Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-24-00653-CV
IN THE INTEREST OF A.C.P., A.I.P., A.M.P., M.J-R.P. III, and M.C.S., Children
From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2023PA01264 Honorable Kimberly Burley, Judge Presiding
DISSENT TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION
Dissenting Opinion by: Irene Rios, Justice, joined by Lori I. Valenzuela, Justice and H. Todd McCray, Justice
Sitting en banc: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice Adrian A. Spears II, Justice (not participating) H. Todd McCray, Justice Velia J. Meza, Justice
Delivered and Filed: June 25, 2025
I respectfully dissent from the court’s decision not to grant en banc reconsideration. 1 0F
1 Here, there are six justices participating in the decision regarding en banc reconsideration. The vote on the motion for en banc reconsideration by the participating justices is 3-3; however, en banc reconsideration fails under our current rules because a majority of the sitting justices have not voted to grant en banc reconsideration. See TEX. R. APP. P. 41.2(a) (“An en banc court consists of all members of the court who are not disqualified or recused . . . .”); TEX. R. APP. P. 49.5 (“While the court has plenary power, a majority of the en banc court may, on its own initiative order en banc reconsideration of a decision.”); see also Harris County v. Coats, 607 S.W.3d 359, 396 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (alteration omitted) (Bourliot, J., dissenting from denial of en banc reconsideration) (“Here, the unavailability of a deciding vote means that this erroneous [decision issued contrary to otherwise binding precedent] goes into effect based on a tie instead of a meaningful vote.”). 04-24-00653-CV
I believe the evidence presented at trial is sufficient to support the trial court’s findings that
termination of Mother’s parental rights is in the children’s best interests. I would have granted the
Department’s motion for en banc reconsideration in order “to secure or maintain the uniformity of
the court’s decisions” because the panel opinion deviates from this court’s usual application of the
appropriate standards of review and disregards the deference we must give the factfinder. See TEX.
R. APP. P. 41.2(c). Moreover, I believe the children’s best interests are not well served. At the time
of trial, the four youngest children were in foster-to-adopt homes. However, because the majority
panel decision reverses the trial court’s order of termination—despite sufficient evidence that
termination is in the children’s best interests—and affirms the trial court’s decision to award
permanent managing conservatorship to the Department, the children are now left in limbo without
permanency. The children are neither reunified with Mother, nor are they able to be adopted by
their foster parents. Instead, they remain in a child welfare system that is already strained. See,
e.g., In re R.R.A., 687 S.W.3d 269, 282 (Tex. 2024) (“The [child welfare] system’s difficulty
handling the volume of children in its custody is well documented.”) (Blacklock, J., dissenting);
M.D. by Stukenberg v. Abbott, 907 F.3d 237, 258 (5th Cir. 2018) (“The combination of
unmanageable caseloads and high caseworker turnover [at the Department] creates a ‘cycle of
crisis’ that allows children to ‘fall through the cracks.’”). Even if the Department leaves the
children in their current foster parents’ care, the children will not benefit from the sense of security
and permanency that only adoption or reunification could bring them. See Smith v. Tex. Dep’t of
Protective and Reg. Servs., 160 S.W.3d 673, 683 (Tex. App.—Austin 2005, no pet.) (stating
failure to terminate a parent’s parental rights when reunification was not likely “would leave [the
child] in a permanent state of uncertainty, as she would not be returned to [the parent] but would
also not be available for adoption”); In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.—Houston
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[14th Dist.] 2003, pet. denied) (“By requiring all termination suits to be completed within a year,
the [l]egislature made clear that courts cannot leave children in foster homes indefinitely while
existing parents try to improve themselves and their conditions” because “such compromises
inevitably mean leaving the children in limbo, when what they need is permanency and security”);
T.M. v. Tex. Dep’t of Fam. and Protective Servs., No. 03-14-00784-CV, 2015 WL 3393943, at *5
(Tex. App.—Austin May 21, 2015, no pet.) (mem. op.) (“[I]n determining the best interest of [the
child], the jury was entitled to consider that keeping [the child] in foster care temporarily, instead
of allowing the foster parents to adopt her, would leave [the child] ‘in limbo’ with an uncertain
future.”). Therefore, I believe the “extraordinary circumstances” these children must endure
because of the panel majority’s decision to reverse the termination order “require en banc
consideration.” See TEX. R. APP. P. 41.2(c).
