Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00225-CV
IN THE INTEREST OF A.F.V., a Child
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00142 Honorable Richard Garcia, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: August 2, 2017
AFFIRMED
Joseph appeals the trial court’s order terminating his parental rights to his son A.F.V. (born
in 2015). 1 He contends there is legally and factually insufficient evidence that termination of his
parental rights is in A.F.V.’s best interest. We affirm the trial court’s judgment.
BACKGROUND
In January 2016, the Texas Department of Family and Protective Services filed a petition
to terminate the parental rights of A.F.V.’s parents, Joseph and Mahogany. The Department
removed A.F.V. based on allegations that he tested positive for amphetamines and
methamphetamines at birth and on alleged concerns about the parents’ ongoing drug abuse and
1 To protect the identity of the minor child, we refer to the child’s parents by their first names and to the child by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). 04-17-00225-CV
domestic violence. A.F.V. was placed with his maternal grandmother, and Mahogany voluntarily
relinquished her parental rights.
The case proceeded to a bench trial, at which Joseph, Mahogany, and Department
caseworkers Eva Filoteo, Angelica Villarreal, and Monika Karki testified. Taylor Blake, who
performed a substance abuse assessment on Joseph, also testified. The trial court thereafter
terminated Joseph’s parental rights 2 based on his use of a controlled substance and his failure to
comply with provisions of his court-ordered family service plan. The trial court also found
termination of Joseph’s parental rights is in A.F.V.’s best interest. Joseph appeals, challenging
only the legal and factual sufficiency of the evidence to support the trial court’s best-interest
finding.
STANDARD OF REVIEW
A judgment terminating parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine whether this
heightened burden of proof was met, we employ a heightened standard of review to determine
whether a “factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). “This standard guards the
constitutional interests implicated by termination, while retaining the deference an appellate court
must have for the factfinder’s role.” In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio
2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder’s
reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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
2 The trial court also terminated Mahogany’s parental rights, and she has not appealed.
-2- 04-17-00225-CV
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have
done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found
incredible. Id. But we may not simply disregard undisputed facts that do not support the finding;
to do so would not comport with the heightened burden of proof by clear and convincing evidence.
Id. When conducting a factual sufficiency review, we evaluate “whether disputed evidence is such
that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.”
Id. The evidence is factually insufficient “[i]f, 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.” Id.
CHILD’S BEST INTEREST
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court
has set out some factors relevant to the determination:
• the desires of the child; • the emotional and physical needs of the child now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the best interest of the child; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and • any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor
must be proved to find that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.
Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest—especially when undisputed evidence
shows that the parental relationship endangered the child’s safety. Id. “Evidence that the parent
-3- 04-17-00225-CV
has committed the acts or omissions prescribed by section 161.001 may also be probative in
determining the child’s best interest; but the mere fact that an act or omission occurred in the past
does not ipso facto prove that termination is currently in the child’s best interest.” In re O.N.H.,
401 S.W.3d at 684 (internal citation omitted). “A factfinder may infer that past conduct
endangering the well-being of a child may recur in the future if the child is returned to the parent.”
In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
A.F.V. was sixteen months old at the time of trial. When a child is too young to express
his desires, the factfinder may consider whether the child has bonded with his current caregiver
and is well-cared for, and whether the child has spent minimal time with the parent. In re J.D., 436
S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Caseworker Karki testified
A.F.V.’s current caregiver, his maternal grandmother, is taking care of all of A.F.V.’s needs and
has “been very timely about taking [A.F.V.] to the doctor.” She also testified, as did Mahogany,
that A.F.V. and Joseph seem to have a bond. Joseph testified that “[s]ince the day [A.F.V.] was
born, he’s . . . been a daddy’s boy.” According to Karki’s testimony, A.F.V. was placed with his
grandmother when he was approximately six months old in March. Villarreal also testified Joseph
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00225-CV
IN THE INTEREST OF A.F.V., a Child
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00142 Honorable Richard Garcia, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: August 2, 2017
AFFIRMED
Joseph appeals the trial court’s order terminating his parental rights to his son A.F.V. (born
in 2015). 1 He contends there is legally and factually insufficient evidence that termination of his
parental rights is in A.F.V.’s best interest. We affirm the trial court’s judgment.
