                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-14-00805-CV

                IN THE INTEREST OF M.C., M.C., M.C., M.C., and M.C., Children

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-PA-02868
                         Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: May 18, 2015

AFFIRMED

           Appellant father (“Father”) and appellant mother (“Mother”) separately appeal the trial

court’s order terminating their parental rights to their five children. On appeal, neither parent

challenges the sufficiency of the evidence to support the trial court’s findings relating to the

statutory grounds for termination. Rather, both contend the evidence is legally and factually

insufficient to support the trial court’s finding that termination was in the best interests of the

children. We affirm the trial court’s order of termination.

                                              BACKGROUND

           The Texas Department of Family and Protective Services (“the Department”) began its

investigation in 2012 when one of the children belonging to Father and Mother tested positive at

birth for cocaine and opiates. At the time of the child’s birth, Father and Mother had three other
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children. Initially, the family was accepted into the Department’s “Family Based Safety Services

Program.” However, in December 2012, the Department filed an original petition, seeking

temporary managing conservatorship of the children. At the Department’s request, the trial court

rendered an order placing the children in the custody of the Department, and the Department placed

the children in foster care. Ultimately, the Department amended its original petition to include a

fifth child who was born approximately nine months after the Department first began its

investigation. That child was also removed and placed in foster care.

       Ultimately, a termination hearing was held over the course of five non-consecutive days,

from April 15, 2014, to October 3, 2014. After the hearing, the trial court ordered Father’s and

Mother’s parental rights terminated, finding they: (1) knowingly placed or allowed their children

to remain in conditions or surroundings that endangered their physical or emotional well-being;

(2) engaged in conduct or knowingly placed their children with someone who engaged in conduct

that endangered their physical or emotional well-being; and (3) used a controlled substance in a

manner that endangered the health or safety of their children and failed to complete a court-ordered

substance abuse program or after completing it, continued to abuse a controlled substance. See

TEX. FAM. CODE ANN. §§ 161.001(1)(D)–(E), (P) (West 2014). The trial court also found

termination of Father’s and Mother’s parental rights would be in the best interests of the children.

See id. § 161.001(2). Thereafter, Father and Mother each perfected an appeal.

                                            ANALYSIS

       On appeal, Father and Mother each raise a single issue, contending the evidence is legally

and factually insufficient to support the trial court’s finding that termination was in the best

interests of the children. See id. As noted above, neither parent challenges the sufficiency of the

evidence with regard to the trial court’s findings under section 161.001(1). See id. § 161.001(1).



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                                        Standard of Review

       Under the Texas Family Code (“the Code”), a court has authority to terminate a parent’s

rights to a child only upon proof by clear and convincing evidence that the parent committed an

act prohibited by section 161.001(1) of the Code, and that termination is in the best interest of the

child. Id. § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re E.A.G., 373

S.W.3d 129, 140 (Tex. App.—San Antonio 2012, pet. denied). The Code defines “clear and

convincing evidence” as “proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.

§ 101.007 (West 2008); see J.O.A., 283 S.W.3d at 344; E.A.G., 373 S.W.3d at 140. This

heightened standard of review is required because termination of a parent’s rights to a child

implicates due process in that it results in permanent and unalterable changes for the parent and

the child. E.A.G., 373 S.W.3d at 140. Therefore, when reviewing a trial court’s termination order,

we must determine whether the evidence is such that a fact finder could reasonably form a firm

belief or conviction that the grounds for termination were proven and that the termination was in

the best interest of the child. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002)).

       With regard to legal sufficiency challenges in termination cases, we view the evidence in

the light most favorable to the trial court’s finding and judgment, and any disputed facts are

resolved in favor of that court’s findings, if a reasonable fact finder could have so resolved them.

Id. We are required to disregard all evidence that a reasonable fact finder could have disbelieved,

and we must consider undisputed evidence even if such evidence is contrary to the trial court’s

findings. Id. In summary, we consider evidence favorable to termination if a reasonable fact finder

could, and we disregard contrary evidence unless a reasonable fact finder could not. Id.



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       We remain mindful that we may not weigh a witness’s credibility because it depends on

appearance and demeanor, and these are within the domain of the trier of fact. Id. Even when

such issues are found in the appellate record, we must defer to the fact finder’s reasonable

resolutions. Id.

       In a factual sufficiency review, we also give due deference to the trier of fact’s findings,

avoiding substituting our judgment for the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006). “If, 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 [in the truth of its finding], then the evidence is factually

insufficient.” Id. (quoting J.F.C., 96 S.W.3d at 266).

                                           Best Interests

       Again, both Father and Mother challenge the trial court’s finding that termination was in

the best interests of their children. They argue the evidence is legally and factually insufficient to

support the trial court’s finding that termination was in the best interests of their children. We

disagree.

                                          Substantive Law

       Admittedly, courts must accept the strong presumption that maintaining the parent-child

relationship is in a child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).

However, we also presume that permanently placing a child in a safe place in a timely manner is

in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2014).

       In determining whether a parent is willing and able to provide the child with a safe

environment, the court should consider the factors set out in section 263.307(b), which include:

       (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;
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       (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); see In re A.S., No. 04-14-00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San

Antonio Nov. 12, 2014, pet. denied) (mem. op.).

       Although a best interest finding does not require proof of any particular, unique set of

factors, see In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied), courts

may take into account the factors set forth by the Texas Supreme Court in Holley v. Adams: (1)

the desires of the child; (2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future; (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 by these individuals or by the agency

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. 544 S.W.2d 367, 371–72 (Tex. 1976). These

considerations, i.e., “the Holley factors,” are neither all-encompassing nor does a court have to

find evidence of each factor before terminating the parent-child relationship. See In re C.H., 89
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S.W.3d 17, 27 (Tex. 2002). Thus, lack of evidence as to some of the Holley factors does not

preclude a trier of fact from reasonably forming a strong conviction or belief that termination is in

a child’s best interest. Id.

        It is axiomatic that proof of acts or omissions under section 161.001(1) of the Texas Family

Code does not relieve the Department from proving the best interest of the child. Id. at 28 (citing

Holley, 544 S.W.2d at 370; Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)). However, the

same evidence may be probative of both issues. Id. Additionally, in conducting a best interest

analysis, a court may consider circumstantial evidence, subjective factors, and the totality of the

evidence, in addition to direct evidence. A.S., 2014 WL 5839256, at *2 (citing In re E.D., 419

S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)). Lastly, a fact finder may judge a

parent’s future conduct by his or her past conduct in determining whether termination of the parent-

child relationship is in the best interest of the child. Id.

