                                                          FILED
                                                          15-0544
                                                          7/27/2015 1:03:31 PM
                                                          tex-6233643
                                                          SUPREME COURT OF TEXAS
                                                          BLAKE A. HAWTHORNE, CLERK




                          No. 15-0544

                            IN THE

                       SUPREME COURT

                           OF TEXAS
________________________________________________________________

        IN THE INTEREST OF M.C. AND T.C., CHILDREN

                          MAURICE C.
                           Petitioner

           Texas Department of Family and Protective Services
                             Respondent
________________________________________________________________
                    On Petition for Review from the
              Fourth Court of Appeals, San Antonio, Texas
                    Cause Number 04-14-00893-CV
________________________________________________________________

                        Petition for Review
________________________________________________________________


                                  GERALD URETSKY
                                  Attorney at Law
                                  406 Brees Boulevard
                                  San Antonio, Texas 78209-4828
                                  Phone: (210) 820-8294
                                  Fax: (210) 822-8735
                                  Email: uretsky@msn.com
                                  Bar No. 20414600

                                  /s/Gerald Uretsky
                                  ATTORNEY FOR PETITIONER
                    IN THE SUPREME COURT OF TEXAS

In the Interest of M.C. AND T.C.,
                                                                NO. 15-0544
Children

                          PETITION FOR REVIEW

TO THE HONORABLE SUPREME COURT OF TEXAS:

      COMES NOW the Petitioner, MAURICE C., and respectfully moves the

Court to review the Memorandum Opinion and Judgment of the Fourth Court of

Appeals in Appeal No. 04-14-00893-CV, signed on June 10, 2015, and in support

of said Petition would show the Court as follows:




                                        2
                          Identity of Parties and Counsel

      Pursuant to TEX. R. APP. P. ANN. 38.1(a):

Parties:

      (1)     MAURICE C. is the father of the children the subject of this appeal.

He is the Appellant and was a Respondent in the trial court. He is now the

Petitioner, was the Appellant in the court of appeals, and was a Respondent in the

trial court. He is referred to as “Appellant” herein.

      (2)     CYNTHIA T. is the mother of the children the subject of this suit.

She was a Respondent in the trial court and, to the undersigned’s knowledge, did

not appeal.

      (3)     THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE

SERVICES, 3635 S.E. Military Dr., San Antonio, Texas 78223, is the Appellee

and was the Petitioner in the trial court.

      (4)     M.C. and T.C. currently reside in Texas Department of Family and

Protective Services placement and are the children the subject of this appeal.

Trial Attorneys:

      (1)     MAURICE C., father, was represented by MARGARET SCOTT,

P.O. Box 708695, San Antonio, Texas 78278.




                                             3
      (2)   CYNTHIA T., mother, was represented by MATTHEW FINCH, 115

E Travis #1500, San Antonio, Texas 78205.

      (3)   The Texas Department of Family and Protective Services was

represented by KRISTEN CALVERT, Assistant District Attorney, 100 Dolorosa

St., 3rd Floor, San Antonio, Texas 78205.

      (4)   The children were represented by LAURA DURAN, 719 S. St.

Mary’s Street, Texas 78205.

Appellate Attorneys:

      (1)   MAURICE C., father, is represented by GERALD URETSKY, 406

Brees Boulevard, San Antonio, Texas 78209-4828.

      (2)   The Texas Department of Family and Protective Services is

represented by the BEXAR COUNTY DISTRICT ATTORNEY’S OFFICE,

Appellate Section, 101 W. Nueva Street, 4th Floor, San Antonio, Texas 78205.

      (3)   The children are represented by LAURA DURAN, 719 S. St. Mary’s

Street, Texas 78205.




                                        4
                                Table of Contents

                                                                Page

Identity of Parties and Counsel .    .       .      .   .   .   3

Table of Contents .       .     .    .       .      .   .   .   4

Table of Authorities      .     .    .       .      .   .   .   5

Statement of the Case     .     .    .       .      .   .   .   8

Issues Presented     .    .     .    .       .      .   .   .   8

Statement of Facts        .     .    .       .      .   .   .   10

Argument     .       .    .     .    .       .      .   .   .   16

      First Issue - Restated    .    .       .      .   .   .   16

      Second Issue - Restated .      .       .      .   .   .   18

      Third Issue - Restated    .    .       .      .   .   .   20

      Fourth Issue - Restated   .    .       .      .   .   .   23

Conclusion and Prayer     .     .    .       .      .   .   .   30

Certificate of Compliance       .    .       .      .   .   .   32

Index to Appendix         .     .    .       .      .   .   .   32

Certificate of Service    .     .    .       .      .   .   .   32




                                         5
                              Table of Authorities

                                                                         Page

                                    Statutes

TEX. FAM. CODE §161.001        .     .       .    .     .     .     .    8

TEX. FAM. CODE §263.101        .     .       .    .     .     .     .    21

TEX. FAM. CODE §263.307        .     .       .    .     .     .     .    23

TEX. R. APP. P. ANN. 38.1            .       .    .     .     .     .    3

TEX. R. EVID. 801        .     .     .       .    .     .     .     .    17

TEX. R. EVID. 802        .     .     .       .    .     .     .     .    17

                                     Cases

In re C.H., 89 S.W.3d 17 (Tex. 2002) .       .    .     .     .     .    25

In re E.D., 419 S.W.3d 615 (Tex. App. – San Antonio 2013, pet. denied)   25

In re E.Y., No. 13-13-00203-CV, 2013 Tex. App. Lexis 8139 (Tex.     .    23
App. – Corpus Christi, July 3, 2013) mem. op.

In re R.R., 209 S.W.3d 112 (Tex. 2006)       .    .     .     .     .    23

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976)       .     .     .     .    25

In re J.J.O., 131 S.W.3d 618 (Tex. App. – Fort Worth 2004, no pet.) .    20

In the Interest of M.R., No. 07-13-00440-CV, 2014 Tex. App. Lexis   .    20
6220 mem. op. (Tex. App. – Amarillo, June 9, 2014)

Liu v. Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 785 (Tex.    21
App. – Houston[1st Dist.] 2008, no pet.)

                                         6
Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976)   .   .   .   .   23




                                       7
                             Statement of the Case

      This is an accelerated appeal of the trial court’s order terminating

Appellant’s parental rights. The suit was filed by Appellee, Texas Department of

Family and Protective Services (“the Department”), as a child abuse-neglect case,

with one subject child. A jury was waived, and the case was tried to the court (RR

1). At the close of evidence and argument, the court terminated Appellant’s

parental rights to his minor child. This appeal followed. The clerk’s record is

designated “CR.” The reporter’s record is designated “RR.”

                                Issues Presented

                                   First Issue

      Whether the evidence is legally or factually insufficient to support the

court’s finding, pursuant to section 161.001(1)(D) of the Texas Family Code, that

Appellant knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endanger their physical or emotional well-being.




                                        8
                                   Second Issue

      Whether the evidence is legally or factually insufficient to support the

court’s finding, pursuant to section 161.001(1)(N) of the Texas Family Code, that

Appellant constructively abandoned the children who have been in the permanent

or temporary managing conservatorship of the Department of Family and

Protective Services or an authorized agency for not less than six months and: (1)

the Department or authorized agency has made reasonable efforts to return the

children to Appellant; (2) Appellant has not regularly visited or maintained

significant contact with the children; and (3) Appellant has demonstrated an

inability to provide the children with a safe environment.

                                    Third Issue

      Whether the evidence is legally or factually insufficient to support the

court’s finding, pursuant to section 161.001(1)(O) of the Texas Family Code, that

Appellant failed to comply with the provisions of a court order that specifically

established the actions necessary for Appellant to obtain the return of the children

who have been in the permanent or temporary managing conservatorship of the

Department of Family and Protective Services for not less than nine months as a

result of the children's removal from Appellant under Chapter 262 for the abuse or

neglect of the children.



                                         9
                                   Fourth Issue

      Whether the evidence is legally or factually insufficient to support the trial

court’s finding that the termination of Appellant’s parental rights, pursuant to

section 161.001(2) of the Texas Family Code, is in children’s best interest.