In this case, the trial court found by clear and convincing evidence that Mother’s parental
rights should be terminated pursuant to statutory grounds (D), (N), and (O). See TEX. FAMILY CODE
ANN. § 161.001(b)(1)(D), (N), (O). The trial court also found by clear and convincing evidence
that termination of Mother’s parental rights was in the children’s best interests. See id.
§ 161.001(b)(2). Mother appealed the trial court’s termination order contending the evidence was
legally and factually insufficient to support termination under each of the statutory grounds and
the evidence was legally and factually insufficient to support the trial court’s findings that
termination of her parental rights was in the children’s best interests.
The panel opinion consists of a fractured majority. The panel opinion held the evidence
was legally and factually sufficient to support the trial court’s finding under statutory ground (D)
that Mother knowingly placed the children, or allowed the children to remain, in conditions or
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surroundings that endangered their physical or emotional well-being. 2 See In re A.C.P., No. 04- 1F
24-00653-CV, 2025 WL 900127, at *6 (Tex. App.—San Antonio, no pet. h.) (mem. op.).
However, the panel opinion held the evidence was legally insufficient to support the trial court’s
finding that termination of Mother’s parental rights was in the children’s best interests. See id.
at *9.
Justice Brissette filed a concurring opinion stating she agreed with the judgment but would
have reversed the trial court’s termination order on statutory grounds and would not have
addressed Mother’s issue on best interests. See In re A.C.P., No. 04-24-00653-CV, 2025 WL
898399, at *1 (Tex. App.—San Antonio Mar. 25, 2025, no pet. h.) (Brissette, J., concurring).
Presumably, Justice Brissette agrees with the panel opinion that the evidence is insufficient to
support the trial court’s best-interest findings because she concurred in the judgment reversing the
trial court’s termination order, although her concurring opinion does not expressly say so. See id.
at *1–2. Thus, it appears Justice Brissette joins the panel opinion insofar as it reverses the trial
court’s termination order on best interests.
Justice McCray filed an opinion concurring in part and dissenting in part with the panel
opinion. See id. at *2. Justice McCray concurred in part because he agrees the evidence is sufficient
to support the trial court’s finding under statutory ground (D). See id. However, Justice McCray
dissented in part because he would have held the evidence is also sufficient to support the trial
court’s best-interest findings and would have affirmed the trial court’s termination order. See id.
at *3.
2 Because a majority of the justices on the panel agreed the evidence was sufficient to support the trial court’s statutory ground (D) finding, it was not necessary for the panel to consider whether the evidence supported the remaining statutory grounds for termination. See In re A.C.P., No. 04-24-00653-CV, 2025 WL 900127, at *6 (Tex. App.—San Antonio, no pet. h.) (mem. op.) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)).
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I agree with the conclusion in the panel opinion that the evidence is sufficient to support
the trial court’s endangerment finding under statutory ground (D). However, I disagree, just as
Justice McCray did in his dissenting opinion, with the conclusion in the panel opinion that the
evidence is insufficient to support the trial court’s best-interest findings.
A. Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas 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.
TEX. FAM. CODE ANN. § 161.001(b). Clear and convincing evidence requires “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.
When reviewing the sufficiency of the evidence, we apply well-established standards of
review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
(conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(conducting a legal sufficiency review).
“In reviewing the legal sufficiency of the evidence to support the termination of parental
rights, we 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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.—San Antonio
Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
“[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “A corollary to this requirement
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is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible.” Id.
“In reviewing the factual sufficiency of the evidence to support the termination of parental
rights, we ‘must give due consideration to evidence that the factfinder could reasonably have found
to be clear and convincing.’” J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266).
