                             NUMBER 13-12-00580-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


          IN THE INTEREST OF R. T., J. L., AND E. Y., CHILDREN


                    On appeal from the 135th District Court
                          of Victoria County, Texas.


                             MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
           Memorandum Opinion by Chief Justice Valdez

       Appellant, I.T., appeals the termination of her parental rights to her three

children, R.T., J.L. and E.Y. See TEX. R. APP. P. 9.8(b)(2) (providing that in a parental-

rights termination case, “the court must, in its opinion, use an alias to refer to a minor,

and if necessary to protect the minor’s identity, to the minor’s parent or other family

member”). By three issues, I.T. contends that the evidence is legally and factually

insufficient to support the trial court’s finding that she violated two statutory grounds for
termination and that the trial court abused its discretion in terminating her parental rights

while not terminating E.Y.’s father’s parental rights. We affirm.1

                                            I.      THE EVIDENCE

       Terry Kubena, a case worker with the Department of Family and Protective

Services (the “Department”), testified that she was assigned to I.T.’s case. Kubena

stated that she reviewed the Department’s plan of service with I.T. and that I.T.

indicated that she understood the plan. According to Kubena, at a status hearing on

December 12, 2011, the trial court ordered I.T. to comply with the service plan, and she

indicated that she understood that if she did not comply with the plan it would impact her

ability to get her children returned to her. Kubena testified that I.T. has not complied

with the service plan by failing to attend counseling and parenting classes and by failing

to complete a hair follicle drug test. Kubena explained that I.T. was not allowed by court

order to visit her children until she completed the hair follicle test and that due to her

failure to complete the test, I.T. had not seen her children from April 2012 until the date

of the termination hearing on September 4, 2012. I.T. contacted Kubena in August

2012, informing her that she wanted to “finish her services.”

       The children were placed with their maternal grandmother in Alford, Texas.

According to Kubena, that placement has been “[e]xcellent” and the children were

“doing well.” The Department requested that I.T.’s parental rights be terminated and

that the trial court grant permanent managing conservatorship of the children to the

Department. The Department sought to eventually grant permanent placement of the

children with the maternal grandmother.


       1
           E.Y.’s father’s paternity rights were not terminated, and E.Y.’s father is not a party to this appeal.


                                                        2
       Kubena testified that I.T. had previously submitted to a drug test, and it was

negative. Kubena did not elaborate regarding when this test was conducted, but she

reiterated that in April 2012, I.T. was ordered to take a hair follicle drug test, and she

had not complied. Kubana stated that it was in the children’s best interest that I.T.’s

parental rights be terminated.

       Upon cross-examination, the children’s attorney ad litem asked Kubena the

following question: “Why is [I.T.]—why were the kids removed from [I.T.]?” Kubena

responded, “Allegations of drug abuse, that she was smoking something out of a can.

People were coming in and out of the home. That it was unsure if drugs were in the

presence of the children.” Kubena explained that the Department was concerned that

I.T. was continuing to use drugs. The attorney ad litem asked Kubena if there had been

domestic violence issues raised in the case between E.Y.’s father and I.T., and Kubena

replied, “Yes.”        Kubena explained that I.T. had been released from jail after being

arrested for domestic violence due to an argument between I.T. and E.Y.’s father.

Kubena said that I.T. claimed that E.Y.’s father “put his hands on her but she’s the one

who went to jail.”

       Martha Villarreal, the “CASA volunteer,” in the case testified that she has not had

any contact with I.T. or any of the children’s fathers. Villarreal visited the children in

October.2 Villarreal stated that she had been instructed to observe I.T.’s visitation with

the children, but that she “may [have been] wasting [her] time because [I.T.] didn’t show

up regularly.” Villarreal did not testify regarding whether I.T. actually attended visitation

with her children and whether Villarreal ever observed those visitations. Villarreal was


       2
           Villarreal did not state the year of the first visit.


                                                           3
unaware if her role as a volunteer for CASA included visiting with the parents. Villarreal

testified that she followed her supervisor’s direction to “learn about the children and be

there for the children.” According to Villarreal, the children were doing well in their new

placement and were requesting to stay there.