        There are five children involved in this matter. All five children share the same first and

last initials. In order to refer to the children individually when necessary and to protect their

identity, we shall refer to the children by the following pseudonyms and/or their ages at the time

the trial began:

        (1) Joe — a nine-year-old boy, who turned ten during the course of the trial;
        (2) Jane — a five-year-old girl, who turned six during the course of the trial;
        (3) Sally — a three-year-old girl;
        (4) Becky — a one-year-old girl, who turned two during the course of the trial; and
        (5) John — a seven-month-old boy, who turned eight months during the course of
        the trial.

See TEX. FAM. CODE ANN. § 109.002(d); In re E.A.T., 2015 WL 694929, at *1 (Tex. App.—San

Antonio Feb. 18, 2015, no pet.) (mem. op.).




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                                       The Evidence

       The Department called several witnesses to testify, including Mother, Kimberly Dyke —

Mother’s individual therapist, Father, and Amy Flores — the Department case worker. The

attorney ad litem for the children called two witnesses: Ruben Chavez, a therapist providing family

therapy to Mother and the two oldest children, Joe and Jane, and Avis Massey, the current foster

mother for the children.

        1. Mother

       Mother began her testimony by admitting she was arrested April 1, 2014, two weeks before

the termination hearing began, and she was not released for more than a week. She was arrested

for theft — stealing from a friend’s home. She also admitted that in March 2014, approximately

a month before trial, she tested positive for cocaine on a hair follicle test. Mother admitted using

cocaine “last year or two years ago” — she could not recall when — but denied using it in the

months leading up to trial. She believed the hair follicle test was inaccurate, particularly given

that she tested negative on several urinalysis tests in 2013.

       Mother stated that when he was home, Father was the family “breadwinner.” However,

when he was “locked up” in 2012, she went to work in a bar — at that time she had three children

and was pregnant with the fourth. She received help from her sisters. When Father was

incarcerated, her life was more difficult because she had to work — each time he was arrested, she

had to start a new job.

       When asked, Mother admitted to the existence of domestic violence in the home. She

testified the perpetrator was Father, with whom she had been living since 2002. Initially, she stated

they married in 2007, but then said it was 2011. The couple had been living together since 2002.

Mother stated they argued “a lot” and he was physically abusive “several times.” Mother denied

Father ever “hit” or “slapped” her; rather, he pushed her “towards the sofa.” She specifically
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denied that any violence took place other than verbal arguing and Father pushing her toward the

sofa. Mother admitted the domestic violence took place in front of Joe, but denied Joe’s claims

that Father punched and slapped her. She advised that her domestic violence classes taught her

that having the children in the midst of domestic violence is, in itself, domestic violence that injures

the children.

        Mother admitted she never called the police or reported the domestic violence, claiming

she was afraid because Father threatened to take the children and send her back to Mexico. Mother

stated she last spoke to Father approximately four months before trial, has not lived with him since

November 2012, and she said he will not be returning to her house, where she has lived since

February 2014. She stated whether she has the children or not, she does not plan “to go back with

him.” Father was incarcerated in a federal penal institution for a probation violation stemming

from a prior drug offense. Despite the longevity of their relationship and Father’s criminal record,

Mother denied ever witnessing her husband use or sell drugs. She admitted Father was arrested

for the probation violation in March 2013, during the pendency of the Department’s investigation,

but sometime before the second day of trial — May 23, 2014 — he was released.

        Mother testified she learned from her domestic violence class that she needs to “keep away”

from Father. Despite this testimony, she admitted she provided Father with a ride to the courthouse

on the second day of trial. And, although she testified she no longer has a relationship with Father,

they are still married. Mother stated they “have an agreement” that he will help her financially,

but they will not live together. Father will live in “his own place” and “visit the children, and

that’s it.” However, on the third day of trial, when asked about her “current situation with” Father,

Mother specifically testified, “we are taking marriage counselling [sic] classes.” She clarified,

stating they started marriage counseling the day before the third day of the trial. She further



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testified Father needs domestic violence classes “so he can be a better father, a better husband,”

suggesting she does not intend to remove Father from her life. (emphasis added)

       As for the children, when asked — given her husband’s incarceration, extensive criminal

history and their violent history — whether she thought it would be in her children’s best interests

if Father’s parental rights were terminated, she stated, “I cannot answer that.” Although she does

not believe the children should be returned to Father, she explained she did not “have the heart to

take children away from someone.” It appears Mother intends to permit Father to visit the children,

despite the domestic violence issues and his prior incarceration for drug offenses. Mother clarified

that she believes Father should get “psychological help” prior to any visitation with the children.

She later stated that if therapy and counselling are unsuccessful, she will not “go back” with Father.

       As to her service plan, Mother testified she finished her parenting classes, drug

rehabilitation — although she tested positive for cocaine after completing rehabilitation, and her

domestic violence classes. She stated her individual therapy is complete, but on-going. Mother

admitted that in 2013, she discontinued her domestic violence classes — with one class remaining

— and her individual therapy, but Mother said this was because she was eight-months pregnant

and could not walk. Moreover, she was told she could complete services after giving birth.

       Mother testified she is working two jobs for a total of twenty-five hours per week. She

stated she has been cleaning houses — before her last pregnancy and now since November 2013

— and working at a restaurant — since December 2013 or January 2014. Mother stated the only

time she failed to work during the course of the case was a period of time during her last pregnancy.

Mother stated she has provided the Department with proof of employment. Mother also testified

she is renting a two-bedroom, two-bath house, which she moved into at the end of February 2014,

approximately six weeks before the termination hearing began. Mother stated she provided this

information to the Department and a Department representative came to the house before she
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moved in. At the time of the Department visit, Mother had no water in the house and no stove, but

Mother stated the Department never returned after she moved in. Mother provided pictures of the

house, which were admitted into evidence. Mother initially admitted that she has been evicted

twice in the past, but later stated it was only once.

        Mother downplayed Joe’s concerns about loss of electricity and other services, stating their

electricity and water was “cut off” one time in 2012 for a week. The utilities were cut off,

according to Mother, because Father was not working and she got behind on the bills. However,

Father began working and they were able to have service restored within a week. Mother testified

that during the week the utilities were off, the family stayed at her sister’s home. She later testified

they stayed with Father’s mother. She also denied stealing in front of Joe, testifying she could not

understand where he got that idea from. Mother also denied using drugs in front of Joe and claimed

she did not know why he worries about drug use. Mother admitted she was unaware Joe claimed

he was molested while in the care of one of her sisters, or that he was currently in therapy for

sexual abuse. She was also unaware that when he was taken into Department custody, Joe was in

pain as a result of numerous cavities. Mother testified she took Joe to the dentist, but could not

remember when.

