                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION

                                              No. 04-17-00831-CV

                        IN THE INTEREST OF M.M.M. and L.M.M., Children

                       From the 45th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2016PA01206
                           Honorable John D. Gabriel Jr., Judge Presiding 1

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 father’s (“Father”) parental

rights to his children, M.M.M. and L.M.M. 2 On appeal, Father contends the evidence is legally

and factually insufficient to support the trial court’s finding that termination was in the best interest

of the children. We affirm the order of termination.

                                                  BACKGROUND

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

involved with the family when it received a report that Mother, who has four children in addition



1
  The Honorable Stephani Walsh is the presiding judge of the 45th Civil District Court, Bexar County, Texas.
However, the termination order in this matter was signed by the Honorable John D. Gabriel Jr., retired, who was sitting
by assignment.
2
  The trial court also terminated the parental rights of the children’s mother (“Mother”), but she did not file a notice
of appeal challenging the trial court’s order. Accordingly, she is not a party to this appeal.
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to M.M.M. and L.M.M., struck one of the children with a hanger. The Department opened a

“Family-Based Case.” Although that report could not be confirmed, during family-based services,

there was a domestic violence incident that resulted in Mother’s arrest. All of the children were

initially placed with a grandmother. However, when she was unable to care for them, the

Department removed the children, placing them in various foster-care situations. When M.M.M.

and L.M.M. were removed, they were not placed with Father “due to issues involving the domestic

violence and his drug use and instability.” Rather, they were placed with a paternal aunt, i.e.,

Father’s sister.

        The Department created a service plan for Father requiring him to: (1) participate in

individual counseling to address issues of “abuse and neglect and maladaptive behaviors”; (2)

complete a drug assessment and follow through with recommendation for drug treatment,

including inpatient treatment if necessary; (3) complete a psycho-social evaluation and follow

through with any recommendations; (4) complete the VENT program to address issues relating to

domestic violence, anger management, and parenting; and (5) demonstrate he has the ability to

provide a safe, drug-free, nurturing environment for his children, and is able to provide for their

physical, medical, and educational needs.

        At the hearing, the trial court heard testimony from: (1) Lora Simmons, the Department

caseworker throughout the course of the case; and (2) Father. Ms. Simmons testified that with

regard to his service plan, Father completed the VENT program. And although he engaged in

counseling, he never completed counseling services. Moreover, drug use was the Department’s

main concern with Father — specifically marijuana use. In that regard, Father completed the drug

assessment, which resulted in a referral for drug treatment. However, Father never participated in

drug treatment in accordance with the referral.



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        Ms. Simmons also testified that other than providing diapers on occasion, Father did not

provide regular support for the children. Moreover, he has not demonstrated stability with regard

to his living situation — never providing evidence of a place of his own, residing with family,

friends, or in hotels.

        As for visitation, Ms. Simmons described Father’s visits as irregular, testifying his own

sister stated his visits were infrequent. Ms. Simmons opined that Father’s parental rights should

be terminated because he has failed to place his children’s needs above his own, and the current

placement — with a paternal aunt — is likely to result in adoption.

        The trial court also heard testimony from Father. Father admitted to marijuana use, but

claimed that he has been clean for the last month. He also admitted he failed to complete

counseling and drug treatment, but claimed it was because of his work schedule. He contradicted

Ms. Simmons’s testimony about support, testifying he provides support for his children “all the

time” by placing money on his sister’s credit card. However, he could not provide the court with

a dollar amount with regard to support. Contradicting Ms. Simmons’s testimony again, Father

stated he sees the children “pretty much every weekend,” even though he lives in Houston.

        At the conclusion of the hearing, the trial court terminated Father’s rights, finding he: (1)

failed to support his children in accordance with his ability; and (2) failed to comply with the

provisions of a court-ordered service plan that specifically established the actions necessary for

him to obtain the return of his children. See TEX. FAM. CODE ANN. § 161.001(b)(1) (F), (O) (West

Supp. 2017). The trial court further found termination of Father’s parental rights would be in his

children’s best interests. See id. § 161.001(b)(2). Accordingly, the trial court rendered an order

terminating Father’s parental rights. Thereafter, he perfected this appeal.




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                                              ANALYSIS

        On appeal, Father 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)(F), (O).

Rather, he argues the evidence is legally and factually insufficient to support the trial court’s

finding that termination was in the children’s best interests. See id. § 161.001(b)(2). We disagree.

