Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00346-CV
IN THE INTEREST OF A.J.W., J.W.Jr., R.L.A.W., and J.L.W.
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-00863 Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Beth Watkins, Justice
Delivered and Filed: November 27, 2019
AFFIRMED
M.D. 1 appeals the trial court’s order terminating the parent-child relationship with her four
children, arguing legally and factually insufficient evidence supports the trial court’s findings of
statutory grounds for terminating her rights and that termination is in the children’s best interest.
We affirm the trial court’s order.
PROCEDURAL BACKGROUND
The Texas Department of Family and Protective Services filed an original petition on April
24, 2018, seeking protection, conservatorship, and termination of the rights of the parents of
A.J.W. (born in 2010), J.W.Jr. (born in 2011), R.L.A.W. (born in 2014), and J.L.W. (born in 2017).
To protect the identity of the minor children, we refer to appellant and the children by their initials. See TEX. FAM. 1
CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-19-00346-CV
The petition was accompanied by a sworn affidavit. The affidavit stated the Department’s reasons
for seeking removal of the children and described the efforts the Department had made to work
with the children’s mother, M.D., after concerns were raised about M.D.’s drug use. After a
temporary orders hearing on May 14, 2018, the trial court found sufficient evidence to remove the
children from M.D.’s care.
The trial court issued temporary orders naming the Department the children’s temporary
managing conservator and the parents possessory conservators. M.D. was granted weekly
supervised visitation with the children. The trial court ordered M.D. to participate in parenting
classes and counseling, undergo a psychological evaluation and a drug assessment, and participate
in drug testing. The court also ordered M.D. to comply with the Department’s service plan once it
was prepared. The Department placed the children with their maternal grandparents, where they
remained throughout the case. M.D. completed a drug assessment, and on June 8, 2018, she signed
a family service plan. After a July 12, 2018 status hearing, the trial court found that M.D. had
reviewed, signed, and understood the service plan. The court approved the plan and made it an
order of the court. At the subsequent permanency hearings in October 2018 and January 2019, the
trial court found that M.D. had not demonstrated adequate and appropriate compliance with the
service plan.
The case proceeded to a bench trial on May 2, 2019, at which a Department caseworker
and M.D. testified. After trial, the trial court found M.D. constructively abandoned the children,
failed to complete the court-ordered provisions of her family service plan, and used a controlled
substance in a manner that endangered the children and failed to complete a court-ordered
substance abuse program. See TEX. FAM. CODE § 161.001(b)(1)(N), (O), (P). The court also found
that termination of M.D.’s parental rights is in the children’s best interest. See id. § 161.001(b)(2).
The court terminated M.D.’s parental rights and M.D. timely appealed.
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STATUTORY REQUIREMENTS & STANDARD OF REVIEW
To terminate parental rights under section 161.001 of the Texas Family Code, the
Department must prove by clear and convincing evidence: (1) one of the grounds in subsection
161.001(b)(1); and (2) termination is in the best interest of the child. See TEX. FAM. CODE
§§ 161.001, 161.206(a). A finding of only one predicate ground is necessary. In re A.V., 113
S.W.3d 355, 362 (Tex. 2003).
M.D. argues the evidence is legally and factually insufficient to support each of the trial
court’s findings. In assessing the legal and factual sufficiency of the evidence to support the trial
court’s findings, we employ a heightened standard of review to determine whether the trial court
could have formed a firm belief or conviction about the truth of the Department’s allegations. In
re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under this standard, “[t]he trial court is the sole
judge of the weight and credibility of the evidence, including the testimony of the Department’s
witnesses.” In re F.M., 536 S.W.3d 843, 844 (Tex. App.—San Antonio 2017, no pet.). In our legal
sufficiency review, 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. In re J.F.C., 96 S.W.3d at 266. However, we must
consider undisputed or uncontradicted evidence in our review, even if that evidence does not
support the trial court’s finding. Id. When conducting a factual sufficiency review, we evaluate
whether, “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.