        Mother testified she has made numerous attempts to contact Ms. Flores — her Department

case worker — sending numerous text messages since the end of April 2014, regarding her desire

to see the children, but her messages went unanswered. Ms. Flores denied this, testifying that

Mother’s efforts to stay in contact with her through the duration of the case have been inconsistent.

Ms. Flores also testified that if she received a voicemail from Mother, she called her back. Ms.

Flores denied blocking Mother’s calls. Additionally, Mother’s individual therapist subsequently

testified that in their sessions, Mother was advised that if she could not reach her case worker, she

could contact the supervisor. Moreover, Mother admitted that during the course of the case, her
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case worker and the foster mother were accommodating with regard to Mother’s requests to see

the children at different locations, and prior to her incarceration, Mother was in contact with the

foster mother. It was only after Mother’s latest incarceration that visitation and contact apparently

stopped. However, during the trial, visitation resumed and Mother saw four of the five children

each time. Mother stated the visits went well, but there should have been more visitation permitted.

Mother testified she was unable to secure additional visits because she could not reach Ms. Flores.

       Mother concluded her testimony by stating the children should stay with her. She testified

she has family members who can help her with the children — specifically, her mother and her

sisters. Mother stated her mother is living with her and can assist in taking care of the children.

When asked where the children should be placed should the court determine her rights should be

terminated, Mother first testified she would like the children to be placed with one of her sisters,

but she later testified she would like them to be placed with her mother.

        2. Kimberly Dyke – Mother’s Individual Therapist

       After Mother’s testimony, the Department called Kimberly Dyke, Mother’s individual

therapist, to the stand. Mother had testified she participated in individual therapy with Ms. Dyke

beginning two weeks after John — her youngest child — was born. Mother testified the therapy

sessions were helpful, allowing her to recognize “many things — in which I was wrong.” Ms.

Dyke, a licensed professional counselor, agreed she began seeing Mother sometime in October

2013. Ms. Dyke stated Mother “was very consistent” with regard to attending therapy until March

2014. After that, Mother attended two more sessions, then canceled the next two. Mother

rescheduled one of the sessions, but failed to show. Ms. Dyke was told by Ms. Flores that Mother

failed to appear because she was in jail on the theft charge. Since Mother’s release, she has not

contacted Ms. Dyke. According to Ms. Dyke, as of the date of her testimony, she would have to

say that in her professional opinion, Mother was unsuccessful in therapy.
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       During her testimony, Ms. Dyke stated she prepared a “termination summary,” which was

provided to the Department.       The summary was admitted into evidence without objection.

According to Ms. Dyke, the summary showed Mother was late for therapy or cancelled sessions

four times. The last session they had was March 10, 2014 — a little over a month before the

termination hearing began. Thereafter, Mother cancelled the next two sessions — once for work

and once for illness. Mother rescheduled a session for April 1, 2014, but that is the day she was

arrested and incarcerated. Mother did not reschedule or schedule any sessions after her release

from jail. Accordingly, Ms. Dyke, in the summary, stated Mother’s therapy was terminated

because she refused to receive or participate in services.

       As for therapeutic goals, Ms. Dyke included in her summary that Mother had “no change”

with regard to the goal of “improved safety and security planning parent/child.” Ms. Dyke testified

that although Mother had some initial ideas about how to keep the children safe, her failure to

continue therapy indicated the ideas were not being implemented. Ms. Dyke advised there was a

“slight” improvement with regard to the goal of establishing a stable living environment because

Mother rented a house, but Mother did not receive a score higher than “slight” because although

she obtained a house, she had not demonstrated her ability to maintain the house for a significant

period of time. Ms. Dyke also testified it gave her quite a bit of concern regarding the stability of

housing given Mother’s prior evictions. She stated instability is hard on the children. Mother also

received a “slight” score with regard to improvement in problem solving skills. Although Mother

had begun to find ways of working through issues that kept her from being successful in the past,

Mother had not demonstrated a continued pattern of problem solving. Moreover, Mother’s contact

with Father since his release from prison was a cause of concern to Ms. Dyke. Specifically, she

stated that because of their previous relationship, continuing contact, coupled with potential stress,

could result in a resumption of their relationship. Also, it was not until their last two sessions that
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Mother really began to open up vis-à-vis the domestic violence issue, and this was only after Joe

confronted her in family therapy. As a result, Ms. Dyke graded Mother’s improvement as to the

goal of distinguishing between health and unhealthy relationships as “slight.” Ms. Dyke expressed

concern that during her testimony, Mother focused on the fact that the domestic violence was

directed only at her — seeming to forget that this also constitutes domestic violence as to the

children. In fact, Ms. Dyke opined this testimony might cause her to change her prior “slight”

improvement grade to “no change,” opining that it seems Mother does not completely understand

how injurious her violent relationship with Father was to the children. As for Mother’s drug use,

Ms. Dyke testified Mother made “moderate” improvement in identifying triggers for drug use.

       Ms. Dyke agreed that “slight change” or “moderate change” with regard to therapy goals

was, in her opinion, insufficient to permit Mother to regain custody of her children. She stated

Mother needs to establish ongoing improvement, which she did not do given her apparent

abandonment of therapy in early March. According to Ms. Dyke, if Mother had continued her

therapy, there might have been more improvement, but her discontinuation of the sessions is “a

cause for concern,” and Mother seems to have actually declined since she stopped attending

therapy. Ms. Dyke testified she believed the children had waited long enough for Mother to change

her behavior, and that if the children were returned to Mother she would “be very concerned” for

their safety. Ms. Dyke explained Mother’s relationship with her children “still needs a lot of

work,” and that if she continues to pursue contact with Father, the children will be aware of it,

which may cause “trepidation” for Joe.

        3. Father

       Father began his testimony by admitting he had been incarcerated and was released April

23, 2014 — during the trial — but was required to spend thirty days at a halfway house. He

explained his recent incarceration was not because he “caught a new charge,” but because he had
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failed to report to his parole officer as required — this was his second violation for failure to report.

Father was quickly released after his first violation, but his second violation resulted in more than

a year of incarceration. He claimed he failed to report to his parole officer the second time

“because I was working in the oilfield as a truck driver and my probation officer didn’t like the

fact that I was out, so I just wasn’t compliant and I stayed working and I was violated.”

        Father testified the parole violations stemmed from a 2003 conviction for conspiracy to

distribute five kilograms of cocaine. Father served fifty months — four years and two months —

in a federal prison and was released on parole in 2007. Father was placed on parole for five years.

