                                    Fourth Court of Appeals
                                            San Antonio, Texas
                                       MEMORANDUM OPINION
                                                No. 04-15-00072-CV

                                   IN THE INTEREST OF C.M.O., a Child

                        From the 225th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2013-PA-01068
                                 Honorable Dick Alcala, Judge Presiding

Opinion by:         Patricia O. Alvarez, Justice

Sitting:            Sandee Bryan Marion, Chief Justice
                    Marialyn Barnard, Justice
                    Patricia O. Alvarez, Justice

Delivered and Filed: June 24, 2015

AFFIRMED

           Appellant L.J. appeals the trial court’s order terminating her parental rights to her child

C.M.O. L.J. 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 C.M.O.’s best

interest. Having reviewed the evidence, we conclude it is both legally and factually sufficient to

support the trial court’s order.

                                                    BACKGROUND

           L.J. is C.M.O.’s mother. 1 Before her pregnancy with C.M.O., L.J. already had a history of

drug abuse. When L.J. found out she was pregnant, she stopped using drugs, quit smoking, and

stopped drinking wine. But shortly after C.M.O. was born, he (C.M.O.) began living with L.J.’s


1
    C.M.O.’s father is J.O. J.O. did not appeal the order terminating his parental rights to C.M.O.
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mother and her husband because L.J. relapsed into drug abuse. After pleading to a drug-related

offense in another county, L.J. was placed on probation. Over the years of L.J.’s probation, L.J.’s

mother and stepfather continued to be the primary caregivers for C.M.O. In May 2013, L.J.’s

mother contacted the Department of Family and Protective Services because, inter alia, L.J. had

not contacted her for three weeks. After a hearing, the trial court appointed the Department as

Temporary Managing Conservator of C.M.O. and ordered L.J. to comply with her service plan.

The Department began a family service plan for L.J., which she signed.

        At the two day bench trial, L.J. was represented by court-appointed counsel.                   She

participated in the first day of trial on October 21, 2014, but did not appear for the second day of

trial on January 21, 2015. The trial court terminated L.J.’s parental rights, and she appealed. She

asserts the evidence is neither legally nor factually sufficient to support the trial court’s order.

                                      STANDARDS OF REVIEW

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

prove by clear and convincing evidence that (1) the parent committed one of the grounds for

involuntary termination listed in section 161.001(b)(1) of the Family Code, and (2) terminating

the parent’s rights is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) (West

Supp. 2015); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).

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 In re J.F.C., 96 S.W.3d at 266). If the court

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



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must be proven is true,’” the evidence is legally sufficient. See id. (quoting In re 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.” In re C.H.,

89 S.W.3d 17, 25 (Tex. 2002); 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.” In re J.F.C., 96 S.W.3d at 266; accord In re H.R.M.,

209 S.W.3d at 108.

                                     BASES FOR TERMINATION

A.     L.J.’s Course of Parental Conduct

       The trial court found by clear and convincing evidence that L.J.’s conduct was grounds for

termination under subparagraphs (D), (E), and (O) of section 161.001(b)(1). See TEX. FAM. CODE

ANN. § 161.001(b)(1). On appeal, L.J. does not challenge the trial court’s statutory grounds

findings.

B.     Best Interest of C.M.O.

       Instead, L.J. challenges the sufficiency of the evidence that terminating her parental rights

is in C.M.O.’s best interest. See id. § 161.001(b)(2). We briefly review the law pertaining to

determining the best interest of the child. The factors a court uses to ascertain the best interest of

the child may include the following:

       (A)   the desires of the child;
       (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;
       ...
       (G)   the stability of the home or proposed placement;


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        (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).

        Applying each standard of review, we examine the evidence pertaining to the best interest

of the child. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re E.N.C., 384 S.W.3d at 807; In re

J.F.C., 96 S.W.3d at 284.

                            EVIDENCE OF BEST INTEREST OF THE CHILD

        The two days of trial were separated by three months: the first day of trial was on October

21, 2014; the second day was on January 21, 2015. Because the second day’s testimony includes

significant events that occurred between the first and second days of trial, we recite the witness

testimony by the date it was given.