BACKGROUND
In January 2016, the Texas Department of Family and Protective Services filed a petition
to terminate the parental rights of A.F.V.’s parents, Joseph and Mahogany. The Department
removed A.F.V. based on allegations that he tested positive for amphetamines and
methamphetamines at birth and on alleged concerns about the parents’ ongoing drug abuse and
1 To protect the identity of the minor child, we refer to the child’s parents by their first names and to the child by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). 04-17-00225-CV
domestic violence. A.F.V. was placed with his maternal grandmother, and Mahogany voluntarily
relinquished her parental rights.
The case proceeded to a bench trial, at which Joseph, Mahogany, and Department
caseworkers Eva Filoteo, Angelica Villarreal, and Monika Karki testified. Taylor Blake, who
performed a substance abuse assessment on Joseph, also testified. The trial court thereafter
terminated Joseph’s parental rights 2 based on his use of a controlled substance and his failure to
comply with provisions of his court-ordered family service plan. The trial court also found
termination of Joseph’s parental rights is in A.F.V.’s best interest. Joseph appeals, challenging
only the legal and factual sufficiency of the evidence to support the trial court’s best-interest
finding.
STANDARD OF REVIEW
A judgment terminating parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine whether this
heightened burden of proof was met, we employ a heightened standard of review to determine
whether a “factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). “This standard guards the
constitutional interests implicated by termination, while retaining the deference an appellate court
must have for the factfinder’s role.” In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio
2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder’s
reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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
2 The trial court also terminated Mahogany’s parental rights, and she has not appealed.
-2- 04-17-00225-CV
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have
done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found
incredible. Id. But we may not simply disregard undisputed facts that do not support the finding;
to do so would not comport with the heightened burden of proof by clear and convincing evidence.
Id. When conducting a factual sufficiency review, we evaluate “whether disputed evidence is such
that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.”
Id. The evidence is factually insufficient “[i]f, 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.” Id.
CHILD’S BEST INTEREST
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court
has set out some factors relevant to the determination:
• the desires of the child; • the emotional and physical needs of the child now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the best interest of the child; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and • any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor
must be proved to find that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.
Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest—especially when undisputed evidence
shows that the parental relationship endangered the child’s safety. Id. “Evidence that the parent
-3- 04-17-00225-CV
has committed the acts or omissions prescribed by section 161.001 may also be probative in
determining the child’s best interest; but the mere fact that an act or omission occurred in the past
does not ipso facto prove that termination is currently in the child’s best interest.” In re O.N.H.,
401 S.W.3d at 684 (internal citation omitted). “A factfinder may infer that past conduct
endangering the well-being of a child may recur in the future if the child is returned to the parent.”
In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
A.F.V. was sixteen months old at the time of trial. When a child is too young to express
his desires, the factfinder may consider whether the child has bonded with his current caregiver
and is well-cared for, and whether the child has spent minimal time with the parent. In re J.D., 436
S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Caseworker Karki testified
A.F.V.’s current caregiver, his maternal grandmother, is taking care of all of A.F.V.’s needs and
has “been very timely about taking [A.F.V.] to the doctor.” She also testified, as did Mahogany,
that A.F.V. and Joseph seem to have a bond. Joseph testified that “[s]ince the day [A.F.V.] was
born, he’s . . . been a daddy’s boy.” According to Karki’s testimony, A.F.V. was placed with his
grandmother when he was approximately six months old in March. Villarreal also testified Joseph
“had visits every Friday, but they were not consistent” and Joseph “would probably make one to
two visits out of every month.” Joseph testified he would be happy with A.F.V. staying with his
grandmother “until [he] c[ould] bring him home.” Karki testified the Department’s plans are to
continue pursuing adoption for A.F.V. by his grandmother.
Several witnesses testified about Joseph’s drug abuse. See In re M.T., 516 S.W.3d 607, 614
(Tex. App.—San Antonio 2017, no pet.) (considering evidence of a parent’s drug abuse as relevant
to child’s best interest). Blake, who conducted Joseph’s drug assessment in August 2016, testified
she had recommended inpatient treatment. She stated Joseph admitted to using methamphetamines
and marijuana, he started using methamphetamine when he was nineteen years old, and he was -4- 04-17-00225-CV
thirty eight years old at the time of the assessment. According to Blake, Joseph admitted to using
drugs “[t]hirty -- two days prior to the assessment.” Mahogany testified she and Joseph were using
“[m]eth” together approximately “once a week” at the beginning of the case, and she was
concerned that if Joseph was still using drugs, “he might harm the baby.” Caseworker Filoteo
testified she attempted to have Joseph drug tested, but he refused. Caseworker Villarreal testified
“it was hard to get [Joseph] to drug test. And then, there were occasions where he drug tested, but
he was not clean.” When the trial court asked Joseph whether he would submit to a drug test,
Joseph testified the test would be positive, stating: “I got pain killers in me right now.”