“A [reviewing court] should consider whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its finding.” J.F.C., 96 S.W.3d
at 266. “The [reviewing] court must hold the evidence to be factually insufficient if, in light of the
entire record, the disputed evidence contrary to the judgment is so significant that a reasonable
factfinder could not have resolved that disputed evidence in favor of the ultimate finding.” In re
M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.—San Antonio Feb. 15, 2017,
no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and
the weight to be given their testimony. In re J.F.-G., 627 S.W.3d 304, 312, 317 (Tex. 2021). This
is because “the trial judge is best able to observe and assess the witnesses’ demeanor and
credibility, and to sense the ‘forces, powers, and influences’ that may not be apparent from merely
reading the record on appeal.” Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—
Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th
Dist.] 2009, no pet.)). We, therefore, defer to the trial court’s factual determinations and judgment
regarding credibility. J.F.-G., 627 S.W.3d at 312; see also R.R.A., 687 S.W.3d at 279 n.50
(“Reviewing courts, however, must defer to the factfinder’s judgment as to the credibility of the
witnesses and the weight to give their testimony, including reasonable and logical inferences from
the evidence.”).
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B. Law Applicable to Best Interests
When considering the best interest of a child, we recognize the existence of a strong
presumption that the child’s best interest is served by preserving the parent-child relationship. In
re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent
placement of the child in a safe environment is in the child’s best interest. TEX. FAM. CODE ANN.
§ 263.307(a).
In determining whether a parent is willing and able to provide the child with a safe
environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. 3 2F
See id. § 263.307(b). We also consider the Holley factors. 4 See Holley v. Adams, 544 S.W.2d 367, 3F
371–72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
“The absence of evidence about some of these considerations would not preclude a factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s best interest,
3 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; (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 [or] the child’s parents . . . ; (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 . . . ; and (13) whether an adequate social support system . . . is available to the child.
TEX. FAM. CODE ANN. § 263.307(b). 4 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
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particularly if the evidence were undisputed that the parental relationship endangered the safety of
the child.” Id. In analyzing these factors, we must focus on the best interest of the child, not the
best interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907 S.W.2d 81, 86
(Tex. App.—Dallas 1995, no writ).
Evidence that proves one or more statutory ground for termination may also constitute
evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d at 28 (holding
the same evidence may be probative of both section 161.001(b)(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 evidence.” See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San
Antonio 2013, pet. denied). “A trier of fact may measure a parent’s future conduct by his past
conduct and determine whether termination of parental rights is in the child’s best interest.” Id.
C. Analysis
As explained above, the majority panel decision determined the evidence is legally and
factually sufficient to support the trial court’s endangerment finding. Bianca Montejano, the
Department’s removal investigator, testified the Department received a report that A.M.P. was
hospitalized for a snake bite to her leg. Rather than remove the children, the Department initially
sought to engage the family in family-based safety (“FBS”) services. During the FBS process,
Mother admitted to illicit drug use, and Montejano testified she was concerned the children’s
maternal grandmother (“Grandmother”) was also using drugs. Montejano testified the condition
of the home did not improve while the family received FBS services. Montejano also stated the
Department tried to implement a safety plan for the children, but it was unable to put any safety
measures in place and unsuccessful with safety interventions for the family. According to
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Montejano, the Department exhausted all efforts to engage the family and implement safety
measures. When Mother failed to show improvement while receiving FBS services, and the
Department was unable to locate appropriate caregivers to assist with safety interventions, the
Department sought removal of the children.
Montejano, who observed the home during the summer prior to removal, stated Mother,
Grandmother, and all five children were living in “an abandoned barbeque restaurant” that had
“holes in the ceiling and in the walls.” She testified the family was living in poor conditions.
Although the home had running water, it did not have air conditioning. Montejano stated the home
was “really hot” and she was concerned about the children’s exposure to the high heat. The trial
court could have reasonably shared that concern, especially considering A.M.P. was four years
old, M.J.P. was two years old, and M.C.S. was only three months old at the time. See M.G.D.,
108 S.W.3d at 512 (opining factfinders in parental termination cases “may apply their own
experience and common sense to the facts to draw conclusions regarding a child’s best interest”).
During the investigation period, the oldest child, A.C.P., who was fourteen years old at the
time, ran away from Mother’s home. According to Mother’s service plan, which was admitted into
evidence, A.C.P. “did not want to be in the home of his mother [because he did] not lik[e] the
living conditions and [did] not want[] to be the main caregiver of his siblings.” After he ran away
from Mother’s home, A.C.P. was stabbed twice in the abdomen during an altercation with some
friends. A.C.P. was hospitalized and underwent surgery for his wounds.
While in Mother’s care, A.I.P., who was twelve years old at the time, suffered a rattlesnake
bite to her finger. The snake bite caused necrosis, and A.I.P. had to be hospitalized for this wound.
