                                   MEMORANDUM OPINION
                                           No. 04-12-00150-CV

                   IN THE INTEREST OF H.S.V., C.M.V. and T.M.V., Children

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-PA-01017
                        Honorable Charles E. Montemayor, Judge Presiding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 22, 2012

AFFIRMED

           On the court’s own motion, we withdraw the opinion and judgment issued July 11, 2012,

and substitute this opinion and judgment. After a bench trial, the trial court rendered a judgment

terminating appellant W.M.V.’s parental rights to her three children, H.S.V., C.M.V. and T.M.V.

On appeal, appellant contends the evidence is legally or factually insufficient to support the trial

court’s findings that: (1) she failed to comply with a court order that established the actions

necessary for her to obtain the return of her children; and (2) the children were removed from

appellant for reasons of abuse or neglect. We affirm the trial court’s judgment.



1
 The Honorable Richard Price is the presiding judge of the 285th Judicial District Court in Bexar County, Texas.
The termination order was signed by Associate Judge Charles E. Montemayor.
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                                         BACKGROUND

       The appellate record shows appellant has an extended history with the Texas Department

of Family and Protective Services (“the Department”). Appellant and her boyfriend, Robert

Gonzales, have been actively under investigation or receiving services from the Department

since 2004. The referrals to the Department included claims of negligent supervision and

physical abuse and neglect.

       In 2009, a referral was made to the Department alleging physical abuse of C.M.V.

During the investigation, C.M.V. reported to the Department caseworker that she has been

abused by Gonzales. She also alleged Gonzales abused appellant. Appellant denied the abuse,

accusing C.M.V. of lying. The Department formally opened a case and devised a safety plan.

As caseworker Natalie Harrison described in an affidavit attached to the petition ultimately filed

by the Department, the safety plan required, among other things, that appellant not leave the

children alone with Gonzales. In fact, Harrison stated in her affidavit that Gonzales “had been

safety planned out of the home” due to history of abuse and domestic violence. Despite this

requirement, Harrison discovered Gonzales alone with the children in April of 2010. Gonzales

claimed appellant was shopping and would return shortly.            The Department ultimately

discovered appellant had been absent from the home for an extended period of time, spending a

week with a man she met on the Internet. The children were removed from the home.

       The next month, the Department filed its Original Petition for Protection of Children, for

Conservatorship, and for Termination, stating numerous grounds for termination of appellant’s

parental rights. Thereafter, the Department prepared a family service plan for appellant. The

plan stated the permanency goal was to reunite appellant and her children. During the pendency

of the case, the Department filed three permanency plans and progress reports with the trial



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court.     Ultimately, the Department determined the goal of reunification was unattainable.

Accordingly, the matter proceeded to a bench trial in October 2011. The matter was tried on

several dates from October to January. After the trial, the trial court determined appellant’s

parental rights should be terminated, finding by clear and convincing evidence that: (1)

termination was in the best interest of the children, and (2) appellant “failed to comply with the

provisions of a court order that specifically established the actions necessary for [her] 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 the parent under Chapter 262 for abuse or

neglect of the children[.]” Appellant was appointed appellate counsel who timely perfected this

appeal.

                                              ANALYSIS

          On appeal, appellant contends the evidence is legally and factually insufficient to support

the trial court’s findings relating to termination. Specifically, she contends there is insufficient

evidence to establish: (1) the children were removed for abuse or neglect, and (2) to establish she

failed to comply with the provisions of a court order. The Department counters by arguing the

evidence is both legally and factually sufficient to support both findings.

                                         Standard of Review

          A parent’s rights to a child may be terminated upon proof by clear and convincing

evidence that the parent: (1) has committed an act prohibited by section 161.001(1) of the Texas

Family Code (“the Code”), and (2) termination is in the best interest of the child. TEX. FAM.

CODE ANN. §§ 161.001(1) (West Supp. 2011); see In re J.O.A., 283 S.W.3d 336, 344 (Tex.