There was also evidence of domestic violence between Joseph and Mahogany. See In re
O.N.H., 401 S.W.3d at 685-86, 688-89 (considering evidence of domestic violence between
parents as relevant to child’s best interest). Villarreal testified that after Mahogany started
engaging in counseling, Villarreal became aware of “some domestic violence between” Joseph
and Mahogany. Karki testified Mahogany said there were several domestic violence incidents
between Joseph and Mahogany, and Mahogany had reported two incidents to the police. Karki
also testified she discussed domestic violence with Joseph and that he said to her, “if someone,
like, makes you that upset, you snatch them by the head or neck.” Filoteo testified that during the
intake process for Joseph’s parenting course, he “became belligerent and he was asked to leave.”
Regarding domestic violence in his relationship with Mahogany, Joseph testified he was “not
going to be painted as a monster . . . it was both of [them]. And it shouldn’t have happened, but it
did.”
Several witnesses also testified about the conditions of Joseph’s home. See Holley, 544
S.W.2d at 372 (providing “stability of the home or proposed placement” as a best-interest factor).
Karki testified she visited Joseph’s home in December 2016, and “Joseph reported to [her] there
was no working water. He indicated, for heat purposes, he may use the stove.” Joseph testified his -5- 04-17-00225-CV
house “was not suitable right now,” he was not “set up . . . to take [A.F.V.] back into [his] home,”
his house “needs work,” and he is remodeling. He further testified he has four dogs at home and
he spends approximate $20 a month on dog food, but he does not take the dogs to the vet. Joseph
stated he told Karki “the water was turned off because [he] turned it off. [He] had a busted water
line because [his] pipe froze and [he] had to find it to fix it.”
There is also evidence showing Joseph did not complete programs required by his court-
ordered family service plan. See id. (providing “programs available to assist these individuals to
promote the best interest of the child” is a best-interest factor to consider). Villarreal testified that
in addition to addressing his substance abuse, Joseph’s service plan required him to complete
counseling, which he did not do. Karki testified Joseph had not obtained drug treatment, attended
“AA,” or completed individual counseling services. She testified, however, Joseph had completed
a parenting course and attended counseling “[o]nce maybe.” Joseph testified that after the case was
filed, he did not receive his “service plan until three months later.” He stated he completed his
parenting course and started attending counseling, but he “got sick one time and [he] didn’t make
another appointment, [he] forgot, and they dropped [him] from it.” Joseph explained he could not
attend inpatient drug treatment because he worked as a handyman and would be unable to make
money to support his son.
Furthermore, the evidence shows Joseph did not comply with his court-ordered child
support obligations. See B.C. v. Tex. Dep’t of Family & Protective Servs., 446 S.W.3d 869, 876
(Tex. App.—El Paso 2014, no pet.) (considering failure to pay child support as relevant to child’s
best interest). Karki testified the trial court ordered Joseph and Mahogany to pay $250 a month in
child support while they were in a relationship, and then ordered Joseph to pay $125 a month after
he and Mahogany were no longer together. Villarreal testified Joseph never “followed through”
with paying child support. Joseph testified he paid a total of $250 in child support since April 1, -6- 04-17-00225-CV
2016. Karki testified she asked A.F.V.’s grandmother if Joseph provided any nonmonetary
assistance, and the grandmother told her Joseph “tried to help with a car seat at one time, maybe
providing diapers.”
Although Joseph argues there is testimony that he did not engage in inpatient therapy
because he needed to earn money to support A.F.V., there is also evidence showing Joseph did not
make child support payments, provide much nonmonetary assistance to A.F.V.’s grandmother,
and continued to abuse drugs. We do not reweigh issues of witness credibility and must defer to
the trial court’s reasonable credibility determinations. See In re J.P.B., 180 S.W.3d at 573. Having
considered all of the evidence, we hold a factfinder could reasonably have formed a firm belief or
conviction that termination of Joseph’s parental rights to A.F.V. is in A.F.V.’s best interest.
Because we conclude the evidence is legally and factually sufficient to support the trial court’s
best-interest finding, we overrule Joseph’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
-7-