                                         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 “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. 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 his past conduct in

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

                                            Application

       As indicated above, the trial court heard testimony from two witnesses at the final hearing

— Ms. Simmons, the Department caseworker, and Father.
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       Ms. Simmons testified the children — girls — were approximately three and one at the

time of the final hearing. Thus, they are too young to express their 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, a 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, although Father testified he has spent nearly every weekend with his daughters,

Ms. Simmons testified his visits with the girls, which are supervised by the paternal aunt, do not

occur “with any regularity, just whenever he has a chance.” She stated, without objection, that

Father’s sister described his visits as infrequent. Ms. Simmons admitted, however, that he visits

enough to have established a bond with the girls. Ms. Simmons pointed out that initially, there

were questions about Father’s paternity with regard to the girls, noting that until the Department

became involved, Father never took any steps to establish his paternity.

       Ms. Simmons testified the current placement meets the children’s physical and emotional

needs. She stated the placement is stable and the paternal aunt desires to adopt the girls. Ms.

Simmons advised that the Department would approve of the adoption in the event Father’s rights

are terminated. See Holley, 544 S.W.2d at 371–72.

       As noted above, Ms. Simmons also testified that according to the paternal aunt, other than

“bring[ing] diapers or something once in a while,” Father has not provided support for the children.

Ms. Simmons stated he has provided “[n]o regular support at all.” See TEX. FAM. CODE ANN.

§ 263.307(b)(12) (whether child’s family demonstrates adequate parenting skills); Doyle v. Tex.

Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet.
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denied) (holding that parent’s failure to provide stable home and provide for child’s needs

contributes to finding that termination of parental rights is in child’s best interest). Holley, 544

S.W.2d at 371–72. In addition, Father has failed to establish that he can provide a stable home for

the children. See Doyle, 16 S.W.3d at 398; In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort

Worth 2007, no pet.) (holding that parent’s inability to provide stable home supports finding that

termination is in child’s best interest). According to Ms. Simmons, Father has failed to show “he

can stay in one place, have a home.” See Doyle, 16 S.W.3d at 398; M.R., 243 S.W.3d at 821. She

stated that every time she speaks with Father, he is living “someplace else,” and he has “never

allowed anyone to see where he is living … he is always living with friends.” Most recently,

Father claimed he was living with his brother, but told another case worker he was living in a hotel.

See Doyle, 16 S.W.3d at 398; M.R., 243 S.W.3d at 821.

       With regard to the emotional and physical danger to the children — now and in the future

— there is evidence Father engaged in domestic violence and substance abuse. See TEX. FAM.

CODE ANN. § 263.307(b)(7) (history of abusive or assaultive conduct by child’s family); 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); Holley, 544

S.W.2d at 371–72. And, although Father completed classes relating to domestic violence and

anger management, he admittedly failed to deal with his drug issues. See TEX. FAM. CODE ANN.

§ 263.307(b)(8); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72.

       Father’s issues relating to drug use were undisputed.          See TEX. FAM. CODE ANN.

§ 263.307(b)(8); Holley, 544 S.W.2d at 371–72; In re L.R.G., 498 S.W.3d 195, 204 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied) (holding that parent’s drug use supports finding that

termination is in child’s best interest). Father claimed he had given up his use of marijuana, but

admitted using during the course of the case, testifying that he had used marijuana as recently as a
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month before the final hearing. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d

at 371–72; L.R.G., 498 S.W.3d at 204. The evidence showed that of the six or seven drug tests he

submitted to during the course of the case, Father tested negative for drugs only once. See TEX.

FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371–72; L.R.G., 498 S.W.3d at 204.

       Given his admitted, continual drug use, Ms. Simmons testified the most important part of

Father’s service plan was drug treatment.         However, Father admitted he never completed

treatment, testifying that he was unable to complete treatment due to his work schedule. See TEX.

FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10) (willingness and ability of child’s family

to seek out, accept, and complete counseling services); id. § 263.307(b)(11); Holley, 544 S.W.2d

at 371–72; L.R.G., 498 S.W.3d at 204. This demonstrates a failure by Father to place his needs

and desires above those of his daughters.

       The foregoing evidence is also relevant to Father’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 371–72.

Father has a history of drug use — admitting to using marijuana throughout the case and up until

just a month before the final hearing — and has been involved in domestic violence. Yet he failed

to complete the most important part of his service plan — drug treatment. See TEX. FAM. CODE

ANN. § 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. Moreover, Father has failed to demonstrate his ability to provide a stable

home for his daughters. See Doyle, 16 S.W.3d at 398; M.R., 243 S.W.3d at 821. On this basis,

the trial court could have determined Father lacks the abilities needed to parent his young children.

See 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
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termination of Father’s parental rights was in his children’s best interests. 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 Father’s parental rights was in his daughters’ best interests and

affirm the trial court’s termination order.


                                                  Marialyn Barnard, Justice




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