2009) (holding proceedings to terminate parental rights under Code require proof by clear and



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convincing evidence); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (adopting clear and

convincing standard of proof for sufficiency review in termination of parental rights cases).

Clear and convincing evidence is proof that will produce a firm belief or conviction in the mind

of the fact finder that the allegations sought to be established are true. TEX. FAM. CODE ANN.

§ 101.007 (West 2008).

       As the supreme court has noted, “[t]he distinction between legal and factual sufficiency

when the burden of proof is clear and convincing evidence may be a fine one in some cases, but

there is a distinction in how the evidence is reviewed.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002). In a legal sufficiency review, we must look at all of the evidence in the light most

favorable to the findings at issue to determine whether a reasonable factfinder could have formed

a firm belief or conviction that the findings were true. Id. We must assume the factfinder

resolved disputed facts in favor of its findings if a reasonable factfinder could do so. Id. We

must also disregard all evidence that a reasonable factfinder could have disbelieved or found to

be implausible. Id. However, we need not disregard all evidence that does not support the

findings at issue because disregarding undisputed facts that do not support the finding could

skew the analysis. Id. If we determine that no reasonable trier of fact could form a firm belief or

conviction that the matter that must be proven is true, we must hold the evidence to be legally

insufficient. Id. Such a finding requires rendition of judgment in favor of the parent. Id.

       When we review whether the evidence is factually sufficient to support challenged

findings in a termination case, we must consider, in light of the entire record, the evidence a trier

of fact could reasonably have found to be clear and convincing and determine “whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction about the

truth of the [Department’s] allegations.” Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).



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In reviewing termination findings for factual sufficiency, we must give due deference to the trier

of fact’s findings and must not supplant its judgment with our own. In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006). “If, in light of the entire record, the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a factfinder could

not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient.” In re J.F.C., 96 S.W.3d at 266. A finding of factual insufficiency requires we

remand to the trial court for further proceedings. S.H.R. v. Dep’t of Family & Protective Servs.,

No. 01-10-00999-CV, 2012 WL 1441398, at *18 (Tex. App.—Houston [1st Dist.] Apr. 20, 2012,

no pet.).

                                               Application

        Appellant’s rights were terminated under section 161.001(O) of the Texas Family Code.

That section permits a court to order termination of the parent child relationship if the court finds

a parent has:

        [F]ailed 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 2 for the abuse or
        neglect of the child.

TEX. FAM. CODE ANN. § 161.001(1)(O) (West Supp. 2011).

                                    A. Removal for Abuse or Neglect

        Appellant first contends the evidence is insufficient to establish the children were

removed for “abuse or neglect.” Appellant argues the only evidence before the trial court

showed the children were removed because appellant violated her safety plan, which required

that she not leave the children with Gonzales. Appellant asserts, without citing any authority,

2
  Chapter 262 of the Texas Family Code governs, among other things, the standards, processes, and procedures
relevant to removal of children by the Department with and without court orders.

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that “[a] safety plan violation does not satisfy the second prong of Tex. Fam. Code Ann. Sec.

161.001(1)(O).” Appellant also contends the evidence is insufficient because Natalie Harrison,

the caseworker who swore out the affidavit resulting in the initial removal and who testified at

trial regarding the removal of the children, was not credible. Appellant points out: (1) Harrison

admitted to making certain misstatements at trial, specifically that the children were previously

returned by the court over the Department’s objection when the Department actually agreed to

the return; (2) Harrison testified H.S.V. was not bonded with her mother and H.S.V. was afraid

of her mother and wanted to live with a previous foster mother; however, the therapist testified

H.S.V. expressed a strong attachment to her mother; and (3) Harrison had not seen the children

for several months yet still felt comfortable in testifying that termination was in their best

interest. Appellant contends this evidence had to make the trial court “highly suspicious as to the

true reason the children were removed.”

