Affirmed and Memorandum Opinion filed March 27, 2012.




                                                   In The

                            Fourteenth Court of Appeals

                                         NO. 14-11-00926-CV

                           IN THE INTEREST OF A.W.B., A CHILD

                             On Appeal from the 315th District Court
                                      Harris County, Texas
                               Trial Court Cause No. 2009-07340J



                              MEMORANDUM OPINION

       After a bench trial, the trial court signed a decree terminating Mother’s parental
rights to her biological child, A.W.B., and appointing the Department of Family and
Protective Services as the sole managing conservator of A.W.B.1 In five issues, Mother
argues that the evidence is legally and factually insufficient to support the trial court’s
findings related to termination of her parental rights and the Department’s
conservatorship of A.W.B. We affirm.

                        TERMINATION OF MOTHER’S PARENTAL RIGHTS

       Parental rights may be terminated only upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by Section 161.001(1) of the


       1
           The trial court also terminated the parental rights of an unknown father.
Texas Family Code; and (2) termination is in the best interest of the child. In re C.W.,
Jr., No. 14-09-00306-CV, 2009 WL 4694946, at *5 (Tex. App.—Houston [14th Dist.]
Dec. 10, 2009, no pet.); see Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2011).

        In this case, the trial court found by clear and convincing evidence that termination
of the parent-child relationship between Mother and A.W.B. was in A.W.B.’s best
interest and that Mother committed acts prohibited by three separate subsections of
Section 161.001(1):

        She knowingly placed or knowingly allowed the child to remain in conditions or
        surroundings which endanger the physical or emotional well-being of the child.
        See Tex. Fam. Code Ann. § 161.001(1)(D).
        She 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. See
        id. § 161.001(1)(E).
        She failed to comply with the provisions of a court order that specifically
        established the actions necessary for the mother to obtain the return of the child
        who has been in the permanent or temporary managing conservatorship of the
        Department 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. See id. §
        161.001(1)(O).

In her first three issues, Mother argues that the evidence is legally and factually
insufficient to support the Section 161.001(1) findings; in her fourth issue, she argues that
the evidence is legally and factually insufficient to support the best interest finding. We
hold that the evidence is legally and factually sufficient to support the trial court’s
Section 161.001(1)(O) and best interest findings.2

I.      Standards of Review

        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

        2
         Because there is sufficient evidence to support the trial court’s Section 161.001(1)(O) finding,
we need not address the Section 161.001(1)(D) and (E) findings. See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003).
                                                   2
established.”    Tex. Fam. Code Ann. § 101.007 (Vernon 2008).           In reviewing legal
sufficiency in a parental termination case, we must consider all evidence in the light most
favorable to the finding to determine whether a reasonable fact finder could have formed
a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344
(Tex. 2009). We assume that the fact finder resolved disputed facts in favor of its finding
if a reasonable fact finder could do so, and we disregard all evidence that a reasonable
fact finder could have disbelieved. Id. In reviewing factual sufficiency, we consider and
weigh all of the evidence, including disputed or conflicting evidence. Id. at 345. If the
disputed evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm believe
or conviction, then the evidence is factually insufficient. Id.

II.    Trial Court’s Section 161.001(1)(O) Finding

       Mother contends that the evidence is legally and factually insufficient because (1)
A.W.B. was not removed from Mother’s custody “for the abuse or neglect of the child;”
and (2) the trial record does not contain a court order establishing the actions necessary
for Mother to obtain the return of A.W.B.

       A.       Removal for Abuse or Neglect

       Mother argues there is no evidence to show that A.W.B. was removed due to
abuse or neglect because the child was brought into the Department’s care due to a
breakdown in Mother’s voluntary placement of A.W.B. with Mother’s friend, Tanya
Fisher. Further, one of the Department’s investigators stated that while A.W.B. was in
Mother’s care, A.W.B. was well-dressed and appropriate for school, very clean, and
appeared to be very healthy and developmentally on target. The investigator “had no
concerns for [A.W.B.]’s safety at that time.”