                                Statement of Facts

I.    Procedural Background

      This is an accelerated appeal from the trial court’s order terminating

Appellant’s parental rights to his children (CR 143-149).

      The Department began this litigation on January 22, 2014, when it filed its

Original Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship. The cause number

was 2014-PA-00142, and the case was docketed into the 288th Judicial District

Court of Bexar County, Texas (CR 1-13). The petition alleged Appellant to be the

father of the child (CR 2). The petition sought termination of Appellant’s parental

rights and those of the mother (CR 1-13).

      An emergency order, taking the children into custody does not appear in the

Clerk’s Record, but temporary orders following an adversary hearing were made,

which placed the children in the temporary managing conservatorship of the




                                         10
Department and granted their parents temporary possessory conservatorship (CR

23-35).

      Family Service Plans were created for the parents (CR 75-92). The required

status hearing (CR 94-99) and permanency hearings were conducted (CR 114-120;

136-141).

      A trial before the court was held before Hon. Charles Montemayor on

December 11, 2014; that same day a final order terminating the father’s parental

rights was signed (CR 143-149).

      Appellant’s trial counsel timely filed a Notice of Appeal on December 19,

2014 (CR 150-151).

II.   Factual Background

      At trial, the parties called only one witness, whose testimony is summarized

below. Her name appears in italic, underlined font at the left margin for ease of

reference. Bracketed language has been added by Appellant’s counsel. Appellant

did not appear, and his trial counsel had not had contact with him since he had

moved to Houston, causing her to have some concerns about him being able to

have family services in Houston [there was no testimony that services were set up

there], so she announced Not Ready and asked for a continuance (RR 4), as did the

mother’s counsel (RR 5). The children’s ad litem responded that the case was at



                                       11
the ten-month mark, the children are doing really well in their placement with their

maternal grandmother (RR 5).          The court denied Appellant’s Not Ready

announcement because: the children are ages seven and four; Appellant had

personal notice or actual notice of the trial setting; and, the law requires that these

cases have to be resolved within a year (RR 5-6).

Jennifer Iruegas, the Department’s current caseworker

       She took over this case after it was transferred from another caseworker

(RR 7) [but did not say when]. M.C. is now eight years old, and T.C. is five (RR

7).   They have resided with their maternal grandparents for the entire case,

approximately ten months, and are doing very well; their attachment to their

grandmother has continued to grow (RR 8) [but the same was not mentioned

regarding their grandfather]. This placement will lead to permanency, and the

grandparents will able to continue to meet the needs of these children in the future

(RR 8-9) [but said needs were not identified]. Ms. Iruegas has no concerns with

the grandmother being protective in this case (RR 14) [but the same was not

mentioned regarding their grandfather].

      The children were removed from Appellant’s care after the Department

received a referral in November 2013 alleging neglectful supervision of the

children; the parents were allegedly using drugs, and at one point, the mother



                                          12
became intoxicated with alcohol and Xanax and proceeded to attempt to slit her

own throat with a knife in front of her children, telling them good-bye and she's

tired of being in the world (RR 9). Appellant’s trial counsel objected to this

hearsay, but the court overruled her objection, because the caseworker was charged

with familiarizing herself with the knowledge of the contents of the file and the

circumstances that led to the Department’s intervention (RR 9). This incident

occurred while the parents resided together, but Appellant was not present at the

time of the incident, which was a violation of the safety plan, because he was not

supposed to leave the mother unsupervised with the children (RR 9-10). Appellant

was aware of the mother's mental health issues (RR 10). The children are in

“trauma informed” therapy because of this incident (RR 10).

      Family Service Plans were created for the parents, but neither completed

theirs (RR 10). The parents visited their children two times a month for an hour

(RR 10-11) as ordered by the court (RR 14-15). In September 2014, the parents

stopped visiting their children (RR 11). So, in total, they had about 15 out of the

20 visits ordered in this case (RR 11).

      Appellant moved to Houston in October 2014 (RR 14). That same month,

Ms. Iruegas reminded him of the court dates, and he informed her that he would be

present (RR 14). She also asked him if he had intentions of continuing his family



                                          13
service plan services, at which time he told her he did not (RR 14); he was angry

and had lost hope and claimed that it didn't matter if he did his services or not (RR

16-17).

      The parents have done nothing to demonstrate that they can provide their

children with a safe and stable home (RR 12) [but see services/tasks completed].

The department made reasonable efforts to work with the parents (RR 12)

[conclusory].

      It is in the children’s best interest for the parental rights of the parents to be

terminated (RR 12) [conclusory].

      The parents were given the opportunity to visit with the children, supervised

by the grandparents, at the grandparents' home, and did so pretty regularly initially;

then Appellant stopped visiting his children when he moved to Houston (RR 15).

Ms. Iruegas felt that Appellant has abandoned his duty as a father with his children

because he hasn’t seen them in the last few months (RR 17).

      In regard to completing the tasks on his Family Service Plan, Appellant was

required to complete a parenting class, a drug assessment with drug treatment, a

psychological evaluation, maintain housing and maintain employment (RR 18).

Regarding the employment task, Appellant was employed on and off during this

case, but Ms. Iruegas did not know if he's currently employed in Houston (RR 17-



                                          14
19).   Appellant had housing, did his drug assessment, did the psychological

evaluation and completed parenting classes (RR 19-20).           However, he was

unsuccessfully discharged from individual counseling for noncompliance (missing

several sessions), and he did not maintain employment, but Ms. Iruegas was

unaware of whether Appellant is currently employed, and even during his periods

of unemployment, Appellant continued to look for more work (RR 20). His

therapist was concerned about his lack of planning and his lack of ability to care

for and ensure the safety of his children and not leave them alone with their mother

(RR 21). Nevertheless, there was no reason that the maternal grandparents, with

whom the children are placed, should not be given conservatorship and Appellant

be given possessory conservatorship of his children [admission] (RR 22).

       Prior to the Department filing its petition to start this case, the Department

was working with the parents in a family-based setting in which it was it

highlighted to Appellant that he shouldn't leave their children alone with their

mother because of her mental health problems, and he violated that requirement

(RR 27-28). Appellant has done nothing to demonstrate that he will never make a

decision like that again (RR 28). The department holds Appellant responsible for

bailing out on his children and leaving to another city instead of staying here to

finish services (RR 28).



                                         15
                                      Argument

                                First Issue - Restated

      Whether the evidence is legally or factually insufficient to support the

court’s finding, pursuant to section 161.001(1)(D) of the Texas Family Code,

that Appellant knowingly placed or knowingly allowed the children to remain

in conditions or surroundings which endanger their physical or emotional

well-being.

      The sole witness testified that the children were removed from Appellant’s

care after the Department received a referral in November 2013 alleging neglectful

supervision of the children; the parents were allegedly using drugs, and at one

point, the mother became intoxicated with alcohol and Xanax and proceeded to

attempt to slit her own throat with a knife in front of her children, telling them

good-bye and she's tired of being in the world (RR 9). Appellant’s trial counsel

objected to this testimony as hearsay, but the court overruled her objection because

the caseworker was charged with familiarizing herself with the knowledge of the

contents of the file and the circumstances that led to the Department’s intervention

(RR 9).

      "Hearsay" is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter



                                          16
asserted. TEX. R. EVID. 801(d). Hearsay is not admissible except as provided by

statute or the Texas Rules of Evidence or by other rules prescribed pursuant to

statutory authority. TEX. R. EVID. 802. Ms. Iruegas, the sole witness, did not

testify that she observed this alleged incident, nor did she testify as to when she

became involved in this case; as noted above, she simply said “the Department

received a referral,” (RR 9). This clarifies that the court was aware that the witness

was repeating a statement made by someone else, made out of court. The identity

of the witness to this alleged statement/incident is not disclosed in the reporter’s

record. In addition, the statement was made to prove the truth of the matter

asserted, which formed the sole basis of the court’s finding that Appellant

knowingly placed or knowingly allowed the children to remain in conditions or

surroundings (i.e., the mother’s alleged suicide threat in front of her children)

which endangered their physical or emotional well-being.

      Ms. Iruegas testified that the incident occurred while the parents resided

together, but Appellant was not present at the time of the incident, which was a

violation of the safety plan, because he was not supposed to leave the mother

unsupervised with the children (RR 9-10); and, Appellant was aware of the

mother's mental health issues (RR 10).