GROUND FOR TERMINATION UNDER SUBSECTION 161.001(b)(1)(O)
The Family Code provides the trial court may terminate the parent-child relationship if
there is clear and convincing evidence it is in the child’s best interest and the parent has:
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failed 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 of Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.
TEX. FAM. CODE § 161.001(b)(1)(O). The court may not order termination under this section if the
parent proves by a preponderance of the evidence that she made a good faith effort to comply with
the order, but was unable to and the failure to comply was not attributable to any fault of the parent.
Id. § 161.001(d). M.D. concedes the children were in the Department’s care for more than nine
months, but argues the evidence does not establish her children were removed under chapter 262
for abuse or neglect, that the court’s order was sufficiently specific, or that she failed to comply
with the order. In addition, she asserts she made a good faith effort to comply with the court’s
order.
In order to terminate a parent’s rights under subsection O, the record must establish the
children were removed from the parent under chapter 262 for abuse or neglect. At trial, the
Department’s caseworker, Shawana Balfour, testified the children “came into care” because of
allegations of “neglectful supervision of the youngest child, mostly due to drugs.” M.D. contends
this evidence is insufficient. However, when reviewing whether this requirement of subsection O
has been established, we consider the evidence the trial court relied upon in determining removal
was justified and the trial court’s findings in support of the removal. See In re E.C.R., 402 S.W.3d
239, 248 (Tex. 2013). The Department’s evidence in support of removal included the affidavit
filed with the petition and evidence presented at the May 14, 2018 temporary orders hearing.
Although not evidence for all purposes, the affidavit may be considered to show what the trial
court relied on to determine removal was justified. Id.
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The affidavit states the Department received an initial referral from a medical provider.
The provider reported that when M.D. was contacted about a missed appointment for infant J.L.W.,
M.D. was incoherent and “sounded like she was under the influence.” The Department received
multiple reports from professionals that M.D. was slurring her words and appeared under the
influence. The Department staffed the case and accepted it into family based safety services. The
affidavit states that during the next several months, M.D. tested positive for methamphetamines,
methadone, and benzodiazepines. The family based safety services specialist who authored the
affidavit stated that in her interactions with M.D. between February and April 2018, M.D. had
slurred and delayed speech, was frequently incoherent, fell asleep at meetings, and appeared to be
under the influence of some substance. The affidavit states this conduct was also observed by a
Department investigator and supervisor. M.D. appeared to be unable to understand what was being
asked of her or to retain information. She also had difficulty communicating effectively. M.D. did
not obtain a drug assessment as recommended or begin a domestic violence class as recommended.
Further, the affidavit alleges that, after agreeing to a safety placement for the children, M.D. would
object to the placement by making abuse allegations against the caregiver. Although none of the
allegations were confirmed, the children had been moved three times and it was very disruptive to
their lives.
The affidavit also reveals that M.D. had tested positive for methamphetamines at the time
she gave birth to a child in 2004, and that at the birth of another child in 2005, both M.D. and the
child tested positive for opiates. M.D’s children were removed from her care in 2007 on findings
of physical abuse and again in 2012 on findings of neglectful supervision and medical neglect. The
affidavit states another child was removed from her care in 2014, but the reason was not stated.
At the conclusion of the May 14, 2018 temporary orders hearing, the trial court found,
based upon the facts contained in “the sworn affidavit accompanying the petition . . . and the
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evidence presented to [the] Court at the hearing,” that there was sufficient evidence to satisfy a
person of ordinary prudence and caution that:
(1) there is a continuing danger to the physical health or safety of the children caused by an act or failure to act of the person entitled to possession of the children and continuation of the children in the home would be contrary to the children’s welfare; and (2) reasonable efforts, consistent with the circumstances and providing for the safety of the children, were made to prevent or eliminate the need for the removal of the children.
