                                     Fourth Court of Appeals
                                             San Antonio, Texas
                                        MEMORANDUM OPINION

                                                 No. 04-18-00374-CV

                               IN THE INTEREST OF C.K. and K.K., Children

                         From the 224th Judicial District Court, Bexar County, Texas
                                       Trial Court No. 2017PA01782
                            Honorable Charles E. Montemayor, Judge Presiding

Opinion by:          Patricia O. Alvarez, Justice

Sitting:             Sandee Bryan Marion, Chief Justice
                     Patricia O. Alvarez, Justice
                     Irene Rios, Justice

Delivered and Filed: October 10, 2018

AFFIRMED

            Dad appeals the trial court’s order terminating his parental rights to his children C.K. and

K.K. i Dad challenges the sufficiency of the evidence of the grounds supporting termination and

asserts the trial court could not have found by clear and convincing evidence that terminating his

parental rights is in the children’s best interests. We affirm the trial court’s order.

                                                      BACKGROUND

            Dad and Mom never married but they had two children together: C.K. and K.K. After

Mom was murdered, Dad became a suspect. In response, on August 10, 2017, the Department of

Family and Protective Services petitioned for conservatorship of the children and to terminate

Dad’s parental rights to the children. The trial court ordered that the children be removed, and it


i
    To protect the minors’ identities, we refer to the parents and the children using aliases. See TEX. R. APP. P. 9.8.
                                                                                          04-18-00374-CV


appointed the Department as the children’s temporary managing conservator. The Department

placed the children with their maternal grandmother, and Dad was ordered to complete a service

plan.

        Under his plan, Dad was ordered to submit to drug testing, obtain and maintain stable

employment and housing, complete a psychological examination and individual therapy, and

complete domestic violence and parenting courses. Dad did not complete his service plan. On

May 24, 2018, the trial court terminated Dad’s parental rights to his children. Dad appeals.

                          EVIDENCE REQUIRED, STANDARDS OF REVIEW

        The evidentiary standards 1 the Department must meet and the statutory grounds 2 the trial

court must find to terminate a parent’s rights to a child are well known, as are the legal 3 and factual 4

sufficiency standards of review. We apply them here.

                                      BASES FOR TERMINATION

A.      Dad’s Course of Parental Conduct

        The trial court found Dad’s conduct met statutory grounds (E), (N), and (O). See TEX.

FAM. CODE ANN. § 161.001(b)(1)(E), (N), (O) (West Supp. 2017). Dad challenges the legal and

factual sufficiency of the evidence supporting each of the trial court’s statutory grounds findings.

B.      Best Interests of the Children

        Dad also challenges the sufficiency of the evidence supporting the trial court’s finding that

terminating his parental rights is in his children’s best interests. See id. § 161.001(b)(2). The

Family Code statutory factors 5 and the Holley factors 6 are well known. We apply them here.

C.      Witnesses at Trial

        In a two-day bench trial, the trial court heard testimony from the Department case worker,

the children’s maternal grandmother, and Dad. The trial court also received recommendations

from the children’s attorney ad litem and the CASA volunteer.

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        In evaluating the evidence, 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); cf. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

D.      Evidence of Grounds, Best Interests of the Children

        The evidence pertaining to a parent’s acts or omissions may be probative of the statutory

grounds for termination and the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)

(“[T]he same evidence may be probative of both issues.”); In re R.S.-T., 522 S.W.3d 92, 97 (Tex.

App.—San Antonio 2017, no pet.). We summarize the evidence below.

        The Department removed the children because Dad was a suspect in Mom’s murder, and

the Department had received allegations of domestic violence between Dad and Mom.

        1.      Dad’s Plan Compliance

        Dad completed a psychological evaluation, and he was referred to a domestic violence

course, a parenting course, and individual therapy. He did not complete his service plan, and he

was discharged unsuccessfully from therapy because of his failure to attend. Dad was required to

provide his home address to the Department to show stable housing, but he did not. He responded

that he was living with friends temporarily. Dad verified his employment by submitting a pay stub

from December 2017, but he did not provide any pay stubs after that date. Four times the

Department asked Dad to submit samples for drug testing, but he never complied. See TEX. FAM.

CODE ANN. § 161.001(b)(1)(N), (O) (grounds); id. § 263.307(b)(1), (7), (8), (10), (11), (12)

(statutory best interest factors); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (factors

(B), (C), (D), (H), (I)).




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        2.      Dad’s Care for the Children

        Dad did not visit the children regularly; he occasionally called them, but he saw them only

four times in the eight months after they were removed. His last visit with them was four months

before trial, and he did not visit them in the three weeks between the first and second days of trial.

        Dad’s failure to visit his children has emotionally damaged C.K. C.K. is now angry with

Dad and does not want to talk with him or live with him. Dad explained that he does not visit the

children because he works 12–13 hour days, four or five days each week, and he does not have a

car. Dad works one mile from where the children are staying. The case worker testified she would

have allowed Dad to visit the children in their home if Dad had asked.

        Dad insisted child support was being deducted from his pay, but he did not provide any

pay stubs after December 2017 and the children’s grandmother testified she has not received any

child support from Dad. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O) (grounds); id.

§ 263.307(b)(10), (11), (12) (statutory best interest factors); Holley, 544 S.W.2d at 372 (factors

(B), (C), (D), (H), (I)).

        3.      Dad’s Behaviors Affecting the Children

        Although he was asked four times to do so, Dad never submitted a drug test sample, and

the Department was concerned that Dad was abusing drugs. Before Mom’s death, Dad and Mom

often quarreled and did so in front of the children. One time, Dad slapped Mom so hard it knocked

her to the ground. Dad did not complete the domestic violence course; he stated he did not need

the services and would not complete them. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E)

(grounds); id. § 263.307(b)(3), (7), (10), (11), (12) (statutory best interest factors); Holley, 544

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




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         4.       Options, Recommendations

         The children have been living full time with their maternal grandmother since August 10,

2017. The children are bonded to the grandmother, they are doing well under her care, and she

wants to adopt them. See TEX. FAM. CODE ANN. § 263.307(b)(13); Holley, 544 S.W.2d at 372

(factors (B), (C), (D), (G), (H)). The Department, the children’s ad litem, and the CASA volunteer

all recommended Dad’s parental rights be terminated.

                                                  CONCLUSION

         Considering all the evidence, we conclude the evidence was legally and factually sufficient

to support the trial court’s findings of at least one predicate ground for termination and that

terminating Dad’s parental rights to his children was in the children’s best interests. We affirm

the trial court’s order.

                                                          Patricia O. Alvarez, Justice
    1
       Clear and Convincing Evidence. 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 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.
     2
        Statutory Grounds for Termination. 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 Dad’s conduct met the following criteria
or ground:
          (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which
               endangers the physical or emotional well-being of the child;
          ...
          (N) constructively abandoned the child who has been in the permanent or temporary managing
               conservatorship of the Department of Family and Protective Services for not less than six
               months, and:
               (i) the department has made reasonable efforts to return the child to the parent;
               (ii) the parent has not regularly visited or maintained significant contact with the child; and
               (iii) the parent has demonstrated an inability to provide the child with a safe environment;
                     [and]
          (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


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               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).
     3
       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).
     4
       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.
     5
       Statutory Factors for Best Interest of the Child. 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;
          (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 [citations to cases in COA jurisdiction].
     6
       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:
          (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;
          (E) the programs available to assist these individuals to promote the best interest of the child;
          (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).




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