                                         17
      The court’s reason for overruling the hearsay objection was invalid. There is

no exception to the hearsay rule that provides that a statement is not hearsay, and is

thus admissible, if the agency employee testifying has a duty to familiarize herself

with the agency’s file and the circumstances that led to the Department’s

intervention. Therefore, the court erred in overruling the hearsay objection. This

error was harmful because this was the only evidence regarding this ground of

termination of Appellant’s parental rights.

      Finally, assuming for the sake of argument that the statement is not hearsay,

it seems that it would have been more accurate for the court to make a finding

under section 161.001(1)(E) of the Texas Family Code (endangering conduct),

than under section 161.001(1)(D) (endangering conditions), because it would have

been the mother’s conduct, not the conditions in which the children were found,

that would have formed the factual basis for the Department’s removal of them

from the parents.

                              Second Issue - Restated

      Whether the evidence is legally or factually insufficient to support the

court’s finding, pursuant to section 161.001(1)(N) of the Texas Family Code, that

Appellant constructively abandoned the children who have been in the permanent

or temporary managing conservatorship of the Department of Family and



                                         18
Protective Services or an authorized agency for not less than six months and: (1)

the Department or authorized agency has made reasonable efforts to return the

children to Appellant; (2) Appellant has not regularly visited or maintained

significant contact with the children; and (3) Appellant has demonstrated an

inability to provide the children with a safe environment.

      The second element of proof, above (2), required to establish the

“constructive abandonment” ground for terminating parental rights is that the

parent has not regularly visited or maintained significant contact with the children.

The Department failed to prove that Appellant had done so. To the contrary, Ms.

Iruegas testified that: [1] the parents visited their children two times a month for an

hour (RR 10-11) as ordered by the court (RR 14-15); [2] the parents visited the

children, supervised by the grandparents, at the grandparents' home, and did so

pretty regularly initially; [3] in September 2014, the parents stopped visiting their

children (RR 11); [4] so, in total, they had about 15 out of the 20 visits ordered in

this case (RR 11). This means that Appellant participated in seventy-five percent

of the visits with his children that the court allowed. Appellant submits that this is

regular visitation and significant contact with his children by the Department’s

own admission. Such testimony is insufficient to establish that Appellant did not

regularly visit his children or maintain significant contact with them. Cf. In re



                                          19
J.J.O., 131 S.W.3d 618, 629 (Tex. App.—Fort Worth 2004, no pet.) (mother

participated in only twelve visits with child during a nine-month period); In the

Interest of M.R., No. 07-13-00440-CV, 2014 Tex. App. Lexis 6220 mem. op. (Tex.

App.––Amarillo, June 9, 2014) (mother saw children five times in 33 months); In

re E.Y., No. 13-13-00203-CV, 2013 Tex. App. Lexis 8139 (Tex. App.––Corpus

Christi, July 3, 2013) mem. op. (father did not visit or maintain contact with the

child for over eleven months).

                              Third Issue - Restated

      Whether the evidence is legally or factually insufficient to support the

court’s finding, pursuant to section 161.001(1)(O) of the Texas Family Code, that

Appellant failed to comply with the provisions of a court order that specifically

established the actions necessary for Appellant to obtain the return of the children

who have been in the permanent or temporary managing conservatorship of the

Department of Family and Protective Services for not less than nine months as a

result of the children's removal from Appellant under Chapter 262 for the abuse or

neglect of the children.

      In child abuse and neglect cases, the Department prepares a Family Service

Plan enumerating the services that a parent must complete toward meeting the

Department’s goals for the parent prior to reunification of the children with the



                                        20
parent. TEX. FAM. CODE §263.101. A Family Service Plan is designed to

reunify a parent with a child who has been removed from the parent by the

Department. Liu v. Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 785, 795

(Tex. App.–Houston[1st Dist.] 2008, no pet.). The Family Service Plan is usually

incorporated into the Status Hearing Order and Pretrial Scheduling Order, TEX.

FAM. CODE §263.106, to become the order referenced in section 161.001(1)(O)

of the Texas Family Code, for which, noncompliance therewith may become a

ground for termination of parental rights; said incorporation was done in this case

(CR 96-97).

      Ms. Iruegas testified that Family Service Plans were created for the parents,

but neither completed theirs (RR 10). But she did not testify that she made all the

referrals and authorizations necessary for Appellant to participate in said services;

nor did she give any examples or instances of the her efforts to reunify Appellant’s

children with him. She stated Appellant moved to Houston in October 2014 (RR

14) and that same month, she also asked him if he had intentions of continuing his

family service plan services, at which time he told her he did not (RR 14); he was

angry and had lost hope and claimed that it didn't matter if he did his family

services or not (RR 16-17). But, there was no testimony that family services were

even made available to Appellant in Houston. Nor was there any testimony that a



                                         21
caseworker in the Houston area had been assigned to work with Appellant. Ms.

Iruegas only offered the conclusory testimony that the Department made

reasonable efforts to work with the parents (RR 12).

      Ms. Iruegas testified that the parents had done nothing to demonstrate that

they can provide their children with a safe and stable home (RR 12). However,

this testimony ignores her other testimony regarding the family services/tasks that

Appellant completed, described below, which can be viewed as efforts to provide

their children with a safe and stable home.

      Regarding the employment task, Ms. Iruegas stated Appellant was employed

on and off during this case, but Ms. Iruegas did not know if he's currently

employed in Houston (RR 17-19), and even during his periods of unemployment,

Appellant continued to look for more work (RR 20). She acknowledged that

Appellant had housing, did his drug assessment, did the psychological evaluation

and completed parenting classes (RR 19-20). She stated, however, that he was

unsuccessfully discharged from individual counseling for noncompliance (missing

several sessions) (RR 20). She said Appellant’s therapist was concerned about his

lack of planning and his lack of ability to care for and ensure the safety of his

children and not leave them alone with their mother (RR 21).




                                         22
                              Fourth Issue - Restated

      Whether the evidence is legally or factually insufficient to support the trial

court’s finding that the termination of Appellant’s parental rights, pursuant to

section 161.001(2) of the Texas Family Code, is in the children’s best interest.

      This issue concerns the second prong of the termination test: the child’s best

interest, pursuant to Section 161.001(2) of the Family Code. Proof of the first

prong of the termination test, under Section 161.001(1) (“grounds”), without more,

will not support a termination; unless there is a finding of best interest, there can be

no termination. Wiley v. Spratlan, 543 S.W.2d at 351.

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when

the court considers factors related to the best interest of the child, “the prompt and

permanent placement of the child in a safe environment is presumed to be in the

child’s best interest.” TEX. FAM. CODE §263.307(a). In determining whether a

child’s parent is willing and able to provide the child with a safe environment, the

court should consider: (1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements; (3) the magnitude,

frequency, and circumstances of the harm to the child; (4) whether the child has

been the victim of repeated harm after the initial report and intervention by the



                                          23
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).

      In addition, “[a]n extended number of factors have been considered by the

courts in ascertaining the best interest of the child. Included among these are the

following: (A) the desires of the child; (B) the emotional and physical needs of the

child now and in the future; (C) the emotional and physical danger to the child now



                                          24
and in the future; (D) the parental abilities of the individuals seeking custody; (E)

the programs available to assist these individuals to promote the best interest of the

child; (F) the plans for the child by these individuals or by the agency seeking

custody; (G) the stability of the home or the proposed placement; (H) the acts or

omissions of the parents which may indicate that the existing parent-child

relationship is not a proper one; and (I) any excuse for the acts or omissions of the

parent [citations omitted]. This list is by no means exhaustive, but does indicate a

number of considerations which either have been or would appear to be pertinent.”

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

       Also, evidence that proves one or more statutory grounds for termination

may constitute evidence illustrating that termination is in the child’s best interest.

In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be

probative of both section 161.001(1) grounds and best interest, but such evidence

does not relieve the State of its burden to prove best interest). A best-interest

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

of the evidence as well as the direct evidence. In re E.D., 419 S.W.3d 615, 620

(Tex. App.—San Antonio 2013, pet. denied). A trier of fact may measure a

parent’s future conduct by her past conduct and determine whether termination of

parental rights is in the child’s best interest. Id.



