                                  Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION
                                               No. 04-15-00707-CV

                                  IN THE INTEREST OF J.W.S., a Child

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014-PA-01875
                     Honorable Charles E. Montemayor, Associate Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 13, 2016

AFFIRMED

           David and Donna appeal the termination of their parental rights to J.W.S., born in May

2013. 1 David’s sole issue is that service was improper and inadequate for personal jurisdiction.

Donna’s issues are that there is legally and factually insufficient evidence of grounds for

termination or that termination is in J.W.S.’s best interest. We affirm the trial court’s judgment.

                                          PROCEDURAL BACKGROUND

           The Department of Family and Protective Services filed a petition for termination of

David’s and Donna’s parental rights to J.W.S. The trial court appointed David and Donna each an

attorney ad litem. At a trial setting on the Department’s petition, David’s and Donna’s attorneys



1
  To protect the identity of the minor child, we refer to the child’s parents by their first names and to the child by his
initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
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ad litem appeared. Donna’s attorney requested a continuance, and David’s attorney announced not

ready. The trial court reset the trial for a later date, but before the attorneys were excused, David

entered the courtroom and informed the trial court that he was the alleged father in this case.

       Several months later, the case proceeded to trial. Although David’s and Donna’s attorneys

ad litem appeared at trial, David and Donna were not present. Raquel Escobar, the Department’s

caseworker, testified for the Department. No other evidence was admitted. After the trial on the

Department’s petition, the trial court signed an order terminating David’s and Donna’s parental

rights. David and Donna now appeal.

                                          DAVID’S APPEAL

       David argues the Department’s service was defective. A party waives a complaint

regarding defective service of process if he makes a general appearance. In re D.M.B., 467 S.W.3d

100, 103 (Tex. App.—San Antonio 2015, no pet.) (citing TEX. R. CIV. P. 120). If a parent in a

termination proceeding appears through an attorney ad litem and announces “not ready,” and the

parent’s attorney ad litem participates in the hearing, the party makes a general appearance

sufficient to waive a complaint regarding defective service of process. See In re P.Y.M., No. 04-

13-00024-CV, 2013 WL 4009748, at *2 (Tex. App.—San Antonio Aug. 7, 2013, no pet.) (mem.

op.). David’s ad litem attorney appeared at the first hearing and announced not ready; David also

personally appeared at that first hearing. His attorney ad litem also participated in the trial. It was

only when the attorney ad litem began to cross-examine the Department’s witness that the attorney

ad litem stated he was making a special appearance. We conclude David made a general

appearance and waived his complaint regarding service of process. See id.; see also In re D.M.B.,

467 S.W.3d at 103.




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                                         DONNA’S APPEAL

       The trial court found by clear and convincing evidence that Donna constructively

abandoned J.W.S. and failed to comply with provisions of her court-ordered family service plan.

The trial court also found by clear and convincing evidence that termination was in J.W.S.’s best

interest. Donna argues there is legally and factually insufficient evidence to support these findings.

A. Standard of Review

       A judgment terminating parental rights must be supported by clear and convincing

evidence. TEX. FAM. CODE ANN. § 161.001(b), (c) (West Supp. 2015). To determine whether this

heightened burden of proof was met, we employ a heightened standard of review to determine

whether a “factfinder could reasonably form a firm belief or conviction about the truth of the

State’s allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). “This standard guards the

constitutional interests implicated by termination, while retaining the deference an appellate court

must have for the factfinder’s role.” In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio

2013, no pet.). We do not reweigh issues of witness credibility but rather defer to the factfinder’s

reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

       A legal sufficiency review requires us to examine the evidence “in the light most favorable

to the finding to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume

the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have

done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found

incredible. Id. But we may not simply disregard undisputed facts that do not support the finding;

to do so would not comport with the heightened burden of proof by clear and convincing evidence.

Id.



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       When conducting a factual sufficiency review, we evaluate “whether disputed evidence is

such that a reasonable factfinder could not have resolved that disputed evidence in favor of its

finding.” Id. The evidence is factually insufficient “[i]f, 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.” Id.

B. Grounds for Termination

       A finding of only one ground for termination is sufficient to support a judgment of

termination when there is also a finding that termination is in the child’s best interest. See In re

A.V., 113 S.W.3d 355, 362 (Tex. 2002). The failure to comply with the court-ordered provisions

of a family service plan is a ground for termination of parental rights. TEX. FAM. CODE ANN.

§ 161.001(1)(o) (West 2014). Donna argues “[n]o credible evidence was presented at the trial

concerning any of the required elements” for this ground. She also argues there was no evidence

that she signed the family service plan, suggesting that she did not receive it.

