                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-16-00490-CV

                         IN THE INTEREST OF U.D.R. and J.T.F., Children

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016PA00460
                             Honorable Richard Garcia, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Jason Pulliam, Justice

Delivered and Filed: November 16, 2016

AFFIRMED

           This is an appeal from a trial court’s order terminating appellant mother’s (“Mother”) rights

to her children, U.D.R., and J.T.F. On appeal, Mother contends 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 termination order.

                                              BACKGROUND

           The record shows the Texas Department of Family and Protective Services (“the

Department”) first became involved with Mother in 2010. In 2011 and 2012, Mother’s rights to

three other children — all under the age of five — were terminated. Later, in March 2016, the

Department was advised that Mother had given birth to J.T.F., who tested positive at birth for

opiates and methamphetamines. The Department opened a family-based case; Mother was
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permitted to retain possession of J.T.F. and his older sister, U.D.R. Approximately two months

after J.T.F.’s birth, Mother brought him to the hospital. J.T.F. was suffering from a severe case of

dermatitis, i.e., cradle cap. In addition, hospital personnel noticed that Mother could not stay

awake, even during their conversations with her. The Department was contacted and after a

caseworker saw J.T.F. and spoke to Mother, who admitted to illegal drug use, the Department

removed both children, placing them in foster care.

         The Department prepared a service plan for Mother with a stated goal of reunification. The

trial court held the statutorily-required status and permanency hearings.                        Ultimately, the

Department moved to terminate Mother’s parental rights. After a final hearing, at which Mother

appeared by appointed counsel, the trial court determined her parental rights should be terminated. 1

The trial court found Mother: (1) knowingly placed the children or allowed the children to remain

in conditions that endangered their physical or emotional well-being; (2) engaged in conduct or

knowingly placed the children with someone who engaged in conduct that endangered their

physical or emotional well-being; and (3) had been the cause of a child being born addicted to

alcohol or a controlled substance. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (R) (West

Supp. 2016). The trial court further found termination of Mother’s parental rights would be in the

children’s best interests. See id. § 161.001(b)(2). Accordingly, the trial court rendered an order

terminating Mother’s parental rights. Thereafter, Mother perfected this appeal.

                                                    ANALYSIS

         On appeal, Mother does not challenge the evidence with regard to the trial court’s findings

under section 161.001(b)(1) of the Texas Family Code (“the Code”). See id. § 161.001(b)(1)(D),


1
  Before the bench trial began, counsel for Mother announced “not ready,” stating he had no contact with Mother,
suggesting she might not have been properly served. The trial court reviewed the case filings and noted Mother was
properly served pursuant to Rule 106. See TEX. R. CIV. P. 106. The trial court overruled the “not ready” announcement
and proceeded to trial. Mother has not raised an appellate issue alleging lack of service.

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(E), (R). Rather, Mother contends only that the evidence is legally and factually insufficient to

support the trial court’s finding that termination was in the best interests of U.D.R. and J.T.F. See

id. § 161.001(b)(2).

                                        Standard of Review

       A parent’s right to her children may be terminated upon proof by clear and convincing

evidence that: (1) the parent committed an act prohibited by section 161.001(b)(1) of the Code;

and (2) termination is in the best interest of the child. Id. § 161.001(b)(1), (2); In re J.O.A., 283

S.W.3d 336, 344 (Tex. 2009); In re B.R., 456 S.W.3d 612, 615 (Tex. App.—San Antonio 2015,

no pet.). “Clear and convincing evidence” is “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; B.R., 456 S.W.3d at 615.

Because termination of parental rights results in permanent and unalterable changes for both parent

and child, courts have held due process is implicated, requiring the use of the heightened clear and

convincing standard of review. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015); In re D.M., 452

S.W.3d 462, 468–69 (Tex. App.—San Antonio 2014, no pet.); In re E.A.G., 373 S.W.3d 129, 140

(Tex. App.—San Antonio 2012, pet. denied). Given the foregoing, we must determine whether

the evidence is such that a fact finder could reasonably form a firm belief or conviction that

termination was in the child’s best interest. A.B., 437 S.W.3d at 502; 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)).

       In reviewing a legal sufficiency challenge in termination cases, we view the evidence in

the light most favorable to the trial court’s findings and judgment, and resolve any disputed facts

in favor of the trial court’s findings if a reasonable fact finder could have so resolved them. Id.

We must disregard all evidence that a reasonable fact finder could have disbelieved and consider

undisputed evidence even if such evidence is contrary to the trial court’s findings. Id. In other
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words, we consider evidence favorable to termination if a reasonable fact finder could and

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

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

avoiding substituting our judgment for that of 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).