                                            25
      Reviewing the evidence in light of the foregoing factors reveals its

insufficiency. Ms. Iruegas offered only the conclusory statement that it was in the

children’s best interest for the parental rights of the parents to be terminated (RR

12). However, she also acknowledged that there was no reason that the maternal

grandparents, with whom the children are placed, should not be given managing

conservatorship and Appellant be given possessory conservatorship of his children

(RR 22).     This seems contrary to the Department’s position that it is in the

children’s best interest that Appellant’s parental rights be terminated.

Section 263.307(b) Factors

      Other than the ages of the two children, the only evidence that was adduced

regarding any physical or mental vulnerabilities of either of the children was their

participation in “trauma informed” therapy because of their mother’s alleged

suicide attempt in front them (RR 10). This was also the only evidence of the

magnitude, frequency, and circumstances of the harm, if any, to the two children.

And, as argued above, this hearsay testimony was wrongfully and harmfully

admitted over trial counsel’s objection. The reporter’s record contains no evidence

of the frequency and nature of out-of-home placements, if any, which may have

occurred before they were removed from their parents’ possession in November

2013. There is no evidence in the reporter’s record that either of the children have



                                          26
been the victim of repeated harm after the initial report and intervention by the

Department, or whether either of them have expressed any fear of living in or

returning to their home. Ms. Iruegas stated that Appellant was unsuccessfully

discharged from individual counseling for noncompliance (missing several

sessions)(RR 20); however, there is no other evidence regarding whether the

children, the maternal grandparents, other family members, or others who have

access to the children’s home have undergone psychiatric, psychological, or

developmental evaluations. There is no evidence of a history of abusive or

assaultive conduct by the children’s family or others who have access to the

children’s home.   There is no evidence of any willingness and ability of the

children’s family to seek out, accept, and complete counseling services, to

cooperate with and facilitate the Department’s close supervision, the willingness

and ability of the children’s family to effect positive environmental and personal

changes within a reasonable period of time, whether the grandparents demonstrate

adequate parenting skills, and whether an adequate social support system

consisting of an extended family and friends is available to the children. Ms.

Iruegas testified only that the children have resided with their maternal

grandparents for the entire case, approximately ten months, and are doing very

well; their attachment to their grandmother has continued to grow (RR 8) [but the



                                       27
same was not mentioned regarding their grandfather]. She believed this placement

will lead to permanency, and the grandparents will able to continue to meet the

needs of these children in the future (RR 8-9) [but said needs were not identified].

Ms. Iruegas has no concerns with the grandmother being protective in this case

(RR 14) [but the same was not mentioned regarding their grandfather].

Holley Factors

(A) the desires of the child

      There was no evidence of the desire of either child.

(B) the emotional and physical needs of the child now and in the future

      There was no evidence of this factor other than Ms. Iruegas testimony that

[1] the children were participating in “trauma informed” therapy because of their

mother’s alleged suicide attempt in front them (RR 10) and [2] the maternal

grandparents will able to continue to meet the needs of these children in the future

(RR 8-9) [but said needs were not identified].

(C) the emotional and physical danger to the child now and in the future

      The caseworker testified that the children have resided with their maternal

grandparents for the entire case, approximately ten months, and are doing very

well; their attachment to their grandmother has continued to grow (RR 8), but the

same was not mentioned regarding their grandfather.



                                        28
(D) the parental abilities of the individuals seeking custody

      There was no testimony regarding this factor other than has already been

argued above.

(E) the programs available to assist these individuals to promote the best interest

of the child

      There was no testimony regarding this factor.

(F) the plans for the child by these individuals or by the agency seeking custody;

      There was almost no testimony regarding this factor.          The caseworker

testified that the current placement of the children with their maternal grandparents

will lead to permanency (RR 8-9), and the grandparents will able to continue to

meet the needs of these children in the future (RR 8-9), but said needs were not

identified.

(G) the stability of the home or the proposed placement

      There was almost no testimony regarding this factor.          The caseworker

testified that she has no concerns with the grandmother being protective in this

case (RR 14), but the same was not mentioned regarding their grandfather.

(H) the acts or omissions of the parents which may indicate that the existing
parent-child relationship is not a proper one

      Ms. Iruegas testified that prior to the Department filing its petition to start

this case, the Department was working with the parents in a family-based setting in

                                         29
which it was it highlighted to Appellant that he shouldn't leave their children alone

with their mother because of her mental health problems, and he violated that

requirement (RR 27-28) when Appellant was not present at the time of the

mother’s alleged suicide threat, which was a violation of the safety plan, because

he was not supposed to leave the mother unsupervised with the children (RR 9-10).

She said Appellant was aware of the mother's mental health issues (RR 10).

(I) any excuse for the acts or omissions of the parent

      There was no testimony regarding this factor.

                             Conclusion and Prayer

      In light of the lack of the evidence concerning the grounds for termination

and that it is in the children’s best interest that Appellant’s parental rights be

terminated, Appellant submits that a factfinder could not “reasonably have formed

a firm belief or conviction” that Appellant’s parental rights should be terminated.

Therefore, this case should be reversed and/or rendered in Appellant’s favor or

remanded for a new trial.

      There was no testimony regarding how long the sole witness had been a

caseworker or how long she had been working on this case. Therefore, the weight

to be given her testimony is difficult to determine. She did testify that in October

2014, she reminded Appellant of his court dates, and he informed her that he



                                         30
would be present (RR 14). The record is silent as to reason for Appellant’s

absence. Given that this case was only at the ten-month mark (RR 5), a short

continuance to obtain Appellant’s presence at trial does not seem unreasonable.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court

allow briefing and consider reversing the Court of Appeals judgment affirming the

trial court’s termination of his parental rights and enter a judgment [1] denying the

Department’s petition, [2] denying the Department’s petition and appointing

Appellant as possessory conservator of his children, or [3] denying the

Department’s petition and remanding the case for a new trial.

                                       Respectfully submitted,

                                       /s/ Gerald Uretsky
                                       GERALD URETSKY
                                       406 Brees Boulevard
                                       San Antonio, Texas 78209-4828
                                       Phone: (210) 820-8294
                                       Fax: (210) 822-8735
                                       Email: uretsky@msn.com
                                       Bar No. 20414600
                                       ATTORNEY FOR APPELLANT
                                       (On Appeal Only)




                                         31
                            Certificate of Compliance

       I HEREBY CERTIFY, pursuant to Texas Rules of Appellate Procedure 9.4,
(i) and (j), that, according to the Microsoft Word software used to compose this
document, the number of words in designated portion of this document is 4,496.

                                     /s/ Gerald Uretsky
                                     GERALD URETSKY
                                     ATTORNEY FOR APPELLANT


                               Index to Appendix
Order of Termination    .      .     .        .   .     .    .     TAB 1

Memorandum Opinion      .      .     .        .   .     .    .     TAB 2

Judgment    .     .     .      .     .        .   .     .    .     TAB 3

Order Appointing Attorney Ad Litem for Father .         .    .     TAB 4
Order to Withdraw and Substitute Attorney Ad Litem
Order of Indigence


                              Certificate of Service

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing Petition for Review has been sent, via e-service to the BEXAR
COUNTY DISTRICT ATTORNEY, lscott@bexar.org, Appellate Section, 300
Dolorosa St., 4th Floor, San Antonio, Texas 78205 on July 24, 2015.

                                     /s/ Gerald Uretsky
                                     GERALD URETSKY
                                     ATTORNEY FOR APPELLANT




                                         32
TAB 1
                                               DOCUMENT SCANNED AS FILED

                                                                                              Eu :rtjl                      lii
                                                                                                   2014Pfl00142 .-D288 _____ -/


          NOTICE: THIS DOCUMENT
          CONTAINS SENSITIVE DATA

          C913.06                                     CAUSE NO. 2014.PA-00142
     El

          IN THE INTEREST OF                                         §             IN THE DISTRICT COURT OF
                                                                     §
          M                    C            , ET AL                  §                  BEXAR COUNTY, TEXAS
                                                                     §
          CHILDREN                                                   §               288TH JUDICIAL DISTRICT

                                                    ORDER OF TERMINATION

          On                                      the Court heard this case.