See TEX. FAM. CODE § 262.201(j). No record has been filed of the May 14, 2018 hearing during
which the trial court made its findings supporting removal of the children under chapter 262. We
therefore presume the evidence in the missing record supports the trial court’s findings. In re
K.N.D., 403 S.W.3d 277, 300 n.6 (Tex. App.—Houston [1st Dist.]. 2012) (Keyes, J., dissenting),
rev’d, 424 S.W.3d 8 (Tex. 2014). We also note that M.D. did not challenge these trial court’s
findings.
The words “abuse” and “neglect” in subsection O are used broadly. In re E.C.R., 402
S.W.3d at 248. As used in subsection O, the phrase “abuse or neglect of the child” “necessarily
includes the risks or threats of the environment in which the child is placed. . . . If a parent has
neglected, sexually abused, or otherwise endangered her child’s physical health or safety, such that
initial and continued removal are appropriate, the child has been ‘remov[ed] from the parent under
Chapter 262 for the abuse or neglect of the child.’” Id. The factual allegations in the affidavit and
the trial court’s findings establish the children were removed from M.D. because her use of
controlled substances and failure to address the issue placed the children at risk of harm if they
remained in her care. Removal of the children under chapter 262 for abuse or neglect was
conclusively established. See id. at 248-49.
M.D. next argues the record does not show there was a court order that “specifically
established the actions necessary for [her] to obtain the return of the child[ren]” because the family
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service plan was not admitted into evidence, the trial court did not announce it was taking judicial
notice of the plan, and the caseworker only gave a very general description of its terms in her
testimony. We presume the trial court took judicial notice of the orders in its record of this case
“without any request being made and without an announcement in the record that it has done so.”
In re J.E.H., 384 S.W.3d 864, 869-70 (Tex. App.—San Antonio 2012, no pet.) (holding “trial court
could properly take judicial notice that it signed an order adopting the family service plan and what
the plan listed as the necessary requirements [the parent] was required to complete before [the
child] would be returned to him”); In re V.A.G., No. 04-19-00449-CV, 2019 WL 5927451, at *23
(Tex. App.—San Antonio Nov. 13, 2019, no pet. h.) (presuming on silent record that trial court
took judicial notice of the temporary orders issued in the case).
The record in this case includes the trial court’s May 2018 temporary orders that stated in
paragraph 12:
THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT EACH OF THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO OBTAIN THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY COMPLY WITH THESE ORDERS MAY RESULT IN THE RESTRICTION OR TERMINATION OF PARENTAL RIGHTS.
In one of the paragraphs that followed, the trial court ordered M.D. “to comply with each
requirement set out in the Department’s original, or any amended, service plan during the
pendency of this suit.” The Department’s service plan, which both a Department representative
and M.D. signed on June 8, 2018, was filed with the clerk of the court and is in our record. In its
July 12, 2018 status hearing order, the trial court expressly approved the plan and incorporated it
by reference “as if the same were copied verbatim” in the order.
M.D.’s family service plan included the following provisions:
– “[M.D.] will complete a drug treatment program as recommended from her [Center for Health Care Services] drug assessment. She will provide the certificate of completion to her legal caseworker.”
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– “[M.D.] will submit to random drug screens at the discretion of the Department.” … She will test negative on all drug tests.”
– “[M.D.] will appear, submit to, and fully cooperate with the completion of a psychological evaluation with a Department contracted provider. … [M.D.] shall follow ALL written recommendations contained in the psychological evaluation … “
We presume the trial court took judicial notice of its orders in the case and of the plan incorporated
into its orders. See In re J.E.H., 384 S.W.3d at 869-70. We hold the trial court’s orders specifically
established the actions necessary for M.D. to obtain the return of her children and that the above
quoted requirements of the plan are clear and specific enough to support a finding under subsection
(O).