       The record contains the trial court’s October 26, 2009 “temporary order following
adversary hearing . . . pursuant to § 262.201 or 262.205, Texas Family Code,” which
appointed the Department the temporary managing conservatory of A.W.B. and included
                                         3
the findings required by Section 262.201 of the Family Code. See Tex. Fam. Code Ann.
262.201(b) (Vernon Supp. 2011). This document is evidence that A.W.B. was removed
from Mother “under Chapter 262 for the abuse or neglect of the child,” as the trial court
found in the decree for termination.3

        Further, as Mother acknowledges on appeal, the investigator was reviewing
A.W.B’s condition because “there was an allegation of physical abuse of the child by
Mother.” The family service plan, which was admitted as an exhibit at trial, explains that
the reason for the Department’s involvement was that a referral was made to the
Department alleging physical abuse of A.W.B. “It was alleged that the mother . . . was
hitting [A.W.B.] in the face, back and arm for touching a ‘pipe.’” Mother allegedly
grabbed A.W.B. again and “started to ‘beat’ her.” See In re S.N., 287 S.W.3d 183, 190 &
n.2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (sufficient evidence based on
statements in family service plan and trial court’s findings made pursuant to Chapter
262).       The 4C’s family evaluation, also admitted as an exhibit at trial, contains
substantially the same facts; it also notes the offense date was September 23, 2009, less
than a month before the trial court’s Chapter 262 order. See In re J.T.G., No. 14-10-
00972-CV, 2012 WL 171012, at *14, *16 (Tex. App.—Houston [14th Dist.] Jan. 19,
2012, no pet.) (mem. op.) (sufficient evidence based on statements in 4C’s report; noting
trial court made the requisite findings under Chapter 262 after an adversary hearing).

        Accordingly, there is legally and factually sufficient evidence to support the trial
court’s finding that A.W.B. was removed for abuse or neglect.

        B. Court Order Establishing Actions Necessary for Return of A.W.B.

        Mother acknowledges that the trial court admitted into evidence Mother’s family
service plan, but the Department “never offered into evidence any court order which


        3
          We view the court’s order as evidence on this point for the same reason we view it as evidence
supporting the finding that Mother failed to comply with the court’s order, discussed in the next section of
this opinion.
                                                     4
ordered Mother to complete her service plan.”4 Relying on In re C.L., 304 S.W.3d 512,
517 (Tex. App.—Waco 2009, no pet.), Mother argues that there is no evidence of a court
order setting forth the actions necessary to obtain the return of A.W.B. because the trial
court did not announce that it was taking judicial notice of any of its prior orders in its
file.

        In In re C.L., the Waco Court of Appeals held that there was no evidence that (1)
the children were removed because of abuse or neglect; (2) the Department had been the
managing conservator of the children for nine months; or (3) the service plan was
incorporated in a court order that specifically established the actions necessary for the
mother to obtain the return of the children. Id. at 517. The court reasoned that it could
not consider evidence from the trial court’s file when the trial court never explicitly stated
it was taking judicial notice of the file or orders. Id. at 516. The court explained that it
would not consider any orders found in the record because this use of judicial notice
would offend due process. See id. at 516 & n.4.

        However, this court has consistently taken a different view of judicial notice on a
silent record. For example, we have held that “we may presume that the trial court took
such judicial notice of the record without any request being made and without any
announcement that it has done so.” Marble Slab Creamery, Inc. v. Wesic, Inc., 823
S.W.2d 436, 439 (Tex. App.—Houston [14th Dist.] 1992, no pet.). More recently, we
stated a “trial court is presumed to judicially know what has previously taken place in the
case tried before it, and the parties are not required to prove facts that the trial court
judicially knows.” In re J.J.C., 302 S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.]