                    Appearances

                    1.1.           The Department of Family and Protective Services ("the Department") appeared
                                   through .Th'e/z(r .Thitç.s , caseworker, and by attorney, KRISTEN
                                   CALVERT and announced ready.

                     1.2. Respondent Mother CYNTHIA THOMASON app                   person and by
                           attorney of record MATTHEW FINCH and announcea re adyin
                                                                                ) (5%lt,f14Ag(                         '2    t
                     1.3. Respondent Presumed Father MAURICE COLLINS appeared in person and by
                            attorney of record MARGARET A. SCOTT and announced ready.

                     1.4. LAURA C. OLIVEIRA DURAN, appointed by the Court as Attorney and
                           Guardian Ad Litem for the children the subject of this suit, appeared and
a                          announced ready.
2:
                    Jurisdiction and Service of Process
I
                    2.1. The Court, having examined the record and heard the evidence and argument of
                           counsel, finds the following:
ci
a                                  2.1.1. a request for identification of a court of continuing, exclusive jurisdiction
4                                          has been made as required by Section 155.101, Texas Family Code.

                                   2.1.2. this Court has jurisdiction of this case and of all the parties and that no
                                           other court has continuing, exclusive jurisdiction of this case.

                    2.2. The Court, having examined the record and heard the evidence and argument of
                           counsel, finds that the State of Texas has jurisdiction to render final orders
                           regarding the children the subject of this suit pursuant to Subchapter C, Chapter
                           152, Texas Family Code, by virtue of the fact that Texas is the home state of the
(3                         children.



4         Orderotlermination                                                                            2014-PA00142/288TH
B         Page
          143 1                                                                                                   ASAP2O13


                                                                                          /
                                        DOCUMENT SCANNED AS FILED




               2.3.        The Court finds that all persons entitled to citation were properly cited.

               Jury

               A jury was waived, and all questions of fact and of law were submitted to the Court.

               Record

               The record of testimony was duly reported by DAVID ZARATE the court reporter for
               the Associates Judges Court, Room 3.06 of Bexar County.

               The Children

               The Court finds that the following children are the subject of this suit:

               5.1.                     Name:      M            C
                                          Sex:
                                   Birth Date:

               5.2.                     Name:      T       C
                                          Sex:
                                   Birth Date:

               Termination of Responde nt Mother CYNTHIA THOMASON'S Parental Rights

               6.1.        The Court finds by clear and convincing evidence that termination of the parent-
                           child relationship between CYNTHIA THOM.ASON and the children the subject
                           of this suit is in the childmn's best interest.

                6.2.       Further, the Court finds by clear and convincing evidence that CYNTHIA
                           THOMASON has:

                           6.2.1. knowingly placed or knowingly allowed the children to remain in
                                  conditions or surroundings which endanger the physical or emotional
                                  well-being of the children, pursuant to § 161.001(1)(D), Texas Family
                                  Code;

                                                 conduct or knowingl
                                                                           thephysi cal ore        well-being
                                   of the children, pursuan                       -exas Family Code;

                           6.2.3. failed to comply with the provisions of a court order that specifically
0                                  established the actions necessary for the mother to obtain the return of the
3                                  children who have been in the permanent or temporary managing
                                   conservatorship of the Department of Family and Protective Services for
                                   not less than nine months as a result of the children's removal from the
p                                  parent under Chapter 262 for the abuse or neglect of the children, pursuant
C
                                   to § 161.001(1)(0), Texas Family Code;


7   Order of Termination                                                                          2014•PA001421 288TH
    Page 2
    144                                                                                                     ASAP 2013
                                                        DOCUMENT SCANNED AS FILED




                                         6. 2-4'-.—Zbe Court finds that CNTH1A THOMASON has £Thenta1.or emotional
         •                                   .
                                                   ill nes                                     unable to?HeJor
                                                   the physical, em6nonaL and mental ne f the children pursuant
             6.z.y         &nJst1                   § 16 1.003, Texas Family Code.
                  hi             '"4 i '2trThecourt finds by clear
                       940A pttAht                                     Oro an nvincing evidence th ~Thc4llness
                  (Pf0#4         j WP$ ..'/        or deficy1n-at.reasonab              will continue to riaeiç.
                             ttk4                  the mother unable toidethe children           suntil the 1gth
Ck4dVc                                      04çgbirthday of the children.


                                                6.f4'2he_Court finds that the Department has bee'iflhe...emporary or
                                                       permaiiinanagiijg conservaiThf-the children for thuinionths
             ft                                        preceding the date oflhietermination ha?ihg..pjirsuantto §16l.ö3,
     $44C tttV
A                               ws6At("         i      Texas Family Code.                            I

                                         6.2.5. The Court finds that the Department has made reasonable efforts to return
                                                 the children to the mother.

                              6.3. IT IS THEREFORE ORDERED that the parent-child relationship between
                                     CYNTHIA THOMASON and the children the subject of this suit is terminated.

                   7.         Termination of Respondent Father MAURICE COLLINS'S Parental Rights

                              7.1.       The Court finds by clear and convincing evidence that termination of the parent-
                                         child relationship between MAURICE COLLINS and the child M
                                         C           AND T        C         is in the child's best interest.

                              7.2.       Further, the Court finds by clear and convincing evidence that MAURICE
                                         COLLINS has:

    '3                                   7.2.1. knowingly placed or knowingly allowed the children to remain in
                                                conditions or surroundings which endanger the physical or emotional
                                                well-being of the children, pursuant to § 161.001(1)(D), Texas Family
    t
    z                                           Code;



                                                    of the children, pursuant to § 161.001     rPexas Family Code;
    V
                                                    7.2.2.1.failed to comply with the provisions of a court order Jhat
    L                                                      specifically established the actions necessary for the MWM to
    o                                                      obtain the return of the children who have been in the permanent or
    3                                                      temporary managing conservatorship of the Department of Family
                                                           and Protective Services for not less than nine months as a result of
    C                                                      the children's removal from the parent under Chapter 262 for the
    p                                                      abuse or neglect of the children, pursuant to § 161.001(l)(0),
    6                                                      Texas Family Code;
     I
     S
                   Orderotlemilnatioc,                                                                          2014PA00142/2681H
     8             Page 3
                   145                                                                                                   ASAP 2013
                                           OCJ4T Q               EQ2\. RILED tdt-.J ,:-i
                                                                            as
                        7.


                             7.2.3. The Court finds that the Department has made reasonable efforts to return
                                     the children to the father.

                 7.3. IT IS THEREFORE ORDERED that the parent-child relationship between
                       MAURICE COLLINS and the child M         C            AND T
                       C       is terminated.

                 Interstate Compact

                 The Court finds that Petitioner has filed a verified allegation or statement regarding
                 compliance with the Interstate Compact on the Placement of Children as required by
                 § 162.002(b)(1) of the Texas Family Code.

                 Managing Conservatorship: M                     C

                 9.1. The Court finds that the appointment of the Respondents as permanent managing
                        conservator of the children is not in the children's best interest because the
                        appointment would significantly impair children's physical health or emotional
                        development.

                 9.2. IT IS ORDERED that the DEPARTMENT OF FAMILY AND
                       PROTECTIVE SERVICES is appointed Permanent Managing Conservator of
                       M             C             a child the subject of this suit, with the rights and duties
                       specified in § 153.371, Texas Family Code; the Court finding this appointment to
                       be in the best interest of the child.

                             9.2.1. In addition to these rights and duties, IT IS ORDERED that the
                                    Department is authorized to consent to the medical care for M
                                    C         under § 266.004, Texas Family Code..

                 Managing Conservatorship: T                 C

                  10.1. The Court finds that the appointment of the Respondents as permanent managing
                         conservator of the children is not in the children's best interest because the
                         appointment would significantly impair children's physical health or emotional
2:
                         development.

'4                10.2.      IT IS ORDERED that the DEPARTMENT OF FAMILY AND
                             PROTECTIVE SERVICES is appointed Permanent Managing Conservator of
                             T        C           , a child the subject of this suit, with the rights and duties
13!                          specified in § 153.371, Texas Family Code; the Court finding this appointment to
                             be in the best interest of the child.

