                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION
                                              No. 04-14-00492-CV

                         IN THE INTEREST OF K.B.F. and Z.A.R., Children

                      From the 285th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-PA-02954
                              Honorable Richard Garcia, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 7, 2015

AFFIRMED

           Appellant mother (“Mother”) appeals the trial court’s order terminating her rights to her

children, K.B.F. and Z.A.R. The Texas Department of Family and Protective Services (“the

Department”) moved to terminate Mother’s parental rights on numerous grounds. See TEX. FAM.

CODE ANN. §§ 161.001(1)(A)-(F), (I), (K), (N)-(P), (R) (West 2014). After a hearing, the trial

court found Mother violated sections (E), (N), (O), and (R) of section 161.001(1) of the Texas

Family Code. 1 See id. §§ 161.001(1)(E), (N), (O), (R) (West 2014). The trial court further found



1
  Section 161.001(E) provides that a parent’s rights to the child may be terminated if the parent engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being
of the child. TEX. FAM. CODE ANN. § 161.001(1)(E). Subsection (N) of section 161.001(1) provides for termination
if the parent constructively abandons his or her child and that child has been in the permanent or temporary managing
conservatorship of the Department for a certain period of time. Id. § 161.001(1)(N). A parent’s rights may also be
terminated, pursuant to subsection (O) if the parent fails to comply with a court order that establishes the actions the
parent must take to obtain the return of a child in Department custody. Id. § 161.001(1)(O). Finally, subsection (R)
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termination would be in the best interests of the children pursuant to section 161.001(2). Id.

§ 161.001(2). On appeal, Mother does not challenge the trial court’s findings relative to the

grounds for termination, but contends the evidence is legally and factually insufficient to support

the trial court’s: (1) finding that termination was in the children’s best interests; and (2)

appointment of the Department as managing conservator. We affirm the trial court’s judgment.

                                               Standard of Review

          Under the Texas Family Code, a court has authority to terminate a parent’s rights to her

children only upon proof by clear and convincing evidence that she committed an act prohibited

by section 161.001(1) of the Texas Family Code (“the Code”), and that termination is in the best

interests of the children. 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). “Clear and

convincing evidence” is defined 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 is mandated because a termination of parental rights causes permanent and

unalterable changes for parent and child, thereby implicating due process. E.A.G., 373 S.W.3d at

140. Accordingly, upon review of 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) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002)).




permits a court to terminate parental rights if a parent has been the cause of a child being born addicted to alcohol or
an illegal controlled substance. Id. § 161.001(1)(R).

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        In reviewing legal sufficiency of the evidence 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.   Additionally, we must disregard all evidence that a reasonable fact finder could have

disbelieved, and we must consider undisputed evidence even if it 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.

        We may not, however, weigh a witness’s credibility because it depends on appearance and

demeanor, and these are within the domain of the trier of fact. Id. at 573. 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 findings of the trier of

fact, refraining from 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 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 [in the truth of its finding], then the evidence

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

                                       Law on Best Interest

        Courts indulge in the strong presumption that maintaining the parent-child relationship is

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

presume, however, 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). Long ago, in Holley v.

Adams, the Texas Supreme Court set forth considerations for appellate courts to take into account

when reviewing a trial court’s best interest determination: (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
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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, commonly referred to as “the Holley factors,” are not all-

encompassing and a court does not have to find evidence of each and every factor before it

terminates. See In re C.H., 89 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. Additionally, although 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, the same evidence may be probative of both issues. Id.

at 28 (citing Holley, 544 S.W.2d at 370; Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)).

                                           Application

       Mother contends the evidence is legally and factually insufficient to establish termination

is in the best interests of her children or to support the trial court’s decision to appoint the

Department as managing conservator. We disagree.

       The record establishes the Department filed its original petition for protection in December

2012. Pursuant to an emergency order, the children were taken into custody. After a hearing, the

Department was named temporary managing conservator of the children, and the parents were

granted temporary possessory conservatorship. The Department created family service plans for

the parents, and the trial court conducted the required status and permanency hearings.



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        Ultimately, a bench trial was held in June 2014. At the conclusion of the hearing, the trial

court granted the Department’s request for termination, terminating Mother’s rights to both

children, as well as the rights of the two fathers. The trial court also named the Department as the

sole managing conservator. The trial court’s decision was reduced to writing in an order of

termination. Thereafter, Mother alone perfected an appeal.

        At the bench trial, the Department called two witnesses — Monica Morones, the second

caseworker assigned by the Department to Mother’s case, and Alex Duran, the third caseworker

assigned to the case. Ms. Morones testified she was the caseworker from July of 2013 through

April of 2014. Ms. Morones stated that during her tenure on the case, she spoke with Mother about

her service plan and the importance of completing it. According to Ms. Morones, Mother

understood, but failed to complete the plan.

        Ms. Morones testified Mother and the children came into contact with the Department

because of Mother’s drug use. Thus, one of the main goals of the plan was for Mother “to be able

to live a drug-free life.” However, during the short period of time Mother was out of the Bexar

County Jail — December 2013 until February 2014 — Mother was never drug free and is currently

incarcerated in the Mentally Impaired Offender Facility (“the MIOF unit”) of the Bexar County

Jail.

