      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00318-CV



                                    Silvia Martinez, Appellant

                                                  v.

              Texas Department of Protective and Regulatory Services, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 198,572-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Silvia Martinez appeals from a decree terminating her parental rights to her

two youngest children, C.T. and A.C. She concedes that the evidence supports a finding that she

engaged in conduct or placed the children with others who engaged in conduct that endangered the

children, but contends that the evidence is factually insufficient to support a finding that the

termination was in the children’s best interest. We affirm the trial court’s decree of termination.


                                       Factual Background

                Martinez has four children: J.G., who was thirteen at the time of trial, A.G., almost

eleven, C.T., almost five, and A.C., about nine months old.1 J.G. and A.G. have the same father,




       1
           J.G. and A.G. were placed in the Dallas-Fort Worth area with their paternal grandmother.
who is in prison until 2010 for aggravated assault; C.T. and A.C. have different fathers, neither of

whom could be located by the Department and whose parental rights were terminated by this

proceeding. The Department first became involved with Martinez in 1994, when J.G. was four years

old. After several referrals, the three older children were removed from her care in late 2001, after

it was reported that she was neglecting them and using drugs.2              During the Department’s

investigation, caseworkers learned that Martinez had abused A.G., and in February 2002, Martinez

was placed on deferred adjudication for causing bodily injury to A.G. A.C. was born in July 2002,

while Martinez was in jail on a drug charge, and was taken into Department custody and placed with

her current foster family almost immediately. In October 2002, Martinez pleaded guilty to

possession of cocaine and was placed on probation for five years and ordered into a Substance Abuse

Felony Punishment Facility for one year; at trial, Martinez testified that she was to be released from

the facility in early June 2003.

                Since the children were removed, Martinez had seen A.C. and C.T. only three or four

times, during supervised visitations arranged through the Department. C.T. had been in foster care

since her removal when she was about three and one-half years old, and A.C. had been with the same

foster parents virtually since birth. The Department planned to place C.T. with A.C.’s foster parents,

who wished to adopt them both.3


        2
         Since 1997, Martinez had used cocaine and marijuana and sniffed paint; she stopped for
several years, but started again in late 2001 and used drugs while pregnant with A.C. She believed
she could stay clean this time, saying, “Sir, I am looking at 15 years TDC if I mess up. I don’t have
a choice. I have to get it together.”
        3
         It is unclear if, at the time of trial, C.T. had yet been placed with A.C.’s foster parents. The
record contains a Department progress plan prepared for the final hearing, which indicates that the
Department was going to place C.T. with A.C.’s foster parents for a trial visit, to see if she could

                                                   2
               Martinez testified that her brother, Martin Martinez, and his wife Dorinda wanted to

take custody of A.C. and C.T. She said that Albert Martinez, another brother, had cared for the

children for a short time but could not continue to do so due to his financial situation. Asked

whether the Department had performed a home study for Martin, Martinez answered, “No, sir. The

Judge had ordered a study to be done on my brother, but the CPS lady had told me that it would be

worthless because I would pay that money, and then he being on probation would not—it wouldn’t

pass. So she doesn’t see any reason why there should be a home study done on him.” Martinez said

her mother was supposed to have had a home study, but “the caseworker let her know that she had

to have so much . . . money, she had to have insurance, she had to have a seven-bedroom house,

which that was told to myself also, and that she doesn’t see it fit for my mother to have the children.”

               Bonnie Wilson, the Department caseworker for the children, testified that she had

done a home study for the older children’s paternal grandmother and had approved that placement.

She testified that A.C. and C.T. were adoptable and that A.C.’s foster parents, who had been

approved by the Department, were interested in adopting them both. Wilson said she spoke to

Martinez’s mother early in the case about doing a home study and placing the children with her.

Wilson requested information from Martinez’s mother, left phone messages, and sent a certified

letter that was accepted, but Martinez’s mother never contacted Wilson until about two weeks before

trial.

               Wilson said a home study had not been done on Martin and Dorinda Martinez, due

at least in part to apparent misunderstandings. Wilson said Martin Martinez never contacted her


adapt to that home, and some of the testimony demonstrates that C.T. may have been living with
A.C.’s foster parents by the time the hearing was convened.

                                                   3
except for asking in October 2002 whether Martinez’s son could be placed with him and his wife.

Martin told Wilson that he was on probation for family violence, but when Wilson ran a background

check, she found an extensive criminal history, as well as a history of his returning Martinez’s

children to her after they were placed with him by the Department under a safety plan. She said that

after she found out about Martin’s assault probation4 and that he had returned the children to

Martinez “even though we’ve asked him to voluntarily place them for a while,” she told Martin that

he could pay for a home study, but that the Department “wouldn’t be able to recommend placement.”

She did not suggest that a home study would be a waste of time.

               Wilson believed Martin would give the children back to Martinez upon her release

from the drug rehabilitation program and that he was therefore not an appropriate placement for C.T.

and A.C. Wilson believed it was in A.C. and C.T.’s best interest for Martinez’s parental rights to

be terminated and for them to be adopted together. Asked about the placement of J.G. and A.G. with

their grandmother, Wilson said that the older children have “a huge family support system in . . . the

Dallas-Fort Worth area,” and that termination therefore was not in their best interest.

