “cussing” and to take a picture with her. After each
visit, the caseworker would advise Mother how she could better handle the children’s behavior.
During the next visit, Mother would apply these suggestions for the first five minutes, but then she
would allow the visit to become chaotic again.
After her appointment as possessory conservator, Mother had no contact with the children.
Mother argues that she was prevented from exercising visitation because the prior judgment did
not allow her to visit the children without a therapist’s recommendation; however, as we explained
in our previous discussion of constructive abandonment, the evidence showed otherwise. Two
caseworkers testified that Mother had opportunities to visit the children, but she failed to take
advantage of these opportunities. Mother’s lack of contact with the children and her lack of
initiative in scheduling visits indicates that her relationship with the children was not a proper one.
Davis, one of the initial caseworkers assigned to the case, testified that a family service
plan was developed for Mother when the Department filed its first termination suit, but Mother
had failed to complete all parts of the plan. And, even though Mother did complete drug treatment,
she admitted to a caseworker that she continued to use marijuana. Mother did not complete
domestic violence classes.
The current caseworker, Rodriguez, testified that by the time of trial, Mother had not shown
that she had basic parenting skills. Additionally, because of Mother’s lack of cooperation,
Rodriguez had been unable to evaluate whether Mother had an adequate support system in place.
Rodriguez further testified that she had several conversations with Mother about
relinquishing her parental rights to the children in this case. Mother had told Rodriguez on several
occasions that she knew the children were better off without her and she felt that the children
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should live with Gina, the relative who had been caring for the two youngest children for the past
four and half years. Two weeks before trial, Rodriguez and Mother had an hour-long conversation
in which Mother again stated that it would be best for the children to live with Gina. Mother said
the children would be better off without her because she had not seen them in a long time and
because she “was still working on herself” and “becoming a better person.”
Rodriguez finally testified that she had texted Mother on the morning of trial and told her
that everyone was in court. In response, Mother told Rodriguez that she was not coming to court
because she did not think it was necessary because nothing had changed. Mother’s lack of interest
in attending the trial involving the termination of her parental rights was further evidence that her
relationship with the children was not a proper one.
Parental Abilities/Acts and Omissions/Excuses/Programs Available—Father
One of the initial caseworkers, Davis, testified that early in the case Father had signed a
service plan that required him to participate in drug treatment and to complete domestic violence
and parenting classes. Father attended domestic violence classes until he was incarcerated on a
family violence case involving Mother. While Father was serving his sentence for a family
violence conviction, Davis advised him by letter that she was the caseworker assigned to his case.
Father told Davis to communicate with his mother about his case. To Davis’s knowledge, Father
never completed any of the services on his service plan.
A subsequent caseworker, Torres, testified that she met with Father on one occasion, after
a court hearing in July 2018. At the time, Father was interested in regaining custody of the children.
Torres met with Father and reviewed a new service plan with him. Father understood the service
plan and signed it. According to the new service plan, Father was supposed to maintain contact
with the Department twice a month; notify the caseworker of any changes in his address, phone
number, employment, involvement with law enforcement, and relationship status; provide proof
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of financial stability and a support system; complete a psychological evaluation, drug assessment,
individual counseling services, and parenting classes; submit to random drug testing; and make
significant changes to address any issues that led to the filing of the case. The service plan also
required Father to follow through with all recommendations. While Torres was on the case, Father
did not complete any of these services.
Torres also testified that during the two years she handled this case, she had only one phone
conversation with Father, which occurred in December 2016. Father asked to visit the three older
children, but Torres told him that because there was an open sexual abuse investigation, Father
would need to talk to the investigator before any visitation could take place. Father “cussed” at
Torres and would not let her provide him with the investigator’s contact information.
Rodriguez testified that the problems persisted when she took over the case. At one court
hearing, Rodriguez asked Father for his new phone number and Father responded by yelling at her
in the courthouse. A sheriff’s deputy directed Rodriguez to leave for her own safety. Rodriguez
had seen Father become agitated on other occasions. For example, during one hearing, Father
interrupted her while she was testifying and called her a liar.
Additionally, Rodriguez testified that she and Diana Torres, the previous caseworker, had
met with Father in September 2018 to review his service plan with him. During this meeting,
Rodriguez told Father that his recent hair follicle test was positive for cocaine and marijuana.