        4
           When a court signs an order appointing the Department as a temporary managing conservator
under Chapter 262, as the trial court did here, the Department must file a service plan with the court. See
Tex. Fam. Code Ann. § 263.101 (Vernon 2008). A service plan must, among other things, (1) be specific;
(2) state the goal of the plan, which may be the return of the child to the child’s parents; and (3) state the
actions and responsibilities necessary for the child’s parents to take to achieve the plan goal. See Tex.
Fam. Code Ann. § 263.102 (Vernon 2008). The trial court “shall incorporate the original and any
amended service plan into the orders of the court.” Tex. Fam. Code Ann. § 263.106 (Vernon Supp. 2011)
(effective Sept. 1, 2011).
                                                      5
2009, pet. denied); see also In re A.X.A., No. 04-09-00519-CV, 2009 WL 5150068, at *4
n.3 (Tex. App.—San Antonio Dec. 30, 2009, no pet.) (mem. op.) (citing Marble Slab
Creamery, 823 S.W.2d at 439) (presuming that the trial court took judicial notice of the
family service plan and the order adopting the plan; both documents were in the clerk’s
record); In re S.M., No. 04-04-00194-CV, 2005 WL 418540, at *4 (Tex. App.—San
Antonio Feb. 23, 2005, no pet.) (mem. op.) (rejecting the “technical argument” that there
was no evidence of the parent’s failure to comply with the trial court’s order when the
family service plan was admitted as an exhibit and the clerk’s record contained the trial
court’s order).   Here, the same judge who signed the order following an adversary
hearing under Chapter 262 signed the decree for termination.           The judge did not
explicitly state that he was taking judicial notice of the Chapter 262 order, which is
contained in the clerk’s record on appeal and orders Mother “to comply with each
requirement set out in the Department’s original, or any amended, service plan during the
pendency of this suit.” However, following our precedent, we presume that the judge
took judicial notice.

       Regardless of whether we presume judicial notice of the trial court’s order, the
record contains sufficient testimonial evidence. Mother knew what was required by the
family service plan, and she understood her failure to comply was a ground for
termination of her parental rights. She testified as follows:

       Q:     Did you receive a Family Plan of Service in this case?
       A:     Yes.
       Q:     And this isn’t your first CPS case, correct?
       A:     Yes.
       Q:     So you’ve had other Family Plans of Service in the past, haven’t
              you?
       A:     Yes.
                        *                     *                  *
       Q:     And your lawyer — you had a chance to discuss this service plan
              and the things you need to do, correct?
                                             6
       A:        Yes.
       Q:        Do you think you knew what you were being asked to do in order to
                 get your daughter back?
       A:        Yes, sir.
       Q:        And you would agree with me that you haven’t done that?
       A:        I’ve done everything except for one thing.
       Q:        And would you agree with me that the therapy that you didn’t
                 complete was a pretty important thing?
       A:        Yeah, it was.
                             *                 *                  *
       Q:        I heard you testify to Mr. Kundiger that you did 99 percent of your
                 services — do you understand this Court can terminate you on the
                 ground that you did not successfully complete all of your services?
       A:        Yes, I understand that.

The Department’s caseworker Sandy Porter also testified that Mother failed to complete
her required therapy, which “was court ordered.” Mother testified that she failed to
complete the therapy required by the family service plan. See In re M.C.G., 329 S.W.3d
674, 675–76 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (appeal was frivolous
because of undisputed fact that the parent failed to undergo individual therapy as required
by the service plan, thus providing a basis for termination of the parent-child
relationship).

       Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding that Mother failed to comply with the provisions of a
court order that specifically established the actions necessary for Mother to obtain the
return of A.W.B.

III.   Trial Court’s Best Interest Finding

       Relying on the nonexclusive factors identified in Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976), Mother argues there is insufficient evidence to support the trial
court’s finding that termination was in A.W.B.’s best interest. See Tex. Fam. Code Ann.
                                               7
§ 161.001(2). To determine the best interest of a child in such a case, courts may
consider the Holley factors,5 statutory factors under Section 263.307 of the Texas Family
Code,6 and any other relevant information. See In re J.C.C., 302 S.W.3d at 447–48.

        A.W.B. was born on October 27, 2006, and the termination trial was held on
September 12, 2011 when A.W.B. was almost five years old. Mother had a history with
the Department concerning her seven other children, none of whom were in her custody
at the time A.W.B. was born. Her rights to some of the children were terminated, and she
relinquished her rights to others. She testified that she lost her rights to five of the
children because of her drug use — specifically, cocaine. She testified, “I haven’t used
nothing in four years,” essentially admitting to drug use after A.W.B. was born. The