She underwent surgery and a subsequent skin graft on her finger. According to Saldana, the
Department caseworker, A.I.P. still cannot straighten her finger, and her paternal grandparents
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with whom she has been placed have scheduled an appointment with a surgeon to inquire whether
she will ever be able to regain mobility in her finger or straighten it again.
A.M.P. was five years old at the time of removal. Saldana testified the Department believed
A.M.P. was also bitten by a snake, but Mother contended A.M.P. was bitten by a rabbit, not a
snake. The trial court however could have rejected Mother’s testimony and instead believed
Saldana was a more credible witness. See In re E.A.M.V., No. 04-18-00866-CV, 2019 WL
1923214, at *4 (Tex. App.—San Antonio May 1, 2019, pet. denied) (mem. op.) (explaining a trial
court could have disbelieved a parent’s testimony and we defer to the factfinder on witness
credibility issues). Regardless, whether bitten by a rabbit or a snake, the trial court could have
reasonably inferred A.M.P. was not supervised when she was bitten by a wild animal. Saldana
stated the physical damage from the bite healed, but A.M.P. is undergoing trauma therapy to
address the trauma she experienced from the bite.
A.M.P. and A.I.P. also alleged a sibling’s father inappropriately touched them. Saldana
testified the Department has reason to believe the allegations of sexual abuse and A.M.P. is
receiving therapy to address the trauma from the sexual abuse incident. The panel opinion states
in its review of the endangerment ground that “[o]n this record, the factfinder could reasonably
conclude that sexual abuse occurred in the home.” A.C.P., 2025 WL 900127, at *6. Despite the
sexual abuse allegations, Mother allowed the father who allegedly sexually abused A.M.P. and
A.I.P. to participate in a virtual visit with the children. Mother told A.M.P. not to tell Saldana that
the alleged perpetrator participated in the virtual visit. Saldana stated that after that visit, A.M.P.
recanted her allegation of sexual abuse and refused to talk about the allegation anymore. Saldana
opined she does not believe Mother will be protective of her daughters. Based on this testimony,
the trial court could have reasonably concluded that Mother failed to protect her children from
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physical and emotional harm and will continue to do so in the future. See In re M.C.L. V, No. 04-
21-00277-CV, 2022 WL 219002, at *6 (Tex. App.—San Antonio Jan. 26, 2022, no pet.)
(mem. op.) (“A parent endangers her children by accepting the endangering conduct of other
people.”).
Montejano testified the Department sought removal because it was concerned the children
were not being properly supervised, the home was an unstable environment, and “the temperature
was extremely hot” inside the home. Montejano also stated the Department exhausted all efforts
to engage the family in a safety plan during the FBS process. 5 In re E.N.C., 384 S.W.3d 796, 807 4F
(Tex. 2012) (providing the trial court should consider in a parental termination proceeding the
programs available to assist the individuals seeking custody to promote the best interest of the
child and the parent’s acts or omissions which may indicate that the existing parent-child
relationship is improper).
The Department created a service plan for Mother to address the Department’s concerns.
Saldana testified she reviewed the service plan with Mother, Mother signed the service plan, and
it was made an order of the court. The service plan, which was admitted into evidence without
objection, required Mother to participate and complete a substance abuse program, comply with
and pass random drug testing, complete a psychological evaluation, participate in individual
counseling, successfully complete parenting classes and a domestic violence program, and
maintain stable employment and housing.
Saldana testified Mother has not completed any of her services and has not maintained
communication with the Department throughout the case. See TEX. FAM. CODE ANN.
§ 263.307(b)(10)–(11) (providing the trial court considers the willingness and ability of the parent
5 Montejano indicated the Department was unable to find any appropriate caregivers to assist with safety interventions to keep the family in FBS.
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“to seek out, accept, and complete counseling services[;]” “to cooperate with and facilitate an
appropriate agency’s close supervision;” and “to effect positive environmental and personal
changes within a reasonable period of time” when determining whether parental termination is in
the children’s best interests); see also In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied) (“A [factfinder] may infer from a parent’s failure to take the initiative
to complete the services required to regain possession of his child that he does not have the ability
to motivate himself to seek out available resources needed now or in the future.”). According to
Saldana, Mother participated in drug tests at the beginning of the case and the results of those drug
tests were concerning. See In re K.M., No. 04-08-00037-CV, 2008 WL 2923655, at *2 (Tex.
