                                    Fourth Court of Appeals
                                             San Antonio, Texas
                                       MEMORANDUM OPINION

                                                 No. 04-17-00787-CV

            IN THE INTEREST OF O.B. Jr., E.D.C., D.R.C., E.H.C., and T.M.C., Children

                         From the 285th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2016-PA-02169
                                Honorable H. Paul Canales, Judge Presiding

Opinion by:         Patricia O. Alvarez, Justice

Sitting:            Karen Angelini, Justice
                    Marialyn Barnard, Justice
                    Patricia O. Alvarez, Justice

Delivered and Filed: March 28, 2018

AFFIRMED

           Appellant M.G. appeals the trial court’s order terminating her parental rights to her children

O.B. Jr., E.D.C., D.R.C., E.H.C., and T.M.C. 1 M.G. asserts the evidence is neither legally nor

factually sufficient for the trial court to have found by clear and convincing evidence that

terminating her parental rights is in her children’s best interests.

           Having reviewed the evidence, we conclude it is legally and factually sufficient to support

the findings, and we affirm the trial court’s order.




1
    To protect the minors’ identities, we refer to the mother and the children using aliases. See TEX. R. APP. P. 9.8.
                                                                                                         04-17-00787-CV


                                                     BACKGROUND 2

           In December 2015, the Department of Family and Protective Services received a report

that M.G.’s newborn child tested positive at birth for marijuana. The Department offered M.G.

services to help her parent her six children, but she did not take advantage of the services. In the

ensuing months, the Department received several more reports regarding M.G. The reports

included domestic violence in the home, unsanitary home conditions, and drug abuse. In May

2016, M.G. tested positive for methamphetamines, and she continued to resist receiving services.

           In September 2016, M.G. was stopped by a police officer while driving with her children,

and she was detained for outstanding warrants. When no suitable family members could be located

to take the children, the Department took them and sought their removal. The Department initiated

a service plan for M.G., but she did not complete the plan. On November 14, 2017, after a bench

trial, the trial court terminated M.G.’s parental rights to five of her children, and she appeals.

                          EVIDENCE REQUIRED TO TERMINATE PARENTAL RIGHTS

           If the Department moves to terminate a parent’s rights to a child, the Department must

prove by clear and convincing evidence that the parent’s acts or omissions met one or more of the

grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code, and

terminating the parent’s rights is in the best interest of the child. TEX. FAM. CODE ANN.

§ 161.001(b) (West Supp. 2017); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The same evidence

used to prove the parent’s acts or omissions under section 161.001(b)(1) may be used in

determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17,

28 (Tex. 2002); In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.); see




2
    Because M.G. is the only appellant, we limit our recitation of the facts to those that pertain to M.G. or the children.

                                                            -2-
                                                                                      04-17-00787-CV


also TEX. FAM. CODE ANN. § 161.001(b). The trial court may consider a parent’s past deliberate

conduct to infer future conduct in a similar situation. D.M., 452 S.W.3d at 472.

                                     STANDARDS OF REVIEW

A.     Legal Sufficiency

       When a clear and convincing evidence standard applies, a legal sufficiency review requires

a court to “‘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.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court

“‘determines that [a] reasonable factfinder could form a firm belief or conviction that the matter

that must be proven is true,’” the evidence is legally sufficient. See id. (quoting J.F.C., 96 S.W.3d

at 266).

B.     Factual Sufficiency

       Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could

reasonably form a firm belief or conviction about the truth of the State’s allegations.” C.H., 89

S.W.3d at 25; accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider “whether

disputed evidence is such that a reasonable factfinder could not have resolved that disputed

evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266; accord H.R.M., 209 S.W.3d at 108.




                                                -3-
                                                                                                        04-17-00787-CV


                                            BASES FOR TERMINATION

A.       M.G.’s Course of Parental Conduct

         The trial court found by clear and convincing evidence that M.G. failed to comply with her

court-ordered service plan. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). 3 On appeal, M.G.

does not challenge the trial court’s statutory ground finding.

B.       Best Interests of the Children

         Instead, M.G. challenges the sufficiency of the evidence supporting the trial court’s finding

that terminating her parental rights is in her children’s best interests. See id. § 161.001(b)(2). We

briefly review the law pertaining to determining the best interests of the children.

         1.       Statutory Factors

         The Texas legislature codified certain factors courts are to use in determining the best

interest of a child:

         (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 department;
         (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;



3
  The Family Code authorizes a court to terminate the parent-child relationship if, inter alia, it finds by clear
and convincing evidence that the parent’s acts or omissions met certain criteria. See TEX. FAM. CODE ANN.
§ 161.001(b). Here, the trial court found M.G.’s conduct met the following criteria or ground:
         (O) 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. § 161.001(b)(1)(O).

                                                           -4-
                                                                                     04-17-00787-CV


       (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.

TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435,

at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.) (citing In re A.S., No. 04-14-

00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San Antonio Nov. 12, 2014, pet. denied) (mem.

op.)); In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.).