        5
          These factors include (1) the desires of the child; (2) the present and future physical and
emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the
parental abilities of the persons seeking custody in promoting the best interest of the child; (5) the
programs available to assist these individuals to promote the best interest of the child; (6) the plans for the
child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement;
(8) acts or omissions of the parent which may indicate the existing parent-child relationship is not
appropriate; and (9) any excuse for the parent’s acts or omissions. In re J.C.C., 302 S.W.3d at 448 (citing
Holley, 544 S.W.2d at 371–72).
        6
           These factors include (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 or other agency; (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, including providing the
child and other children under the family’s care with: (A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological
development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home
environment; (E) protection from repeated exposure to violence even though the violence may not be
directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an
adequate social support system consisting of an extended family and friends is available to the child. In
re J.C.C., 302 S.W.3d at 447–48 (citing Tex. Fam. Code Ann. § 263.307(b) (Vernon 2008)).
                                                      8
4C’s evaluation notes that Mother had several “validated” referrals to the Department
based on physical abuse and neglect of her other children.

       Mother had a difficult adolescence after she discovered that she was adopted and
met her biological mother, whose husband at the time repeatedly made Mother perform
oral sex on him when she was a preteen or young teenager. She “quit school” after the
tenth grade, and her adoptive parents “took her to CPS when she was 16 years old and
she was in custody of CPS.” She was in a group home for the mentally challenged and
eventually was placed in a “lock-down facility” until she was 18 years old.

       Mother was “introduced to exotic dancing, prostitution, and cocaine when she was
18 years old.” While Mother was pregnant with A.W.B., she was arrested and served jail
time on three occasions — all for prostitution. The final arrest and conviction occurred in
September 2006. After A.W.B. was born, Mother also served four months in jail on a
forgery conviction. While in jail, Mother placed A.W.B. with Shamayra Brown. Porter
testified that Brown had an ongoing case with the Department due to physical neglect of
her own children.

       Since A.W.B. was born, Mother moved residences about 10 or 11 times. Project
Life Road “kicked [her] out . . . because [she] got into it with a faggot.” When the
Department began investigating the abuse allegations regarding A.W.B., Mother was
living with someone named “Maria,” but Mother did not know Maria’s last name.
Mother testified, however, that she had been living in the same apartment complex for
two years at the time of trial. She paid about $115 per month in rent out of her monthly
income of about $700. Her income is from Social Security and Medicaid. She had not
been employed for about two years at the time of trial. She testified that she tried to find
work, but her forgery conviction caused employers to not hire her. Her last employer
fired her because she missed too many days of work, though she testified that she had
notes from doctors to explain her absences. Her supervisor said she was a “no call, no
show.”

                                             9
      Mother is bipolar and testified that she takes Propranol: “I take it — one to two
tablets at nighttime.”       Porter testified that she did not believe Mother was taking
medications prescribed to her by a psychiatric evaluator because Mother told Porter that
“it was affecting her with the other medications that she was taking and that she had
stopped taking it.” Mother testified that she attended AA and NA classes, but Porter
testified that Mother never provided the Department with her sign-in sheets as the
Department requested.7 Mother acknowledged that she did not do psychiatric therapy as
required by her family service plan. She understood that failure to do the therapy could
result in termination of the parent-child relationship. She said she did not continue
sessions with her first therapist because she “didn’t agree with what she wrote.” She did
not go to another therapist because she lost her bus pass and could not afford the fare.
She testified, however, that she thought she had enough income to provide for A.W.B.

      Porter testified that Mother took multiple drug tests and did not test positive.
Mother had stable housing for over a year, and she was looking for work. She phoned
A.W.B. “at least weekly or two weeks.”                 Mother also completed parenting classes
required by the service plan, and she was taking classes to earn her GED. Porter
explained, however, that the Department was concerned about Mother’s lack of
employment, lack of transportation, low income, lack of a plan for A.W.B., and Mother’s
failure to complete her service plan, including her failure to attend therapy and document
her NA and AA meetings. Mother’s history with the Department, drug abuse, and
criminal conduct also concerned the Department.

      Porter testified further that A.W.B. had no special needs, no behavioral issues, and
no learning disabilities. Porter believed A.W.B. could be adopted, and the Department’s
plan for A.W.B. was foster care followed by an unrelated adoption. At the time of trial,
A.W.B. was living with Mother’s sister in Pennsylvania. The sister was not willing to
keep A.W.B. any longer. Mother testified that A.W.B. wanted to come back to Texas,

      7
          Mother testified she was never asked to provide such documentation.
                                                  10
“[w]ith my sister . . . and her husband when they move down here.” Finally, Mother
testified that she wanted A.W.B. to be placed with Mother’s sister:

       Q.     Now, bottom line, do you think you would agree that there are other
              placements that are in a better position than you to properly raise
              [A.W.B.]?