                             10.2.1. In addition to these rights and duties, IT IS ORDERED that the
                                   Department is authorized to consent to the medical care for TY
                                   C           under § 266.004, Texas Family Code.
p
13
.1
B
4     Order of Terminalion                                                                       2014-PA-00142 / 288TH
9     146 4
      Page                                                                                                  ASAP 2013
                                      DOCUMENT SCANNED AS FILED




     11.        Required Information Regarding the Parties and Children

                 11.1. The children's information is provided above; the information required of each
                        party not exempted from such disclosure is:

                            11.1.1.             Name: CYNTHIA THOMASON
                                      Driver's License: XXX-XX-5928

                            11.1.2.             Name: MAURICECOLLINS
                                      Driver's License: XXX-XX-401 1

                 11.2. IT IS ORDERED that each parent, who has not previously done so, provide
                       information regarding the medical history of the parent and parent's ancestors on
                       the medical history report form, pursuant to § 161.2021, Texas Family Code.

     12.        Continuation of Court-Ordered Ad Litem or Advocate

                 12.1. The Court finds that the children the subject of this suit will continue in care and
                        this Court will continue to review the placement, progress and welfare of the
                        children.

                 12.2. IT IS THEREFORE ORDERED that LAURA C. OLIVEIRA DURAN,
                       earlier appointed as Attorney and Guardian Ad Litem to represent the best
                       interests of the children, is continued in this relationship until further order of this
                       Court or final disposition of this suit.

     13.        Court Ordered Ad Litem for Parent

                 .13.1. IT IS THEREFORE ORDERED that MATTHEW FINCH earlier appointed to
1                       represent CYNTHIA THOMASON is relieved of all duties based on a finding of
2/                      good cause.

                 13.2. IT IS THEREFORE ORDERED that MARGARET A. SCOTT earlier
9                      appointed to represent MAURICE COLLINS is relieved of all duties based on a
2                      finding of good cause.

     14.        Dismissal of Other Court-Ordered Relationships

                Except as otherwise provided in this order, any other existing court-ordered relationships
p               with the children the subject of this suit are hereby terminated and any parties claiming a
L               court-ordered relationship with the children are dismissed from this suit.

     15.        Inheritance Rights
9
2               This Order shall not affect the right of any child to inherit from and through any party
p
G
 1
 6
 S
 o   Order of Terrninaton
     PageS
     147
                                                                                               2014-PA00142/288TH
                                                                                                        ASAP 2013
                                   DOCUMENT SCANNED AS FILED




                 Denial of Other Relief
                 IT IS ORDERED that all relief requested in this case and not expressly granted is
                 denied.
                 WARNING: APPEAL OF FINAL ORDER, PURSUANT TO § 263.405, TFC
                 A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN
                 APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT-CHILD
                 RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR
                 ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF
                 APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF
                 APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN
                 THE DISMISSAL OF THE APPEAL.
                 NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS:
                 YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF
                 CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO
                 RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER'S
                 AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY
                 CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD
                 FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN
                 ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD
                 CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR
                 ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT
                 COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT
                 IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS
                 $10,000.

4                The Court finds that all parties have waived any objections to the hearing by an
                 Associate Judge and do hereby waive their right to de novo review pursuant to
                 Section 201.015 of the Texas Family Code.
                                      DEC 1. 1. 20W
2     SIGNED this _____ day of                        , 2014.
3.
44

                                             CHARLES MONTEMAYOR
                                                      55(CIATE JUDGE
0
3
9
2
p
6

 6
 S    Order of Termination                                                           201 4-PA00142 /288TH
 ii   Page 6
      148                                                                                       ASAP 2013
                                       DOCUMENT SCANNED AS FILED




      APPROV D AS TO FORM:



      KRIStEN CAtVERT
       Attorney for Petitioner, Department of Family and Protective Services
      Bexar County Courthouse 3rd Floor
       100 Dolorosa, 3rd Floor
       San Antonio, TX 78205
       email: kcalvert@bexar.org
      phone: (210) 224-1430
      fax: (512) 934-9626
       State Bar #00787188




      Attorney and Guardian Ad Litem for the Children


      State Bar #



      CYNTHIA THOMASON
      Mother of the Children



1.
2
                             the Mother CYNTHIA THOMASON
:1.
      State Bar #


41
V     MAURICE COLLINS
      Presumed Father of the Child M             C         and T       C



                             6/
                                          461M
      MargaretLj. Scott
      Attorney for the Presumed Father MAURICE COLLINS


      State Bar #
 b
      Order of Termination                                                     2014-PA00142/286TH
                                                                                         ASAP2O13
      149
      Page7
TAB 2
                                    Fourth Court of Appeals
                                            San Antonio, Texas
                                       MEMORANDUM OPINION
                                                 No. 04-14-00893-CV

                                    IN THE INTEREST OF M.C. and T.C.

                       From the 288th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2014-PA-00142
                      Honorable Charles E. Montemayor, Associate Judge Presiding

Opinion by:        Karen Angelini, Justice

Sitting:           Karen Angelini, Justice
                   Rebeca C. Martinez, Justice
                   Patricia O. Alvarez, Justice

Delivered and Filed: June 10, 2015

AFFIRMED

           Appellant Maurice C. appeals the trial court’s termination of his parental rights to his

children, eight-year-old M.C. and five-year-old T.C. 1 After a bench trial, the trial court found by

clear and convincing evidence that Maurice C. had (1) knowingly placed or knowingly allowed

his children to remain in conditions or surroundings that endangered their physical or emotional

well-being (section 161.001(1)(D) grounds); (2) failed to comply with the provisions of a court

order that specifically established the actions necessary for Maurice C. to obtain the return of his

children who had been in the permanent or temporary managing conservatorship of the Department

of Family and Protective Services for not less than nine months as a result of the children’s removal



1
 To protect the privacy of the parties in this case, we identify the children by their initials and the parents by their first
names only. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
                                                                                       04-14-00893-CV


from the parent under Chapter 262 for the abuse or neglect of the children (section 161.001(1)(O)

grounds); and (3) constructively abandoned his children who had been in the permanent or

temporary managing conservatorship of the Department for not less than six months and the

Department made reasonable efforts to return the children to Maurice C. (section 161.001(N)

grounds). The trial court also found by clear and convincing evidence that termination of Maurice

C.’s parental rights was in the children’s best interest. On appeal, Maurice C. argues the evidence

is legally and factually insufficient to support the above findings by the trial court. He also argues

that the trial court erroneously admitted, over his objection, hearsay testimony.

                                            THE TRIAL

       Maurice C. did not appear at trial. His court-appointed attorney stated at the beginning of

trial that he had not had contact with Maurice C. since he had moved to Houston. His attorney

announced “not ready” and requested a continuance. The Department responded that the case had

been pending for ten months and asked the court to proceed to trial. The trial court denied the

motion for continuance and trial proceeded.

       The Department called as its only witness Jennifer Iruegas, the Department case worker

assigned to the case. Iruegas testified that the children were currently residing with their maternal

grandparents and had been doing so since the case began. According to Iruegas, the children were

doing well with their grandparents and had developed an attachment to them. She testified it would

be harmful for the children to be removed from their current placement and that the plan is for this

current placement to lead to permanency. When asked about the events leading to the children’s

removal from their parents, Iruegas began her answer when Maurice C.’s attorney objected:

       Iruegas:    Yes, ma’am. We received a referral – the Department received a referral
                   in November of 2013 alleging neglectful supervision of the children.
                   The parents were allegedly using drugs and at one point –



                                                 -2-
                                                                                                  04-14-00893-CV


        Maurice C.’s attorney: Judge, I’m going to object as to hearsay unless this
                 caseworker was present and is aware personally of the use of drugs.
                 That’s, again, hearsay and I just objected. 2

        Court:        Overruled. She’s charged with familiarizing herself with the knowledge
                      of the contents of the file and the circumstances that led to CPS
                      intervention. Go.

        Iruegas:      And at one point the mother did become intoxicated with alcohol and
                      Xanax and began to – well, proceeded to slit – attempt to slit her own
                      throat with a knife in front of her children telling them good-bye and
                      she’s tired of being in the world.