       2.      The Holley Factors

       The Supreme Court of Texas identified the following factors to determine the best interest

of a child in its landmark case Holley v. Adams:

       (B)   the emotional and physical needs of the child now and in the future;
       (C)   the emotional and physical danger to the child now and in the future;
       (D)   the parental abilities of the individuals seeking custody;
       ...
       (F) the plans for the child by these individuals or by the agency seeking custody;
       (G) the stability of the home or proposed placement;
       (H) the acts or omissions of the parent 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.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C.,

384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors); see also TEX. FAM. CODE ANN.




                                                -5-
                                                                                     04-17-00787-CV


§ 263.307(b) (listing statutory factors for “determining whether the child’s parents are willing and

able to provide the child with a safe environment”).

        Applying each standard of review and the applicable statutory and common law factors,

we examine the evidence pertaining to the best interests of the children. See TEX. FAM. CODE ANN.

§§ 161.001(b)(2), 263.307(b); E.N.C., 384 S.W.3d at 807; J.F.C., 96 S.W.3d at 284.

                       EVIDENCE OF BEST INTERESTS OF THE CHILDREN

        The one-day bench trial on November 14, 2017, concerned M.G., five of her children, and

their two fathers. The trial court heard testimony from two Department caseworkers and M.G.,

and it received recommendations from the children’s attorney ad litem. Because M.G. is the only

appellant, we relate only the witnesses’ testimony that pertains to M.G. or the children.

A.      First Department Caseworker’s Testimony

        Suglenda Sanders, a Department caseworker, testified she was the caseworker from shortly

after the case began. In December 2015, the Department received a report that M.G.’s newborn

child tested positive at birth for drugs. The Department offered services to M.G., but she did not

participate.

        Over the next eight months, the Department received two more reports for M.G.: one for

domestic violence in the home and one for the condition of the home environment. The home had

dirty diapers laying out, moldy food in the refrigerator, rodents, piles of laundry, exposed wiring,

and dangerous objects on the floor where the very young children were crawling. The domestic

violence report was that M.G. was being physically abused by I.T., M.G.’s boyfriend.

        The Department also received reports of drug use by I.T. and M.G. M.G. tested positive

for methamphetamines in May 2016, but she continued to refuse to participate in services.

        In September 2016, M.G. was stopped while she was driving with her children, and she

was detained for outstanding warrants. When no suitable family members could be located to take
                                                -6-
                                                                                      04-17-00787-CV


the children, the Department took the children and sought their removal. Suglenda was called to

the scene, and the Department took custody of the children. The Department learned that the oldest

two children, though school age, were not enrolled in school. The children reported that I.T. had

been violent, including kicking a large hole in the wall during an argument, and physically abusive

to M.G. including punching her in the face. I.T. also struck one of the children with a hanger.

       Suglenda concluded by noting her major concern for the children was the domestic

violence between I.T. and M.G., and M.G.’s willingness to have the children continue to live with

I.T. and his family members despite the domestic violence.

B.     Second Department Caseworker’s Testimony

       Ambry Williams, the current caseworker, testified regarding her interaction with M.G. and

the children.

       The Department created a service plan for M.G., which she signed, and Ambry explained

to M.G. that if she failed to work those services, she could lose her parental rights. Despite that

warning, M.G. only partially complied with the service plan. The plan included, inter alia, a

domestic violence class, a parenting class, counseling, and drug treatment.

       M.G. completed the domestic violence class, and she started the counseling in July 2017,

but she did not participate consistently until September 2017. M.G. was to be discharged from

counseling in December 2017, but Ambry was not certain whether M.G. had successfully

completed the counseling.

       M.G. reported for at least five of her urinalysis tests, and she tested negative for drugs each

time, but she missed several other scheduled and random tests. M.G. completed the Best Option

outpatient drug treatment program, but the Department did not have any information on her drug

test results while she participated in the treatment program.



                                                -7-
                                                                                     04-17-00787-CV


       M.G. also had not been able to provide proof of income or maintain a stable job. She had

been working in June or July of 2017, but she was presently unemployed. She had also not been

able to maintain stable housing for the children. Before the children were removed, M.G. and the

children had been living with I.T.’s grandfather. But since M.G. left I.T. (the month before trial),

the Department did not know where M.G. was living, and a key Department concern was that, for

the pendency of her case, M.G. had not been able to demonstrate that she could provide safe and

stable housing for the children.

       M.G. was consistent in visiting her children. She was bonded to her children and the

children were bonded to her.

       Ambry noted that the children are in a foster home, and the non-relative foster family wants

to adopt the children. The children are doing very well with the foster family. All the children are

up-to-date with their health and medical needs, the school-age children are attending school, and

the two oldest children are receiving counseling services.

       Ambry recommended that the trial court terminate M.G.’s parental rights for several

reasons. M.G. had not demonstrated stable housing or consistent employment, and she had relied

on I.T. for housing and support during the pendency of the case despite his drug use and domestic

violence. She was concerned that M.G. might return to live with I.T., despite his drug use and

domestic violence, because of her need for income and housing, and I.T. was the father of M.G.’s

youngest child. If M.G. retained custody of the children and she moved back in with I.T., the

children would be returned to a physically and emotionally dangerous environment.

