                                Fourth Court of Appeals
                                        San Antonio, Texas
                                                 OPINION

                                            No. 04-18-00635-CV

                  IN THE INTEREST OF E.F., J.P.V., V.J.V., and R.J.V., Children

                       From the 225th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2017-PA-01049
                          Honorable Charles E. Montemayor, Judge Presiding 1

Opinion by: Beth Watkins, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: May 22, 2019

AFFIRMED

           Appellant mother (“Mother”) appeals the trial court’s order terminating her parental rights.

On appeal, Mother contends the evidence is legally and factually insufficient to support the

grounds upon which her rights were terminated as well as the best interests finding. We affirm the

trial court’s order.

                                               BACKGROUND

           The Texas Department of Family and Protective Services (“the Department”) became

involved with Mother and her children when Mother left the children alone at the Haven for Hope




1
  The Honorable Peter Sakai is the presiding judge of the 225th District Court, Bexar County, Texas. The order of
termination was signed by the Honorable Charles E. Montemayor, Associate Judge.
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shelter. When the shelter was unable to contact Mother, the Department removed the children and

placed them in foster care.

         Ultimately, the Department moved to terminate Mother’s parental rights on numerous

grounds. After the August 2018 final hearing, the trial court terminated Mother’s parental rights

on two grounds and found termination would be in the children’s best interests. 2 See TEX. FAM.

CODE ANN. §§ 161.001(b)(1)(O), (P), 161.001(b)(2). Mother appealed.

                                                      ANALYSIS

         Mother challenges the legal and factual sufficiency of the evidence in support of the trial

court’s findings with regard to the grounds for termination and best interests. 3 See TEX. FAM.

CODE §§ 161.001(b)(1)(O), (P), 161.001(b)(2).

                                               Standard of Review

         Clear and convincing evidence must support a trial court’s findings under section

161.001(b)(1) and (b)(2) of the Texas Family Code (“the Code”).                             See TEX. FAM. CODE

§ 161.001(b). “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 established.” Id.

§ 101.007.      Courts require this heightened standard because termination of parental rights

implicates due process. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal

and factual sufficiency of the evidence, we apply the well-established standards of review. See


2
  The trial court also terminated the parental rights of the children’s respective fathers. The fathers, however, did not
appeal.
3
  The trial court took judicial notice of pleadings, service of process documents, orders, service plans, and CASA
reports. A trial court may take judicial notice of its own records in matters that are generally known, easily proven,
and not reasonably disputed. In re A.R.R., No. 04-18-00578-CV, 2018 WL 6517148, at *1 (Tex. App.––San Antonio
Dec. 12, 2018, pet. denied) (mem. op.); In re B.R., 456 S.W.3d 612, 681 n.4 (Tex. App.––San Antonio 2015, no pet.).
Thus, a court may, for example, take judicial notice that a pleading has been filed, of its own orders, or that it signed
an order adopting a service plan and the plan’s requirements. In re B.R., 456 S.W.3d at 681 n.4. However, a court
may not take judicial notice of allegations contained in such documents and the allegations cannot be used to support
a termination order, i.e., a court may not take judicial notice of the truth of allegations in its records. In re A.R.R.,
2018 WL 6517148, at *1; In re B.R., 456 S.W.3d at 681 n.4. Thus, in our sufficiency review, we will not consider
allegations in the documents the trial court judicially noticed.


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TEX. FAM. CODE §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal

sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). These standards

require that we determine whether the evidence is such that the trier of fact could reasonably form

a firm belief or conviction that termination is in the child’s best interest. In re J.F.C., 96 S.W.3d

256, 263 (Tex. 2002).

         In conducting a sufficiency review, we may not weigh a witness’s credibility because it

depends on appearance and demeanor, and these are within the domain of the trier of fact. In re

J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer

to the fact finder’s reasonable resolutions. Id.

                       Sufficiency of the Evidence — Grounds for Termination 4

                                                  Applicable Law

         Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment

of termination when there is also a finding that termination is in a child’s best interest. In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003); In re A.R.R., 2018 WL 6517148, at *1. If multiple predicate

grounds are found by the trial court, we will affirm based on any one ground supported by

sufficient evidence, assuming a proper best interest finding. In re A.R.R., 2018 WL 6517148, at

*1; see In re A.A.T., No. 04-16-00344-CV, 2016 WL 7448370, at *10 (Tex. App.—San Antonio

Dec. 28, 2016, no pet.) (mem. op.).