        Iruegas then testified that when this incident occurred, (1) the mother and Maurice C. had

been living together; (2) a safety plan was already in place; (3) Maurice C. was not present, and

under the safety plan, he was not supposed to leave the mother unsupervised with the children; and

(4) Maurice C. was aware of the mother’s mental issues. Iruegas testified that a service plan was

created for both parents, and neither had completed their respective service plan. According to

Iruegas, both children are “in trauma-informed therapy because of the incident that occurred with

their mother inflicting harm to herself in front of them.” Iruegas testified that the incident with

their mother had left the children with emotional scars. Iruegas then testified that terminating the

parental rights of both parents was in the children’s best interest.

        Iruegas also testified that the parents visited their children about fifteen times during the

ten months the case had been pending and had stopped their visits in September 2014, three months

before trial. Iruegas testified that the parents had done “nothing” to demonstrate that they can

provide the children with a safe and stable home. According to Iruegas, Maurice C. had been living

in Houston since October 2014. Iruegas testified that she had spoken with Maurice C. in October

2014 and reminded him of the trial date. She told him that he needed to continue his services in



2
  This is the only objection made by Maurice C.’s attorney during Iruegas’s testimony. Maurice C.’s attorney did not
request a running objection.

                                                       -3-
                                                                                      04-14-00893-CV


order to be able to work toward reunification with his children. She asked him if he intended to

continue his services. According to Iruegas, Maurice C. “was angry and he was – it seemed like

he had lost hope and claimed that it didn’t matter if he did his services or not.” Maurice C. told

Iruegas that he had recently lost his job and was looking for a new one. Iruegas also testified that

Maurice C. was “unsuccessfully discharged from individual counseling for noncompliance and he

did not maintain employment.” Maurice C. missed several counseling sessions, and according to

Iruegas, with regard to Maurice C.’s therapy “[t]here was concern [about] his lack of planning and

his lack of ability to care and ensure the safety of his children and not leave them alone with [the

mother].” Iruegas testified that Maurice C. had on at least one occasion left the children alone with

their mother while he went to work. Iruegas testified that the mother was currently homeless and

in September 2014 had been at the psychiatric unit at University Hospital. The mother had become

intoxicated and harmed herself, at which time she called the crisis hotline and was taken to

University Hospital. The mother had left a voice message with the Department, and according to

Iruegas, the mother’s message was “completely incoherent” and the mother “was obviously

intoxicated by something.” According to Iruegas, the mother had been hospitalized twice during

the pendency of the case.

       Iruegas was asked if Maurice C.’s rights should be terminated because the mother has a

mental illness. Iruegas responded, “Along with his inability to care for – to ensure safety for his

children, yes.” Iruegas testified that in the pre-litigation family-based case, Maurice C. was

informed that he could not leave his children alone with the mother because of her mental health

problems:

       Q:          Was it the family-based case that ultimately resulted in this case and that
                   Dad violated?

       A:          Yes.


                                                -4-
                                                                                    04-14-00893-CV


       Q:          Was it highlighted to the Dad in the family-based case that the reason
                   he shouldn’t leave his kids alone with the Mom was because of her
                   mental health problems?

       A:          Yes.

       Q:          And he violated that?

       A:          Yes, ma’am.

When asked what Maurice C. had done to demonstrate that he would not make such a bad decision

again, Iruegas replied, “Nothing.”

                                            HEARSAY

       Maurice C. argues the trial court erred in overruling his hearsay objection to Iruegas’s

testimony that the Department received a referral in November 2013 alleging neglectful

supervision of the children because the parents were using drugs and at one point, the mother

became intoxicated with alcohol and Xanax and attempted to slit her throat with a knife in front of

her children. We review the admission of evidence for abuse of discretion. See Whirlpool Corp. v.

Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

       Whether or not this testimony was inadmissible hearsay, any error is harmless because

Maurice C. did not continue to object to Iruegas’s testimony or request a running objection. To

obtain the reversal of a judgment based upon an error of the trial court in admission or exclusion

of evidence, it must be shown that the trial court did in fact commit error and that the error

complained of probably caused the rendition of an improper judgment or probably prevented the

appellant from properly presenting the case to the court of appeals. See TEX. R. APP. P. 44.1(a);

State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Any error in excluding

evidence is harmless if other admitted evidence reveals the same facts as that which is excluded.

Bryant v. Transcon. Gas Pipe Line Corp., 821 S.W.2d 187, 188 (Tex. App.—Houston [14th Dist.]

1991, writ denied); see Cent. Expressway, 302 S.W.3d at 870 (“[T]he exclusion or admission is

                                               -5-
                                                                                         04-14-00893-CV


likely harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that

the error likely made no difference in the judgment.”). After Maurice C. objected to Iruegas’s

testimony, Iruegas gave similar testimony without objection. Therefore, any error was harmless.

                                  SUFFICIENCY OF THE EVIDENCE

        Parental rights may be terminated only upon proof of clear and convincing evidence that

(1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code,

and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West

2014). Here, the trial court found three grounds supporting termination of Maurice C.’s parental

rights under section 161.001(1). Maurice C. argues there is legally and factually insufficient

evidence to support all three grounds.

        When the legal sufficiency of the evidence is challenged, we look at all the evidence in the

light most favorable to the trial court’s 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.O.A., 283 S.W.3d 336,

344 (Tex. 2009). “To give appropriate deference to the factfinder’s conclusions and the role of a

court conducting a legal sufficiency review, looking at the evidence in the light most favorable to

the judgment means that a reviewing court must assume that the factfinder resolved disputed facts

in favor of its finding if a reasonable factfinder could do so.” Id. (citations omitted). “A corollary

to this requirement is that a court should disregard all evidence that a reasonable factfinder could

have disbelieved or found to have been incredible.” Id. (citations omitted). “If, after conducting its

legal sufficiency review of the record evidence, a court determines that no reasonable factfinder

could form a firm belief or conviction that the matter that must be proven is true, then that court

must conclude that the evidence is legally insufficient.” Id. at 344-45 (citations omitted).

        When a parent challenges the factual sufficiency of the evidence on appeal, we look at all

the evidence, including disputed or conflicting evidence. Id. at 345. “If, in light of the entire record,

                                                  -6-
                                                                                       04-14-00893-CV


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, then

the evidence is factually insufficient.” Id. (citations omitted). In reviewing termination findings

for factual sufficiency, we give due deference to the factfinder’s findings and do not supplant its

judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

       With regard to the trial court’s finding pursuant to section 161.001(1)(O), Maurice C.

argues the evidence is legally and factually insufficient to support the trial court’s finding that he

failed to comply with the provisions of a court order that specifically established the actions

necessary for him to obtain the return of his children who had been in the Department’s permanent

or temporary managing conservatorship for not less than nine months as a result of the children’s

removal under Chapter 262 for abuse or neglect. At trial, the trial court took judicial notice of the

service plan. The service plan required that Maurice C. complete parenting classes, have a drug

assessment with drug treatment, complete a psychological evaluation, complete individual

counseling, and maintain housing and employment. Maurice C. completed parenting classes, and

his drug and psychological assessment. However, he was unsuccessfully discharged from

individual counseling for non-compliance because he missed several sessions. According to

Iruegas, as a result of the sessions Maurice C. did attend, the therapist was concerned about “his

lack of planning and his lack of ability to care and ensure the safety of his children and not leave

them alone with [the mother].” Iruegas also testified that he failed to maintain steady employment.

He was employed on-and-off during the ten-month pendency of the case. When she talked to him

in October, he had lost his job, had moved to Houston, and was looking for a new job.

       Maurice C. complains that Iruegas did not testify that she made all the referrals and

authorizations necessary for him to participate in services or give any examples of her efforts to

reunite him with his children. However, Iruegas did testify that the Department had made

                                                 -7-
                                                                                       04-14-00893-CV


reasonable efforts to work with both parents. She testified that she “reached out to [Maurice C.]

several times and on one occasion he did answer the phone.” She reminded him of the court dates

and told him that he would need to continue with his services in order to work towards reunification

with his children. According to Iruegas, Maurice C. was angry and frustrated, stating that he did

not believe it mattered if he continued his services. Iruegas testified that she provided Maurice C.

with information and the proper authorization to participate in the services. We hold the evidence

is legally and factually sufficient to support the trial court’s finding pursuant to section

161.001(1)(O).