               Martin Martinez was forty years old at the time of trial and had a landscaping

business. He testified that he was placed on probation several years before trial for assaulting his

ex-wife. He had four more years of probation and testified that he is complying with all the


       4
           Wilson referred to Martin’s probation as being for aggravated assault, but Martin testified
that it was for assault against a family member and not aggravated assault. Unless a person has
previously been convicted of assaulting a family member, assault against a family member is a
misdemeanor offense, see Tex. Pen. Code Ann. § 22.01(b) (West Supp. 2004), whereas aggravated
assault is a felony offense. See id. § 22.02(b) (West Supp. 2004). Wilson’s report states that
Martin’s record showed “many entries of aggravated assault.” Wilson said those records were in the
file, but she acknowledged that there was no evidence before the trial court to support that allegation.

                                                   4
probation requirements, including random drug testing. He said that before being placed on

probation, his last encounter with law enforcement was in 1980. He is living in Martinez’s house,

making the payments, and maintaining the house. Martin testified that he loved Martinez’s children

and was very involved in the three oldest children’s lives. He said he could support A.C. and C.T.

financially if they came to live with him, his house was large enough for the children to live there,

and he would abide by any restrictions placed on him by the Department. Martin felt it was

important for all four children to maintain contact with each other.

               Martin testified that Bonnie Wilson came to his house once to speak to him about

placing the children there, but since that meeting he had not heard from her. Martin said he was

willing to pay $500 for a home study, but Wilson never told him when to pay the fee. He had not

contacted anyone else with the Department and he had not attended other court hearings about the

children. Martin knew Martinez had smoked marijuana on occasion during the last six years, but

did not know she was using other drugs; he testified that had he known, he would have first tried to

get her help and then taken her children to live with him. Martin testified that he does not use drugs

of any kind or drink alcohol to excess. Martin testified that Martinez had placed the children with

him on and off during 2001 and that he returned the children because he was not aware of any

contrary order or Department directive.

               The guardian ad litem appointed to represent the children recommended that J.G. and

A.G. be placed with their paternal grandmother. He recommended that Martinez’s rights to the

younger two children be terminated because she was continuing to struggle with her addictions and

had not shown any improvement in parenting skills since November 2001. A.C.’s foster parents



                                                  5
wished to adopt her and C.T. and were not opposed to their maintaining a relationship with their

older siblings. The children’s attorney ad litem also agreed with the Department’s recommendations.

He noted Martin’s desire to care for the younger children, but said, “I would have hoped that he

would have come forward six months ago or a year ago and we wouldn’t have to be having this

conversation.” The attorney ad litem acknowledged that Martin may not understand how the system

works and could be an appropriate placement, but agreed with the Department’s recommendation

that the older two children be placed with their paternal grandmother and that Martinez’s rights to

the younger children be terminated.

               The trial court agreed with the Department’s recommendations, noting that the trial

was the court’s eleventh hearing regarding the children. The court said that although it agreed with

the attorney ad litem’s description of Martin, Martin had only attempted to come to one other

hearing, which was reset for a later date. The court stated, “That leaves 10 other hearings starting

in December of 2001 that he could have come to and expressed some interest somewhere along the

way to this Court who ultimately makes the decision.” The court also observed that the three

children had been placed with Albert and that had the rest of Martinez’s family stepped in to help

Albert care for the children, “we would not be here today.”


                                       Standard of Review

               A person’s parental rights may be terminated only if the trial court finds (1) that the

parent has engaged in conduct set out as statutory grounds for termination, and (2) that termination

is in the child’s best interest. Tex. Fam. Code Ann. § 161.001 (West 2002); In re C.H., 89 S.W.3d

17, 23 (Tex. 2002). The Department of Protective and Regulatory Services must prove those

                                                 6
required elements by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001; C.H., 89

S.W.3d at 23. Clear and convincing evidence is an intermediate standard of proof that falls between

the criminal standard of proof beyond a reasonable doubt and the civil standard of a preponderance

of the evidence. C.H., 89 S.W.3d at 23-25. Evidence is clear and convincing if it “will produce in

the mind of the trier of fact a firm belief or conviction as to the truth of the allegations” supporting

termination. Id. at 23 (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). We review

the factual sufficiency of the evidence by viewing all of the evidence and determining whether a

reasonable fact-finder could have resolved disputed evidence in favor of its finding. In re J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). If the disputed evidence is such that a reasonable fact-finder could

have formed a firm belief as to the truth of the State’s allegations, the evidence is factually sufficient.

Id.; C.H., 89 S.W.3d at 25. We must maintain appropriate deference to the fact-finder’s role by

assuming that it resolved evidentiary conflicts in favor of its finding when reasonable to do so and

by disregarding evidence that it could have disbelieved. J.F.C., 96 S.W.3d at 266-67.