C.     M.G.’s Testimony

       M.G. testified that her plan was to move into a three-bedroom house with her brother and

his roommate. She would have a bedroom for her and her six children. Her brother was willing

to co-parent the children, and the children are bonded with her brother. When she asked her oldest
                                                -8-
                                                                                       04-17-00787-CV


child if he wanted to live with his grandparents or with her brother, her oldest child said he wanted

to live with her brother. Her grandmother lives next door to her brother, and her grandmother,

grandfather, father, brother, and sister would provide additional support for the children.

       M.G. said she completed the drug treatment and parenting classes. She has benefited from

the classes and counseling. Of the two most recent times she missed counseling, once was due to

her difficulty in finding childcare and the other was because it conflicted with a visit with her

children. She testified she was currently employed, she had a plan to house her children with her

brother, and she wanted more time to show she could provide stable employment and housing.

D.     Ad Litem’s Recommendations

       The children’s attorney ad litem acknowledged that the children are bonded to M.G., but

M.G. has had over one year to show she can refrain from relationships involving domestic

violence, to show she has a steady job, and to show she can provide safe, stable housing for her

children, but she has failed to do so. M.G. has had relationships with three different men who are

the fathers of her children, and all three “engage her in domestic violence.” M.G. has offered, at

the last minute, names of family members who she says are willing to help her with the children,

but she could have done so much earlier to give the Department time to vet them. Because the

children have a great need for stability, and for over one year M.G. has not demonstrated she could

provide the stable income, housing, and peaceful family relationships the children need, the ad

litem recommended that M.G.’s parental rights be terminated.

                                    M.G.’S PARENTAL RIGHTS

       The trial court heard testimony pertaining to the children’s best interests, and the trial court

was the “sole judge[] of the credibility of the witnesses and the weight to give their testimony.”

See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); H.R.M., 209 S.W.3d at 108.



                                                 -9-
                                                                                     04-17-00787-CV


       The trial court heard testimony that M.G.’s newborn child tested positive for drugs in

December 2015; six months later, M.G. tested positive for methamphetamines when she was

caring for her six children who were ages seven and younger. See TEX. FAM. CODE ANN.

§ 263.307(b)(1), (4), (8); Holley, 544 S.W.2d at 372 (factors (C), (D), (H)). M.G. allowed her six

young children to live in a home that had dirty diapers laying around, moldy food in the

refrigerator, rats, piles of laundry, exposed wiring, and dangerous objects on the floor. See TEX.

FAM. CODE ANN. § 263.307(b)(1), (4), (11), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D),

(H)). She entered and continued relationships with men who brought domestic violence into her

home, to the point that one kicked a hole in the wall, struck her child with a hanger, and punched

her in the face. See TEX. FAM. CODE ANN. § 263.307(b)(1), (4), (7), (11), (12); Holley, 544 S.W.2d

at 372 (factors (B), (C), (D), (G), (H)). She had more than one year to arrange for stable, safe

housing for her children, but it was only shortly before trial that she started making housing

arrangements, and her delay did not allow the Department time to investigate her proposed

arrangements. See TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (4), (10), (11), (12); Holley, 544

S.W.2d at 372 (factors (B), (C), (D), (G), (H)).

       The trial court could accept as true the testimony that M.G. loved her children, visited them

regularly, and they loved her. But it could also consider the changes and contradictions in M.G.’s

testimony regarding her employment, housing, and service plan when it evaluated her credibility.

The trial court could believe or disbelieve M.G.’s testimony that she had actually made suitable

arrangements for stable housing for her children. See City of Keller, 168 S.W.3d at 819; H.R.M.,

209 S.W.3d at 108.

       Regarding the foster home placement, the trial court could have believed the testimony that

the children were loved and being well cared for; their health, education, medical, and other needs



                                               - 10 -
                                                                                        04-17-00787-CV


were being met; and the foster family wanted to adopt them. See TEX. FAM. CODE ANN.

§ 263.307(b)(2), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (F), (G)).

         Reviewing the evidence under the two standards, we conclude the trial court could have

formed a firm belief or conviction that terminating M.G.’s parental rights to her children was in

the children’s best interests. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 27; see also TEX.

FAM. CODE ANN. § 263.307(b)(1), (3), (12). Therefore, we conclude the evidence is legally and

factually sufficient to support the trial court’s order. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d

at 27.

                                              CONCLUSION

         On appeal, M.G. does not challenge the trial court’s finding that she failed to comply with

her service plan. Instead, she argues the evidence is neither legally nor factually sufficient to

support the trial court’s finding by clear and convincing evidence that terminating her parental

rights is in her children’s best interests.

         Having examined the evidence under the applicable standards of review, we conclude the

evidence pertaining to the trial court’s findings is both legally and factually sufficient for the trial

court to have found by clear and convincing evidence that terminating M.G.’s parental rights to

her children is in the children’s best interests. Therefore, we affirm the trial court’s order.


                                                    Patricia O. Alvarez, Justice




                                                 - 11 -