App.—San Antonio July 30, 2008, pet. denied) (mem. op.) (holding a parent’s illegal substance
abuse “places her children in emotional and physical danger”). Although Mother claimed she was
not using drugs, the trial court could have disbelieved this testimony. See E.A.M.V., 2019 WL
1923214, at *4. Moreover, Mother’s service plan provides that a missed drug test will be presumed
positive. Mother admitted she has not drug tested for the Department when requested. See In re
A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.—San Antonio Dec. 11, 2019,
pet. denied) (mem. op.) (“The trial court also could have reasonably inferred that [a parent’s]
failure to appear for drug testing indicated that [the parent] was avoiding testing because [the
parent] was using drugs.”). Mother only attended thirteen out of forty-eight visits with the children
and would not provide Saldana a reason for missed visits. Saldana stated there were several times
when Mother confirmed she would attend a visit, the children would be transported to the visitation
location, and Mother would not show up. See In re J.J.T., No. 04-17-00328-CV, 2017 WL
4014612, at *4 (Tex. App.—San Antonio Sept. 13, 2017, no pet.) (mem. op.) (holding a parent’s
failure to visit the child while the case was pending supports the trial court’s finding that
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termination is in the child’s best interest); see also In re R.S., No. 01-20-00126-CV, 2020 WL
4289978, at *9 (Tex. App.—Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.) (providing
parent’s failure to visit with child on a regular basis supports factfinder’s determination that parent
was unwilling or unable to fulfill child’s most basic emotional and physical needs and finding that
termination is in child’s best interest); In re A.S., No. 02-16-00284-CV, 2017 WL 371496, at *6
(Tex. App.—Fort Worth Jan. 26, 2017, pet. denied) (mem. op.) (stating parent’s failure to visit her
child during pendency of case supported finding that parent would be unable to meet child’s
emotional and physical needs in the future).
Mother has not provided proof of income or stable housing. See In re A.Y.G., No. 04-24-
00332-CV, 2024 WL 4614575, at *5 (Tex. App.—San Antonio Oct. 30, 2024, no pet.) (mem. op.)
(holding parent’s failure to provide proof of income or stable housing supported the factfinder’s
conclusion that termination of parental rights was in the child’s best interest). Mother continued to
live in the abandoned barbeque shack, and Saldana testified she was unable to assess the home
after removal because there was a sign on the property that states “you will be shot” “[i]f you enter
this property.” Moreover, the trial court heard testimony that Mother had been incarcerated for
approximately three months at the time of trial with no anticipated release date. See In re N.L.R.,
No. 04-23-01020-CV, 2024 WL 1184462, at *4 (Tex. App.—San Antonio Mar. 20, 2024, no pet.)
(mem. op.) (considering a parent’s recent arrest as evidence the parent is unable to provide for the
child’s emotional and physical needs because it indicates instability, including the lack of a stable
home).
Mother stated she did not participate in her services because she did not have
transportation. However, Saldana testified she offered to provide Mother with transportation to her
services and to visit the children. According to Saldana, Mother accepted rides a few times but
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most of the time would not respond to Saldana’s offers to provide rides. Saldana also testified
Mother could have used the bus for transportation. Finally, Saldana set Mother up with virtual
services to help facilitate Mother’s participation and engagement in services. The trial court was
well within its right to reject Mother’s transportation excuse for her failure to complete services
and could have instead concluded Mother voluntarily chose not to complete services based on
Saldana’s testimony that she offered Mother transportation to services, Mother had access to public
transportation, and Saldana set up virtual services for Mother. See R.R.A., 687 S.W.3d at 276
(internal quotation marks omitted) (“When reviewing whether the evidence is legally sufficient to
support termination of parental rights, we view the facts in a light favorable to the findings of the
trial judge, who heard the testimony, evaluated its credibility, and dealt the closest with the
evidence at hand.”).
“[T]he 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). “The need for permanence is
the paramount consideration for the child’s present and future physical and emotional needs.” In
re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. denied).