       The failure to complete a family service plan is a ground for termination if the parent “failed

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

for the parent to obtain the return of the child who has 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 child’s removal from the parent under Chapter 262 for the abuse or

neglect of the child.” Id. Caseworker Escobar testified J.W.S. was removed from the home for

neglect, the Department provided Donna a service plan that was on file with the court, and Donna

reviewed the service plan. The trial court appointed the Department as J.W.S.’s temporary

managing conservator over a year before the trial. Escobar testified Donna completed the parenting

course and drug treatment, but she did not complete other parts of the plan including “proof of

employment, valid housing, [and] clean UAs because . . . not all of them were clean.” Based on
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Escobar’s testimony, we hold a factfinder could reasonably form a firm belief or conviction that

Donna failed to comply with her family service plan. See In re C.H., 89 S.W.3d at 25.

C. J.W.S.’s Best Interest

       The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court

has set out some factors relevant to the determination:

       •   the desires of the child;
       •   the emotional and physical needs of the child now and in the future;
       •   the emotional and physical danger to the child now and in the future;
       •   the parental abilities of the individuals seeking custody;
       •   the programs available to assist these individuals to promote the best interest of
           the child;
       •   the plans for the child by these individuals or by the agency seeking custody;
       •   the stability of the home or proposed placement;
       •   the acts or omissions of the parent which may indicate that the existing parent-
           child relationship is not a proper one; and
       •   any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor

must be proved to find that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.

Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or

conviction that termination is in the child’s best interest—especially when undisputed evidence

shows that the parental relationship endangered the child’s safety. Id. “Evidence that the parent

has committed the acts or omissions prescribed by section 161.001 may also be probative in

determining the child’s best interest; but the mere fact that an act or omission occurred in the past

does not ipso facto prove that termination is currently in the child’s best interest.” In re O.N.H.,

401 S.W.3d at 684 (internal citation omitted).

       Donna argues the only evidence relevant to the trial court’s best-interest finding was (1)

the lack of a bond between Donna and J.W.S., and this evidence showed J.W.S. was placed with

a new family only one week before trial, and (2) vague evidence about “stability concerns.”


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However, Escobar testified J.W.S. was currently living in a “foster adopt home.” She explained

the prior caregivers were experiencing marital problems and decided not to adopt J.W.S. because

they might divorce. The Department was able to place J.W.S. approximately two weeks after

Escobar received notice from the prior foster parents. Escobar stated she observed J.W.S. in the

new home, that J.W.S. is doing very well and bonding with his new caregivers, and that his new

foster parents intend to adopt him.

       Escobar testified the Department received a referral that Donna’s paramour was “using

heroin and using needles accessible to [J.W.S.],” and there was a concern that Donna was using

drugs as well. Escobar stated that after J.W.S. was removed, Donna “disappear[ed] for a while.”

She testified Donna claimed “she was kidnapped by drug dealers for money that [her paramour]

owed for heroin.” Escobar also stated Donna reappeared sometime thereafter and Donna said “she

was going to leave with [J.W.S.] and avoid the Department.”

       Escobar further testified that during the Department’s investigation, Donna tested positive

for marijuana, completed drug treatment, but then tested positive for drugs again. Escobar stated

the Department attempted to continue to test Donna for drugs, but Donna refused to take the tests.

Donna told Escobar that “she was living with a friend,” made less than one-third of her scheduled

visits with J.W.S., and spent only about ten hours with J.W.S. over a period of approximately

fourteen months. Escobar stated Donna “would change her mind” about her future plans with

J.W.S. “At first she said she wanted to fight for [J.W.S.], and then said she was interested in

relinquishing, but she wanted to be able to have some kind of contact as far as pictures.” Escobar

testified Donna had not made significant efforts to demonstrate to the Department that she had

stable housing or employment.

       Although J.W.S., two years old at the time of trial, was unable to express his desires, there

was evidence that Donna was not able to meet his emotional and physical needs. There was
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evidence that Donna was using drugs, was responsible for exposing J.W.S. to a heroin user and

drug needles, and lacked stable housing, employment, and consistent plans for J.W.S. There was

also evidence that she had not made efforts over fourteen months to address the lack of stable

housing or employment. We hold a factfinder could reasonably form a firm belief or conviction

that termination of Donna’s parental rights is in J.W.S.’s best interest. See In re C.H., 89 S.W.3d

at 25.

                                           CONCLUSION

         David waived his complaint about defective service. There is also legally and factually

sufficient evidence that Donna failed to comply with her family service plan and that termination

of her parental rights is in J.W.S.’s best interest. We therefore affirm the trial court’s judgment.

                                                   Luz Elena D. Chapa, Justice




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