in the Interest of D.J.H. and D.A.H., Children

Opinion

MEMORANDUM OPINION No. 04-11-00815-CV

IN THE INTEREST OF D.J.H. AND D.A.H., Children

From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2010-PA-00972 Honorable Fred Shannon, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: May 9, 2012

AFFIRMED

Kathy H. 1 appeals from the trial court’s order that terminated her parental rights to her

sons, D.J.H. and D.A.H. We affirm the judgment of the trial court.

BACKGROUND

On May 10, 2010, the Texas Department of Family and Protective Services (“the

Department”) filed a Petition for Protection of a Child, for Conservatorship, and for Termination

in Suit Affecting the Parent-Child Relationship. D.J.H. and D.A.H. were removed from the

home at that time due to concerns of domestic violence. A year and a half later, a bench trial was

held. At the conclusion of the trial, the trial court found by clear and convincing evidence that

1 In accordance with TEX. R. APP. P. 9.8(b), we refer to the parent of the minor children by her first name and last initial only. 04-11-00815-CV

Kathy (1) failed to comply with the provisions of a court order that established the actions

necessary to obtain the return of her children and (2) used a controlled substance in a manner that

endangered the health and safety of her children and failed to complete a court-ordered substance

abuse treatment program. See TEX. FAM. CODE ANN. § 161.001(1)(O), (P)(i) (West Supp. 2011).

The trial court further found that termination of the parent-child relationship between Kathy and

her children was in the best interest of the children. Id. at § 161.001(2) (West Supp. 2011).

DISCUSSION

On appeal, Kathy principally argues the trial court erred in finding that (1) she failed to

complete her service plan and (2) termination was in the best interest of the children.

Section 161.001(1)(O)

The trial court found that Kathy failed to comply with the provisions of a court order that

established the actions she needed to take to obtain the return of her children. See TEX. FAM.

CODE ANN. § 161.001(1)(O). Kathy now argues that (1) there was no evidence that she was

court-ordered to complete services under a service plan; (2) the trial court abused its discretion

by admitting a court order after the parties rested; and (3) alternatively, there is insufficient

evidence that Kathy failed to complete her service plan.

During trial, the Department sought to prove that Kathy failed to complete her service

plan by not taking parenting classes or domestic violence classes, as well as by using illegal

drugs and failing to complete therapy sessions. Marcella Pena, a caseworker for the Department,

testified that she prepared a family service plan for Kathy. The family service plan given to

Kathy on June 15, 2010 was admitted at trial as State’s Exhibit 3 without objection.

During closing arguments, Kathy’s attorney argued that a court-ordered service plan did

not exist, and therefore the parent-child relationship could not be terminated on the basis of

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Kathy’s failure to complete a service plan. See In re B.L.R.P., 269 S.W.3d 707, 711 (Tex.

App.—Amarillo 2008, no pet.) (reversing and remanding order of termination where no court

order existed, written or otherwise, establishing actions necessary for parent to obtain return of

child). The Department responded that the service plan was incorporated by an order signed by

the trial court at a status hearing on July 7, 2010. The July 7, 2010 order provides, in relevant

part, that:

2.6 The Court, having reviewed the service plans filed by the Department, finds . . . that the service plans are reasonable, accurate, and in compliance with the previous orders of the Court.

2.8 The Court finds that [Kathy] has reviewed the service plans.

3.1 IT IS ORDERED that . . . the plan of service for [Kathy], filed with the Court or attached to this order and incorporated herein by reference as if the same were copied verbatim in this order, is APPROVED and made an ORDER of this Court.

Thus, the Department argued, the trial court could take judicial notice of the status hearing order

requiring completion of the service plan. The trial court agreed, and took judicial notice of the

July 7, 2010 status hearing order requiring completion of the service plan and admitted same.

We agree that the trial court properly admitted the July 7, 2010 court order by judicial

notice. The trial court may take judicial notice of its file at any stage of the proceedings. See

TEX. R. EVID. 201; Barnard v. Barnard, 133 S.W.3d 782, 786 (Tex. App.—Fort Worth 2004,

pet. denied). It is clear that the service plan was approved by the trial court and that Kathy was

ordered to comply with its terms. Thus, the trial court did not abuse its discretion in admitting

the order during closing. See Service Corp. Int’l. v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011)

(trial court’s decision to admit evidence is reviewed for an abuse of discretion); In re J.P.B., 180

S.W.3d 570, 575 (Tex. 2005) (same). We now determine whether the evidence is factually

sufficient to support the trial court’s finding that Kathy failed to complete the service plan.

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Parental rights may be terminated only upon proof of clear and convincing evidence that

the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and

that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(1), (2).

When a parent challenges the legal sufficiency of the evidence on appeal, we 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.F.C., 96 S.W.3d

256, 266 (Tex. 2002). When factual sufficiency of the evidence is challenged, “only then is

disputed or conflicting evidence under review.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

In reviewing termination findings for factual sufficiency, we give due deference to the

factfinder’s findings and do not supplant its judgment with our own. In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006). “If, 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, then the evidence is factually

insufficient.” In re J.F.C., 96 S.W.3d at 266.