4
  Although we recognize the trial court and the parties in this proceeding had many hearings before the date of trial,
we emphasize that none of the previous hearings constitute evidence that can support the trial court’s order terminating
a parent’s rights. The only evidence that can support the trial court’s order is that evidence admitted at trial. The
reporter’s record in this case is 53 pages total, including the cover, list of appearances, table of contents, and
certification (4 pages), announcements and information about service on the fathers (3 pages), substantive evidence
about the fathers (4 pages), and the closing arguments and court’s pronouncements (8 pages). That leaves 34 pages
of evidence to establish, by clear and convincing evidence, not only the grounds for termination but also that it is in
the best interests of these children to permanently sever their relationship with their mother. We are mindful of the
extraordinary burdens placed on all participants in this system. Given the constitutional rights of the parents in these
proceedings, the future placement of the children involved, and the effect such placement will have on their lives,
however, we urge the trial court and the parties to more completely develop the evidence at trial, so the appellate
record is commensurate with the finality of parental termination.


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         The trial court found Mother’s parental rights should be terminated on two statutory

grounds, subsections (O) and (P) of section 161.001(b)(1).                 See TEX. FAM. CODE

§§ 161.001(b)(1)(O), (P). Thus, if we determine the evidence is sufficient to support either ground

— and that the evidence is sufficient to support the trial court’s best interests finding — we must

affirm the termination. See In re A.R.R., 2018 WL 6517148, at *1.

         To terminate parental rights based on section 161.001(b)(1)(O), the trier of fact must find

by clear and convincing evidence that the parent:

         [F]ailed 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 … for
         not less than nine months as a result of the child’s removal from the parent … for
         the abuse or neglect of the child.

TEX. FAM. CODE 161.001(b)(1)(O). Mother does not challenge the fact that the Department

removed the children for abuse or neglect or that the Department had temporary managing

conservatorship of the children for more than nine months. These unchallenged findings are

binding on this court if supported by the record. See In re E.C.R., 402 S.W.3d 239, 242 (Tex.

2013).

                                             Application

         The record supports the unchallenged findings. The Department removed the children in

May 2017, which was more than nine months before the August 2018 final hearing. During that

time, the Department was the temporary managing conservator for the children. The Department

case worker, Dietra Marquez, testified the children were removed because they were left alone at

the Haven for Hope shelter. The children were dirty and had been urinating in cups because they

were afraid to leave the room. Representatives of Haven for Hope tried to contact Mother, but the

attempts were unsuccessful. Thus, the record shows the children were removed for neglect and

were in the Department’s care for more than nine months. See TEX. FAM. CODE 161.001(b)(1)(O).


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       The court approved Mother’s service plan and ordered compliance with its terms. Mother

signed the service plan, and the trial court took judicial notice of its requirements. The service

plan required Mother to: (1) engage in visitation with her children; (2) complete parenting classes;

(3) submit to a psychological evaluation before beginning individual counseling; (4) refrain from

illegal drug use and submit to random drug tests; and (5) maintain stable housing and employment.

       The evidence shows Mother did not complete all of the court-ordered services, which

provides a basis for termination under subsection (O). See In re I.L.G., 531 S.W.3d 346, 354 (Tex.

App.—Houston [14th Dist.] 2017, pet. denied). Mother was required to attend parenting classes.

Mother was twice referred to the VENT Program, which included parenting classes mandated by

the service plan. Mother attended a single session and was discharged for non-attendance. Mother

testified she did not attend because the instructor continually cancelled classes and she believed

she would be able to re-engage at some point. However, the evidence shows Mother signed her

service plan in June 2017, yet she did not begin the program until April 2018. She never re-

engaged in the VENT Program nor did she complete any other parenting class as required by the

service plan.

