Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00242-CV
IN THE INTEREST OF S.S.R., J.H.R. Jr., and G.D.R., Children
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01761
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: October 5, 2016
AFFIRMED
Appellant J.R., whom we will refer to as “Father,” appeals the trial court’s order
terminating his parental rights to his three children, arguing that the evidence is legally and
factually insufficient to support both the trial court’s findings for the statutory grounds for
termination as well as its finding that termination of his parental rights is in the children’s best
interest. We affirm the trial court’s order.
BACKGROUND
Father and G.R. 1 are the parents of three children: S.R., J.R., and G.R. On May 13, 2013,
the Texas Department of Family and Protective Services received a referral alleging neglectful
1
G.R. whom we refer to as “Mother,” did not appeal the order terminating her parental rights.
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supervision of the children. On July 24, 2014, the Department filed its Original Petition for
Protection of a Child, for Conservatorship and for Termination in Suit Affecting the Parent-Child
Relationship. The Department was appointed temporary conservator of the children, then ages 13,
10, and 8. Father was ordered by the trial court to comply with the requirements of the
Department’s service plan during the pendency of the suit, including attending individual
counseling and submitting to random drug tests (“including saliva test, UA’s, and hair follicle”).
The Department returned the children to Father’s care on a monitored basis on August 21,
2015. On January 25, 2016, however, the children were removed from Father’s home and returned
to foster care. Two days later, S.R. ran away from her foster placement. On March 29, 2016, the
case proceeded to a bench trial. Father was not present, and the trial court overruled his attorney’s
announcement of “not ready,” noting that Father was present for mediation one week earlier. Four
witnesses testified, including the Department caseworker, the children’s therapist, the foster
mother of J.R. and G.R., and G.R.’s special education teacher. At the conclusion of the trial, the
trial court terminated Father’s parental rights pursuant to sections 161.001(b)(1)(D), (O), and (P).
See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (O), (P) (West Supp. 2016).
DISCUSSION
A trial court may order termination of the parent-child relationship if the trial court finds
by clear and convincing evidence at least one of the statutory grounds for termination and that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016).
A judgment terminating parental rights must be supported by clear and convincing evidence. Id.
To determine whether this heightened burden of proof was met, we employ a heightened standard
of review to determine whether a “factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). “This
standard guards the constitutional interests implicated by termination, while retaining the
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deference an appellate court must have for the factfinder’s role.” In re O.N.H., 401 S.W.3d 681,
683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but
defer to the factfinder’s reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570,
573 (Tex. 2005).
A legal sufficiency review requires us to examine 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 256, 266 (Tex. 2002). We assume
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have
done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found
incredible. Id. But we may not simply disregard undisputed facts that do not support the finding;
to do so would not comport with the heightened burden of proof by clear and convincing evidence.
Id.
When conducting a factual sufficiency review, we evaluate “whether disputed evidence is
such that a reasonable factfinder could not have resolved that disputed evidence in favor of its
finding.” Id. The evidence is factually insufficient “[i]f, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction.” Id.
On appeal, Father challenges both the trial court’s findings of the statutory grounds for
terminating his parental rights and the best-interest finding. To sustain a parental termination, an
appellate court need only substantiate one statutory ground was sufficiently proven before the trial
court. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
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A. Statutory Ground: Failure to Comply with Court Order/Family Service Plan
The trial court found Father failed to complete his family service plan. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(O). Subsection (O) provides for termination of the parent-child
relationship if by clear and convincing evidence the parent has:
failed to comply with the provisions of a court order that specifically established
the actions necessary for the parent to obtain the return of the child who has been
in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the
child’s removal from the parent under Chapter 262 for the abuse or neglect of the
child[.]
Id. Although the family service plan was not admitted at trial, the State did ask the trial court to
take judicial notice of “the record,” which included the family service plan, and the trial court
complied. “Whether a parent has done enough under the family-service plan to defeat termination
under subsection (O) is ordinarily a fact question.” In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014)
(citing In re J.S., 291 S.W.3d 60, 66-67 (Tex. App.—Eastland 2009, no pet.) (affirming
termination where mother complied with parts of service plan but did not obtain stable housing,
employment, or basic necessities for children); In re C.M.C., 273 S.W.3d 862, 874-76 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (declining to reverse termination on mother’s argument
of substantial compliance with service plan); In re T.T., 228 S.W.3d 312, 317-21 (Tex. App.—
Houston [14th Dist.] 2007, no pet.) (affirming termination where mother failed to comply with
four of seven requirements and father failed to comply with three of seven requirements); In re
C.D.B., 218 S.W.3d 308, 311-12 (Tex. App.—Dallas 2007, no pet.) (affirming termination based
on mother’s partial compliance with service plan); In re A.D., 203 S.W.3d 407, 411-12 (Tex.
App.—El Paso 2006, pet. denied) (affirming termination because mother failed to meet family-
service plan’s material requirements including drug assessment, finding a job, and providing a safe
home).