       With regard to the trial court’s finding pursuant to section 161.001(1)(D), Maurice C.

argues the evidence is legally and factually insufficient that he knowingly placed or knowingly

allowed his children to remain in conditions or surroundings that endangered the physical or

emotional well-being of the children. See TEX. FAM. CODE ANN. § 161.001(1)(D) (West 2014).

Subsection D permits termination based on a single act or omission by the parent. In re R.D., 955

S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).

       The term “endanger” means “to expose to loss or injury.” Tex. Dep’t of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.J.B., No. 04-14-00299-CV, 2014 WL 4218845,

at *2 (Tex. App.—San Antonio Aug. 27, 2014, no pet.). Although “‘endanger’ means more than a

threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it

is not necessary that the conduct be directed at the child or that the child actually suffers injury.”

Boyd, 727 S.W.2d at 533; see In re J.J.B., 2014 WL 4218845, at *2 (explaining that “abusive or

violent conduct by a parent or other resident of a child’s home can constitute a condition that

endangers the child’s physical or emotional well-being within the meaning of section

161.001(1)(D)). “Although the parent need not have certain knowledge that an actual injury is

occurring, the parent must at least be aware of the potential for danger to the child in such an

                                                 -8-
                                                                                                 04-14-00893-CV


environment and must have disregarded that risk.” In re A.S., 261 S.W.3d 76, 83 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). At trial, Iruegas testified that Maurice C. was aware of the

mother’s mental health issues and knew that he was not permitted to leave the children alone with

the mother pursuant to the Family Based Safety Plan. 3 He nevertheless left the children alone with

the mother. Iruegas testified that the children then witnessed their mother inflict harm upon herself,

resulting in the children suffering from “lasting emotional scars” and undergoing trauma-informed

therapy. Thus, there was testimony that Maurice C. knew about the danger posed to his children

by their mother’s mental health problems, was specifically told by the Department that he could

not leave the children alone with her, and nonetheless did so. We conclude the evidence is legally

and factually sufficient to support termination of Maurice C.’s parental rights on section

161.001(1)(D) grounds. 4

        Maurice C. also argues the evidence is legally and factually insufficient to support the trial

court’s finding that termination of his parental rights is in his children’s best interest. See TEX.

FAM. CODE ANN. § 161.001(2) (West 2014). There is a strong presumption that the best interest of

a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

However, there is also a presumption that when the court considers factors related to the best

interest of the child, “the prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a) (West 2014). And,

in determining whether the child’s parents are willing and able to provide the child with a safe

environment, the court should consider the following: the child’s age and physical and mental



3
  This safety plan was in place prior to the children’s removal and is different from the service plan referred to
previously.
4
  Because only one ground under section 161.001(1) can support the termination of parental rights and because we
have determined that sufficient evidence supported two different grounds under section 161.001(1), we need not
determine whether there is sufficient evidence that Maurice C. constructively abandoned his children under section
161.001(1)(N).

                                                      -9-
                                                                                       04-14-00893-CV


vulnerabilities; 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;

the willingness and ability of the child’s family to effect positive environmental and personal

changes within a reasonable period of time; and whether the child’s family demonstrates adequate

parenting skills, including providing the child with minimally adequate health and nutritional care,

a safe physical home environment, and an understanding of the child’s needs and capabilities. Id.

§ 263.307(b). In addition, courts may consider other nonexclusive factors in reviewing the

sufficiency of the evidence to support the best interest finding, including (1) the desires of the

child, (2) the present and future physical and emotional needs of the child, (3) the present and

future emotional and physical danger to the child, (4) the parental abilities of the persons seeking

custody, (5) the programs available to assist those persons seeking custody in promoting the best

interest of the child, (6) the plans for the child by the individuals or agency seeking custody, (7)

the stability of the home or proposed placement, (8) acts or omissions of the parent which may

indicate the existing parent-child relationship is not appropriate, and (9) any excuse for the parent’s

acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not exhaustive,

and evidence is not required on all of the factors to support a finding terminating a parent’s rights.

Id.; In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

       At trial, there was evidence that Maurice C.’s young children had been living with their

maternal grandparents for the previous ten months, were doing well, and had formed an attachment

that continues to grow. Iruegas testified that it would be harmful for the children to be removed

from their maternal grandparents and that the plan was for their current placement to lead to

permanency. Iruegas also testified that Maurice C. failed to maintain stable employment, and in

the final months before trial, Maurice C. stopped all communication with both his children and the

Department. He stopped visiting his children. He was not able to show that he had stable housing.

                                                 - 10 -
                                                                                       04-14-00893-CV


Maurice C. also failed to complete individual counseling. Meanwhile, his very young children are

currently undergoing trauma therapy. We hold there is legally and factually sufficient evidence

that termination of Maurice C.’s parental rights is in the children’s best interest.

       We affirm the trial court’s order terminating Maurice C.’s parental rights.


                                                   Karen Angelini, Justice




                                                - 11 -
TAB 3
                           Fourth Court of Appeals
                                  San Antonio, Texas

                                       JUDGMENT

                                     No. 04-14-00893-CV

                           IN THE INTEREST OF M.C. and T.C.

                  From the 288th Judicial District Court, Bexar County, Texas
                               Trial Court No. 2014-PA-00142
                 Honorable Charles E. Montemayor, Associate Judge Presiding

     BEFORE JUSTICE ANGELINI, JUSTICE MARTINEZ, AND JUSTICE ALVAREZ

       In accordance with this court’s opinion of this date, the trial court’s order terminating
appellant’s parental rights is AFFIRMED. No costs of appeal are assessed against appellant.

       SIGNED June 10, 2015.


                                               _____________________________
                                               Karen Angelini, Justice
TAB 4
                                                                                            IM 141RIONKIIIIIIIII III
                                                                                              2014PA00142 —D288




          C913.06                        CAUSE NO.       h? nP66m og
          IN THE INTEREST OF                                   §              IN THE DISTRICT COURT OF

          M                    C         , ET AL                                     BEXAR COUNTY, TEXAS

          CHILDREN                                                                 288TH JUDICIAL DISTRICT

                                   ORDER APPOINTING ATTORNEY AD LITEM FOR FATHER

          The Court finds that the immediate appointment of an .Attorney Ad Litem to represent the
          interests of MAURICE C               against whom this suit is brought is required under
          § 161.003 (b), Texas Family Code.
                                                                        (


          IT IS THEREFORE ORDERED that MARGARET A. C- TT, a licensed attorney at law of
          this state, is appointed Attorney Ad Litein for MAURICE C .

          SIGNED this 22nd day of January, 2014.



                                                                    JUDGE PRESIDING


     4t462M:
         /Kristen Calvert
    ,/     Attorney for Petitioner, Department of Family and Protective Services
           Bexar County Court House
           100 Dolorosa, 3rd Floor
           San Antonio, Texas 78205
9          Kcalvert@bexar.org
           phone: (210) 224-1430
          fax: (210) 224-9887
           STATE BAR #00787188




0
3
7

P
G

Q          Order Setting Hearing                                                            "CAUSE NUMBER" / 288TH

3          Page2
          21
1
                                  CAUSE NO . 2014.PA-00142



IN THE INTEREST OF                                            IN THE DISTRICT COURT

MALIYAH COLLINS, ET AL                                        288 th JUDICIAL DISTRICT

CHILDREN                                                       BEXAR COUNTY, TEXAS

                                   ORDER OF INDIGENCE



       On this date, Respondent/s MAURICE COLLINS request for Order of Indigence was

presented to this Court. The Court finds this request should be granted for good cause. The

court finds that Respondent/s is indigent.

       IT IS THEREFORE ORDERED that Respondent/s is hereby indigent.

       SIGNED this   'J:Lf!!_y of ;[uli, 1.01£                       .
                                     /

APPROVED AS TO FORM AND SUBSTANCE:
Gerald Uretsky
Attorney at Law
406 Brees Boulevard
San Antonio, Texas 78209-4828
Phone: (210) 820-8294
Fax : (210) 822-8735
Email: uretsky@msn.com



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