One condition of his parole was that he report to his parole officer. When he failed to report the

first time, his parole was revoked but he was quickly released. However, when he failed to report

a second time, his parole was again revoked and he was returned to prison for eighteen months.

Father admitted he was given the option of release after fifteen months, but declined because early

release would have meant another five years on parole. Father decided to stay in prison for the

entire eighteen months, at which time he would be released without restriction. He also admitted

he had previously been charged with robbery, but the charge was dismissed because the

complainant passed away while Father was in prison on the federal drug charge.

        As for living arrangements, Father advised that although he uses his mother’s address, he

“practically live[s] in [his] 18-wheeler.” He currently has no place for the children to reside if he

were to retain custody, but testified it would not take him long to obtain a place because he is

making “almost $2,000 a week,” working for a company that hauls “frac sand” for another

company with oils rigs throughout the United States. His job is to deliver “frac sand” to well sites

in south and west Texas, New Mexico, Oklahoma, and Louisiana. However, he stated he is

“mostly regional” — south and west Texas and New Mexico. Father said he has already spoken

to a realtor about getting a home. Father testified he works seven days a week, fifteen hours a day
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for twenty-one days and then he is off for three days. On those three days, he sometimes stays

with his mother, but he said he often rents a hotel room instead because his mother’s home is in

an area where the “drug and crime rate is very high.”

       Regarding the family’s past living arrangements, Father stated that when he was on parole,

he and Mother lived with their three oldest children. The fourth child, Becky — the one who tested

positive for narcotics at birth — was born after Father was returned to prison for a parole violation.

Father testified he never saw Mother use drugs, but admitted he was aware she used them and

knew Becky was born with drugs in her system. When asked if he tried to stop Mother from using

drugs, Father stated he tried to make their living situation less stressful by working and providing

for the family. Father claimed that many of Mother’s problems were his fault because he was

incarcerated, but he acknowledged his decisions did not cause Mother to use drugs. He also

admitted Mother’s drug usage endangered the children and they have suffered as a result of his

and Mother’s behavior. Father also admitted there is a pattern of instability with Mother when he

is not around — e.g., drug use, eviction — and yet he made a conscious decision to violate his

parole, knowing the children would be left alone with Mother.

       Father was questioned about the allegations of domestic violence. Father specifically

stated he “never put” his hands on Mother. He admitted there were “loud” verbal arguments in

front of the children and foul language was used. Father described his behavior toward Mother as

being “aggressive . . . with my voice.” He recognized this constitutes abuse, but continued to deny

ever being physically abusive with Mother, pointing out he was never “charged for hitting her or

punching her.” Father testified Mother told him he could not come home “unless I go to marriage

counselling and unless the kids feel comfortable around me and that I’m showing effort that I’m a

better person than what I was.” Father said he still loves Mother and they are “very devoted to



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each other.” Father admitted Mother picked him up when he was released from prison, and that

they had lunch during a court recess.

       As for the Department service plan, Father admitted he received it, but he did not complete

the plan and did not attempt to “work services” even after he was released, other than obtaining

employment in an attempt to establish stability. Father complained that Ms. Flores did not assist

him in setting up counseling, etc. when he was released, but acknowledged the service plan

included addresses and telephone numbers related to the required services. Father admitted he

never called the telephone numbers provided on the service plan and has not attempted to begin

services. Although he did not complete services, Father testified that while in prison, he took the

initiative and completed a three-month parenting class, a drug class, and an anger management

class. The completion of the classes entitled him to “good time” credit, reducing his prison time.

       Father testified that since his release in April 2014, he has seen the children twice. Like

Mother, he stated he has had difficulty arranging visits because he is unable to reach Ms. Flores

by telephone. However, as noted above, Father works twenty-one days straight, making it

impossible for him to see the children during that period, and with only three days off, scheduling

visitation is problematic. When he was able to see the children after his release, Joe, the oldest

child, did not want to see him. Father testified he was told by Ms. Flores that Joe is “terrified . . .

and scared” of Father, but Father did not believe this because each time Joe ran to him and hugged

him, telling him he loved him. However, Father admitted that after the brief interaction, Joe ran

back to his foster mother and they left. Ms. Flores also told him Jane, his oldest daughter, is also

terrified of him, but like Joe, she also hugged and kissed him during the visits.

       Father testified he does not believe they deserve to lose their children. Father admitted that

neither he nor Mother used good judgment in the past, but he changed “the day [he] was released”

from prison. He believes he can complete the required services on his days off, but he feels they
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need a case worker who is actually working with him and Mother toward reunification. Although

he admitted that while he was incarcerated Ms. Flores wrote to him, providing him with progress

reports on the children, it is his belief that Ms. Flores decided he is “not a good person” and is

“against” him. He does not believe he has a relationship with Ms. Flores whereby they are working

toward the same goal.

         4. Avis Massey — Foster Mother

        The attorney ad litem for the children called Avis Massey, the children’s current foster

mother, as a witness. Ms. Massey testified that initially, the children were placed with Father’s

relatives. However, the four older children came into her care on December 27, 2012, and the

baby was placed in her care after his birth in September 2013. Ms. Massey stated that when the

four older children arrived, “they were all very sick.” She said the three girls had the flu and ear

infections. Joe was also sick, but not as sick as his sisters. Ms. Massey said “we spent December

31st in the hospital.” All of the children are fine now, but they suffer from allergies and use

breathing machines. Sally, the three-year-old “continues to get touches of pneumonia because of

RSV.” Ms. Massey described Sally’s condition as “pretty serious.” She also provided testimony

about Joe’s dental issues, stating he had numerous cavities when she took him to the dentist. After,

Joe thanked her for months for taking him to the dentist, telling her he “had been complaining for

a while about his teeth hurting but his mom I guess she would put something on it or just kind of

not really take care of it.”

        Ms. Massey testified she has been in contact with Mother from the time the children were

initially placed with her in an attempt to foster reunification. Ms. Massey stated that initially she

did not intend to retain custody of the children or adopt them. However, that has now changed.

        As for Joe, Ms. Massey advised that he tries to parent the other children and she has to

constantly redirect him. Joe feels he has to take care of his younger siblings, telling Ms. Massey
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that in the past he cooked for them, changed diapers, etc. Ms. Massey told Joe, who was eight-

years-old when he came to stay with her, he did not need to do those things, she was “the mom,”

and she would take care of it. Ms. Massey testified that according to Joe, once he opened up to

her, he said “his dad . . . was the mom. His dad was the one that really cared for him, and that the

mom would just kind of sit back and let the dad cook for the kids and do everything for the kids.”