Saldana testified A.C.P., who was fifteen years old at the time of trial, was living at a
residential treatment center. Saldana stated he receives a specialized level of care because he
“continues to be on probation[,]” is “defiant[,]” likes to fight, and “continues to smoke marijuana.”
According to Saldana, the Department’s goal for A.C.P. is unrelated adoption although the
Department has not found an appropriate placement for him. Even though A.C.P. was living in a
residential treatment center at the time of trial, he was receiving the level of specialized care he
needs. Saldana testified A.C.P. has improved since coming into the Department’s care. Saldana
met with A.C.P. the day before trial, and she testified A.C.P. wants to join the military. Therefore,
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Saldana and A.C.P. met with an Army recruiter to provide A.C.P. with support. A.C.P. plans to
work out with the recruiter every Wednesday until he can sign with the Army. He is passing all
his classes and started playing basketball. Saldana has “been working with [A.C.P.]” and the
Department is “getting him additional counseling” so that he will think about the consequences of
his actions before he acts. Saldana opined that not thinking about the consequences of his actions
is A.C.P.’s biggest hurdle “because he’s used to being out on the streets, fending for himself.”
Saldana testified, he now has “some guidance and . . . good support[]” and he does not plan to go
“back to the streets[.]” As stated above, however, A.C.P. does not want to return to Mother’s home
because he does not like the living conditions, nor does he want to be the primary caregiver for his
siblings. Because of the progress A.C.P. has shown, Saldana stated the Department would like to
eventually find a foster-to-adopt home for him.
The trial court could have easily appreciated the juxtaposition between A.C.P.’s criminal
behavior while in Mother’s care—which resulted in being stabbed twice—with his current state of
improvement while at the residential treatment center and in the Department’s care. See In re
A.M.M., No. 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.—San Antonio May 6, 2020,
pet. denied) (mem. op.) (indicating evidence the child is “thriving in the current placement” in a
stable environment supported the trial court’s best-interest determination). Because of this stark
contrast—and the evidence that A.C.P. has been thriving since his removal from Mother’s care—
the trial court could have determined that Mother’s lack of parental abilities indicates termination
of her parental rights is in A.C.P.’s best interest. See Holley, 544 S.W.2d at 372 (listing the parental
abilities of the individual seeking custody as a factor the trial court considers in its best-interest
determination).
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As mentioned above, the Department placed A.I.P. with her paternal grandparents. A.I.P.’s
grandparents want to adopt her, and the Department’s goal is for A.I.P.’s grandparents to do so.
Saldana testified A.I.P. is having a great time with her paternal grandparents, she is comfortable
there, and they are meeting all of her needs. A.I.P. has no unaddressed medical or mental health
needs, and Saldana believes A.I.P.’s grandparents are able to protect her.
A.M.P., M.J.P., and M.C.S. are all placed in the same foster-to-adopt home, and the
Department’s permanency goal for the three children is unrelated adoption by their foster family.
Saldana testified A.M.P., M.J.P., and M.C.S. are all doing great in their foster placement. She
stated the children were playing outside when she recently visited the foster home.
Saldana testified “[f]oster mom and [A.M.P.] were doing girly things, shopping and masks
and, you know, just . . . normal [everyday] children stuff.” A.M.P.’s medical and dental needs have
been addressed while she has been in the foster family’s care, and she is doing well in school.
Saldana testified M.J.P., who had just turned three at the time of trial, is healthy and doing
well. He has some issues with speech, but his foster family is scheduling speech therapy and
occupational therapy for him. According to Saldana, M.J.P. has “a strong attachment to the foster
dad[,]” and “[t]hey were outside in the backyard, just doing little things[]” when she visited.
Saldana stated M.C.S., who was a one-year-old at the time of trial, is healthy and doing
“really well” with the foster family. The foster family has kept M.C.S. current with his medical
and dental needs, and M.C.S. will begin speech therapy and specialized skills training to help him
with daily life skills. Saldana testified it is in the three youngest children’s best interests to remain
with their foster family. Saldana further testified the siblings have maintained contact throughout
the case despite being in three different placements, and the foster families are willing to continue
to facilitate contact among the siblings.