       Several appellate courts have held that termination under section 161.001(1)(O) does

require evidence that the parent abused or neglected the child. See, e.g., In re A.A.A., 265

S.W.3d 507, 515 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); In re S.A.P., 169 S.W.3d

685, 705-06 (Tex. App.—Waco 2005, no pet.); In re M.B., No. 07-04-0334-CV, 2004 WL

2867544, at *2 (Tex. App.—Amarillo Dec. 14, 2004, no pet.) (mem. op.). However, neither

section 161.001(1)(O) nor Chapter 262 specifically defines “abuse” or “neglect,” and case law

holds the existence or absence of abuse or neglect must be determined on a case-by-case basis.

See In re A.A.A., 265 S.W.3d at 515 (reviewing numerous cases in which courts found evidence

sufficient or insufficient to support a finding that child was removed for abuse or neglect under

Chapter 262).




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        Considering the specific facts of this case, we hold the evidence is legally and factually

sufficient to support the trial court’s determination that the children were removed from

appellant for neglect. Harrison, the Department caseworker for appellant’s family at the time of

the removal, testified she conducted a home visit on April 29, 2010. When she arrived, she

found Gonzales home with his biological son; appellant was not at the house. Gonzales told

Harrison appellant “had gone to the store and would be back momentarily.” Harrison testified

she waited until H.S.V. and C.M.V. came home from school and spoke to them. According to

Harrison, the children mentioned their mother was gone, but did not say how long she had been

gone.

        Harrison admitted she did not believe the children were unsafe or had immediate issues,

given that appellant was going to be gone for a short time. However, she was concerned because

they were alone with Gonzales in violation of the safety plan, which prohibited him from being

alone with the children or in the same house. The safety plan was implemented, according to

Harrison’s testimony, because C.M.V. had reported physical abuse by Gonzales.

        Harrison stated appellant did not return during her visit.        Harrison testified she

subsequently learned appellant had been “gone for an extended period of time” and the family

could not contact her. The evidence established appellant left her children, despite the safety

plan and the allegations of abuse against Gonzales, to spend time with a man she met on the

Internet. Appellant did not care for her children for an entire week, leaving them with a man

accused of abusing at least one of them. It was only upon learning of appellant’s extended

absence from her children that the Department sought to remove the children. There is nothing

in the record to contradict the rendition of events leading up to the removal; the evidence is




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undisputed. And, in fact, appellant admitting during cross-examination that she violated the

safety plan by leaving the children alone with Gonzales.

       As to appellant’s claim that her actions were nothing more than a violation of the safety

plan, and therefore insufficient to establish abuse or neglect, we disagree. The undisputed

evidence establishes appellant left her children for an entire week in the care of a man accused of

abusing at least one of them. This is, in our opinion, evidence of neglect. That the neglect

committed by appellant that resulted in the removal of the children under Chapter 262 might also

constitute a violation of the safety plan does not render the act any less neglectful for purposes of

section 161.001(1)(O). It is self-evident that a violation of a safety plan could, in fact, constitute

abuse or neglect.

       Appellant also argued Harrison’s testimony was less than credible. However, this court

cannot weigh credibility issues that depend on the appearance and demeanor of the witness, and

even when credibility issues appear in the record, we must defer to the trier of fact’s

determinations as long as they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex.

2005). The trial court, the factfinder in this case, could have found any misstatements or

contradictions in Harrison’s testimony to be minor errors rather than proof the Department

removed the children from appellant for reasons other than neglect. We do not find, given

Harrison’s overall testimony, as well as the rest of the evidence in the record, that the trial

court’s decision to believe Harrison’s testimony was unreasonable.

       After considering all of the evidence, we hold the trial court could have reasonably

formed a firm belief or conviction that the children were removed because of appellant’s neglect.

See In re J.F.C., 96 S.W.3d at 266. Accordingly, we overrule appellant’s contention.




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                              B. Failure to Comply with Court Order

       Appellant also contends there is insufficient evidence appellant failed to comply with the

provisions of a court order that established the actions necessary for her to obtain the return of

her children.   More specifically, appellant contends there is no evidence establishing what

appellant was required to do to be reunited with her children, and no evidence establishing which

provisions of a court order she failed to comply with. Appellant contends the only evidence is

the testimony of appellant that she completed all requirements of the service plan.

