                                  Fourth Court of Appeals
                                           San Antonio, Texas
                                     MEMORANDUM OPINION

                                               No. 04-19-00651-CV

                                  IN THE INTEREST OF A.B.S., a Child

                      From the 285th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2018PA01300
                              Honorable Richard Garcia, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: February 19, 2020

AFFIRMED

           R.O. appeals the trial court’s order terminating her parental rights to A.B.S. The sole issue

presented on appeal is whether the evidence is legally and factually sufficient to support the trial

court’s finding that termination was in A.B.S.’s best interest. 1 We affirm the trial court’s order.

                                                   BACKGROUND

           On June 15, 2018, the Texas Department of Family and Protective Services filed a petition

to terminate R.O.’s parental rights to A.B.S. On August 2 and 29, 2019, a bench trial was held.

The trial court terminated R.O.’s parental rights, and she appeals.




1
 R.O. also contends that if “the trial court’s termination order is reversed on appeal, the trial court’s conservatorship
order should also be reconsidered.”
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                   STANDARD OF REVIEW AND STATUTORY REQUIREMENTS

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

Department has the burden to prove by clear and convincing evidence: (1) one of the predicate

grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child.

See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

In this case, the trial court found clear and convincing evidence of the following four predicate

grounds under subsection 161.001(b)(1) to terminate R.O.’s parental rights: (1) knowingly placed

or knowingly allowed A.B.S. to remain in conditions or surroundings which endangered her

physical and emotional well-being; (2) engaged in conduct or knowingly placed A.B.S. with

persons who engaged in conduct which endangered her physical or emotional well-being; (3) had

her parent-child relationship terminated with respect to another child based on a finding that her

conduct was in violation of subsection 161.001(b)(1)(D) or (E) of the Texas Family Code, or a

substantially equivalent provision of the law of another state; and (4) failed to comply with the

provisions of a court order establishing the actions necessary to obtain A.B.S.’s return. See TEX.

FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (M), (O); see also In re C.H., 89 S.W.3d 17, 28 (Tex.

2002) (noting evidence that proves one or more statutory grounds for termination may be probative

in proving termination is in the child’s best interest). The trial court also found clear and

convincing evidence that terminating R.O.’s parental rights was in A.B.S.’s best interest.

       We evaluate the legal and factual sufficiency of the evidence to support the trial court’s

findings under the standards of review established by the Texas Supreme Court in In re J.F.C., 96

S.W.3d 256, 266-67 (Tex. 2002). Under these standards, “[t]he trial court is the sole judge of the

weight and credibility of the evidence, including the testimony of the Department’s witnesses.” In

re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017,

no pet.) (mem. op.).


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                                          BEST INTEREST FINDING

        In determining the best interest of a child, courts apply the non-exhaustive Holley factors

to shape their analysis. 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 of 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. The foregoing factors are not exhaustive,

and “[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 at 27. “A trier of fact may measure a parent’s future conduct by his past

conduct [in] determin[ing] whether termination of parental rights is in the child’s best interest.”

In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

        A.B.S. was removed from R.O.’s care on June 15, 2018, when she was seven months old.

Two months before A.B.S.’s removal, R.O.s’ rights were terminated to five of her other children,

and A.B.S.’s father, A.S., was the father of two of those children. The order terminating R.O.’s

parental rights to those children was admitted as evidence. R.O.’s rights were terminated under

subsections 161.001(b)(1)(D), (E), and (P), 2 and R.O. testified the termination was due to domestic

violence between A.S. and her.



2
  As previously noted, R.O.’s rights to A.B.S. were also terminated under subsections 161.001(b)(1)(D) and (E).
Subsection 161.001(b)(1)(P) relates to the use of a controlled substance, and the Department’s caseworker testified
drug use by R.O. was not a concern in the instant case.


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        At the time of trial, A.B.S. was almost two years old and too young to express her desires.

However, A.B.S. lived with the same foster family since her removal, and the Department’s

caseworker and A.B.S.’s foster mother testified regarding the strong bond that exists between

A.B.S. and her foster family. In re M.D.M., 579 S.W.3d 744, 770 (Tex. App.—Houston [1st Dist.]

2019, no pet.) (“Evidence that a child is well-cared for by a foster family or a proposed adoptive

placement, is bonded to the proposed placement, and has spent minimal time in the presence of

the child’s parent is relevant to the best interest determination and, specifically, is relevant to the

child’s desires.”).

        A.B.S.’s occupational therapist testified A.B.S. is developmentally delayed due to sensory

issues and described A.B.S. as a special needs child in need of elevated parenting. A.B.S.’s foster

mother, who has a background in nursing, first identified A.B.S.’s sensory issues and requested

the occupational therapy. Because of her sensory issues, a regular, consistent routine and a calm

environment with minimal distractions and extraneous stimuli are important for A.B.S.’s

development. A.B.S. is progressing in therapy, but her sensory issues are ongoing. A.B.S.’s

occupational therapist testified that experiencing trauma, such as domestic violence, contributes to

a child’s sensory issues and would cause any progress to relapse.