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The Department caseworker testified that per the service plan prepared by the Department,
Father was “required to do a psychosocial assessment, individual counselling, parenting, a drug
assessment, housing, employment[,] and to submit to random UAs 2 throughout the life of the
case.” She testified that Father completed the services up until the time when the children were
returned to his care. When the children were returned to his care, he “was not submitting to random
UAs and he was not meeting the medical and dental needs of the children, as well as the physical
needs of the children.” Despite instruction from the caseworker, Father failed to schedule medical
and dental appointments for the children. The caseworker was particularly worried about the
youngest child, G.R., who was given a “care kit” from his school to brush his hair and his teeth
because those needs were not being met at home. The child informed the caseworker that there
was no electricity in his father’s home and that the family went to stay with Mother, where G.R.’s
cousin bit him and hit him with a belt. The caseworker observed bite marks and belt marks on the
child. Father refused to test for at least four UAs. He also failed to continue to engage in
counselling. Additionally, Father permitted the children to have unsupervised visitation with
Mother during the time that the children were returned to his care in contravention of the service
plan.
In light of the entire record, we conclude the evidence was both legally and factually
sufficient to prove, by clear and convincing evidence, that Father failed to comply with a court
order that established the actions necessary for him to gain custody of the children in violation of
section 106.001(b)(1)(O). TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Because we uphold this
determination, we need not address the remaining grounds for termination set forth in the trial
court’s termination order. See In re A.V., 113 S.W.3d at 362.
2
UA is shorthand for urinalysis drug test.
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B. Best Interest
There is a strong presumption that keeping a child with a parent is in the child’s best
interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors
related to the best interest of the child, “the prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)
(West Supp. 2016). In determining whether a child’s parent is willing and able to provide the child
with a safe environment, the court should consider: (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 the harm to the child; (4) whether the child has been the victim
of repeated harm after the initial report and intervention by the Department or other agency; (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;
and (13) whether an adequate social support system consisting of an extended family and friends
is available to the child. Id. § 263.307(b).
Additionally, in reviewing the sufficiency of the evidence to support the best-interest
finding, we may apply the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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Those factors include, but are not limited to: (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 for the child held
by the individuals seeking custody; (7) the stability of the home or proposed placement; (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.
Finally, evidence that proves one or more statutory ground for termination may constitute
evidence illustrating that termination is in the child’s best interest. Id. at 28 (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 evidence, subjective factors, and the totality of the evidence as well as the direct
evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). In
addition, the trier of fact may measure a parent’s future conduct by his past conduct in determining
whether termination of parental rights is in the child’s best interest. Id.
Here, the caseworker testified that J.R. and G.R. were doing well in their foster placements
and that the middle child, J.R., excels academically and is involved in sports. J.R. told the
caseworker that he does not want to leave his foster family and that he wants to be adopted by
them so that he can continue to go to school and be involved in sports. The caseworker further
stated that she believed that termination of the parents’ parental rights was in the best interest of
the children because the parents failed to engage in Family Based Services three times since
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August 2014, and “throughout that time, they have not been able to demonstrate and make long-
term changes that are needed to properly care for the children and meet their needs.”
The children’s therapist testified that when he first started working with the children, all
three of them informed him that this was the “last opportunity” they were giving their parents. The
children had been removed twice before, and told the therapist that if their parents “messed up
again,” they wanted to be adopted. The therapist stated that, despite working very closely with the
parents, he believed it was in the best interest of the children to terminate the parents’ parental
rights because the parents did not seem willing to make changes to their lifestyles or habits.
J.R.’s and G.R.’s foster mother also testified. She stated that after the boys were returned
from Father’s care the second time, she noticed that G.R. was too thin and his eyes were sunken
in. She also had to retrain him to take care of basic hygiene tasks like bathing and brushing his
teeth that he had previously learned with her. J.R. was also thinner upon returning from Father’s
home and both boys were very hungry. She stated that she was willing to be a permanent
placement for J.R., but not for G.R. who has special needs and requires a lot of daily attention.
J.R. expressed to the foster mother that he wished to remain in her care.
Finally, G.R.’s special education teacher testified that G.R. told her that his house did not
have electricity and that he always came to school hungry. She gave him food for breakfast and
lunch; he would take leftover food home in his backpack for dinner. G.R. came to school without
bathing and every day the teacher had to brush his teeth and give him deodorant. She would also
wash his school uniform for him because it was so dirty. On one occasion, G.R. told her that his
cousin hit him with a belt and bit him. When the teacher asked what his Father did in response,
G.R. told her that he said not to tell the teacher because the Department would get involved and
take him away.
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In closing arguments, the children’s ad litem stated that she had specific instructions from
J.R. that he wanted to be adopted and to continue “phone contact on birthdays with the parents.”
Father’s attorney stated that her client had obvious intellectual deficiencies and is not capable of
having the children placed with him; however, she strongly advocated against termination.
Concerned about separating the children and the lack of permanency for two of the three children,
she asked that the Department consider being named permanent managing conservator without
termination until it could be determined where S.R. and G.R. would be placed.
In reviewing this record, we observe that the trial court heard testimony regarding the
inadequacy of Father’s parenting skills as well as his unwillingness to cooperate with the
Department’s supervision and to effect positive environmental and personal changes during the
pendency of the case. Testimony was also presented regarding G.R.’s special needs and the fact
that his most basic needs were not being met while in Father’s care. Finally, the trial court heard
from more than one witness that J.R. did not wish to return to his parents’ care. Thus, based on
the totality of the evidence present in the record before us, we conclude the trial court could have
formed a firm belief or conviction that it was in the children’s best interest that Father’s parental
rights be terminated. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25.
CONCLUSION
We overrule Father’s issues on appeal and affirm the order of the trial court.
Rebeca C. Martinez, Justice
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in the Interest of S.S.R., J.H.R. Jr., and G.D.R
Combined Opinion