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Saldana stated she believes Mother is bonded with the two oldest children. However,
Saldana opined Mother’s parental rights to all the children should be terminated so the children
can achieve permanency. Saldana stated she gave Mother every opportunity to engage in services
and address the issues that led to removal, but Mother failed to complete her services and has not
shown she can care for the children. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (holding
failure to comply with a service plan may support a finding that termination of parental rights is in
the child’s best interest); J.M.T., 519 S.W.3d at 270 (“A fact finder may infer from a parent’s
failure to take the initiative to complete the services required to regain possession of [her] child
that [she] does not have the ability to motivate [herself] to seek out available resources needed
now or in the future.”).
Although Montejano testified Mother was appropriate with the children and seemed to
have a good relationship with them, the trial court could have reasonably concluded the
endangering living conditions, lack of supervision, drug concerns, and lack of effort to mitigate
the Department’s concerns posed a danger to the children and that Mother lacked the parental
abilities to properly care for the children’s emotional and physical needs. See C.H., 89 S.W.3d at
27 (holding absence of evidence supporting some of the best-interest factors would not preclude a
factfinder from concluding parental termination is in children’s best interests, “particularly if the
evidence were undisputed that the parental relationship endangered the safety of the child”). In
fact, Montejano stated Mother never addressed any of the Department’s safety concerns that
existed prior to removal, which included exposure and harm from wild animals, endangering living
conditions, improper supervision, and substance abuse. Mother claimed she would change her life
around if the children were returned to her. However, the trial court could have disbelieved
Mother’s testimony especially considering the trial court heard testimony that Mother was given
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ample opportunity to engage in services and make changes in her life during the pendency of the
case. See R.R.A., 687 S.W.3d at 276 (internal quotation marks and alterations omitted) (“An
appellate court cannot substitute its judgment for the factfinder’s when considering the credibility
of the evidence presented.”). But Mother chose not to engage in services or utilize the resources
provided by the Department. See A.Y.G., 2024 WL 4614575, at *5 (holding a parent’s failure to
“meaningfully engage in services” supported the trial court’s finding that termination was in the
child’s best interest). The trial court could have reasonably inferred Mother’s unwillingness to
make changes since removal indicates an unwillingness to make the future changes she now claims
she will make. See E.D., 419 S.W.3d at 620 (“A trier of fact may measure a parent’s future conduct
by his past conduct and determine whether termination of parental rights is in the child’s best
interest.”).
Finally, Mother testified she was incarcerated at the time of trial for theft of a vehicle.
Mother stated she is also facing a pending motion to revoke community supervision, and she has
a pending charge for evading arrest. “As a general rule, conduct that subjects a child to a life of
uncertainty and instability endangers the physical and emotional well-being of a child.” In re
A.L.S., 660 S.W.3d 257, 264 (Tex. App.—San Antonio 2022, pet. denied) (quoting In re R.W.,
129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied)). “Criminal conduct, prior
convictions, and incarceration affect[] a parent’s life and [her] ability to parent, thereby subjecting
[her] child[ren] to potential emotional and physical danger.” In re J.J.O., No. 04-18-00425-CV,
2018 WL 5621881, at *2 (Tex. App.—San Antonio Oct. 31, 2018, no pet.) (mem. op.); In re
J.M.G., 608 S.W.3d 51, 57 (Tex. App.—San Antonio 2020, pet. denied) (internal quotation marks
and alterations omitted) (“A parent’s lengthy absence from a child’s life during her early years due
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to incarceration creates an ‘emotional vacuum’ that threatens the child’s emotional well-being and
indicates that the parent-child relationship is not a proper one.”).
It appears from the panel opinion’s reference to “paltry evidence” and Justice Brissette’s
concurrence that there was a concern with the brevity of the record. See A.C.P., 2025 WL 900127,
at *9; A.C.P., 2025 WL 898399, at *1 (Brissette, J., concurring). I do not question my colleagues’
concern that a parent’s rights to her children could be forever severed on a short record. Nor do I
minimize the profound impact a judgment terminating parental rights has on all family members
involved. But just because the record is thin, does not mean the record is automatically insufficient.
In fact, this court has affirmed termination orders on short records while also admonishing the
Department to develop the record in a way that is commensurate with the rights that are at stake.