        Prior to A.B.S.’s removal, the Department developed a safety plan for A.B.S. The

Department’s caseworker testified one of the issues requiring a safety plan was domestic violence.

When the safety plan was implemented, R.O. was living at her mother’s apartment, and the

manager of the apartment complex agreed to be a part of the safety plan which required no contact

with A.S. The day after the safety plan was implemented, A.S. was seen with R.O. at the complex,

and one of employees of the complex, who knew about the terms of the safety plan, reported A.S.’s

presence to the Department. R.O. denied violating the safety plan and stated the Department failed

to tell A.S. he was not allowed to return to the complex.


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       When asked about the reason A.B.S. was removed from her care, R.O. testified she got into

a fight with her little brother, and the Department removed A.B.S. the following day based on its

belief that she was involved in an altercation with A.S. R.O. admitted, however, that A.S. was

arrested for assaulting her.

       On June 20, 2019, R.O. was involved in a fight with the mother of another of A.S.’s

children. R.O. was four or five months pregnant at that time with another child fathered by A.S.

       Around July 4, 2019, while living at her mother’s apartment, R.O. was a witness to a crime

when a person kicked in the door to another resident’s apartment. The next day, R.O. was a witness

to a second crime when someone shot at the other resident’s apartment. R.O. denied being present

at the other resident’s apartment at the time of the shooting; however, the manager of the apartment

complex testified R.O. was inside the apartment at the time of the shooting. A.S. was also present

on both days.

       Although A.S. abused R.O., the evidence established she continued to be in an ongoing

relationship with him. See In re K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at *24 (Tex.

App.—Houston [1st Dist.] Mar. 19, 2019, no pet.) (mem. op.) (“The children’s exposure to

domestic violence in the home undermines the safety of the home environment and is relevant in

determining the best interest of the children.”). On August 15, 2019, which was two weeks before

the second day of trial, A.S. drove R.O. to her visit with A.B.S. A week before the second day of

trial, R.O. prematurely gave birth to another baby, and A.S. is the father of the baby. Although

the baby remained hospitalized, R.O. was released from the hospital two days after the birth. The

Department’s investigator for the baby’s case saw R.O. and A.S. together at the hospital, and the

hospital reported additional concerns regarding A.S. to the Department.

       R.O.’s counselor testified R.O. has not been successful in her treatment plan or in reaching

her treatment goals, which included maintaining financial stability and a stable home and learning


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appropriate parenting skills. R.O. began treatment with the counselor on January 15, 2019.

Although R.O. estimated she missed five appointments due to medical issues relating to her

pregnancy and transportation issues, the counselor testified R.O. had eight no-shows in sixteen or

seventeen appointments. R.O.’s last appointment was on June 7, 2019, almost two months before

trial. The counselor had concerns about whether R.O. understood the impact of domestic violence

on herself and on her children. The counselor did not believe R.O. would be a safe and protective

parent of A.B.S. At trial, R.O. testified she did not consider A.S. to be a threat to A.B.S.

         The Department’s caseworker testified R.O. had not completed her service plan, which

required R.O. to maintain stable housing and employment and complete counseling. In re J.L.C.,

582 S.W.3d 421, 432-33 (Tex. App.—Amarillo 2018, pet. denied) (noting parent’s inability to

provide a stable home and failure to comply with service plan support a finding that termination

is in the child’s best interest). On the first day of trial, R.O. testified she was renting an RV in

New Braunfels; however, she could not provide a lot number because she had only been living

there a week. After the first day of trial, the Department’s caseworker attempted to find the RV

park where R.O. stated she lived, but no RV park was located at the address R.O. provided to the

court.

         A.B.S.’s foster family wants to adopt A.B.S., and A.B.S.’s foster mother testified about the

family’s extensive support network. She further testified she quit her job in nursing to stay home

and meet A.B.S.’s needs. A.B.S.’s occupational therapist has observed A.B.S.’s interactions with

her foster parents and believes they are dedicated to meeting A.B.S.’s needs. See In re Z.C., 280

S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (noting stability and permanence are

important to upbringing of a child and affirming finding that termination was in child’s best interest

when child was thriving in current placement).




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        Having reviewed the record, we hold the evidence is legally and factually sufficient to

support the trial court’s finding that terminating R.O.’s parental rights was in A.B.S.’s best interest.

                                            CONCLUSION

        The order of the trial court is affirmed.

                                                     Liza A. Rodriguez, Justice




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