       Additionally, the service plan mandated that Mother not engage in drug use and submit to

random drug testing. The evidence shows Mother engaged in drug use, and tested positive for

methamphetamine at a March 2018 hair follicle exam. Not long after this exam, Mother began

shaving her head, precluding further hair follicle exams. Mother testified she shaved her head

because a mental illness causes her to pull her hair out, leaving bald spots. Ms. Marquez said she

was aware of Mother’s condition, but never saw any bald spots before Mother shaved her head.

       Furthermore, the service plan provided that any missed tests would constitute a positive

drug test. Mother missed a requested test sometime after July 2018. Mother testified she missed

the test because when she arrived at LabCorp, there was no paperwork authorizing the test. Ms.


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Marquez stated there was no paperwork because Mother appeared the day after the test was

scheduled, explaining paperwork is only good for the day the test is actually to take place. Mother

stated she did not go on the originally scheduled date because she had to work.

       Pointing to the foregoing evidence, Mother argues she established by a preponderance of

the evidence that she: (1) was unable to comply with specific provisions of the court-ordered

service plan, and (2) made a good-faith effort to comply and her failure to comply was not her

fault. See TEX. FAM. CODE § 161.001(d) (stating it is a defense to termination for failure to comply

with court order if parent proves by preponderance of evidence that she was unable to comply with

specific provision and she made good-faith effort to comply and failure to do so was not her fault).

Thus, Mother contends the trial court was precluded from terminating her parental rights based on

section 161.001(b)(1)(O). Mother argues her mental health issues precluded her ability to

complete all of the requested hair follicle exams. Mother testified she shaved her head in an effort

to deal with bald spots resulting from a mental condition that caused her to pull her hair out. This

might show an inability to comply with hair follicle tests after March 2018, but it does not explain

or excuse prior positive results.

       In addition, the evidence relied upon by Mother would excuse only her failure to submit to

random drug testing; it would not excuse her failure to complete the mandated parenting classes

or the requirement that she remain drug free. We have found no evidence, nor does Mother point

to any, regarding her inability to comply with the requirement that she complete the mandated

parenting classes. Mother references her mental health issues, but there is nothing in the record to

suggest these issues, for which Mother is medicated, precluded completion of her parenting

classes. Moreover, the service plan required that Mother not only submit to drug testing, but that

she remain drug free. Neither the evidence pointed to by Mother nor any other evidence in the




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record shows her mental health condition made her unable to comply with the requirement that

she not engage in illegal drug use.

         Mother refers to completed portions of her service plan, e.g., stable housing, employment,

as well as services in which she continued to engage up to the time of the final hearing, including

outpatient drug treatment and individual counseling.                   Even if there is evidence supporting

completion or good faith engagement in these services, the evidence still shows an unexcused

failure to complete other service plan requirements.

         Reviewing the evidence under the applicable standards, we conclude 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 establishing the actions necessary for her to obtain the return of her

children and that Mother failed to prove by preponderance of evidence that she was unable to

comply with specific provisions and she made a good-faith effort to comply and failure to comply

was not her fault. See TEX. FAM. CODE §§161.001(b)(1)(O), 161.001(d). Having concluded the

evidence is sufficient to support the trial court’s finding under subsection (O), we need not review

the sufficiency of the evidence to support the subsection (P) finding. 5 In re A.V., 113 S.W.3d at

362; In re A.R.R., 2018 WL 6517148, at *1.

                               Sufficiency of the Evidence — Best Interests

                                                  Applicable Law

         In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). We recognize 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.


5
  Subsection (P) provides that a parent’s rights may be terminated if the parent used an illegal controlled substance in
a manner that endangered the health and safety of her child and: (1) failed to complete a court-ordered substance abuse
program, or (2) after completion of a program, continued to abuse a controlled substance. TEX. FAM. CODE
§ 161.001(b)(1)(P).


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2006). However, promptly and permanently placing a child in a safe environment is also presumed

to be in the child’s best interest. TEX. FAM. CODE § 263.307(a). Thus, we also consider the factors

set forth in section 263.307(b) of the Code. Id. § 263.307(b). Additionally, evidence that proves

one or more statutory grounds for termination may be probative of a child’s best interest, but it

does not relieve the State of its burden to prove best interest. In re C.H., 89 S.W.3d 17, 28 (Tex.

2012).

