                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00404-CV

                       IN THE INTEREST OF D.T.C.L. and B.J.K., Children

                     From the 288th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014-PA-00985
                        Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: October 28, 2015

AFFIRMED

           L.W., who we will refer to as “Mother,” appeals the trial court’s order terminating her

parental rights to her children, D.L. and B.K. In one issue, she challenges the legal and factual

sufficiency of the evidence to support the finding that termination was in the best interest of the

children. We affirm the trial court’s order.

                                           BACKGROUND

           A bench trial was held on the matter on June 29, 2015. Warren Sheridan, the caseworker

for the Texas Department of Family and Protective Services, testified that D.L. was removed from

the home in April 2014 due to domestic violence between Mother and her paramour and due to

drug use in the home. D.L. was two years old at the time of trial. B.K. was born on August 15,

2014, and the Department was appointed her temporary managing conservator after that time.
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B.K. was ten months old at the time of trial. It was believed that Mother used drugs during her

pregnancy with B.K. because Mother tested positive for methamphetamines three days after B.K.’s

birth. According to Sheridan, the Department attempted to get Mother into drug treatment as early

as January 2014. Mother attended for a “stent” [sic] but decided to leave. Sheridan stated that, to

this day, Mother has not addressed her issues with drug and alcohol abuse. Sheridan testified that

plans of service were prepared for Mother. He further stated that Mother did not complete all of

her services, including counseling, drug treatment, and domestic violence class.

         At the time of trial, both D.L. and B.K. were living with relatives who planned to adopt

them if parental rights were terminated. Sheridan testified that Mother had not consistently visited

either child. Specifically, she had visited D.L. only four times and B.K. only twice since January

2015. Sheridan stated that Mother did not have housing or a job, and was not able to provide a

safe and stable environment for the children. He further stated that Mother continues to struggle

with issues related to her mental and physical health. She tested positive for amphetamines and

methamphetamines one month prior to trial.

         Mother appeared telephonically at trial. She explained that her visits with the children had

been sporadic due to illness and bad weather. She was ready for the children to be returned to her,

and had rooms ready for each child. Mother testified that she was currently enrolled in a drug

rehabilitation and detox program that offered a domestic violence course, and thus was optimistic

that she could complete the requirements of her service plans if given more time. Mother conceded

that relapse is a part of recovery, and stated that she had used methamphetamines the day before

trial.




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           At the conclusion of the bench trial, the trial court terminated Mother’s parental rights

pursuant to Texas Family Code sections 161.001(1)(N), (O) 1, and (P). See TEX. FAM. CODE ANN.

§ 161.001(1)(N), (O), (P) (West 2014). The trial court also found that termination of the parent-

child relationship was in the best interest of the children. Mother now appeals, challenging only

the finding that termination of the parent-child relationship was in the best interest of the children.

                                        STANDARD OF REVIEW

           To terminate parental rights pursuant to section 161.001 of the Family Code, the

Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);

and (2) that termination is in the best interest of the child. See id. § 161.001(1), (2) (West 2014);

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and

convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d

256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree of 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.” TEX. FAM. CODE ANN. § 101.007 (West 2014).

           In reviewing the legal sufficiency of the evidence to support the termination of parental

rights, the court must “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.F.C., 96 S.W.3d at 266. “[A] reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id.

“A corollary to this requirement is that a court should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.” Id.




1
    As to D.L. only.

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       In reviewing the factual sufficiency of the evidence to support the termination of parental

rights, a court “must give due consideration to evidence that the factfinder could reasonably have

found to be clear and convincing.” Id. “If, in light of the entire record, the disputed evidence that

a reasonable factfinder could not have credited in favor of the finding is so significant that a

factfinder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient.” Id.

                                        APPLICABLE LAW

       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, when the court considers factors

related to the best interest of the child, “the prompt and permanent placement of the child in a safe

environment is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)

(West 2014). In determining whether a child’s parent is willing and able to provide the child with

a safe environment, the court should consider: (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
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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. Id. § 263.307(b).

        Additionally, in reviewing the sufficiency of the evidence to support the best interest

finding, we may apply the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Those factors include, but are not limited to: (1) the desires of the child; (2) the present and future

emotional and physical needs of the child; (3) the present and future emotional and physical danger

to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available

to assist these individuals to promote the best interest of the child; (6) the plans for the child held

by the individuals seeking custody; (7) the stability of the home or proposed placement; (8) the

acts or omissions of the parent which may indicate that the existing parent-child relationship is not

a proper one; and (9) any excuse for the acts or omissions of the parent. Id. The foregoing factors

are not exhaustive, and “[t]he absence of evidence about some of [the factors] would not preclude

a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s

best interest.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence of only one factor may be

sufficient for a factfinder to form a reasonable belief or conviction that termination is the child’s

best interest, especially if the evidence was undisputed that the parental relationship endangered

the child’s safety. Id.

        Finally, evidence that proves one or more statutory grounds for termination may constitute

evidence illustrating that termination is in the child’s best interest. Id. at 28 (holding same evidence

may be probative of both section 161.001(1) grounds and best interest, but such evidence does not

relieve the State of its burden to prove best interest). A best interest analysis may consider

circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct
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evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). In

addition, the 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.

                                             ANALYSIS

       Although Mother claims that very little credible evidence at trial was adduced concerning

several of the section 263.307(b) factors and the Holley best interest factors, the Department was

not required to prove each and every factor. See In re C.H., 89 S.W.3d at 27. No single Holley

consideration is controlling, and the fact finder is not required to consider all of the factors. See

Holley, 544 S.W.2d at 372; see also A.S. v. Tex. Dep’t of Family & Protective Servs., 394 S.W.3d

703, 714 (Tex. App.—El Paso 2012, no pet.) (fact finder not required to consider all factors and

undisputed evidence of a single factor may be sufficient to support finding that termination is in

child’s best interest). The trial court heard testimony regarding Mother’s continued drug use, her

inconsistent visitation with the children, and her failure to complete the court-ordered family

service plans. The Department caseworker testified that he was not confident that the children

would be in a safe and stable home environment if returned to Mother. The trial court also heard

testimony that the children’s needs are being met in their current placements. After reviewing the

record before us, we conclude the trial court could have formed a firm belief or conviction that it

was in the children’s best interest that Mother’s parental rights be terminated. See In re J.F.C., 96

S.W.3d at 266; In re C.H., 89 S.W.3d at 25.

                                            CONCLUSION

       We overrule Mother’s sole issue on appeal and affirm the order of the trial court.


                                                   Rebeca C. Martinez, Justice




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