Caseworker Balfour testified the most important issues M.D. needed to address in order to
have her children returned were her drug abuse and her mental health. Balfour testified M.D.
participated in psychological evaluations and was diagnosed with major depressive disorder.
Balfour testified the evaluator recommended that M.D. receive counseling, but not until after she
addressed her drug abuse by completing a drug treatment program. Balfour acknowledged she had
not referred M.D. to a therapist, but testified it was because M.D. had not yet completed a drug
treatment program.
Balfour testified M.D.’s first caseworker referred her to the Outreach, Screening,
Assessment and Referral Center at the Center for Health Care Services for a drug assessment. M.D.
participated in the assessment, and it was completed before the family service plan was signed.
Balfour testified the Center referred M.D. to a drug treatment program at Alpha Home, and the
family service plan M.D. signed in June 2018 required M.D. to complete the drug treatment
program. Balfour, who became M.D.’s caseworker sometime after October 2018, testified M.D.
did not complete the program and did not otherwise address her problems with drug abuse. Balfour
testified M.D. tested positive for drugs throughout the case, both for the first caseworker and for
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her. She testified M.D. admitted using drugs and Balfour was concerned M.D. was continuing to
abuse methadone, amphetamines, and benzodiazepines. Balfour testified she discussed M.D.’s
failure to participate in the Alpha Home drug treatment program with M.D. in February 2019 after
a hearing in the case. She testified she encouraged M.D. to show up for her appointments at Alpha
Home and to participate in the program. Balfour testified M.D. did not do so.
It is undisputed that M.D. did not complete a drug treatment program. M.D.’s testimony
about the reasons for her not doing so is inconsistent. At one point in her testimony, she stated “I
was never referred to anything” regarding drug treatment. However, at another point in her
testimony, she stated she was “working with Alpha Home,” but “they” told her she “did not need
to do any drug treatment” because she “was not coming out dirty.” And, finally, M.D. testified she
had recently entered a program on her own “to try to get off [her] prescribed medications.” She
did not provide any details and did not testify she actually participated in or completed the
program. M.D. denied having any knowledge of any positive drug test results. M.D. did not present
any evidence or argument to support a finding that she made a good faith effort to comply with the
plan requirements that she complete a drug treatment program and test negative on all drug tests
or that her inability to comply was not attributable to any fault of her own. See TEX. FAM. CODE
§ 161.001(d).
The trial court reasonably could have believed the caseworker’s testimony that M.D. had
been referred to Alpha Home to complete a drug treatment program, that M.D. did not complete
the program, and that M.D. tested positive for controlled substances throughout the case.
Considering all of the evidence, we conclude the trial court could have formed a firm belief or
conviction that M.D. failed to comply with the specific requirements of the family service plan,
and the evidence is both legally and factually sufficient to support the court’s finding under
subsection O. See TEX. FAM. CODE § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at 266. Because a
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finding of only one predicate ground is necessary, we do not address the trial court’s findings under
subsections (N) and (P). See In re A.V., 113 S.W.3d at 362.
BEST INTEREST OF THE CHILDREN
In determining the best interest of a child, courts consider the non-exhaustive Holley
factors. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include the desires
of the children, the present and future emotional and physical needs of and dangers to the children,
the parental abilities of the individuals seeking custody and programs available to assist these
individuals, the stability of the home of the individuals seeking custody and their plans for the
children, the acts or omissions of the parent that may indicate the existing parent-child relationship
is not a proper one, and any excuse for the acts or omissions of the parent. Id. These 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). Moreover, the evidence proving an act or
omission under section 161.001(b)(1) may be probative of what is in the children’s best interest.
Id. at 28. And the “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).
The children were two, four, seven, and eight years old at the time of trial and had been
living with their maternal grandparents for almost a year. Balfour testified that the children love
their parents, but are comfortable living with their grandparents and have stated they want to stay
with them. She testified the grandfather works full time and the grandmother does not work and is
the children’s primary caregiver. There are no other children or adults living in the home. Balfour
testified the children are “doing extremely well” and are “on target” in their physical development.