         In conducting a best interest analysis, we consider direct evidence, circumstantial evidence,

subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—

San Antonio 2013, pet. denied). Additionally, a trier of fact may measure a parent’s future conduct

by her past conduct in determining whether termination of parental rights is in the child’s best

interest. Id. In analyzing the evidence within the Holley framework, evidence of each Holley

factor is not required before a court may find that termination is in a child’s best interest. C.H., 89

S.W.3d at 27. Moreover, in conducting our review of a trial court’s best interest determination,

we focus on whether termination is in the best interest of the child, not the best interest of the

parent. In re D.M., 452 S.W.3d 462, 468–69 (Tex. App.—San Antonio 2014, no pet.).

                                             Application

         The Department removed the children from Mother after she left them alone at Haven for

Hope. See TEX. FAM. CODE § 263.307(b)(12) (whether child’s family demonstrates adequate

parenting skills); Holley, 544 S.W.2d 371–72. When found, the children were dirty and “[w]ere

basically hiding in their room,” refusing to leave for fear they would be locked out. See TEX. FAM.

CODE § 263.307(b)(12); Holley, 544 S.W.2d 371–72. They were urinating in cups to avoid leaving

the room. Haven for Hope representatives attempted to contact Mother, but could not reach her.

See TEX. FAM. CODE § 263.307(b)(12); Holley, 544 S.W.2d 371–72. Mother stated she left the

shelter for a day job, but her car broke down. The evidence suggests — given the children’s


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condition and their need to urinate in cups — that Mother was gone for a significant amount of

time without contacting either her children or the shelter. See TEX. FAM. CODE § 263.307(b)(12);

Holley, 544 S.W.2d 371–72.

       The evidence shows Mother engaged in drug use, testing positive on several hair follicle

tests. See TEX. FAM. CODE §§ 263.307(b)(8) (whether there is history of substance abuse by child’s

family), 263.307(b)(12); Holley, 544 S.W.2d 371–72.               After she tested positive for

methamphetamine at a March 2018 hair follicle exam, she began shaving her head, which

precluded further hair follicle exams. Mother testified she shaved her head because a mental illness

causes her to pull her hair out, but Ms. Marquez stated she never saw any bald spots. See Holley,

544 S.W.2d 371–72. Sometime after the July 10, 2018 permanency hearing, Mother’s outpatient

treatment facility requested a drug test, and Mother tested negative.

       March 2018 was the last time Mother affirmatively tested positive, but she missed a

requested test sometime after July 2018, which qualifies as a positive result. See TEX. FAM. CODE

§§ 263.307(b)(8), 264.307(b)(12); Holley, 544 S.W.2d 371–72. Mother provided an excuse for

the missed test, testifying there was no paperwork authorizing the test. See Holley, 544 S.W.2d

371–72. However, Ms. Marquez testified there was no paperwork because Mother appeared the

day after the test was scheduled. See TEX. FAM. CODE §§ 263.307(b)(10) (willingness and ability

of child’s family to seek out, accept, and complete services and to cooperate with agency’s close

supervisions); Holley, 544 S.W.2d 371–72. Mother stated she did not go on the scheduled date

because she had to work. See Holley, 544 S.W.2d 371–72.

       During an unannounced visit to Mother’s apartment, Ms. Marquez found “a pipe with a

plate with very distinguished lines on the plate.”      See TEX. FAM. CODE §§ 263.307(b)(8),

264.307(b)(12); Holley, 544 S.W.2d 371–72. The items were found in a closet, and according to




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                                                                                 04-18-00635-CV


Ms. Marquez, the pipe looked as if it could be used for smoking. Mother denied any knowledge

of the items and stated she did not have a roommate.

       Despite Mother’s contention, during that same visit, Ms. Marquez found men’s clothing,

including underwear, in the apartment. See TEX. FAM. CODE § 263.307(b)(12); Holley, 544 S.W.2d

371–72. Mother stated she had collected the clothes because she thought her children might be

able to use them. See Holley, 544 S.W.2d 371–72. Ms. Marquez also testified it appeared as if

people had been sleeping in the twin beds designated for the children. See TEX. FAM. CODE

§ 263.307(b)(12); Holley, 544 S.W.2d 371–72. The beds were pushed together. A representative

for SAMMinistries testified Mother was being evicted from the apartment for, among other things,

having unauthorized tenants in the apartment. See TEX. FAM. CODE § 263.307(b)(10); Holley, 544

S.W.2d 371–72. Although the eviction was imminent at the time of trial, the representative

testified SAMMinistries would rehouse Mother in a different apartment complex and support her

with full rent and utilities. See Holley, 544 S.W.2d 371–72.