       Villarreal recommended that the children stay with their maternal grandmother.

Villarreal stated, “I’m basing my decision on the lack of communication that I have—

have not been able to see as far as between parent and child or effort on that part and

the communication I have had with the children themselves and what they have been

telling me.”

       E.Y.’s father testified that there had been a prior investigation with the

Department regarding the children. E.Y’s father stated that in 2009 “[a]llegations [of

domestic violence] were made”; however, he was not arrested or charged. 3 E.Y.’s

father was asked if the Department conducted an investigation due to allegations that

he was intoxicated and had been selling crack and pills from the home. E.Y. replied

that “[p]eople say stuff about [him] all the time because of [his] history” and that he has

paid his debt to society. When asked if this allegation was in the Department’s history

of the case, E.Y.’s father responded, “Like I said, if you’ve got it there, I mean, I don’t

know what people say about me. People say stuff about me all the time. If you have

got it there—”

       Concerning whether domestic violence has occurred during the Department’s

case, E.Y.’s father stated that he and I.T. “had an argument and the neighbors called




       3
           I.T. testified the she resides with E.Y.’s father in an apartment.


                                                        4
the police and the police took [I.T.] to jail.” E.Y.’s father denied that any physical hitting

occurred during this incident and claimed that the couple had been “just arguing.”

        I.T. testified that she remembered that the service plan had been explained to

her.   I.T. stated that she completed her psychological examination in San Antonio,

Texas as required by the plan. I.T. then attended three or four counseling sessions.

I.T. stated that she stopped attending counseling after the argument with E.Y.’s father

because she moved to Alice, Texas with her mother. I.T. contacted Kubena in August

2012 because she wanted to start parenting classes but did not know where to go for

those classes. Counsel asked I.T. why she had not submitted to the hair follicle test.

I.T. responded, “Because I felt like [Kubena] was just on to us and wasn’t trying to—I

mean, I thought CPS was all about reuniting your kids with the parents and I felt like she

wasn’t doing that. I felt like she was on my mom’s side. So, I mean, I just wanted to

bring it up with y’all and let y’all know. I mean, if that’s what y’all had agreed to I would

have gone.”4

        I.T. admitted that in September 2011 she had a positive drug test. However,

according to I.T., she had not had a positive test since that time.5 I.T. acknowledged

that she had missed “maybe” one or two scheduled visitations with her children. I.T.

testified that on three of four occasions, the children were not taken to the scheduled

visitations without any notice to her. I.T. explained, “[Personnel from the Department]

just said that the person that was supposed to bring [the children] was sick. They were




        4
           I.T. appears to be referring to whether or not her attorney had agreed with the requirement of
the hair follicle test.
        5
            The children were removed from I.T.’s home on September 20, 2011.


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to let us know at the last minute we’d show up with food and everything and we would

just have to leave.”

        On cross-examination by the Department’s attorney, I.T. testified that J.L. tested

positive for cocaine when he was born and that she ingested cocaine during the “last

trimesters” of her pregnancy with J.L.6 When asked if the reason she did not get the

hair follicle test was because she was “dirty,” I.T. said, “No.” I.T. stated that she was

willing to take the test after the termination hearing was completed. I.T. admitted that

although visitation with her children had been suspended pending the outcome of the

drug test, she had still not completed that test.7

        At the beginning of the termination hearing, the Department requested that the

trial court take judicial notice of the court’s file. The trial court took judicial notice of its

file, without objection.

