in the Interest of A.O., a Child

• Court: Court of Appeals of Texas
• Decided: November 14, 2012
• Docket: 04-12-00390-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-12-00390-CV

IN THE INTEREST OF A.O., a Child

From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2011-PA-01910 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: November 14, 2012

AFFIRMED

Mary O. appeals the trial court’s order terminating her parental rights to A.O. Mary

asserts the evidence adduced at trial was not legally or factually sufficient to find that A.O. was

removed from her care under Texas Family Code Chapter 262 for abuse or neglect. For the

reasons discussed below, we affirm the trial court’s order.

BACKGROUND

A. Department Referral

On June 18, 2011, the Department of Family and Protective Services received a referral

alleging that A.O. was suffering from physical abuse and neglectful supervision. A.O. was

living with her father, Frank O., but not with her mother Mary O. Frank and Mary were married

but had been separated for several years and were living apart. The referral alleged that one of 04-12-00390-CV

Frank’s housemates gave nine-year-old A.O. an alcoholic beverage. The Department

investigated; the investigator’s report stated that Frank’s housemate was using drugs because

“she was seen with ‘fresh track marks.’” During the Department’s investigation, Frank and his

two housemates tested positive for methamphetamines and amphetamines.

B. A.O.’s Removal

On June 22, 2011, at the Department’s initiative, A.O. was removed from Frank’s home

to live with family friends in accordance with a Protective Child Safety Placement. On July 29,

2011, when the friends could no longer care for A.O., the Department petitioned for

conservatorship of A.O. and to remove A.O. from the home. In the investigator’s affidavit in

support of the Department’s petition, the investigator stated that Frank’s housemate had given

A.O. alcohol to drink, and the investigator believed it was not in A.O.’s “best interest to be in the

care of her parents Frank [O.] or Mary [O].” In its July 29, 2011 protective order, the trial court

found A.O. had been the victim of neglect or abuse; it ordered A.O. removed and awarded

temporary sole managing conservatorship of A.O. to the Department. The court also ordered

both Frank and Mary to comply with their service plan requirements, which included attending

counseling sessions, submitting to drug testing, signing release of medical information

authorization forms, and other requirements.

C. Bench Trial

After a series of permanency hearings over several months, the case was set for trial. At

the bench trial on May 29, 2012, the Department did not introduce any exhibits into evidence.

Its caseworker testified that neither Mary nor Frank complied with all the provisions of their

service plans. She testified that Mary tested positive for methamphetamines, failed to sign the

release of medical information forms, and failed to complete her counseling—all violations of

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her service plan. Both the caseworker and the Court Appointed Special Advocate (CASA)

worker assigned to A.O. recommended terminating both Mary’s and Frank’s parental rights. At

the conclusion of the trial, the court terminated Mary’s and Frank’s parental rights to A.O. In its

oral pronouncement from the bench, the court stated it found by clear and convincing evidence

that termination of Mary’s and Frank’s parental rights was in A.O.’s best interest; it terminated

Mary’s rights on two grounds: (O), that she failed to comply with her service plan, and (P), that

she engaged in continued drug use that endangered her child. See TEX. FAM. CODE ANN.

§ 161.001 (West Supp. 2012). In its written order, all of the listed bases for termination of

Mary’s parental rights were struck through except for those corresponding to subsections (F),

(O), and (P). Mary appeals the trial court’s order.

STANDARD OF REVIEW

When a parent challenges the legal sufficiency of a finding on which the trial court relied

to terminate her parental rights to her child, we review “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 [the court’s] finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002); In re T.N.S., 230 S.W.3d 434, 438 (Tex. App.—San Antonio 2007, no pet.). We

disregard evidence that a reasonable fact-finder could disregard, but we consider undisputed

facts. In re J.F.C., 96 S.W.3d at 266; see In re T.N.S., 230 S.W.3d at 438. When a finding is

challenged for its factual sufficiency, we “give due consideration to evidence that the

fact[-]finder could reasonably have found to be clear and convincing.” In re J.F.C., 96 S.W.3d

at 266; accord In re T.N.S., 230 S.W.3d at 438. If we determine that the “disputed evidence is

such that a reasonable fact[-]finder could not have resolved that disputed evidence in favor of its

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finding . . . then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266; accord In

re T.N.S., 230 S.W.3d at 438.

ANALYSIS

A. Applicable Law

1. Requirements for Termination of Parental Rights

A court may terminate a parent’s rights to her child “if the court finds by clear and

convincing evidence” that (1) the parent has met one or more of the statutory grounds for

termination and (2) “termination is in the best interest of the child.” TEX. FAM. CODE ANN.

§ 161.001; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). “Only one predicate finding under

section 161.001(1) is necessary to support a judgment of termination when there is also a finding

that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362; accord In re S.F.,

32 S.W.3d 318, 321 (Tex. App.—San Antonio 2000, no pet.). One of the statutory grounds for

termination is when the parent has

(O) 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 ANN. § 161.001(1)(O); see In re J.F.C., 96 S.W.3d at 284. To support

termination on subsection (O) grounds, the Department must prove the child was removed due to

abuse or neglect. TEX. FAM. CODE ANN. § 161.001(1)(O); In re A.A.A., 265 S.W.3d 507, 515

(Tex. App.—Houston [1st Dist.] 2008, pet. denied). “However, subsection (O) does not require

that the parent who failed to comply with a court order be the same parent whose abuse or

neglect of the child warranted the child’s removal.” In re D.R.A., 374 S.W.3d 528, 532 (Tex.