       First, there is sufficient evidence of what actions appellant was required to take to obtain

the return of her children. Appellant points only to testimony in the record, but ignores the fact

that the family service plan, and a court order adopting the family service plan and ordering

appellant to comply with it, was filed in the papers of the court and is in the clerk’s record.

These documents specifically set forth what appellant was ordered to do to get her children back.

The trial court’s failure to affirmatively state on the record that it was taking judicial notice of

these documents is not dispositive. We have held the trial court may be presumed to have taken

judicial notice of the records in the court’s file without any request being made and without an

announcement that it has done so. In re A.X.A., 2009 WL 5150068, at *4 n. 3. A “trial court is

presumed to judicially know what has previously taken place in the case tried before it, and the

parties are not required to prove facts that a trial court judicially knows.” In re J.J.C., 302

S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (internal quotations and

citation omitted). Accordingly, the trial court could consider the family service plan, and the

order adopting same, as evidence of what appellant was required to do to get her children back.




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       Appellant also contends there is insufficient evidence that appellant failed to comply with

any such court order; rather, the only evidence was appellant’s testimony that she “finished

everything on her family service plan.” We disagree.

       The family service plan, which the court ordered appellant to comply with, required

appellant to, among other things: (1) participate in individual therapy and attend all appointments

on time and as scheduled; (2) participate in a psychological evaluation and follow any

recommendations made as a result of the evaluation; (3) maintain stable housing and provide the

Department with three utility bills in her name as proof; (4) make child support payments and

make payment arrangements to remain current on child support; (5) demonstrate an ability to put

the children’s needs ahead of her own; (6) understand and support her children’s efforts to deal

with issues relating to their mistreatment; (7) understand the children and see them in a more

positive way; and (8) demonstrate an ability to protect the children from harm. The Department

presented evidence that appellant failed to comply with each of these requirements.

       Pam Hanson, appellant’s individual counselor for the six months preceding trial, testified

she had difficulty with appellant keeping appointments. Hanson stated appellant’s residence had

a tall fence around it and a locked gate. Hanson would call appellant and advise her she was

coming over for a scheduled appointment, which was set up around appellant’s schedule.

However, when Hanson arrived and called appellant to come and unlock the gate, appellant

“wouldn’t pick up.” According to Hanson, appellant would call her several hours or days later to

apologize, giving excuses like she was “[i]n the bathroom, didn’t hear [the] phone, didn’t know

[Hanson] was out there.” Hanson said appellant missed at least three appointments, resulting in

the sessions being terminated “for noncompliance.” When asked what the missed appointments

indicated as far as appellant’s progress, Hanson stated, “It’s not good.” The sessions were



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ultimately resumed when Hanson was asked to continue them by a new Department caseworker,

but the best Hanson could state about attendance after resumption was that it “got better.”

During her testimony, when asked if she was still in therapy, appellant said, “I – I don’t know,”

but admitted she had not seen a therapist recently.

       Hanson also testified about appellant’s inability to maintain a stable home. Hanson stated

that until recently, appellant was living with Gonzales’s mother, a situation Hanson considered

unstable and detrimental to appellant.     Rosindo Rodriguez, a Department caseworker who

worked with the family in the months leading up to the trial, also testified about appellant’s

inability to obtain a stable home. According to Rodriguez, appellant moved often. At one point,

she was living with Gonzales’s mother, but was evicted. She then moved in with a couple, but

ultimately moved out. Rodriguez testified that as of the date of trial, he had no idea where

appellant was living.