        The court’s file contained documents related to removal of the children. The

court’s file contains an affidavit setting out that the children were removed due to

allegations of abuse and neglect.8 Specifically, there were allegations that I.T. had

been “smoking some type of drug out of a can as well as snorting cocaine and taking

prescription Loritab and Xanex.” The affiant stated that it was “believed that the children

were present during [I.T.’s] drug usage and it is unknown if the children have access to

the drugs in the home.” According to the affiant, it was believed that drugs were being

sold and purchased at the residence where the children resided and that while I.T. was


        6
            J.L. was born on October 3, 2007.
        7
         On cross-examination by the attorney ad litem, I.T. clarified that the test had been rescheduled
to be done in August, but she failed to show up for that test.
        8
            The affidavit was written by Marissa Hammack, the Department’s employee.


                                                    6
“under the influence of illegal substances no one is available to watch the children” and

“the children [had] to tend to themselves.” The affiant stated that E.Y. and J.L. had lost

a “considerable amount of weight” and that she had observed the children to be “pale

and sunken when they used to be chunky.” The affiant related that J.L had broken his

arm and that it was believed that I.T. had waited several days before taking him to the

doctor. The affiant stated that I.T. had called the children derogatory names and left the

children “with whom ever is around.” I.T. consented to a drug test, and she tested

positive for cocaine, amphetamines, and opiates. I.T. denied ingesting cocaine but

admitted that she had “touched it two days prior but her children were with the next door

neighbor. . . .”

       On September 20, 2011, the trial court signed an order for protection of a child in

an emergency and notice of a hearing. In its order, the trial court found that there was

“an immediate danger to the physical health or safety of the children or that the children

have been the victims of neglect or sexual abuse and that continuation in the home

would be contrary to the children’s welfare.”      The record shows that an adversary

hearing was held on October 14, 2011. I.T. appeared with her attorney. The trial court

found, among other things, that after examining and reviewing the evidence “including

the sworn affidavit accompanying the petition and based upon the facts contained

therein,” that “there is sufficient evidence to satisfy a person of ordinary prudence and

caution that: (1) there was a danger to the physical health or safety of the children

which was caused by an act or failure to act of the person entitled to possession and the

children to remain in the home is contrary to the welfare of the children.”




                                             7
       A family service plan was also included in the trial court’s file. It states that the

Department “became involved due to allegations of neglectful supervision, physical

abuse, physical neglect and medical neglect” of the children. In the service plan, the

Department alleged that I.T. was incapable of properly caring for her children while she

is under the influence of drugs and that she has not demonstrated that she is able to be

drug free.   The Department was also concerned “about a pattern of maltreatment

towards” the children and about the home if I.T. is selling drugs.

                    II.    APPLICABLE LAW AND STANDARD OF REVIEW

       Involuntary termination of parental rights involves fundamental constitutional

rights and divests the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit from the parent.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778

(Tex. App.—Corpus Christi 2006, no pet.). Therefore, termination of the parent-child

relationship must be supported by clear and convincing evidence.           In re J.L., 163

S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d at 778. This intermediate standard

falls between the preponderance of the evidence standard of civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847

(Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006 pet. denied);

Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 57 (Tex. App.—

Corpus Christi 2003, no pet.).

       Before terminating the parent-child relationship, the trial court must find that the

parent committed one of the acts prohibited by section 161.001(1)(A-T) of the Texas




                                             8
Family Code and that termination is in the child’s best interest.9 TEX. FAM. CODE ANN. §

161.001(1)(A-T) (West Supp. 2011); id. § 153.002 (West 2008); In re J.L., 163 S.W.3d

79, 84 (Tex. 2005). In this case, it was alleged that I.T. violated section 161.001 by (1)

“knowingly place[ing] or knowingly allow[ing] the children to remain in conditions or

surroundings which endanger the physical or emotional well-being of the children,” TEX.

FAM. CODE ANN. § 161.001(1)(D), and by failing to “comply with the provisions of a court

order that specifically established the actions necessary for the mother to obtain the

return of the children who have been in the permanent or temporary managing

conservatorship of the [Department] for not less than nine months as a result of the

children’s removal from the parents under Chapter 262 for the abuse or neglect of the

children,” id. § 161.001(1)(O).