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App.—Houston [14th Dist.] 2012, no pet.); accord In re S.N., 287 S.W.3d 183, 188 (Tex.

App.—Houston [14th Dist.] 2009, no pet.).

2. Judicial Notice of Court’s Own Record

“[A] trial court is presumed to ‘judicially know[] what has previously taken place in the

case’ tried before it . . . .” In re J.J.C., 302 S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (second alteration in original) (quoting Vahlsing, Inc. v. Mo. Pac. R.R. Co.,

563 S.W.2d 669, 674 (Tex. Civ. App.—Corpus Christi 1978, no writ)); accord In re J.E.H., No.

04-12-00110-CV, 2012 WL 4579296, at *3 (Tex. App.—San Antonio Oct. 3, 2012, no pet. h.).

“A court may not, however, take judicial notice of the truth of allegations in its records.”

Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.—Austin 1994, no writ); accord In re

J.E.H., 2012 WL 4579296, at *3. It may not do so, inter alia, because “[a] judicially noticed fact

must be one not subject to reasonable dispute.” TEX. R. EVID. 201(b); accord In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). But a trial court may take judicial notice of its previous orders and

findings of fact from the same case. See In re J.E.H., 2012 WL 4579296, at *3; In re J.J.C., 302

S.W.3d at 446. It does not have to state on the record that it took judicial notice of its previous

findings in order to rely on them in its later judgment. See In re J.E.H., 2012 WL 4579296, at

*3; In re A.X.A., No. 04-09-00519-CV, 2009 WL 5150068, at *4 n.3 (Tex. App.—San Antonio

Dec. 30, 2009, no pet.) (mem. op.).

B. Mary’s Argument

On appeal, Mary does not contest the trial court’s findings that she failed to comply with

at least one provision of her service plan, that the Department had temporary managing

conservatorship over A.O. for at least nine months, or that termination of her parental rights was

in A.O.’s best interest. Instead, she asserts that under section 161.001(1)(O), the Department

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must prove A.O. was removed from Mary’s home under Chapter 262 for abuse or neglect. Mary

insists that the clerk’s record is not evidence, the Department adduced no evidence at trial to

show that A.O. was removed from Mary’s home for reasons of abuse or neglect, and thus the

evidence was legally and factually insufficient to support termination of her parental rights under

subsection (O).

C. Trial Court’s Findings

In its July 29, 2011 protective order, the trial court found that A.O. had been the victim of

“neglect or sexual abuse,” that “continuation in the home would be contrary to the child’s

welfare,” and appointed the Department as A.O.’s temporary managing conservator. In its

August 10, 2011 temporary order, the trial court again found that A.O.’s health or safety had

been at risk because of “an act or failure to act of the person entitled to possession” of A.O. and

it retained temporary managing conservatorship of A.O. with the Department. Finally, in its

May 29, 2012 termination order, the trial court noted that it had examined the record in

determining whether Mary had failed to comply with her service plan after A.O. was removed

for abuse or neglect.

D. Termination of Parental Rights

In the bench trial, the trial court was free to examine its own July 29, 2011 and August

10, 2011 orders. See In re J.E.H., 2012 WL 4579296, at *3; In re J.J.C., 302 S.W.3d at 446. In

those orders it found that A.O. had been removed from the home for abuse or neglect, and the

record does not show that Mary contested those findings at the adversary hearing, the

permanency hearings, or the bench trial. Mary’s complaint that the findings do not show A.O.

was removed from her home is of no effect; subsection (O) does not require A.O. to have been

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subject to abuse or neglect in Mary’s home. See In re D.R.A., 374 S.W.3d at 532; In re S.N., 287

S.W.3d at 188.

Further, the July 29, 2011 and August 10, 2011 findings are part of the trial court’s record

and the trial court was entitled to take judicial notice in the bench trial of its earlier findings. See

In re J.E.H., 2012 WL 4579296, at *3; In re J.J.C., 302 S.W.3d at 446. The findings that A.O.

was removed from the home for abuse or neglect are clear and convincing evidence of those

points. Because Mary did not challenge any of the other elements necessary to support

termination of her parental rights under subsection (O)—including the trial court’s best interest

of the child finding—we conclude that the evidence was legally and factually sufficient to

support the trial court’s termination of her parental rights under subparagraph (O). We overrule

Mary’s second issue.

E. Other Issues

Mary also complains that the evidence was not legally or factually sufficient to terminate

her parental rights under section 161.001(1)’s subsections (F) or (P). Because we have

concluded that the evidence was legally and factually sufficient to support the trial court’s

termination of her parental rights under subparagraph (O), and Mary did not challenge the trial

court’s best interest of the child finding, we need not address Mary’s other issues. See TEX.

FAM. CODE ANN. § 161.001 (authorizing termination for any one of the listed grounds); In re

A.V., 113 S.W.3d at 362 (same); see also TEX. R. APP. P. 47.1.

CONCLUSION

Viewing the evidence in the light most favorable to the trial court’s findings, we conclude

that a reasonable fact-finder could have formed a firm belief or conviction that Mary failed to

comply with her service plan after A.O. was removed under Chapter 262 for abuse or neglect.

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See In re J.F.C., 96 S.W.3d at 266. We further conclude that a reasonable fact-finder could have

resolved the disputed evidence in favor of the trial court’s finding. See id. Therefore, we affirm

the trial court’s order.

Rebecca Simmons, Justice

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