                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION
                                           No. 04-14-00457-CV

                            IN THE INTEREST OF L.R.R., et al., Children

                      From the 408th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-PA-02347
                           Honorable Solomon Casseb, III, Judge Presiding

Opinion by:        Catherine Stone, Chief Justice

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

Delivered and Filed: September 24, 2014

AFFIRMED

           Barbara S. appeals the trial court’s order terminating her parental rights to her five children,

contending: (1) the trial court did not have jurisdiction to enter the termination order; and (2) the

evidence is insufficient to support the jury’s finding that termination of her parental rights is in the

best interest of the children. We affirm the trial court’s order.

                                         MANDATORY DISMISSAL

           In general, a trial court must dismiss a suit in which the Texas Department of Family and

Protective Services requests termination of parental rights if the court has not commenced a trial

on the merits by the first Monday after the first anniversary of the date the court entered a

temporary order appointing the Department as temporary managing conservator. TEX. FAM. CODE

ANN. § 263.401(a) (West 2014). Notwithstanding this general rule, the trial court may retain the
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suit on the court’s docket for an additional period not to exceed 180 days if the trial court enters

an order in compliance with section 263.401(b), which order must include a new date on which

the suit will be dismissed if the trial on the merits has not commenced. Id. at § 263.401(b). It is

undisputed that the trial court entered an order in compliance with section 263.401(b) in the

underlying cause which required the trial on the merits to commence by April 4, 2014, or the cause

would be dismissed.

       In her first issue, Barbara S. contends the trial court should have dismissed the underlying

cause because the trial court declared a mistrial in the underlying cause and did not schedule a new

trial date by April 4, 2014. The State responds that the trial court declared a mistrial only with

regard to the father of the children and that Barbara S. did not file a motion requesting a dismissal.

We agree with the State.

       First, the record establishes that the mistrial was declared only with regard to the father’s

parental rights; therefore, trial was timely commenced with regard to Barbara S.’s parental rights

on April 2, 2014. Second, the statutory dismissal deadlines are not jurisdictional, and a party

waives the right to a dismissal if the party fails to file a timely motion to dismiss. In re Dept. of

Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009); TEX. FAM. CODE ANN. § 263.402(b)

(West 2014). The record does not contain any motion to dismiss filed by Barbara S. Accordingly,

because a trial on the merits was timely commenced with regard to Barbara S.’s parental rights,

and alternatively she waived any right to a dismissal, her first issue is overruled.

                    SUFFICIENCY OF EVIDENCE ON BEST INTEREST FINDING

       In her second issue, Barbara S. challenges the sufficiency of the evidence to support the

jury’s finding that termination of her parental rights is in the children’s best interest. Barbara S.

does not challenge the sufficiency of the evidence to support the predicate findings, which included

findings that Barbara S. had: (1) knowingly placed or knowingly allowed the children to remain
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in conditions or surroundings which endangered their physical or emotional well-being; (2)

engaged in conduct or knowingly placed the children with persons who engaged in conduct which

endangered their physical and emotional well-being; (3) constructively abandoned the children;

and (4) failed to comply with the provisions of her court-ordered service plan.

                                       STANDARD OF REVIEW

       To terminate parental rights pursuant to section 161.001 of the Family Code, the

Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);

and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(1),

(2) (West 2014); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is

the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C.,

96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree

of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2014).

       In reviewing the legal sufficiency of the evidence to support the termination of parental

rights, the court must “look at all 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 at 266. “[A] reviewing court must assume that the

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

“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.

       In reviewing the factual sufficiency of the evidence to support the termination of parental

rights, a court “must give due consideration to evidence that the factfinder could reasonably have

found to be clear and convincing.” Id. “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
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factfinder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient.” Id.

                                     BEST INTEREST FINDING

       In reviewing the sufficiency of the evidence to support the best interest finding, we apply

the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include:

(1) the desires of the child; (2) the present and future emotional and physical needs of the child;

(3) the present and future emotional and physical danger to the child; (4) the parental abilities of

the individuals seeking custody; (5) the programs available to assist these individuals to promote

the best interest of the child; (6) the plans held by the individuals seeking custody for the child;

(7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not a

proper one; and (9) any excuse for the acts or omissions of the parent. Id.

       In her brief, Barbara S. first contends that “[n]o credible evidence at trial was adduced on

even half of the Holley factors.” The Texas Supreme Court has, however, stated that “[t]he absence

of evidence about some of [the factors] would not preclude a factfinder from reasonably forming

a strong conviction or belief that termination is in the child’s best interest.” In re C.H., 89 S.W.3d

17, 27 (Tex. 2002).

       Barbara S. next contends that the evidence established that she was a victim of domestic

violence, and her actions were not responsible for the children’s removal. The evidence at trial,

however, was conflicting as to whether Barbara S. was the aggressor during certain domestic

violence incidents. Moreover, the children were removed from the home based on their outcry of

witnessing domestic violence between Barbara S. and their father.

       With regard to the Holley factors, testimony established that the children witnessed several

incidents of domestic violence between Barbara S. and their father which was emotionally
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damaging to them. At least one of the children also had witnessed Barbara S. intoxicated, and the

record contains evidence that Barbara S. suffers from bipolar disorder, anxiety, and paranoia.

Barbara S. also had received deferred adjudication for assaulting the children’s grandfather.

Barbara S. did not complete her service plan, and she was not present for trial. Several witnesses

testified that they were unsure of her location. The case worker testified that Barbara S. never

maintained a stable home while the case was pending, and Barbara S. had not paid any support for

her children despite a court order requiring her to pay child support. At the time of trial, the

children had lived with their maternal grandmother for eighteen months and were excelling in

school. The maternal grandmother had a stable home and was willing to adopt the children.

       Based on the foregoing evidence, the trial court could have formed a firm belief or

conviction that it was in the children’s best interest that Barbara S.’s parental rights be terminated.

                                            CONCLUSION

       The order of the trial court is affirmed.

                                                    Catherine Stone, Chief Justice




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