        In reviewing the legal sufficiency of the evidence supporting parental termination,

we must “look at all 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.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002)); In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no

pet.). We must assume that the trier of fact resolved disputed facts in favor of its finding

if it was reasonable to do so. In re J.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96

S.W.3d at 266). We must also disregard all evidence that a reasonable fact-finder could

have disbelieved or found to be incredible. City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005); In re D.S.P., 210 S.W.3d at 778. “If [an appellate court] determines

that no reasonable fact-finder could form a firm belief or conviction that the matter that

        9
           I.T. does not challenge the trial court’s finding that termination of her parental rights is in the
children’s best interest.


                                                      9
must be proven is true, then that court must conclude that the evidence is legally

insufficient.” In re J.F.C., 96 S.W.3d at 266.

        In a factual sufficiency review, “[w]e must determine whether, on the entire

record, a fact-finder could reasonably form a firm conviction or belief that the parent

violated a provision of section 161.001(1) and that the termination of the parent’s

parental rights would be in the best interest of the child.” In re M.C.T., 250 S.W.3d 161,

168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d 17, 28 (Tex.

2002)). Under this standard, we consider whether the

        disputed evidence is such that a reasonable fact finder could not have
        resolved the disputed evidence in favor of its finding. If, in light of the
        entire record, the disputed evidence that a reasonable fact finder could not
        have credited in favor of the finding is so significant that a fact finder could
        not reasonably have formed a firm belief or conviction, then the evidence
        is factually insufficient.

In re J.F.C., 96 S.W.3d at 266.

A.      Violation of Section 161.001(1)(O)

        By her second issue, I.T. contends that the evidence was legally and factually

insufficient to support the jury’s finding that she violated section 161.001(1)(O).10 See

TEX. FAM. CODE ANN. § 161.001(1)(O). It is undisputed that I.T. failed to comply with a

court ordered service plan, which set out the actions necessary for her to avoid the

restriction or termination of her parental rights and that the children had been in the


        10
            By her first issue, I.T. contends that the evidence is legally and factually insufficient to support
the trial court’s finding that she violated section 161.001(1)(E). However, because we conclude that the
evidence is sufficient to support the trial court’s finding that I.T. violated section 161.001(1)(O), we need
not address I.T.’s first issue because it is not dispositive of the appeal. See TEX. R. APP. P. 47.1; TEX.
FAM. CODE ANN. § 161.001(1) (West Supp. 2012) (establishing that in a proceeding to terminate the
parent-child relationship brought under section 161.001 of the family code, the Department is required to
establish one predicate act listed under subdivision (1) of the statute); In re J.L., 163 S.W.3d 79, 84 (Tex.
2005) (explaining that in order to have his or her parental rights terminated, “the parent must have
committed one of the acts prohibited under section 161.001(1) of the Texas Family Code”).


                                                      10
permanent or temporary managing conservatorship of the Department for not less than

nine months.         See id.      The only issue for our review is I.T.’s contention that the

Department presented insufficient evidence to support a finding that the children had

been removed due to abuse or neglect.11 See id.

        At the termination hearing, Kubana testified that the children were removed due

to “[a]llegations of drug abuse, that [I.T.] was smoking something out of a can. People

were coming in and out of the home. That it was unsure if drugs were in the presence

of the children.”

        The trial court also took judicial notice of its file.12 In its order for protection of a

child in an emergency and notice of hearing, the trial court listed in its findings that

“there [was] an immediate danger to the physical health or safety of the children or the

children have been the victims of neglect or sexual abuse and that continuation in the

home would be contrary to the children’s welfare.” The trial court then ordered that the

Department be named the temporary sole managing conservator of the children.

