                                  Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION
                                               No. 04-17-00847-CV

                                   IN THE INTEREST OF S.E.S., a Child

                       From the 150th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2016PA02682
                               Honorable Richard Garcia, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 30, 2018

AFFIRMED

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

parental rights to her child, S.E.S.1 On appeal, Mother does not challenge the grounds for

termination; rather, Mother merely contends the evidence is legally and factually insufficient to

support the trial court’s finding that termination was in the child’s best interest. We affirm the

order of termination.

                                                   BACKGROUND

           The Texas Department of Family and Protective Services (“the Department”) received a

referral regarding S.E.S. just after her birth on November 26, 2016. The referral reported that



1
 The trial court also terminated the parental rights of S.E.S.’s father (“Father”), but he did not file a notice of appeal
challenging the trial court’s order. Accordingly, he is not a party to this appeal.
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Mother had engaged in neglectful supervision and physical abuse based on the fact that S.E.S.

tested positive at birth for amphetamines, Benzodiazepines, and marijuana. Mother also tested

positive for amphetamines and marijuana at the time of S.E.S.’s birth. Mother claimed Father

forced her to take “Ice” and Xanax to force her into labor at home; he did not want Mother to leave

the house. However, it is undisputed Mother gave birth in the hospital.

       Six days after S.E.S.’s birth, the Department removed the infant from the hospital and

placed her with her foster parents. S.E.S. has been with those same foster parents since the initial

placement. Subsequently, the Department filed a petition to terminate Mother’s parental rights to

S.E.S. Almost a year to the day after the child’s birth, the matter moved to a final hearing.

       At the hearing, the trial court heard testimony from (1) Monica Camacho, the Department

caseworker who worked with Mother throughout the course of the case; and (2) Mother. Ms.

Camacho testified about the child’s birth and the withdrawal symptoms she suffered thereafter.

She advised the trial court that Mother was arrested a week after she gave birth to S.E.S. for an

aggravated robbery committed by Mother just five days after the birth. Mother was later convicted

of the aggravated robbery and sentenced to six-years’ confinement in the Texas Department of

Criminal Justice — Institutional Division (“TDCJ”). Earlier that same year, Mother had been

arrested for “assault bodily injury-married/cohab.” That offense involved a domestic violence

incident with a man with whom Mother had an intimate relationship.

       As for her service plan, which took into account Mother’s prior history with the Department

and her criminal history, Mother completed all the services available to her in the Bexar County

Jail prior to her transfer to TDCJ. She was unable to complete certain services — drug tests,

psychiatric evaluation, drug assessment, visitation — due to her incarceration and the

unavailability of the services in the jail. However, Ms. Camacho testified that even though Mother



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completed numerous services, she failed to successfully address the reasons for the initial removal,

continuing to blame Father for her situation.

       The Department also presented evidence of prior parental terminations. Without objection,

the trial court admitted into evidence a 2013 order of termination. In that order, Mother’s parental

rights to three other children — ages thirteen, twelve, and six at the time — were terminated.

       At the conclusion of the hearing, the trial court terminated Mother’s parental rights, finding

she: (1) knowingly placed or knowingly allowed S.E.S. to remain in conditions or surroundings

that endangered her physical or emotional well-being; (2) engaged in conduct or knowingly placed

S.E.S. with people who engaged in conduct that endangered her physical or emotional well-being;

(3) had her parental rights terminated with respect to another child based on a finding that her

conduct violated sections 161.001(b)(1)(D) or (E) of the Code; (4) constructively abandoned

S.E.S.; (5) knowing engaged in criminal conduct that resulted in her conviction of an offense and

confinement or imprisonment and inability to care for S.E.S. for not less than two years from the

date the petition was filed; and (6) was the cause of S.E.S. being born addicted to a controlled

substance, other than one legally obtained by prescription.          See TEX. FAM. CODE ANN.

§ 161.001(b)(1) (D), (E), (M), (N), (Q), (R) (West Supp. 2017). The trial court further found

termination of Mother’s parental rights would be in S.E.S.’s best interest. See id. § 161.001(b)(2).

Based on its findings, the trial court rendered an order terminating Mother’s parental rights.

Thereafter, Mother timely perfected this appeal.

                                            ANALYSIS

       As noted above, in this appeal Mother does not challenge the evidence regarding the trial

court’s findings under section 161.001(b)(1) of the Texas Family Code (“the Code”). See id.

§ 161.001(b)(1) (D), (E), (M), (N), (Q), (R). Mother argues only that the evidence is legally and



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factually insufficient to support the trial court’s finding that termination was in her daughter’s best

interest. See id. § 161.001(b)(2).