See In re Z.R.M., 665 S.W.3d 825, 829, 829 n.6 (Tex. App.—San Antonio 2023, pet. denied)
(affirming termination order on a twenty-seven-page reporter’s record while also referring to this
court’s repeated admonishments for the Department to do a better job developing the record in
parental termination cases). And, this court has reversed termination orders when the record,
although well-developed, was insufficient to prove by clear and convincing evidence that
termination was in the children’s best interests. See, e.g., In re J.M.B., No. 04-24-00522-CV,
2025 WL 782699 (Tex. App.—San Antonio Mar. 12, 2025, no pet. h.). Of course, the Department
could have presented more evidence to make its case stronger, but the record here, although thin,
still provides sufficient evidence to support the trial court’s best-interest findings when those
findings are viewed in the light most favorable to the trial court’s judgment.
Despite the clear and convincing evidence that the children were placed in danger and
neglected while in Mother’s care, and the evidence that Mother chose not to engage in services to
rectify the Department’s concerns, the majority panel opinion concludes Mother’s parental rights
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were terminated because she was experiencing financial hardship and lacked transportation.
However, poverty did not cause three of Mother’s minor children to be hospitalized while in her
care for stab wounds and snake bites. Poverty certainly did not cause Mother to abuse drugs, and—
if we are to defer to the trial court’s credibility determinations on whether Mother was provided
transportation—poverty did not cause Mother to miss drug tests. Poverty did not cause Mother to
engage in criminal activity leading to her incarceration during the time of trial, with a pending
motion to revoke community supervision and additional pending charges. Poverty did not cause
Mother to miss thirteen out of forty-eight visits with her children. We need not even presume how
Mother’s financial hardship and transportation considerations weighed on the trial court’s
judgment because, in its oral pronouncement, the trial court stated:
The Court was concerned with the poverty issue, the transportation issues, but I think the Department made reasonable efforts to try to work around those things, with virtual services and offering rides for her, all to no avail.
The Department also assisted in trying to improve her living environment.
She is incarcerated now, with no court date, no release date, and we have five children in care.
The Court will find that reasonable efforts were definitely made to attempt reunification in this case.
I believe, on this record, the trial court’s findings are eminently reasonable. I certainly
agree parental rights cannot be terminated just because the children might be better off with a foster
family who has more resources. Here, however, the clear and convincing evidence supports the
trial court’s finding that termination of Mother’s parental rights is in the children’s best interests.
To hold otherwise disregards all the evidence in favor of the trial court’s best-interest findings. It
is within the trial court’s purview to make credibility determinations to which this reviewing court
must defer. See J.F.-G., 627 S.W.3d at 312 (internal quotation marks and footnote omitted)
(“Because the factfinder is the sole arbiter of the witnesses’ credibility and demeanor, appellate
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review must defer to the trial court’s factual determinations, even in parental termination cases.”).
The trial court could have disbelieved Mother’s self-serving testimony regarding her intentions to
improve despite having more than a year to do so. The trial court also could have disbelieved
Mother’s transportation excuses and instead could have believed Saldana’s testimony that she
repeatedly offered Mother transportation to her services and Mother rejected those offers.
However, the majority panel opinion fails to defer to the trial court’s assessment of the witnesses’
credibility and the weight to give their testimony. See In re C.L.E.E.G., 639 S.W.3d 696, 699–700
(Tex. 2022) (reversing the court of appeals judgment in a parental termination appeal because “the
court of appeals impermissibly substituted its judgment for that of the trial court and further erred
by failing to defer to the trial court’s assessment of the witnesses’ credibility.”); R.R.A.,
687 S.W.3d at 679 n.50 (“Reviewing courts, however, must defer to the factfinder’s judgment as
to the credibility of the witnesses and the weight to give their testimony, including reasonable and
logical inferences from the evidence.”). “Our legal-sufficiency standard in parental termination
cases honors not only the elevated burden of proof, but also the deference an appellate court must
have for the factfinder’s role.” See J.F.-G., 627 S.W.3d at 312 (internal quotation marks and
alterations omitted). I believe the deferential nature of our standards of review require us to affirm
the trial court’s termination order on this record. Because the panel opinion’s application of the
well-established standards of review is inconsistent with this court’s precedent, I would grant the
Department’s motion for en banc reconsideration to maintain uniformity in our decisions.
Therefore, I respectfully dissent to the court’s decision not to grant en banc reconsideration.
Irene Rios, Justice
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