Once Joe opened up, “he shared a lot.” One example he shared was that he was accused of taking

some money, but Mother knew he did not take the money because she took it. Joe felt Mother

failed to protect him and this upset him. He also witnessed Mother stealing shoes from a store.

Joe told her he knew Mother was recently arrested for theft, and he was glad she “got caught”

because she might “learn her lesson.” Joe also told Ms. Massey about alleged sexual abuse by an

older male cousin while he was in his aunt’s home. According to Joe, he told his mother, but she

did not believe him “until [he] started bleeding.” Ms. Massey asked if Mother took him to the

doctor or took any other action, and he said “no.” Ms. Massey relayed this information to Joe’s

therapist.

        When Joe first arrived, he missed his mother, but he missed his “Auntie Vella” more

because it was her home in which he stayed. Although Joe does not want to hurt Mother’s feelings,

he really does not desire to be reunified with her or Father. Joe told Ms. Massey he does not feel

safe with Father because of things that happened in the past. Joe also divulged that it was really

only once they were placed in Ms. Massey’s home that he lived with his sisters. According to Ms.

Massey, Joe led her to believe that when he was born, he went to stay with his grandmother in

Mexico, as did his sister Jane. When he was three or four, he returned to San Antonio, but lived

with his “Auntie Vella.” Mother denied that any of the children stayed with any of her sisters for

more than two or three hours at a time — she specifically stated, “I have never left them with

them.” Admittedly, Joe told stories in which it appeared the four children were together in a home
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with Mother and Father, but the stories from those periods were disturbing, e.g., Father killed a

rat, “the lights got turned off.” Mother admitted she sent Joe to stay with her mother for a month

“when he was smaller,” but denied sending either Joe or Jane to live in Mexico, claiming she only

sent them with their father to visit her mother for two weeks.

       Ms. Massey told the court the children enjoyed their visits with Mother, but they also enjoy

returning to her house. Initially, at least one of the children — three-year-old Sally — would cry

when she had to leave after a visit with Mother, but now none of the children cry when they return

home after visiting Mother. Ms. Massey stated the children are doing well in her home and that if

the parents’ rights are terminated, she will keep all of them permanently.

        5. Ruben Chavez — Family Therapist

       The attorney ad litem for the children also called Ruben Chavez, a family therapist, as a

witness. Mr. Chavez testified he has been seeing Mother and her two oldest children, Joe and

Jane, two to three times a month for a little over a year. Father has not participated in family

therapy and Mr. Chavez never met him.

       According to Mr. Chavez, from the outset, Joe, who is “pretty mature” and “pretty

intelligent” for his age, “has had a lot of anxiety about returning back into that environment where

he was removed from.” Joe desires stability and is “fearful” that if he is returned home, there will

be a lack of food in the house, no electricity, or he will be exposed to rodents and insect

infestations. Joe also has concerns about the domestic violence he witnessed in the home. Mother

admitted that during therapy, Joe told her he does not want her to resume her relationship with

Father; Mother testified she told him she would not resume her relationship with Father. Mr.

Chavez testified Joe is not only concerned for himself, but as the oldest, he is concerned for his

four younger siblings. In fact, Mr. Chavez opined that Joe, at the age of nine, has become

“parentified,” taking on the role of parent with his siblings. Joe worries and is constantly fearful
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that Mother will continue to engage in bad behavior, e.g., drug use and theft. Joe expressed anger

that his Mother exposed one of his siblings — at birth — to drugs. Mr. Chavez believed Joe’s

inability to protect his siblings caused Joe great distress. However, since he was removed, Joe has

shown progress, beginning to let go of his need to parent his siblings.

       As for Joe’s concern about Mother stealing, it stems from Joe’s knowledge — as previously

described by his foster mother — that Mother was recently arrested “again” and charged with theft.

Joe told Mr. Chavez about prior incidents of theft involving Mother. Mr. Chavez stated the arrest

initially surprised Joe, and he expressed sadness and hope that Mother would learn her lesson and

change — much as he told Ms. Massey.

       Mr. Chavez also treated five-year-old Jane. He testified Mother’s drug use had a “very

negative effect” on Jane. If Mother’s behavior continues and Jane is returned, it will “set her up

for problems far into the future.” Like Joe, Jane told Mr. Chavez about her memories of domestic

violence in the home.

       Mr. Chavez also believed Mother failed to make significant progress in changing her

behavior given that she continues to engage in behaviors — drug use and theft — that cause her

two oldest children to worry and feel insecure. However, Mr. Chavez admitted Mother was able

to see the effect of her behavior on her children, which was a breakthrough for her. Despite this,

Mr. Chavez indicated concern, noting Mother missed some therapy sessions — the last one

because she was arrested and incarcerated. And, although Joe has been able to confront Mother

during therapy, resulting in some “positive moments” in which she validated his memories and

fears, given her continued pattern of behavior, Joe has been unable to make any “real measurable

progress” in family therapy as it relates to his mother.

       Despite some progress with his mother during therapy, Mr. Chavez testified that since he

was removed from his home, Joe has adjusted well to his new home and school. Although Joe and
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Jane enjoy visits with their mother and would be “sad” if they never saw her again, Joe feels secure

in his foster home and believes it is a good placement for himself and his siblings. The foster

home is stable and has helped the children in the therapeutic process. Mr. Chavez testified the

children have been waiting long enough for their Mother to change and it would be in their best

interests to have stability in their lives, which the foster home provides. According to Mr. Chavez,

if Mother’s behavior is affecting the two oldest children, it is likely affecting all of them. Thus,

Mr. Chavez concluded that given the current environment in the home, returning the children

would not be beneficial to the children. To the contrary, it would be in their best interests to stay

with their foster family and, if possible, be adopted by the family.

        6. Amy Flores — Department Case Worker

       Ms. Flores began her testimony on the fourth day of trial, August 20, 2014. She testified

she has been the case worker in this matter since its inception except for two or three months. She

talked about the parents’ ability to work their service plans. As to Father, she testified he had the

ability to work services when the case was still in the “Family Based Safety Services Program,”

which lasted approximately three months. Then, when the case was officially opened in December

2012, Father “was available to do services at that point.” Admittedly, after he was incarcerated,

his ability to complete any portion of the service plan was limited, but he attempted to undertake

classes in prison one of which might give him credit, e.g., a parenting class. Once Father was

released in May 2014, he again had the ability to work on his service plan. However, since his

release in May of 2014, Father had not started or completed: (1) a psychosocial evaluation; (2)

domestic violence classes; (3) anger management classes, (4) individual therapy; or (5) a drug

assessment. Ms. Flores testified it was Father’s burden to contact the service providers using the

information provided in his service plan. When asked if she was aware that Father and Mother

“are taking family therapy,” Ms. Flores stated Father provided her with information about therapy
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at Our Lady of the Lake University. However, when Ms. Flores contacted the university, she was

told that although the parents went for an initial consultation in July, no future appointments had

been scheduled. Ms. Flores was not aware of the parents’ attendance at any other therapy sessions.