       When conducting a sufficiency review, we may not weigh a witness’s credibility — as it

depends on appearance and demeanor; these are within the domain of the trier of fact. J.P.B., 180

S.W.3d at 573. Even if evidence regarding appearance and demeanor are found in the appellate

record, we must nevertheless defer to the fact finder’s reasonable resolutions. Id.

                                          Applicable Law

       In Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), the Texas Supreme Court set

forth factors a court could consider when making a 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 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.

Id. However, these considerations, which are commonly referred to as “the Holley factors,” are

not the only factors a court may consider. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Moreover,

a court need not find evidence of each and every factor before terminating the parent-child
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relationship.   See id.    As stated in C.H., “The absence of evidence about some of these

considerations would not preclude a factfinder from reasonably forming a strong conviction or

belief that termination is in the child’s best interest, particularly if the evidence were undisputed

that the parental relationship endangered the safety of the child.” Id. And, as this court has

recognized, in conducting our review of a trial court’s best interest determination, we focus not on

the best interest of parent, but on the best interest of the child. In re D.M., 452 S.W.3d 462, 470

(Tex. App.—San Antonio 2014, no pet.).

        Although proof of acts or omissions under section 161.001(b)(1) of the Texas Family Code

does not relieve the Department from proving the best interest prong, the same evidence may be

probative of both issues. C.H., 89 S.W.3d at 28 (citing Holley, 544 S.W.2d at 370; Wiley v.

Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)); B.R., 456 S.W.3d at 615. In conducting a best interest

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

evidence, in addition to direct evidence. B.R., 456 S.W.3d at 616 (citing In re E.D., 419 S.W.3d

615, 620 (Tex. App.—San Antonio 2013, pet. denied)). Additionally, 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 is a 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 environment in a timely manner is in the child’s

best interest. B.R., 456 S.W.3d at 615; see TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016).

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

courts should consider the factors set out in section 263.307(b) of the Code, 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; (4) whether
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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. TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D.,

No. 04-14-00769-CV, 2015 WL 1938435, at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.)

(mem. op.) (citing 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.)); B.R., 456 S.W.3d at 615.

                                            The Evidence

        In our review, we have considered the Holley factors and the statutory factors in section

263.307(b) of the Code. See TEX. FAM. CODE ANN. § 263.307(b); Holley, 544 S.W.2d at 371–72.

We have also considered the acts or omissions as found by the trial court under section

161.001(b)(1) of the Code, as well as the circumstantial evidence, subjective factors, and the

totality of the evidence. See In re R.S.D., 446 S.W.3d 816, 820 (Tex. App.—San Antonio 2014,

no pet.).



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       At the final hearing, the Department called three Department caseworkers: (1) Jennifer

Ovalle; (2) Angie Steinau; and (3) Kimletta Bates. No other witnesses testified. These witnesses

provided testimony relating to the Holley factors and the statutory considerations set out in section

263.307(b) of the Code.

   1. Desires of the Child

       At the time of trial, U.D.R. was seventeen-months-old and J.T.F. was seven-months-old.

Thus, neither child was able to express their desires regarding conservatorship. See TEX. FAM.

CODE ANN. § 263.307(b)(1) (child’s age and physical and mental vulnerabilities); Holley, 544

S.W.2d at 371–72. However, the trial court was entitled to consider testimony regarding his

current placement and the time spent with Mother in evaluating the children’s desires. See In re

U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).                As the

Fourteenth Court of Appeals stated, “When children are too young to express their desires, the fact

finder may consider that the children have bonded with the foster family, are well-cared for by

them, and have spent minimal time with a parent.” In re J.D., 436 S.W.3d 105, 108 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). Ms. Ovalle testified that since the children were removed in

March 2016, they have not seen Mother. Mother has not had any contact with the children. The

children have been together with the same foster family since the removal and according to Ms.

Ovalle, they are doing well in their current placement.

   2. Emotional & Physical Needs/Emotional & Physical Danger

       Both children are very young and will require constant emotional and physical support for

many years. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371–72; In re

J.G.M., No. 04-15-00423-CV, 2015 WL 6163204, at *3 (Tex. App.—San Antonio Oct. 21, 2015,

no pet.) (mem op.). Their ages render them vulnerable if they are left in the custody of a parent



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who is unable or unwilling to protect them and attend to their needs. See TEX. FAM. CODE ANN.

§ 263.307(b)(1); Holley, 544 S.W.2d at 371–72; J.G.M., 2015 WL 6163204, at *3.