        In a temporary order following adversary hearing, the trial court found that “there

was a danger to the physical health or safety of the children which was caused by an

        11
            We will assume, without deciding, that the Department was required to prove by clear and
convincing evidence that the children were removed due to abuse or neglect. See In re E.S.C., 287
S.W.3d 471, 475 (Tex. App.—Dallas 2009, pet. denied) (assuming without deciding that removal of
children due to abuse or neglect is an element); see also L.Z. v. Tex. Dept. of Family and Protective
Servs., No. 03-12-00113-CV, 2012 Tex. App. LEXIS 7142 at *21–22 (Tex. App.—Austin Aug. 23, 2012,
no pet.) (following In re E.S.C. in assuming without deciding this issue, but identifying a number of sister
courts that have concluded that abuse or neglect is a required element of section 161.001(1)(O)).
        12
           I.T. did not object to the trial court’s taking judicial notice of its file, and on appeal, I.T. does not
challenge the trial court’s taking judicial notice of its file. See In re I.V., 61 S.W.3d 789, 795 (Tex. App.—
Corpus Christi 2001, no pet.) (concluding that the appellant waived its argument that the trial court could
not take judicial notice of its file because the appellant failed to object at trial), disapproved on other
grounds by In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002); see also In re E.S., No. 04-97-00835-CV,
1998 Tex. App. LEXIS 6120, at *3 (Tex. App.—San Antonio Sept. 30, 1998, no pet.) (explaining that the
appellant waived his argument on appeal regarding the trial court taking judicial notice of its file because
the appellant’s argument on appeal did not comport with his objection at trial).


                                                        11
act or failure to act of the person entitled to possession and for the children to remain in

the home is contrary to the welfare of the children.” The trial court documented that it

had taken into consideration the affidavit attached to the Department’s petition. This

affidavit established that the children had been removed by the Department because it

was concerned about I.T.’s drug use and that the children were being abused or

neglected.

       In the service plan that the trial court ordered I.T. to follow, the Department

documented that it had become involved in this case “due to allegations of neglectful

supervision, physical abuse, physical neglect[,] and medical neglect” attributed to I.T.

The Department stated in the service plan that I.T. had been “abusing drugs and selling

drugs out of the home while the children were living there.” Also, in its permanency plan

and progress report to the trial court, Kubena stated that there was a “[r]eason to

believe” that “neglectful supervision” of the children by I.T. occurred.

       Viewing the evidence in the light most favorable to an affirmative finding under

section 161.001(1)(O), we conclude that the trial court could have formed a firm belief or

conviction that the children were removed from I.T. due to neglect or abuse. See In re

J.L., 163 S.W.3d at 85; see also In re A.C., No. 12-04-00264-CV, 2005 Tex. App. LEXIS

8137, at *12 (Tex. App.—Tyler Sept. 30, 2005, no pet.) (mem. op.) (concluding that

evidence was sufficient that child was removed due to neglect where the Department

stated “that there was ‘reason to believe’ a report alleging neglectful supervision and

physical neglect of both children by the parents” and the Department’s specialist

testified at trial that she “believed the children were endangered or at risk because of

alleged drug use and the lack of appropriate housing”). Therefore, there is clear and



                                             12
convincing evidence that removal of the children was due to neglect or abuse, and the

evidence is legally sufficient to support the trial court’s finding. See In re J.L., 163

S.W.3d at 84; In re D.S.P., 210 S.W.3d at 778. Moreover, the evidence regarding why

the children were removed was not disputed at trial. Therefore, we conclude that the

evidence is factually sufficient to support the trial court’s finding that the children were

removed due to abuse or neglect. In re M.C.T., 250 S.W.3d at 168. We overrule I.T.’s

second issue.

B.     E.Y.’s Father’s Paternity Rights

       By her third issue, I.T. complains that the trial court did not have a “basis for the

completely different resolutions of [E.Y.’s father] and I.T.’s case” and I.T. “urges that

[we] remand this matter back to the Trial Court on this basis allow [I.T.] the opportunity

to finish her service plan, the same as the Trial Court allowed” E.Y.’s father.

       I.T. does not provide any authority supporting a conclusion that this Court may

reverse the trial court’s order of termination on the basis that the other parent’s parental

rights have not been terminated by the trial court, and we find none. Accordingly, we

overrule I.T.’s third issue.

                                    III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                        ___________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Delivered and filed the
7th day of February, 2013.




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