       Ms. Flores opined that because of his incarceration due to the parole violation, Father could

not have shown significant progress as to services or demonstrated he learned from the services so

as to establish he is no longer a safety risk with regard to his children. Moreover, given the

employment Father allegedly accepted upon his release — a truck driver working twenty-four

hours a day for twenty-one days straight — it would be impossible for Father to work and complete

the required services, or for Ms. Flores to interact with Father in such a way that she might

determine he benefitted from the required services. To properly work the service plan, Father

would have to be available every week, e.g., domestic violence classes are required once a week

for sixteen weeks. Father “indicated” to Ms. Flores that his schedule changes and he does not

always know when he will be available — he might be available for one week, but he is not sure

when that might be.

       Ms. Flores also provided testimony that Father had failed to provide child support as

required by the plan of service. Specifically, Father had not paid any child support since his

release, despite his claim that he is earning $2,000 a week. Ms. Flores did note that although

Father claims he is working, he never provided proof of employment. As for drug use, Father

tested negative on a urinalysis exam in May 2014, after he left the halfway house. However, he

tested positive for cocaine on August 21, 2014 — during trial — on a hair follicle test. Ms. Flores

testified that when she talked to Father about the positive test, he denied using drugs and claimed

Ms. Flores tampered with the test. Father attempted to counter Ms. Flores’s testimony on the

recent drug test, stating as part of his employment he is regularly drug tested and given that he is

still employed, the tests must have been clean. Father testified he has been drug-free since his
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release from prison, stating he took another hair follicle test at his own expense and believes the

results will be negative.

        As for visitation, Ms. Flores testified that when Father advised her he would be available

during a certain week, she set up visitation with all of the children. Since his release, Father visited

with some of the children once each month for an hour — June, July and August. To her

knowledge, Father did not visit the children after they were removed but prior to his

reincarceration. Ms. Flores stated she would advise the two older children — the ones who are

verbal — when they were to visit with Father or Mother. Initially neither Joe nor Jane wanted to

see Father because they were scared. However, Jane is no longer scared and Father’s visits with

her and the other children have been positive.

        Ms. Flores said she made particular efforts with the oldest child, Joe, with regard to

visitation, but he “stated over and over he does not want to see his dad.” Joe told her he is

“confused . . . afraid and does not want to see his father.” Joe said he was scared because seeing

his father causes him to remember things that went on in the household. Joe told her that many

times he saw his father hit or slap his mother, push her, and pull her hair. He also saw his mother

throw coffee at Father during an argument. According to Ms. Flores, Joe has a “vivid memory of

the domestic violence.” Joe believes father “is lying to him right now. He thinks that his dad is

putting up a front.” He also thinks his mother is lying to him. Joes says he “has a weird feeling

inside his stomach.”

        Ms. Flores stated she has picked Joe up from daycare to try to talk him into visiting with

Father, and Joe has even come to the Department for a visit, but changed his mind at the last

minute. Joe also refused visitation with Mother. Ms. Flores admitted that during one visitation,

after Father spent time with Joe’s siblings, Father and Joe embraced. After this incident, Ms.

Flores took Joe to her supervisor to see if she could convince Joe to visit with Father, but Joe
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continued to insist he did not want to visit with him. Others also attempted to persuade Joe to meet

with his Father, including his therapist and his foster mother, but without success. After speaking

with Joe’s therapist, the Department decided it was not in Joe’s best interest to force him to visit

with Father.

       Despite Joe’s insistence, after the third day of termination hearing — at which Father

testified Joe hugged and kissed him and told him he loved him before running back to the foster

mother — Ms. Flores spoke to Joe’s therapist about a possible “therapeutic visit” between Father

and son. Mr. Chavez — the therapist — advised her it would not be a good idea because: (1) the

goal is no longer reunification; and (2) it would be a setback for Joe.

       Ms. Flores said there were also concerns with Mother’s visitations with Joe. Specifically,

during a recent visit, Joe’s maternal grandmother came with Mother. Joe told Ms. Flores and his

foster mother that he heard Mother say in Spanish to her mother “that she couldn’t handle the kids

and to take them because they weren’t listening to her.” This upset Joe and since then, he had been

“adamant about not seeing his mom.” This also reinforced a concern Ms. Flores already held about

Mother’s ability to manage all five children.

       According to Ms. Flores, the Department has provided Mother with “all the services . . .

that would help her” learn to manage the children, including a parenting class. Yet, Mother is still

unable to manage all the children at once. Mother has not demonstrated that she learned anything

from her service plan that would aid her in raising her children on her own. As for Mother’s bond

with her children, it is much stronger with the three older children because the younger two have

never been in her care. Prior to the last four months, Mother was inconsistent with regard to

visitation, exacerbating the distance between herself and her two youngest children. When Mother

missed visitation, her excuses included illness, missing the bus, and incarceration.



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       As for Mother’s service plan, although she completed numerous classes, she failed to

complete individual therapy, and was discharged for “excessive no shows.” Moreover, even

though she attended and completed several classes, Mother failed to meet certain goals set out in

the service plan. According to Ms. Flores, it is not sufficient simply to complete services, one

must reach the goals set out in the service plan — the actual services are there to assist the parent

in attaining the goals. For example, after initially being discharged as unsuccessful due to

“excessive no shows,” Mother completed her domestic violence classes and received a certificate.

However, Ms. Flores testified Mother has “not done anything to demonstrate that she’s learned

from the domestic violence class[es].” Mother’s testimony establishes she intends to continue her

relationship with Father, despite the prior domestic abuse. According to Ms. Flores, she has seen

Mother with Father at stores and has seen recent Facebook pictures of them at a club. Ms. Flores

concluded the couple is still involved, despite a history of domestic violence and Mother’s

completion of the domestic violence program.

       Mother’s plan of service also required that she complete a drug assessment, which she did.