       Mother’s inability or unwillingness to protect her children — thereby placing them in

physical or emotional danger — was demonstrated by the fact that J.T.F. was born addicted to

drugs. See TEX. FAM. CODE ANN. § 263.307(b)(8) (whether there is history of substance abuse by

child’s family or others who have access to child’s home); id. § 263.307(b)(12) (whether child’s

family demonstrates adequate parenting skills); Holley, 544 S.W.2d at 371–72. Mother admitted

at the time of J.T.F.’s birth that she was using illegal drugs.      See TEX. FAM. CODE ANN.

§ 263.307(b)(8); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

       Additional evidence is found in testimony regarding the severity of J.T.F.’s dermatitis or

cradle cap. See TEX. FAM. CODE ANN. § 263.307(b)(12) (whether child’s family demonstrates

adequate parenting skills); Holley, 544 S.W.2d at 371–72. According to Ms. Ovalle, the two-

month-old baby’s condition was severe. Ms. Bates, who was the removing caseworker, testified

the rash was “really bad,” covering the boy’s head, face, and ears. She too described the condition

as severe. Moreover, when Ms. Bates arrived at the hospital, Mother was “sleeping” on a couch

in the baby’s hospital room, but Ms. Bates was unable to wake her. When she was eventually able

to speak to Mother, she advised Mother there were concerns about possible drug use and asked

Mother to take a drug test. Mother responded by stating it “was ridiculous” and “not fair.”

However, Mother soon admitted she had been using “crystal meth” not long before bringing J.T.F.

to the hospital. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); Holley, 544

S.W.2d at 371–72.

       In addition, Mother has not challenged the trial court’s findings that she: (1) knowingly

placed the children or allowed the children to remain in conditions that endangered their physical

or emotional well-being; (2) engaged in conduct or knowingly placed the children with someone
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who engaged in conduct that endangered their physical or emotional well-being; and (3) had been

the cause of a child being born addicted to alcohol or a controlled substance. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (E), (R). Although this does not relieve the Department from proving

termination is in the best interests of the children, the termination grounds are probative on the

issue of their best interests and shows Mother’s propensity for placing her children in dangerous

situations. See C.H., 89 S.W.3d at 28; B.R., 456 S.W.3d at 615; see also TEX. FAM. CODE ANN.

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

        There was also testimony about Mother’s past involvement with the Department. See TEX.

FAM. CODE ANN. § 263.307(b)(2) (frequency and nature of out-of-home placements); id.

§ 263.307(b)(12); Holley, 544 S.W.2d at 371–72. According to Ms. Steinau, who was Mother’s

caseworker in 2012, Mother’s rights to three other children — all under the age of five — were

previously terminated from 2010 to 2012 in two separate cases. Each case involved allegations of

drug use by Mother, as well as allegations of domestic violence. Ms. Steinau told the trial court

Mother has a pattern of behavior with regard to drug use and domestic violence. See TEX. FAM.

CODE ANN. § 263.307(b)(10) (willingness and ability of child’s family to seek out, accept, and

complete counseling services and cooperate with and facilitate agency’s close supervision); id.

§ 263.307(b)(11) (willingness and ability of child’s family to effect positive environmental and

personal changes within reasonable time); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

And in those cases, as here, Mother failed to participate in her service plan or otherwise cooperate

with the Department. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id.

§ 263.307(b)(12); Holley, 544 S.W.2d at 371–72. Although an act or omission from the past does

not automatically prove termination is currently in a child’s best interest, the trier of fact is entitled

to measure a parent’s future conduct by his or her past conducting in making a best-interest

determination. In re J.F.B., No. 04-15-00234-CV, 2015 WL 5837852, at *2 (Tex. App.—San
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Antonio Oct. 7, 2015, pet. denied) (mem. op.). Thus, Mother’s prior history with the Department

and previous drug use was a proper consideration for the trial court in making its determination as

to the best interests of the children. See id.

        Mother’s prior and continuing choices portend future instability, thereby endangering her

young children. See B.R., 456 S.W.3d at 616. The trial court was entitled to infer from her recent

prior conduct, that similar conduct would recur, i.e., that she would continue to use and seek out

drugs. See B.R., 456 S.W.3d at 616. The danger of continued drug use and Mother’s refusal to

accept or seek help, creates instability and physical and emotional danger for U.D.R. and J.T.F.

should they be reunited with Mother.