       With regard to her service plan, Mother knew the actions she was required to take in June

2017. However, it was not until April 2018 that Mother attended a session of the VENT Program,

which including parenting classes mandated by the service plan.          See TEX. FAM. CODE

§§ 263.307(b)(10), 263.307(b)(11) (willingness and ability of child’s family to effect positive

changes within reasonable time); Holley, 544 S.W.2d 371–72. She attended a single session and

was discharged for non-attendance. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11);

Holley, 544 S.W.2d 371–72. Mother also failed to complete her outpatient drug treatment prior to

the final hearing. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11); Holley, 544 S.W.2d

371–72. She also missed mandated drug tests, shaved her head precluding hair follicle tests, and

tested positive on several drug tests. See TEX. FAM. CODE §§ 263.307(b)(8), 263.307(b)(10),

263.307(b)(11); Holley, 544 S.W.2d 371–72.


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       The evidence shows Mother has housing through SAMMinistries, but has issues with

following program rules, resulting in a pending eviction. See TEX. FAM. CODE §§ 263.307(b)(10),

263.307(b)(11); Holley, 544 S.W.2d 371–72. Although Mother will be rehoused in a new

apartment complex through the SAMMinistries program, she will need to follow program

requirements to maintain her housing, which she was not previously able to do. See In re E.D.,

419 S.W.3d at 620 (holding trier of fact may measure parent’s future conduct by past conduct in

determining best interest). Mother has stable employment as a notary public and certified tax

preparer — she has an associate’s degree in accounting — and recently qualified for disability

payments due to her “Bipolar with mixed episode III, mania” diagnosis. See TEX. FAM. CODE

§§ 263.307(b)(10), 263.307(b)(11); Holley, 544 S.W.2d 371–72. Thus, Mother may be able to

provide housing and support for the children, but the evidence suggests she has issues staying

within the mandates of her housing program, which prohibited unauthorized tenants. See TEX.

FAM. CODE §§ 263.307(b)(10), 263.307(b)(11); Holley, 544 S.W.2d 371–72.

       Mother attended visitation with her children, but initially had issues arriving on time. As

for the children’s desires, the two oldest children testified they want to remain in their current

placements. See Holley, 544 S.W.2d 371–72. E.F., who is in high school, is currently in a

supervised independent living program. According to Ms. Marquez, E.F. wants to remain in the

program until she graduates from high school and begins college. See Holley, 544 S.W.2d 371–

72. J.P.V., a thirteen-year-old boy, has requested that he be permitted to remain in the care of the

Department. See Holley, 544 S.W.2d 371–72. The two youngest children are in foster care. No

evidence was presented as to their conservatorship desires. The Department is exploring potential

foster-to-adopt homes. According to Ms. Marquez, all of the children are doing well in their

current placements. See Holley, 544 S.W.2d 371–72.




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                                                                                         04-18-00635-CV


         Based on the relevant Holley factors, the factors set out in section 263.307(b) of the Code,

the applicable standard of review, and the evidence, we conclude the trial court could have

reasonably determined termination of Mother’s parental rights is in the children’s best interests.

See J.P.B., 180 S.W.3d at 573; H.R.M., 209 S.W.3d at 108.

                                            CONCLUSION

         We hold the evidence is legally and factually sufficient to have permitted the trial court, in

its discretion, to conclude:

         (1) Mother failed to comply with one or more provisions of her court-ordered
             service plan, see TEX. FAM. CODE §161.001(b)(1)(O);

         (2) Mother failed to prove she was unable to comply with her service plan, made a
             good-faith effort to comply, and failure to comply was not her fault, see TEX.
             FAM. CODE § 161.001(d); and

         (3) termination is in the children’s best interests. See id. § 161.001(b)(2).

Accordingly, we overrule Mother’s sufficiency complaints and affirm the trial court’s termination

order.

                                                    Beth Watkins, Justice




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