       A.     My sister’s.

       Q.     And is that what you would like to see?

       A.     Yeah, not no foster parent.

       Considering all of this evidence, there is legally and factually sufficient evidence
that termination was in A.W.B.’s best interest. There is significant evidence supporting
termination based on the factors identified above. In particular, returning A.W.B. to
Mother’s care could result in emotional and physical danger in light of Mother’s past
abusive and neglectful conduct regarding her other seven children, the report of abuse of
A.W.B., Mother’s admitted use of cocaine despite the fact that she cited cocaine as the
cause of losing her other children, Mother’s bipolar disorder and lack of appropriate
treatment, and Mother’s criminal history, which resulted in her separation from A.W.B.
for four months and placement of A.W.B. in a home where children were allegedly
neglected. A.W.B.’s time with Mother was unstable due to Mother’s frequent moves.
The Department believed A.W.B. could be adopted due to her lack of special needs,
which would provide more stability. Mother failed to complete psychiatric therapy on
several occasions and knew that her failure to do so could result in termination of the
parent-child relationship.

       Mother had a significant substance abuse problem, and although she was making
progress, she failed to document her attendance at NA and AA meetings. Both A.W.B.
and Mother stated they wanted A.W.B. to live with Mother’s sister, but Mother’s sister
was not willing to assist Mother by caring for A.W.B. any longer. Thus, Mother did not
have family support to assist caring for A.W.B. Although Mother completed parenting

                                            11
classes, the evidence supports a determination that she did not demonstrate adequate
parenting skills.

       Accordingly, Mother’s first, second, third, and fourth issues are overruled.

      APPOINTMENT OF THE DEPARTMENT AS SOLE MANAGING CONSERVATOR

       In her fifth issue, Mother argues that the evidence was legally and factually
insufficient to support the trial court’s finding that appointment of Mother as managing
conservator would not be in A.W.B.’s best interest because the appointment would
significantly impair the child’s physical health or emotional development. See Tex. Fam.
Code Ann. § 153.131(a) (Vernon 2008) (“[U]nless the court finds that appointment of the
parent or parents would not be in the best interest of the child because the appointment
would significantly impair the child’s physical health or emotional development, a parent
shall be appointed sole managing conservator . . . .”).

       A parent is required to independently challenge a trial court’s finding under
Section 153.131(a) to obtain reversal of the conservatorship appointment if the appellate
court reverses a trial court’s termination of the parent-child relationship. See In re J.A.J.,
243 S.W.3d 611, 616–17 (Tex. 2007); In re A.S., 261 S.W.3d 76, 92 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). However, when a trial court terminates a parent-
child relationship, the trial court’s appointment of the Department as sole managing
conservator may also be “a consequence of the termination pursuant to Family Code
section 161.207.” In re A.S., 261 S.W.3d at 92. Section 161.207 provides: “If the court
terminates the parent-child relationship with respect to both parents or to the only living
parent, the court shall appoint a suitable, competent adult, the Department of Protective
and Regulatory Services, a licensed child-placing agency, or an authorized agency as
managing conservator of the child.” Tex. Fam. Code Ann. § 161.207(a) (Vernon 2008).
Mother cites no authority for the assumed proposition that Section 153.131(a) applies to a
parent whose relationship has been terminated under Chapter 161. Indeed, when a court
terminates the parent-child relationship, the court also “divests the parent and the child of
                                             12
all legal rights and duties with respect to each other.” Tex. Fam. Code Ann. § 161.206
(Vernon 2008).

       Accordingly, we affirm the trial court’s decision to appoint the Department, rather
than Mother, as managing conservator of A.W.B. “as a consequence of the termination.”
Mother’s fifth issue is overruled.

                                      CONCLUSION

       Having overruled all of appellant’s issue, we affirm the trial court’s decree for
termination.




                                         /s/    William J. Boyce
                                                Justice



Panel consists of Justices Seymore, Boyce, and McCally.




                                           13