After the assessment, it was recommended that Mother complete outpatient drug treatment, which

she did. Despite this, in February 2014, Mother tested positive for cocaine — it was Mother’s

cocaine use that brought the Department in initially when Mother gave birth to Becky, who tested

positive for cocaine and opiates. Ms. Flores testified the February test was a hair follicle test and

picks up prior drug use up to three months. Ms. Flores stated she has required that Mother be drug

tested and admitted Mother has taken a couple of urinalysis tests that were negative. However,

she attempted to swab Mother’s mouth during a visitation, but Mother refused, stating she had to

go to work. Ms. Flores asked Mother “to take several others, in particular in June and in July” of

2014 “and she no showed.” Mother failed to show up for her July 11, 2014 drug test, instead

showing up on July 16, perhaps to allow any drugs to leave her system. Ms. Flores opined this
                                                - 25 -
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causes concern with regard to Mother’s sobriety. Then, in August, while the trial was ongoing,

Mother was asked to submit to another hair follicle exam. The exam took place on August 21,

2014 — the same day as Father’s exam — and like Father, Mother tested positive for cocaine.

Mother tested positive again on September 28, 2014 — during the last week of the termination

hearing. On that same day, Mother was rearrested on the April theft charge. Ms. Flores reminded

the court that Father was imprisoned on a drug charge involving distribution of cocaine, the

Department entered this case because Becky tested positive at birth for cocaine, and now, during

trial, both parents — who have continued their relationship — tested positive for cocaine.

       Admittedly, Mother leased a home, but Ms. Flores was concerned because when she visited

at a time designated by Mother — February 2014 — the home had no water, electricity, or

furniture. Mother explained that technically she was not moving in until the end of the month —

shortly before the termination hearing was set to begin. Mother previously had issues with her

water and electrical services being cut off for non-payment. She was also evicted from another

residence. Ms. Flores testified she returned to the home a few weeks later and left her card on the

door, but Mother did not call her.

       Although Mother testified she has employment cleaning houses and waitressing, Ms.

Flores has concerns. First, Mother provided her with a telephone number for a woman whose

house she cleans. When Ms. Flores spoke to the woman, she stated Mother cleans the house “every

now and then.” Second, Ms. Flores contacted the restaurant in July 2014 and was told Mother had

not been working there. Thus, Mother failed to provide proof of employment.

       In sum, Ms. Flores testified that although Mother completed the actual services — but for

the individual therapy — she did not meet a single goal set out in the plan of service. Specifically,

she has failed to put her children’s needs before her own, maintain a sober lifestyle, demonstrate

she has a safe and stable home, or put the safety of the children above her needs. Additionally,
                                                - 26 -
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she has not established proof of employment so that she can support the children in the event they

are returned to her.

       Ms. Flores also provided testimony about the foster placement. She stated she has observed

the foster mother, Avis Massey, with the children and Ms. Massey had demonstrated an ability to

manage the children. Ms. Flores opined the children are in a good placement and Ms. Massey

provides them with “the best possible future.” Mother did provide the names of relatives that

might be willing to take the children in the event of termination, but when Ms. Flores tried to

contact them, they never returned her calls.

       Ms. Flores recommended both parents’ rights be terminated, pointing out that the children

have been in foster care for almost two years — except of course for John, who was born in 2013.

She testified the drug issues that brought the children under the auspices of the Department still

exist. Both parents have recently tested positive for cocaine, a pattern of behavior going back to

Father’s initial arrest in 2003 on drug charges, as well as the birth of Becky in 2012. In addition,

Mother continues her relationship with Father despite completion of domestic violence classes,

perpetuating the prior cycle of abuse. Thus, it would be in the best interests of the children to

terminate both Father’s and Mother’s parental rights.

                                           Application

       Admittedly, there is some evidence that Father and Mother made efforts toward resolving

their issues. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11) (willingness and ability of family

to seek out, accept, and complete counseling services; willingness of child’s family to effect

positive personal changes within reasonable time); Holley, 544 S.W.2d at 371–72. Mother

attended and completed parenting classes, domestic violence classes, and drug rehabilitation. See

TEX. FAM. CODE ANN. § 263.307(b)(10), (11); Holley, 544 S.W.2d at 371–72.                 She also

participated in individual and family therapy. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11);
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Holley, 544 S.W.2d at 371–72. Father seemingly obtained a well-paying job and may have

begun a marriage or family counseling program with Mother.              See TEX. FAM. CODE ANN.

§ 263.307(b)(10), (11); Holley, 544 S.W.2d at 371–72. In their testimony, both parents manifested

a desire to change in order to reunify with their children, expressing deep love and concern for

them. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11). Despite this, we hold there is sufficient

evidence that would have allowed the trial court to have reasonably formed a firm belief or

conviction that termination was in the best interests of the children. See J.P.B., 180 S.W.3d at 573.

       Neither parent challenged the grounds for termination, and there is evidence both parents

committed acts or omissions under section 161.001(1). See C.H., 89 S.W.3d at 28. More

specifically, there is evidence Father and Mother: (1) knowingly placed or allowed their children

to remain in conditions or surroundings that endangered their physical or emotional well-being;

(2) engaged in conduct or knowingly placed their children with someone who engaged in conduct

that endangered their physical or emotional well-being; and (3) used a controlled substance in a

manner that endangered the health or safety of their children and failed to complete a court-ordered

substance abuse program or after completing it, continued to abuse a controlled substance. See

TEX. FAM. CODE ANN. §§ 161.001(1)(D)–(E), (P). Although proof of acts or omissions under

section 161.001(1) is not dispositive in a best interest analysis, it is certainly probative. See C.H.,

89 S.W.3d at 28 (citing Holley, 544 S.W.2d at 370; Wiley, 543 S.W.2d at 351).

       In addition, Father and Mother have a history with illegal narcotics. See TEX. FAM. CODE

ANN. § 263.307(b)(8) (history of drug abuse by child’s family); Holley, 544 S.W.2d at 371–72;

see also A.S., 2014 WL 5839256, at *2 (holding that trier of fact may judge parent’s future conduct

by past conduct in determining whether termination is in child’s best interest). It is undisputed

Father was incarcerated for almost five years for conspiring to distribute five kilograms of cocaine.

See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371–72; see also A.S., 2014
                                                 - 28 -
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WL 5839256, at *2. When released on parole, he twice violated his conditions of parole, resulting

each time in reincarceration. See Holley, 544 S.W.2d at 371–72. When Mother gave birth to her

fourth child in 2012, the child tested positive for cocaine and opiates, ultimately resulting in the

Department removing the children. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544

S.W.2d at 371–72; see also A.S., 2014 WL 5839256, at *2. Moreover, during the course of the

Department’s case, both Father and Mother submitted to hair follicle exams and each tested

positive for cocaine. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371–72.

In fact, during the course of the termination hearing, which took place over a course of months,

both parents tested positive for cocaine — although they denied using drugs; Father going so

far as to accuse the case worker of tampering with the results. See TEX. FAM. CODE ANN.

§ 263.307(b)(8); Holley, 544 S.W.2d at 371–72. The last positive test for both parents was in

August 2014, almost two years after the Department’s initial intervention. See TEX. FAM. CODE

ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371–72.

