                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00442-CV

                   IN THE INTEREST OF J.D., J.H., Jr., and G.A.V., Jr., Children

                     From the 288th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2017-PA-01311
                        Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: October 10, 2018

AFFIRMED

           P.D. (hereinafter referred to as “Mother”) appeals the trial court’s order terminating her

parental rights to her three children, J.D., J.H., Jr., and G.A.V., Jr. On appeal, Mother argues the

evidence is legally and factually insufficient to support the trial court’s finding that termination

was in the children’s best interests. We affirm the trial court’s order.

                                            BACKGROUND

           On June 15, 2017, the Texas Department of Family and Protective Services filed a petition

to terminate Mother’s parental rights to the children. A bench trial was held on June 14, 2018.

The Department’s caseworker testified that the children were removed due to physical fighting

and drug use by the parents and due to unsafe conditions in the home, including mold and broken

glass. Mother was also accused of assaulting her neighbor. The caseworker testified Mother was
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presented with a service plan but refused to sign it. Mother had not started any of her services,

including parenting classes, individual therapy, and a drug assessment. At the beginning of the

case, Mother exercised visitation with the children, but visits were stopped after Mother told the

children she would take them home. At that point, the visits became contingent upon clean drug

tests, but Mother refused to test. The children no longer ask about visiting Mother. The

caseworker described Mother as combative throughout the case. Mother was diagnosed as

suffering from schizoaffective disorder, bipolar type. Mother appeared to be bonded to the

children, asked about them, and wanted more time to work services.

       The caseworker opined that it was in the best interest of the children to terminate Mother’s

parental rights because Mother “has not shown stability, especially with her mental health.” She

believed that the children had been affected by the domestic violence and drug use that they saw

in Mother’s home. The oldest child, age 9, was afraid to go back to Mother because he did not

feel safe around her. The middle child, age 6, yelled and exhibited defiant behavior. The youngest

child, age 2, had not shown any signs or symptoms of being affected. The youngest child was

placed with his paternal grandparents and the other two children were placed with the eldest’s

paternal grandfather.   The children were doing well in their current placements, and the

Department planned for each child to be adopted by a relative. All three placements agreed to

maintain sibling contact.

       Mother testified that she would like to begin working services. Mother stated she was

currently living with her mother and had been in and out of jail during the case because a neighbor

beat her up and sprayed her kids with pepper spray. Mother stated she did not have a clear

understanding that her parental rights would be terminated unless she complied with her family

service plan.



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        After hearing the testimony and argument of counsel, the trial court terminated Mother’s

parental rights.

                      STANDARD OF REVIEW AND STATUTORY REQUIREMENTS

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

Department has the burden to prove by clear and convincing evidence: (1) one of the predicate

grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child.

See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017); In re A.V., 113 S.W.3d 355,

362 (Tex. 2003). In this case, the trial court found clear and convincing evidence of five predicate

grounds to terminate Mother’s parental rights and also found termination of Mother’s parental

rights was in the best interest of the children. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E),

(N), (O), (P), (2).

        We evaluate the legal and factual sufficiency of the evidence to support the trial court’s

findings under the standard of review established by the Texas Supreme Court in In re J.F.C., 96

S.W.3d 256, 266–67 (Tex. 2002). Under this standard, the trial court is the sole judge of the weight

and credibility of the evidence, including the testimony of the Department’s witnesses. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

                                      BEST INTEREST FINDING

        In determining the best interest of a child, courts apply the non-exhaustive Holley factors

to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors

include: (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 held by the individuals seeking custody of the child; (7)

the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions
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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). “A trier of fact may measure a parent’s future conduct by

his past conduct [in] determin[ing] whether termination of parental rights is in the child’s best

interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

       Here, there was evidence that the oldest child did not feel safe around Mother and did not

want to return home. The caseworker testified that all three children were doing well in their

familial placements, and that relative adoption was planned for each child. There was evidence

that Mother used drugs and refused to test for drugs during the case. See In re L.G.R., 498 S.W.3d

195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting parent’s drug use supports

a finding that termination is in best interest of the child); see also In re E.R.W., 528 S.W.3d 251,

265 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding trial court could reasonably infer

that parent’s failure to submit to court-ordered drug screening indicates she was avoiding testing

because she was using illegal drugs). Mother’s failure to submit to drug tests ultimately prevented

her from visiting her children, and at the time of trial, it had been eight or nine months since she

had last seen the children. See K.M. v. Tex. Dep’t of Family & Protective Servs., 388 S.W.3d 396,

405 (Tex. App.—El Paso 2012, no pet.) (discussing parent’s failure to visit child as factor

supporting finding that termination was in child’s best interest). In addition, the evidence showed

that the children were exposed to unsafe living conditions and physical violence. See In re O.N.H.,

401 S.W.3d 681, 685–86 (Tex. App.—San Antonio 2013, no pet.) (considering evidence of

physical violence as relevant to a child’s best interest). Finally, the evidence conclusively showed

that Mother did not engage in her service plan. See In re S.B., 207 S.W.3d 877, 887–88 (Tex.
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App.—Fort Worth 2006, no pet.) (noting failure to comply with family service plan supports a

finding that termination is in the best interest of the child).

        Having reviewed the record, we hold the evidence is sufficient to support the trial court’s

finding that termination of Mother’s parental rights was in the children’s best interests.

                                             CONCLUSION

        The order of the trial court is affirmed.

                                                     Rebeca C. Martinez, Justice




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