       The record shows appellant had her own residence for only two of the eighteen months

the Department was involved. However, when pressed, appellant could not say exactly where

the home was located, stating only that it was approximately nine miles from San Antonio, and

she had no idea of the applicable school district. Appellant admitted that for most of the time the

Department was involved with her family, she continued to live with Gonzales–despite the safety

plan and her admission that he beat her at least twice in front of C.M.V. One of those beatings

occurred while she was pregnant with T.M.V. Appellant testified she was “like a prisoner,” but

admitted she failed to seek help even while taking domestic violence classes. Appellant also

admitted that when she finally moved away from Gonzales, she moved in with his mother, who

she claimed “treated me the same way he did.”




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       Rodriguez also testified about appellant’s psychological testing and the failure of

appellant to follow through with recommendations made as a result of the testing. Rodriguez

stated appellant was diagnosed with “bipolar 2 disorder, personality disorder and NOS

narcissistic features.” However, appellant failed to follow up on the recommendations made

after testing and diagnosis. She was referred to the Center for Healthcare Services, but made no

effort to take advantage of the referral. In fact, according to Rodriguez, appellant has completely

failed to demonstrate any insight into her mental instability. Rodriguez testified that when

appellant was presented with the results of her psychological examination, she denied there was

anything wrong with her. Appellant testified she was taking Prozac for stress and “mood

swings.” She apparently obtained the prescription from her personal physician after she advised

him of her diagnoses and told him she was under a lot of stress.

       Appellant was ordered to pay $250.00 per month in child support. Appellant admitted

she did not pay any of the court-ordered child support even though she has had a full time job for

the past nine or ten months. Appellant claimed she tried to pay, blaming her failure on the child

support office, claiming she was unable to pay online and she was never sent the proper forms to

pay. Appellant admitted she has no documentation to prove she tried to pay.

       As to the court-ordered service plan requirements relating specifically to the care of her

children, the Department presented significant evidence in this regard, and appellant’s own

testimony demonstrated her lack of understanding and ability to deal with her children’s issues.

Appellant was required to demonstrate an ability to put the children’s needs ahead of her own,

understand and support her children’s efforts to deal with issues relating to their mistreatment,

understand the children and see them in a more positive way, and demonstrate an ability to

protect the children from harm. The most significant evidence as to appellant’s failure as to



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these requirements was her refusal to admit causing any physical harm to her children.

According to caseworker Rodriguez, appellant continually claimed the children were lying about

allegations of abuse. She denied dragging one of the children across the floor by her hair as the

child claimed. Appellant also denied causing that same child’s black eyes, claiming the black

eyes were a result of the child’s asthma, allergies, and that she is “half white and half black.”

Appellant also denied a claim by one of the children that appellant cut Gonzales with a pair of

scissors.   Appellant asserted the child was confused and Gonzales actually cut himself by

stepping on the scissors.

        Rodriguez testified he explained the children’s issue to appellant, including one child’s

diagnosis of ADHD and behavior problems, but appellant often denies the existence of such

issues, claiming the children did not have these problems while in her care. This is part of a

pattern of denial by appellant to the existence of her children’s needs. Appellant’s inability to

admit to the claims of abuse by the children, as well as her continued refusal to take any

responsibility, at least until right before trial, is evidence of her inability to assist the children in

dealing with their mistreatment and to protect them from harm.

        The only testimony to contradict that described above was appellant’s conclusory claims

that she “pretty much did everything on my plan” and “finished everything, to my knowledge.”

The evidence refutes appellant’s claims, and in fact her testimony establishes there were portions

of the court-ordered service plan with which she never complied.

        After considering the evidence set forth above, as well as the rest of the evidence in the

record, we hold the trial court could have reasonably formed a firm belief or conviction that the

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




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actions necessary for her to obtain the return of her children. See In re J.F.C., 96 S.W.3d at 266.

Accordingly, we overrule appellant’s sufficiency contention in this regard.

                                           CONCLUSION

       Based upon our analysis of the evidence in light of the appropriate standard of review, we

hold there is sufficient evidence to support the trial court’s findings leading to the termination of

appellant’s parental rights. Accordingly, we affirm the trial court’s judgment.


                                                   Marialyn Barnard, Justice




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