        Ms. Morones stated she attempted to have Mother undergo a drug test when she was free

from incarceration, but Mother declined, telling Ms. Morones “she would come out dirty.” Mother

admitted to Ms. Morones a drug test would show Mother had taken prescription drugs that were

not prescribed to her. Mother was unable to visit her children when they were in Department

custody because she never had a clean drug test.

        Ms. Morones testified Mother’s youngest child, Z.A.R., who was born in December 2012,

tested positive at birth for cocaine and opiates. At the time of the birth, Mother tested positive for
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those same substances, as well as barbiturates. Mother said her drug use was a mistake, claiming

she wanted to stay clean to be with her children.

        As to the children specifically, Ms. Morones testified that the older child, K.B.F., a boy, is

five-years-old. He is currently living with his sister, Z.A.R., as well as two other siblings, at the

home of their maternal grandmother, who has adopted some of Mother’s other children. 2

According to Ms. Morones, K.B.F. is doing well and is surrounded by relatives who love him.

Z.A.R. is also doing well now, having apparently suffered no ill effects from the drugs found in

her system at birth.

        Ms. Morones testified termination would be in the best interests of the children because

Mother cannot provide safe and appropriate housing, nor can she give her children a proper

lifestyle. Importantly, Mother has not shown an ability to change so that she can remain drug free.

Mother is currently in the MIOF unit. Where the children are now, their needs are being met. Ms.

Morones stated appointing Mother and the maternal grandmother as joint managing conservators,

as requested by Mother, would not be in the children’s best interests.

        Admittedly, during her incarceration, Mother completed some parts of her service plan,

including a substance abuse program and parenting classes. However, she never completed the

drug assessment or sought individual counseling as required. Ms. Morones advised the trial court

that she went over the service plan with Mother in detail in January 2014. Ms. Morones set

appointments for Mother with the people she needed to see and explained the tasks Mother needed

to complete, but Mother did not follow through.

        The Department then called Alex Duran — Mother’s third caseworker. Mr. Duran advised

that he is the current caseworker and has been involved since April of 2014. Mr. Duran stated he


2
  When asked by the court how many children Mother currently has, Ms. Morones stated she believed Mother had a
total of nine or ten children.

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has had contact with Mother by phone on three occasions because she is confined to the MIOF

unit. Mr. Duran testified Mother will remain in the MIOF unit for another 122 to 180 days.

       During their conversations, Mother advised she was in compliance with her medication

regime and engaging in individual and group therapy, substance abuse education, counseling, and

parental education classes. However, Mother had not completed the services. According to Mr.

Duran, based on his past experience, it was unlikely Mother would be able to timely demonstrate

that she can lead a healthy, appropriate, drug-free lifestyle so as to ensure the safety and well-being

of her children.

       Mr. Duran testified termination was in the children’s best interests because he has observed

the children and their needs are being met, and they are not subject to risk now. The maternal

grandmother is assisting the children in maintaining a relationship with each other, as well as other

siblings. Mr. Duran also disagreed with the idea of appointing the maternal grandmother and

Mother as joint managing conservators.

       Mr. Duran described Mother’s behavior through the case as repetitive — she engages and

then disengages with regard to taking steps to regain custody of her children. Mr. Duran testified

that although Mother is engaged at times, i.e., taking steps to regain custody, these periods seem

to occur when she “is in a facility where she is not to — to be out of that environment, so it’s kind

of like these aren’t free-will decisions.” In other words, when Mother is incarcerated and has no

choice, she takes the steps the Department has laid out for her. However, when she is free, she

takes no such steps and reverts to her drug-using lifestyle.

       After considering the evidence, the pertinent Holley factors, and the applicable standards

of review, we hold the evidence is legally and factually sufficient to support the trial court’s finding

that termination is in the best interests of the children and the appointment of the Department as

managing conservator was appropriate. Clearly, at this time, with the Department as managing
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conservator, the children’s needs are being met. The Department has placed the children with their

maternal grandmother, and she is providing a safe and caring environment for the children. She

is also allowing them contact with other siblings. Mother has shown that unless confined, she is

unwilling to take the steps necessary to provide a safe and appropriate environment for her

children. By her own admission, during her release, which was less than three months, she was

unable to remain drug free, admitting to the Department caseworker she would test “dirty” for

prescription drugs that were not prescribed to her. There was no evidence from either side

regarding the desires of the children, likely because their young ages and long absence from

Mother preclude such evidence. There was also no evidence that the maternal grandmother desired

custody. Rather, the evidence was that Mother desired a joint managing conservatorship with the

maternal grandmother.

       Accordingly, we hold that under the clear and convincing standard, the evidence is such

that the trial court could reasonably have formed a firm belief or conviction that termination was

in the best interests of the children and that appointing the Department as managing conservator

was appropriate. See In re J.P.B., 180 S.W.3d at 573.

                                          CONCLUSION

       Based on the foregoing, we overrule Mother’s issues and affirm the trial court’s judgment.


                                                 Marialyn Barnard, Justice




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