A.      Lou Valdez’s Testimony

        Lou Valdez, a Licensed Professional Counselor, testified only on the first day of trial. He

testified to the following facts.

        He began counseling C.M.O. in March 2013. C.M.O. had “abandonment issues as a result

of the separation from [L.J.]” and he was acting out in school. C.M.O. loves L.J., is bonded to her,

and their interactions were positive in the three sessions where he observed C.M.O. and L.J.

together. C.M.O. wants to live with L.J. and Valdez believes that would benefit C.M.O.

        Valdez acknowledged he did not know “a whole lot” about L.J.’s background, and he did

not know how much time C.M.O. had actually lived with L.J. He admitted that children who are

removed from their mother—even a mother who mistreats them—typically “want to go home to

mom.” He knew L.J. had a history of drug abuse, but felt she could be rehabilitated, and he

recommended that C.M.O. be transitioned to L.J. as his primary care-giver. He also acknowledged

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that C.M.O.’s grandparents were taking good care of C.M.O. and C.M.O. was doing well living

with his grandparents.

B.      L.J.’s Testimony

        L.J., C.M.O.’s mother, testified only on the first day of trial.

        She was working full-time at a new job and she was in training with her employer. She

admitted she had a drug problem: she had used methamphetamines and marijuana, and she had

sold drugs in 2006, but she denied selling drugs since that time. She insisted that, to protect

C.M.O., she was sober during his pregnancy and she did not even drink wine. Shortly after

C.M.O.’s birth, she relapsed and was incarcerated. While she was incarcerated, she took “any

classes that they offered . . . to work on myself.” She related her love for C.M.O., how she had

cared for him for six to seven years of his nine years of life, and how it would be in C.M.O.’s best

interest to live with her.

        However, she admitted that even after C.M.O. was removed because of her drug abuse, she

continued to use drugs. While she was on probation, she violated a condition by associating with

a man convicted of a felony drug offense. As of the first day of trial, she had been out of the drug

rehabilitation halfway house for just two months.

C.      R.M.’s Testimony

        R.M. is L.J.’s stepfather; he testified only on the first day of trial.

        He has been married to D.M. for 14 years. C.M.O. lives with R.M. and D.M. in their home,

and C.M.O. has lived with them for “pretty much [C.M.O.’s] whole life.” He estimated that the

longest period of time L.J. ever had C.M.O. by herself was “[p]robably about one month.” He

testified that L.J. admitted using heroin, alcohol, marijuana, and methamphetamines. He added

that he and D.M. love C.M.O. and they are willing to continue to care for him.



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D.     Caseworker’s Testimony

       Lora Simmons, the Department case worker for L.J., testified on the first day as follows.

L.J. completed the majority of the items on her service plan while L.J. was incarcerated in the

SAFP (Substance Abuse Felony Punishment) program. L.J. felt like she made progress on her

drug issues while she was in SAFPF (SAFP Facility).

       On the second day of trial, L.J. was not present, and Simmons testified to the following.

When the Department asked Simmons if L.J. knew the second day of trial was set for that day,

Simmons responded yes—L.J. knew of the trial date, but had asked “if her [(L.J.’s)] probation

being revoked was going to be a topic of the conversation in court.” Simmons opined that L.J. did

not attend the second day of trial because L.J. was concerned about being arrested for an

outstanding bench warrant.

E.     D.M.’s Testimony

       D.M., L.J.’s mother and C.M.O.’s grandmother, testified on the first day of trial as follows.

       L.J. has a history of drug use dating to before her arrest in 2007. In 2005 or 2006, when

law enforcement raided L.J.’s home, they found methamphetamines, money, and a notebook with

names and quantities of drugs sold. When L.J. was released from jail, she participated in a drug

rehabilitation program for about three months, and then began using methamphetamines again.

While L.J. was on probation, she tested positive for drugs and was sentenced to SAFPF for six or

seven months followed by three months in a halfway house. L.J. will stay clean for a little while,

but then relapse into drug use and start selling drugs again. In August of 2013, D.M. “found videos

of [L.J.] making meth[amphetamines], pictures of little packets of meth and a lot of money.”