                                         Standard of Review

       A trial court may terminate a parent’s right to a child only if it finds by clear and convincing

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

termination is in the best interest of the child. Id. § 161.001(b). “Clear and convincing evidence”

is defined as “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.” Id. § 101.007. Courts require this

heightened standard of review because termination of a parent’s rights to a child results in

permanent and severe changes for both the parent and child, thus, implicating due process

concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual

sufficiency of the evidence, we apply the well-established standards of review. See TEX. FAM.

CODE ANN. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal

sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). In sum, an

appellate court must determine whether the evidence is such that the trier of fact could reasonably

form a firm belief or conviction that termination was in the child’s best interest. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002).

       In conducting a sufficiency review, we may not weigh a witness’s credibility because it

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

180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the

fact finder’s reasonable resolutions. Id.

                                  Best Interests — Applicable Law

       In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). In analyzing the evidence within the Holley
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framework, we note that evidence of each Holley factor is not required before a court may find

that termination is in a child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2012). In other

words, the absence of evidence as to some of the Holley factors does not preclude a fact finder

from reasonably forming a strong conviction or belief that termination is in a child’s best interest.

Id. Moreover, in conducting our review of a trial court’s best interest determination, we focus on

whether termination is in the best interest of the child — not the best interest of the parent. In re

D.M., 452 S.W.3d 462, 468–69 (Tex. App.—San Antonio 2014, no pet.).

       In addition to the Holley factors, we recognize 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, promptly and permanently placing a child in a safe environment is also presumed to be

in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a). Thus, to determine whether a

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

the factors set forth in section 263.307(b) of the Code. Id.

       Additionally, evidence that proves one or more statutory grounds for termination may be

probative to prove termination is in the child’s best interest. C.H., 89 S.W.3d at 28 (holding same

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

does not relieve State of burden to prove best interest). In conducting a best interest analysis, a

court may consider in addition to direct evidence, circumstantial evidence, subjective factors, and

the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet.

denied). Finally, a trier of fact may measure a parent’s future conduct by her past conduct in

determining whether termination of parental rights is in the child’s best interest. Id.

                                            Application

       As indicated above, two witnesses testified at the final hearing — Ms. Camacho, the

Department caseworker, and Mother. Ms. Camacho testified S.E.S. had just turned a year old at
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the time of the final hearing. Thus, S.E.S. was too young to express an opinion on her desires with

regard to conservatorship. See TEX. FAM. CODE ANN. § 263.307(b)(1) (child’s age and physical

and mental vulnerabilities); Holley, 544 S.W.2d at 371–72. However, when a child is unable to

express her desires, the fact finder may consider that she has bonded with her foster family, is well

cared for by them, and has spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118

(Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re J.M., 156 S.W.3d 696, 706 (Tex.

App.—Dallas 2005, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]

2003, pet. denied)). Here, the evidence showed that although the Department scheduled a

visitation for Mother prior to her arrest, she did not exercise it. Thereafter, she was incarcerated

based on her arrest for aggravated robbery and visitations were impossible. Ms. Camacho testified

she visited Mother each month she was incarcerated in the Bexar County Jail, providing her with

pictures and videos of S.E.S. Ms. Camacho stated Mother always asked about S.E.S. and appeared

to be concerned about her, but because there was no visitation between Mother and child, there is

no attachment or bonding.

          On the other hand, S.E.S. is thriving in her foster home. The evidence shows S.E.S. is

bonded with her foster family, which includes her foster parents, foster brother, and foster

grandparents. J.D., 436 S.W.3d at 118. This is the only family S.E.S. has known since she was a

week old. Her foster family is able to meet all of S.E.S.’s needs, including the special needs that

resulted from her exposure to drugs while in the womb.               See TEX. FAM. CODE ANN.

§ 263.307(b)(1); Holley, 544 S.W.2d at 371–72. As a result of her drug exposure, S.E.S. receives

occupational therapy four times a month, physical therapy two times a month, and specialized

skills training three times a month. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544

S.W.2d at 371–72. Because of the care of her foster parents, S.E.S. is now “performing at her age

level.”
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        With regard to the emotional and physical danger to the child — now and in the future —

there is evidence that Mother engaged in domestic violence, assaulting a man with whom she was

intimate. See TEX. FAM. CODE ANN. § 263.307(b)(7) (history of abusive or assaultive conduct by

child’s family); Holley, 544 S.W.2d at 371–72. This resulted in a criminal charge of “assault

bodily injury-married/cohab” in 2016. At trial, evidence of other criminal activity was presented.

At the time of the final hearing, Mother was in TDCJ, having been sentenced to six years’

confinement for an aggravated robbery committed just days after she gave birth to S.E.S. See TEX.