Father stated the reason he had a positive drug test was because the Department “stress[ed] him
out.” On October 5, 2018, Father participated in a drug assessment. Based on this assessment,
Father was supposed to participate in outpatient treatment. Nevertheless, Father failed to appear
for outpatient drug treatment and offered no excuse for his failure to appear. In September 2018,
Father started attending parenting classes, but after a few months he was discharged from the
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classes because he had too many absences. Father did not offer any excuses for his absences from
parenting classes.
Finally, Rodriguez testified that by the time of trial, Father had not shown that he had basic
parenting skills, and because of his lack of cooperation, Rodriguez had been unable to evaluate if
he had an adequate support system in place.
Plans for the Children/Stability of the Home or Proposed Placement
One of the caseworkers, Davis, testified that the three oldest children had lived in at least
four different homes. The three oldest children’s first placement was a foster home. The children
had to be moved out of this home because of the children’s behavior and the foster parents’
inability to put safety measures in place. Next, the children were placed with a relative. Mother
attempted to visit the children at the relative’s home. When the relative told Mother that she could
not visit the children there, the relative and Mother had a physical altercation. Because of this
altercation, the children were moved out of the relative’s home. Next, the children were placed in
a group home, where they exhibited aggressive behavior and had “heavy tantrums.” One of the
children kicked and seriously injured the group home’s director. Subsequently, the three oldest
children were placed with a different relative in Brownsville, Texas.
When the trial court signed the prior judgment, the three oldest children were living with a
relative in Brownsville, and the two youngest children were still living in their initial placement
with Gina. At the time, the Department’s goal was for each of the relatives to become the sole
managing conservator of the children in their care. However, in June 2019, the three oldest children
had to be moved from the Brownsville placement to a foster home in New Braunfels, Texas.
Rodriguez explained that the oldest children had to be moved because the placement “broke
down.”
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At the time of trial, the Department’s plan was for all five children to be adopted by Gina,
the relative who had been caring for the two youngest children for the last four and a half years.
The evidence indicated that Gina could provide the children with much-needed stability. Gina was
a licensed care provider and had been caring for the two youngest children for four and half years.
Gina wanted to adopt all five children; however, to do so, Gina would need to find a bigger home.
In the meantime, the three older children had been to Gina’s home for several overnight visits. The
overnight visits gave all five siblings an opportunity to spend time together. According to
Rodriguez, the only obstacle to placing all five children with Gina was the size of her home.
Rodriguez added that she felt that the children, and particularly the three oldest children, were in
need of permanence and that Gina could provide this for them.
Relevant Section 263.307 Factors
Other relevant factors a court may consider in determining the children’s best interest
include: the magnitude, frequency, and circumstances of harm to the child; the results of
psychiatric, psychological, or developmental evaluations of the child; whether there is a history of
abusive or assaultive conduct by the child’s family; whether there is a history of substance abuse
by the child’s family; whether the perpetrator of the harm to the child is identified; and 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. TEX. FAM. CODE
§ 263.307(b)(3), (6), (7), (8), (9), (10).
At the time of trial, the children were four, six, eight, nine, and ten years old. The evidence
indicates that a high degree of harm had been done to the three oldest children, who were still
undergoing therapy. Father had been identified as the perpetrator of sexual abuse. Father had also
been identified as the perpetrator of domestic violence against Mother and had a felony conviction
for family violence. Mother told a caseworker that Father would beat her and that the beatings
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were severe. Both Mother and Father had a history of drug abuse. Additionally, during the course
of this case, both Mother and Father demonstrated an unwillingness to cooperate with the
Department and facilitate its close supervision.
Having reviewed the record and considered all the evidence in the appropriate light for
each standard of review, we conclude the evidence was legally and factually sufficient to support
the trial court’s findings that termination of Mother’s and Father’s parental rights was in the
children’s best interest. See TEX. FAM. CODE § 161.001(b)(2); In re A.C., 560 S.W.3d 624, 631
(Tex. 2018). We overrule Mother’s fifth issue and Father’s sole issue.
CONCLUSION
The judgment terminating Mother’s and Father’s parental rights is affirmed.
Irene Rios, Justice
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in the Interest of N.A v., Children
Combined Opinion