    3. Parenting Abilities/Available Programs

        The evidence of drug use and Mother’s continued failure to resolve her drug problem,

which has existed for at least the past six years, is also relevant to Mother’s inability to properly

parent. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(11); id. § 263.307(b)(12);

Holley, 544 S.W.2d at 371–72. Mother chose to use drugs, subjecting her youngest child to the

effects of her choice. And it can be inferred that a parent who is unable to stay awake during

discussions with hospital personnel regarding her child’s care due to drug use, would likely be

unable to provide proper care or supervision for her young children at home. See TEX. FAM. CODE

ANN. § 263.307(b)(8); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

        The Department created a service plan tailored for Mother’s needs and the trial court

adopted the plan as a requirement for reunification. See TEX. FAM. CODE ANN. § 263.307(b)(10);

id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72. Ms. Ovalle testified she visited Mother at a

rehabilitation center where Mother was being treated from a staph infection she contracted from

using needles to inject heroin. Ms. Ovalle stated she read the entire plan to Mother, going over it

line by line. Mother signed the service plan and it was filed with the court. Mother was required
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to complete a drug assessment and any treatment recommended thereafter. The service plan

further mandated that she complete parenting classes and individual therapy. However, after that

meeting, Ms. Ovalle never saw Mother again. See TEX. FAM. CODE ANN. § 263.307(b)(10); id.

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

   4. Plans for Child by Those Seeking Custody/Stability of Home or Proposed Placement

       Mother’s lack of stability is demonstrated by the evidence of her continued drug use, her

inability to provide care for her children, and her refusal to complete or even attempt to complete

a single requirement of her service plan.      See TEX. FAM. CODE ANN. § 263.307(b)(8); id.

§ 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

       In addition, it seems Mother has no familial or other support system. See TEX. FAM. CODE

ANN. § 263.307(b)(13) (whether adequate support social system consisting of extended family and

friends is available); Holley, 544 S.W.2d at 371–72. When asked about family members that might

potentially take the children, Mother referred to her paternal grandparents, who have two of her

other children. See TEX. FAM. CODE ANN. § 263.307(b)(13); Holley, 544 S.W.2d at 371–72.

However, Ms. Ovalle testified that placement would not be suitable because the Department has

an ongoing investigation with regard to the grandparents.

       U.D.R. and J.T.F. were, at the time of trial, in a foster home together. See Holley, 544

S.W.2d at 371–72. Although this home is not a potential adoptive home, the children are at this

time doing well in the home and the family is willing to continue to care for the children until a

permanent placement is found. See id. U.D.R. is currently in speech therapy twice a week and

J.T.F.’s dermatitis has been resolved. See id. The Department intends to find a suitable foster-

adoptive home for the children. See id.




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   5. Acts or Omissions Indicating Parent-Child Relationship Not Proper/Excuses

       The evidence of acts or omissions by Mother that indicate she had an improper relationship

with her children are those set forth above in our discussion of Mother’s acts that physically and

emotionally endangered them, particularly Mother’s continued drug use. See Holley, 544 S.W.2d

at 371–72. Additional acts or omissions are detailed in our discussion of her lack of parenting

abilities and failure to accept services. No evidence was presented — given Mother’s absence

from the final hearing — regarding any excuses for her behavior toward her children. See id.

                                             Summation

       Mother exposed her children to her own drug use, endangering their physical and emotional

well-being. She failed to complete even a single requirement of her service plan and her

whereabouts are currently unknown. Despite service, she has contacted neither the Department

nor apparently, her court-appointed attorney. Mother’s actions in this matter — and in her prior

dealings with the Department — suggest continued dysfunction and instability. See B.R., 456

S.W.3d at 616; M.R., 243 S.W.3d at 821 (holding evidence of parent’s unstable lifestyle can

support fact finder’s conclusion that termination is in child’s best interest).

       Therefore, based on the foregoing, we hold the relevant Holley factors, as well as those set

out in section 263.307(b) of the Code, weigh in favor of a finding that termination was in the best

interests of U.D.R. and J.T.F. See TEX. FAM. CODE ANN. § 263.307(b); Holley, 544 S.W.2d at

371–72. Recognizing that in conducting a best interest analysis, the trial court was permitted to

(1) consider circumstantial evidence, subjective factors, and the totality of the evidence, in addition

to the direct evidence presented, and (2) judge Mother’s future conduct by her past conduct, we

hold the trial court was within its discretion in finding termination of Mother’s parental rights

would be in the best interests of the children. See B.R., 456 S.W.3d at 616. In other words, the



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evidence is such that the trial court could have reasonably formed a firm belief or conviction that

termination was in the best interests of U.D.R. and J.T.F. See J.P.B., 180 S.W.3d at 573.

                                           CONCLUSION

       We hold the evidence is legally and factually sufficient to have permitted the trial court, in

its discretion, to find termination was in the best interest of U.D.R. and J.T.F. Accordingly, we

hold the trial court did not err in terminating Mother’s parental rights, overrule Mother’s

sufficiency complaints, and affirm the trial court’s termination order.


                                                  Marialyn Barnard, Justice




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