FAM. CODE ANN. § 263.307(b)(12) (whether child’s family demonstrates adequate parenting

skills); Holley, 544 S.W.2d at 371–72; In re M.L.C., No. 04-17-00459-CV, 2017 WL 6597828, at

*5 (Tex. App.—San Antonio Dec. 27, 2017, pet. denied (mem. op.) (holding parent’s criminal

activities and history are relevant to best interest analysis). Mother testified she will not be eligible

for parole for at least two years. Moreover, Mother has three prior arrests for marijuana possession

in 1997, 2014, and 2015, and an arrest for vehicle theft in 2002. Combined with the more recent

arrests for assault and aggravated robbery, Mother has quite an extensive criminal history. See

TEX. FAM. CODE ANN. § 263.307(b)(7); id. § 263.307(b)(8) (history of substance abuse by child’s

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

environmental and personal changes within reasonable period of time); id. § 263.307(b)(12);

Holley, 544 S.W.2d at 371–72; M.L.C., 2017 WL 649282, at *5. A parent’s criminal conduct,

prior convictions, and incarceration affects the parent’s life and her ability to parent, subjecting

her child to potential emotional or physical danger, now and in the future. M.L.C., 2017 WL

649282, at *5.

        Moreover, it is undisputed that both Mother and S.E.S. tested positive for drugs at the time

of S.E.S.’s birth. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); In re L.R.G.,

498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that parent’s
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drug use supports finding that termination is in child’s best interest). As set out above, S.E.S.

tested positive at birth for amphetamines, Benzodiazepines, and marijuana; Mother tested positive

for amphetamines and marijuana. Mother sought to excuse the drug issues by claiming Father

forced her to take “Ice” and Xanax so Mother would give birth at home. However, it is undisputed

Mother gave birth in the hospital. Moreover, it does not explain the positive test for marijuana.

         As stated above, the evidence also showed that Mother has had previous involvement with

the Department, which ultimately resulted in termination of her parental rights to three other

children. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12);

Holley, 544 S.W.2d at 371–72. The Department introduced, and the trial court admitted into

evidence, a certified copy of a 2013 order of termination. That order establishes Mother’s parental

rights to three other children were terminated because Mother: (1) knowingly placed or allowed

her children to be placed in conditions that endangered their physical or emotional well-being; and

(2) failed to comply with the provisions of a court-ordered service plan that set out the action

necessary to obtain the return of her children. The endangerment ground stemmed from domestic

violence, apparently a continuing issue in Mother’s life. Courts have recognized that prior

terminations are relevant in determining whether a parent’s rights to the child at issue should be

terminated. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013); M.L.C., 2017 WL 649282, at *5. In

re E.A.F., 424 S.W.3d 742, 751 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

Accordingly, in this case, the prior termination of Mother’s parental rights to her other children

was evidence the trial court could consider in determining whether termination was in S.E.S.’s

best interest. See E.C.R., 402 S.W.3d at 248; E.A.F., 424 S.W.3d at 751; M.L.C., 2017 WL 649282,

at *5.

         The foregoing evidence is also relevant to Mother’s parenting abilities. See TEX. FAM.

CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at
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371–72. Mother has a history of drug use and criminality, having been arrested for drug

possession, vehicle theft, assault, and aggravated robbery.            See TEX. FAM. CODE ANN.

§ 263.307(b)(7); id. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id.

§ 263.307(b)(12); Holley, 544 S.W.2d at 371–72. And as discussed above, she also had her rights

to three other children terminated. See TEX. FAM. CODE ANN. § 263.307(b)(7); id. § 263.307(b)(8);

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

       Although Mother completed as many services on her plan as available given her

incarceration, and expressed her desire and willingness to complete any other services mandated,

Ms. Camacho opined that termination was in the best interest of the child given Mother’s decision

to engage in criminal behavior just days after her daughter’s birth, her current incarceration, and

the lack of a bond between Mother and child. Given the evidence, the trial court could have

determined Mother lacks the abilities needed to parent her infant daughter. See TEX. FAM. CODE

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

                                            CONCLUSION

       After considering all the evidence in the light most favorable to the trial court’s best interest

finding, we conclude the trial court reasonably could have formed a firm belief or conviction that

termination of Mother’s parental rights was in her child’s best interest. See J.P.B., 180 S.W.3d at

573; H.R.M., 209 S.W.3d at 108. Thus, we hold the evidence is sufficient to support the trial

court’s finding that termination of Mother’s parental rights was in S.E.S.’s best interest and affirm

the trial court’s termination order.

                                                   Marialyn Barnard, Justice




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