       D.M. was also concerned by L.J.’s violent boyfriends. D.M. and C.M.O. saw L.J.’s

boyfriend beat and threaten to kill L.J. D.M. noted the police were often called to L.J.’s apartment

and L.J. was finally evicted because of the underlying issues.
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       On the second day of trial, D.M. testified again. Approximately one week after the first

day of trial, she found a bag of marijuana belonging to L.J. Within another three weeks, L.J. had

quit her job and then asked D.M. for money. When L.J. failed to visit C.M.O., D.M. repeatedly

asked L.J. to visit C.M.O.: “I have to literally beg her to come to visit.” L.J. would promise to

visit C.M.O., but L.J. would break her promise, and “it hurt [C.M.O.] a lot.”

       When D.M. tries to explain to C.M.O. why L.J. is not around, C.M.O. is disappointed and

sad: “You should see that little boy’s face.” Because L.J. is never around, C.M.O. thinks D.M. is

“going to do the same thing.” Although R.M. is at home, when D.M. leaves home to run errands,

C.M.O. runs after her and starts to cry. If she has been gone just one hour, he will text her to say

she has been gone a long time. D.M. reassures him, but when she leaves, C.M.O. worries that he

will be abandoned.

       Contrasting L.J.’s broken promises and recurring family violence with D.M. and R.M.’s

consistent, peaceful care, D.M. testified that “[C.M.O.] needs stability. He needs to know that

when he comes home after school, that somebody will be there, that somebody—that he will feel

safe.” D.M. testified that she believes it is in C.M.O.’s best interest to have L.J.’s parental rights

terminated.

                                     L.J.’S PARENTAL RIGHTS

       The trial court heard testimony that L.J. had a multi-year history of drug abuse that included

arrest, ordered rehabilitative services, release, and then relapse into using and selling drugs

including methamphetamines. See Holley, 544 S.W.2d at 372 (factors (B), (C)). Despite the

counselor’s recommendation at the first day of trial, the trial court could have considered the

changed circumstances between the first and second days of trial. It could have believed that L.J.’s

quitting her job, relapse into drug use, and failure to make and keep regular visits with C.M.O.

showed terminating her parental rights was in C.M.O.’s best interest. See id. (factors (B), (C),
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(H)). It could have believed that if L.J. regained conservatorship of C.M.O. and again relapsed

into drug abuse, her conduct would endanger C.M.O. See id. (factors (B), (C), (H)). The court

could have reasoned that because L.J. continued to not only relapse into drug use but also into

selling drugs, she had not learned the lessons from the classes she took and would continue to put

C.M.O.’s physical health and emotional development in danger. See id. (factors (B), (C), (H), (I)).

       The court could have believed that C.M.O. had some desire to live with L.J., but that his

inherent love for his mother was outweighed by her behaviors’ risks to him. See id. (factors (A),

(C)). Finally, the court could also have believed the testimony that allowing D.M. and her husband

to adopt C.M.O. was in C.M.O.’s best interest because C.M.O. is bonded to them; they are

providing a safe, stable environment for C.M.O. which is enabling him to excel in school; adoption

into D.M. and R.M.’s family would protect C.M.O. from L.J.’s history of family violence; and the

court could conclude that C.M.O.’s present and future physical health and emotional development

would be best protected in their home. See id. (factors (B), (C), (D), (G)).

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

formed a firm belief or conviction that terminating L.J.’s parental rights to C.M.O. was in C.M.O.’s

best interest. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 27. Therefore, we

conclude the evidence is legally and factually sufficient to support the trial court’s order. See In

re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 27.

                                           CONCLUSION

       L.J. does not challenge the trial court’s findings that her course of conduct comprises

multiple bases to terminate her parental rights. 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 C.M.O.’s best interest.



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        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 L.J.’s parental rights to

C.M.O. was in C.M.O.’s best interest. Therefore, we affirm the trial court’s order.


                                                    Patricia O. Alvarez, Justice




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