One of the children, J.W.Jr., has special needs. He was six years old and non-verbal at the time the
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suit was filed. He has been diagnosed as having autism and the Department referred him to a
specialist. Balfour testified that J.W.Jr.’s grandmother has been successfully addressing his
development issues and that the provider had told Balfour that J.W.Jr. is meeting all of his
treatment milestones. Balfour testified the grandparents are meeting all of the children’s short-
term needs, and she believes they are able to meet their long-term needs. They have indicated they
intend to be a permanent placement for the children and would like to adopt them. Balfour testified
she does not know of any barriers to adoption by the children’s maternal grandparents.
M.D. has maintained contact with the children throughout the case, although she was not
always consistent. The temporary orders authorized supervised visits with the children once a
week. Balfour testified that for the first nine months after the temporary orders were issued, M.D.
attended scheduled visits about one half of the time. She testified the missed visits were frequently
because of M.D.’s confusion and misunderstanding where the visits were to occur. She testified
M.D. began to consistently visit the children in March 2019, two months before trial. She testified
M.D. brought food to her visits, but has not to Balfour’s knowledge provided any other form of
support for the children during the case.
Balfour testified she believes M.D. previously had her rights to one of her children
terminated, but does not know whether drug use was involved in that case. She also testified that
M.D. had reported having been the victim of domestic violence at the hands of the children’s
father. The family service plan required her to participate in a domestic violence prevention
program and provide the Department’s legal caseworker with a copy of her certificate of course
completion. The plan included the name and phone number of a program provider. Balfour
testified that as of February 2019, M.D. was engaged in a domestic violence prevention program,
but that M.D. was later unsuccessfully discharged for having missed too many classes. M.D.
testified she was discharged for having missed five classes, but that two or three of the classes she
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missed were due to conflicting court settings. She testified that Balfour was to have called the
provider to excuse the absences, but never did. M.D. did not provide an explanation for missing
the other classes.
Balfour testified that to her knowledge M.D. did not work or have her own stable housing.
M.D. testified she has a place to live, but that Balfour has never visited. M.D. testified that Balfour
did not meet with her except at court hearings and that Balfour ignores her. M.D. believes her
children should return to live with her because in her view she has completed everything on her
family service plan except for the domestic violence class. M.D. testified she does not need a drug
treatment program, 2 was not aware of any positive drug tests, and does not have any mental health
issues that need to be addressed.
The trial court could have believed Balfour’s testimony that M.D. was diagnosed with
major depressive disorder, has continuing unaddressed issues with methadone, amphetamines, and
benzodiazepines, and tested positive for controlled substances throughout the case. The court could
have reasonably found that M.D. was still abusing controlled substances at the time of trial and
that she had not addressed or even acknowledged the drug abuse and mental health issues that led
to removal of the children. The court could have rationally concluded that M.D. is unable to protect
her children or to provide them a safe and stable environment because she minimizes her drug
problem, and the court could have concluded M.D. would continue to place the children at risk if
they were returned to her care. The record supports that the children’s physical, emotional, and
developmental needs are being well-met in their current placement and that the placement will
likely lead to permanency for them. On the evidence before it, the trial court could have formed a
firm belief or conviction that termination of M.D.’s parental rights is in the best interest of the
2 However, she also testified she had recently entered a program to address addiction to prescription drugs.
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children. We therefore hold the evidence is legally and factually sufficient to support the trial
court’s finding that termination of M.D.’s parental rights is in the children’s best interest.
CONCLUSION
Having concluded sufficient evidence supports findings necessary to support the trial
court’s order, we affirm the trial court’s order terminating the parent–child relationship between
M.D. and the children A.J.W., J.W.Jr., R.L.A.W., and J.L.W.
Luz Elena D. Chapa, Justice
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