                Some of the factors to consider in determining a child’s best interests are: the child’s

wishes; her emotional and physical needs now and in the future; emotional or physical danger to the

child now and in the future; the parenting abilities of the parties seeking custody; programs available

to help those parties; plans for the child by the parties seeking custody; the stability of the proposed

placement; the parent’s conduct indicating that the parent-child relationship is improper; and any

excuses for the parent’s conduct. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Permanence

is of paramount importance in considering a child’s present and future emotional and physical needs.

In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied); In re M.A.N.M., 75



                                                    7
S.W.3d 73, 77 (Tex. App.—San Antonio 2002, no pet.); Salas v. Texas Dep’t of Protective &

Regulatory Servs., 71 S.W.3d 783, 792 (Tex. App.—El Paso 2002, no pet.); see Lehman v. Lycoming

County Children’s Servs. Agency, 458 U.S. 502, 513 (1982) (children need stable, long-term

relationships with caretakers). A fact-finder may consider the possible consequences of a decision

not to terminate and may compare the parent’s and the Department’s plans for a child. D.O. v. Texas

Dep’t of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no writ).

                A parent’s statutorily offensive conduct is often intertwined with the best interest

determination. Horvatich v. Texas Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594, 601

(Tex. App.—Austin 2002, no pet.); In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001,

no pet.). Although there are cases in which the parent’s behavior alone will demand termination,

generally “the best interest determination must have a firm basis in facts standing apart from the

offending behavior.” D.M., 58 S.W.3d at 814; see Horvatich, 78 S.W.3d at 601. The Department

need not prove all nine Holley factors as a “condition precedent” to termination, and the absence of

some factors does not bar the fact-finder from finding by clear and convincing evidence that

termination is in a child’s best interest, especially when there is undisputed evidence that the parental

relationship endangered the child. C.H., 89 S.W.3d at 27. No one factor is controlling, and the facts

of a case may mean that evidence of one factor is sufficient to support a finding that termination is

in the child’s best interest. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.).


                                              Discussion

                Martinez argues that the trial court erred because the same circumstances and facts

applied to both the older children, with whom she maintains her parental relationship, and the

                                                   8
younger children, with whom her relationship was terminated. Martinez is correct that the same

conduct was used to support a finding in favor of termination for A.C. and C.T. but not for J.G. and

A.G. However, Martinez’s conduct, which she concedes falls within the statutory grounds for

termination, is a separate issue from the children’s best interests. To terminate Martinez’s parental

rights, the trial court had to find both that she committed conduct fitting the statutory grounds for

termination, conduct she admits and which would have supported termination of all four children,

and that termination was in the children’s best interest. Tex. Fam. Code Ann. § 161.001; C.H., 89

S.W.3d at 23. The trial court found that termination was in the best interest of the two younger

children, but not in the best interest of J.G. and A.G., the older children.

               There are significant differences between the older children’s situation and that of the

younger children. At the time of trial, the older children were about thirteen and eleven years old,

living with their paternal grandmother for whom a home study had been conducted and approved,

had a large and close-knit support system in their paternal family in the Dallas-Fort Worth area, and

were old enough to know those family members and have built relationships with them. The

younger children were almost five years and one year old. C.T. had been in foster care since she was

three, and A.C. had been with her foster parents almost since birth. Those foster parents wanted to

and were approved to adopt both children together. Martin Martinez also expressed an interest in

taking custody of the children, but he had not taken steps to get approved by the Department, had

a history of taking custody of the children and then returning them to Martinez without Department

approval, and was on probation for assaulting his ex-wife. Further, until shortly before trial, the

Department was under the impression that Martin was interested in caring only for J.G., Martinez’s



                                                  9
son, not the younger girls. According to Wilson, Martinez’s mother did not get back in touch with

the Department until shortly before trial, and other concerns weighed against placement of the

younger children with her.

               Martinez’s history of drug use, neglect, and abuse weighs in favor of termination, as

does the fact that the children have been placed together in a stable home with foster parents who

wish to adopt them and give them the permanence they need. The Department was involved in

Martinez’s life for several years before the children were removed, giving her opportunities to get

her life in order and improve her parenting skills, but she continued to neglect her children and use

drugs. The children are too young to express a preference, but the evidence is clear that Martinez

did not properly provide for their emotional and physical needs in the past and that her behavior put

them in emotional and physical danger. The record shows that the foster parents are providing for

their needs and keeping them safe and are open to allowing the children to maintain a relationship

with their siblings. See Holley, 544 S.W.2d at 372.

               Although there is a general preference for keeping a parent-child relationship intact,

see Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985), and placing children with family members, see

Horvatich, 78 S.W.3d at 603, the legislature has not required that the Department, in addition to

proving that termination is warranted by the parent’s conduct and the child’s best interest, also prove

that termination is the only option available for the child’s placement. See D.M., 58 S.W.3d at 818

(Dauphinot, J., concurring). The Department and its caseworkers are tasked with taking into account

all options, including available, appropriate, and interested family placements, when deciding how




                                                  10
best to protect a child’s best interest. The record demonstrates that the Department considered all

options in this instance.

                                           Conclusion

               The Department proved by clear and convincing evidence that termination was in the

younger children’s best interest. We affirm the trial court’s decree terminating Martinez’s parental

relationship with her two youngest children.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: May 20, 2004




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