       There was also evidence showing that although Mother completed domestic violence

classes, she failed to apply that knowledge to her situation.        See TEX. FAM. CODE ANN.

§ 263.307(b)(7), (11), (12) (history of abusive or assaultive conduct by child’s family; willingness

to effect positive changes within reasonable time; demonstration of adequate parenting skills);

Holley, 544 S.W.2d at 371–72. Despite testifying that she learned she needs to stay away from

Father, other evidence showed Mother and Father resumed their relationship — except for actual

cohabitation — immediately after Father left the halfway house and before he took any domestic

violence or therapy classes. See TEX. FAM. CODE ANN. § 263.307(b)(7), (11), (12); Holley, 544

S.W.2d at 371–72. Moreover, despite her oldest child’s claims that Father physically abused

Mother and his fears relating to the abuse, both Mother and Father denied any physical violence

or downplayed it. See TEX. FAM. CODE ANN. § 263.307(b)(7), (11), (12); Holley, 544 S.W.2d at
                                               - 29 -
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371–72. The couple are apparently engaged in counseling, and Mother testified Father should

attend domestic violence classes so he will be “a better husband.” They have been seen together

at stores and in pictures on social media.

       Neither the therapists nor the case worker believed reunification is appropriate, testifying

the children’s best interests would be served by terminating Father’s and Mother’s parental rights.

See TEX. FAM. CODE ANN. § 263.307(b)(6) (results of psychiatric, psychological, or developmental

evaluations of child or parents); Holley, 544 S.W.2d at 371–72. Mother’s therapist specifically

noted Mother demonstrated no change with regard to the goal of safety and security for the

children. See TEX. FAM. CODE ANN. § 263.307(b)(6), (12); Holley, 544 S.W.2d at 371–72.

Additionally, Mother’s continued contact and interaction with Father, despite the prior abuse, was

of great concern to Mother’s therapist and the family therapist. See TEX. FAM. CODE ANN.

§ 263.307(b)(6), (7), (11); Holley, 544 S.W.2d at 371–72. Accordingly, Mother’s therapist ranked

Mother’s progress in distinguishing between health and unhealthy relationships as “slight.” See

TEX. FAM. CODE ANN. § 263.307(b)(6), (7), (11), (12); Holley, 544 S.W.2d at 371–72. Mr.

Chavez, the family therapist, also testified as to Mother’s lack of progress, noting her continued

drug use and the recent theft charge. See TEX. FAM. CODE ANN. § 263.307(b)(6), (8), (11), (12);

Holley, 544 S.W.2d at 371–72. This behavior worries the two oldest children, resulting in

insecurity. See Holley, 544 S.W.2d at 371–72. And although during therapy Mother “validated”

Joe’s memories of domestic violence, her testimony makes it clear both she and Father now refuse

to admit its existence. See TEX. FAM. CODE ANN. § 263.307(b)(7), (11), (12); Holley, 544 S.W.2d

at 371–72.

       Ms. Flores, the case worker, stated Father showed little concern with his service plan

requirements, failing to start, much less complete, any of the designated programs. See TEX. FAM.

CODE ANN. § 263.307(b)(10), (11), (12); Holley, 544 S.W.2d at 371–72. Moreover, Father chose
                                               - 30 -
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a job that essentially negated any chance he might have of completing his service plan. See TEX.

FAM. CODE ANN. § 263.307(b)(10), (11), (12); Holley, 544 S.W.2d at 371–72. And, although

Mother completed most of the required programs and classes, she did not demonstrate she

learned anything, failing to meet the goals set out in the service plan. See TEX. FAM. CODE ANN.

§ 263.307(b)(11), (12); Holley, 544 S.W.2d at 371–72.

       Then, there is testimony regarding the feelings of the two oldest children, ten-year-old Joe

and five-year-old Jane.      See TEX. FAM. CODE ANN. § 263.307(b)(1) (child’s age and

vulnerabilities); Holley, 544 S.W.2d at 371–72. Joe expressed to his therapist and the case worker

that he is afraid of Father, refusing to see him during visitation. See TEX. FAM. CODE ANN.

§ 263.307(b)(5) (child fearful of returning home); Holley, 544 S.W.2d at 371–72. Both children

described physical violence in the home — hitting, slapping, hair pulling. See TEX. FAM. CODE

ANN. § 263.307(b)(1), (5), (7), (12); Holley, 544 S.W.2d at 371–72. Yet, the parents deny these

events entirely. See TEX. FAM. CODE ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

Outside of therapy, Mother would only go so far as to say Father pushed her toward a sofa on one

occasion. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371–72.

Father denied any physical abuse, admitting only to yelling and cursing. See TEX. FAM. CODE

ANN. § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371–72. Joe specifically advised Mother

during therapy that he did not want her to reunite with Father, fearing more violence, and his

Mother agreed she would not, but the evidence shows Mother has, at least to some extent, reunited

with Father. See TEX. FAM. CODE ANN. § 263.307(b)(1), (5), (11), (12); Holley, 544 S.W.2d at

371–72. Mr. Chavez testified that if the parents’ behavior is affecting the two oldest children, it

likely affects the others, and given the current situation, returning the child to Father and Mother

would not be beneficial to the children. See TEX. FAM. CODE ANN. § 263.307(b)(6); Holley, 544

S.W.2d at 371–72.
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       Finally, the evidence shows all five children are in a good foster home with a foster mother

who has demonstrated an ability to care for and manage the children. See Holley, 544 S.W.2d at

371–72. Ms. Massey intends to adopt all five children, allowing them to stay together and

providing them with “the best possible future.” See id. The family therapist testified that staying

with Ms. Massey permanently would be in the children’s best interests. See id.

       Recognizing that in making its best interest determination, the trial court was permitted to

consider circumstantial evidence, subjective factors, and the totality of the evidence — in addition

to the direct evidence presented — we hold the trial court was within its discretion in finding

termination of both Father’s and Mother’s parental rights would be in their children’s best interests.

See A.S., 2014 WL 5839256, at *2. In other words, the evidence is such that the trial court could

have reasonably formed a firm belief or conviction that termination was in the children’s best

interests. See J.P.B., 180 S.W.3d at 573.

                                            CONCLUSION

       Based on our review of the evidence and application of the standards of review, we hold

the evidence was legally and factually sufficient to permit the trial court to find termination of

Father’s and Mother’s parental rights was in the best interests of the children. Accordingly, we

overrule Father’s and Mother’s issues and affirm the trial court’s termination order.


                                                   Marialyn Barnard, Justice




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