At trial, Marcella Pena testified that she prepared a family service plan for Kathy. The

service plan contained twelve tasks that Kathy was required to complete to obtain the return

of her children. The Department alleged that Kathy failed to comply with the following

requirements:

1. to refrain from illegal drug use; complete a drug assessment, and follow through with any recommendations, including drug treatment; 2. to financially provide for the children by obtaining and maintaining stable and appropriate employment; 3. to follow through with recommendations by service providers; 4. to participate in individual therapy at the McCullough Center; 5. to participate in parenting classes through the Brighton Center; 6. to obtain and maintain appropriate housing; and 7. to participate in violence intervention prevention classes at the Battered Women’s and Children’s Center.

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Kathy testified that she attempted to comply with the plan, but admitted that she had not

completed the parenting and domestic violence classes. She also admitted smoking marijuana in

May 2011. Kathy further testified that she was currently living with her mother, although she

had plans to move into her own apartment shortly after trial.

In addition, Marcella Pena testified that Kathy failed to complete both the drug treatment

and the domestic violence classes. Pena stated that the only requirements Kathy completed were

the psychological evaluation and the empowerment classes. Michelle Castro, Kathy’s current

caseworker, stated that Kathy completed the drug assessment shortly before trial and that out-

patient drug treatment was recommended.

Although it is apparent that Kathy attempted to complete most of the service plan’s

requirements and that she wanted to be reunited with her sons, we conclude that the trial court

could have formed a firm belief or conviction that Kathy violated section 161.001(1)(O). See In

re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San

Antonio 2004, no pet.). Therefore, the evidence is factually sufficient to support the trial court’s

finding that Kathy committed one of the statutory grounds for involuntary termination under

section 161.001(1). See TEX. FAM. CODE ANN. § 161.001(1); In re J.F.C., 96 S.W.3d at 266.

Accordingly, we overrule Kathy’s first three issues on appeal.

Evidentiary Objections

Kathy next argues the trial court erred in admitting evidence of her alleged drug use.

During trial, Kathy’s probation officer, Norma Saenz, was asked whether she ever tested Kathy

for drugs. Saenz answered that she had not, but that she had copies of Kathy’s drug tests from

CPS. Saenz did not indicate what the results of the drug tests were. On re-direct, the

Department asked Saenz what the results of the drug tests were between the months of May 2010

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and January 2011. Kathy immediately objected on hearsay grounds, and the trial court overruled

the objection. Saenz answered that Kathy tested positive for marijuana and benzodiazepine on

July 20, 2010 and positive for marijuana and paroxetine on May 27, 2010.

Assuming the trial court abused its discretion in admitting the evidence of the drug tests,

we conclude Saenz’s testimony was harmless. See TEX. R. APP. P. 44.1(a)(1) (judgment may not

be reversed unless error probably caused the rendition of an improper judgment). The evidence

of the drug test results was cumulative given that there was other testimony that Kathy had used

drugs, including Kathy’s own admission that she had smoked marijuana and overdosed on

Vicodin and Xanax 2 during the pendency of the suit. When the exclusion or admission of

evidence is cumulative of other evidence, any error in its admission is harmless. See State v.

Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Thus, we overrule Kathy’s

fourth issue on appeal.

Kathy additionally complains that Saenz’s testimony was irrelevant because the

Department sought to terminate her parental rights under section 161.001(1)(O) (failure to

complete court-ordered service plan) and 161.001(1)(P) (use of controlled substance), and

therefore any failure to comply with the terms of her probation was irrelevant and only served to

classify her as an unfit parent. The trial court overruled Kathy’s objection to the testimony and

allowed the testimony on the question of best interest. Although there was no provision in the

family service plan requiring Kathy to successfully comply with the terms of her probation, we

agree that Saenz’s testimony was relevant as to the issue of the best interest of the children. See

TEX. FAM. CODE ANN. § 161.001(2); see also In re J.J.C., 302 S.W.3d 436, 447-48 (Tex. App.—

Houston [14th Dist.] 2009, pet. denied) (trial court may consider any relevant information when

determining best interest of child). Kathy’s fifth issue is overruled. 2 Kathy testified that she had a physician’s prescription for Vicodin and Xanax.

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Best Interest

Lastly, Kathy challenges the trial court’s finding that termination was in the best interest

of the children, arguing that there was no evidence, or at least insufficient evidence, to support

the finding. A trial court possesses wide discretion in determining the best interests of a child.

Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex. App.—San Antonio 1995, no writ). “There

are several factors that should be taken into account when determining whether termination of

parental rights is in the best interest of the child.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)

(per curiam). These include the statutory factors set forth in section 263.307 of the Family

Code 3 that are relevant in the particular case, and the non-exhaustive list of factors described by

the supreme court in Holley v. Adams. Id. (citing TEX. FAM. CODE ANN. § 263.307 (West 2008);

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)); In re C.R., 263 S.W.3d 368, 375 (Tex.

App.—Dallas 2008, no pet.). The trial court may also consider any other relevant information in

determining the best interest of a child. See In re J.J.C., 302 S.W.3d at 447-48.

In Holley, the supreme court included nine factors that could be considered in a best

interest determination:

(1) the child’s desires; (2) the emotional and physical needs of the child, now and in the future;

3 These factors include: (1) a 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 an initial report and intervention; (5) whether the child is afraid to return home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; testing or evaluations of the child and 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 had been identified; (10) the willingness of the child’s family to seek out, accept, and complete counseling and cooperate with supervising agencies; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child with adequate health and nutritional care, care and nurturance consistent with the children’s development, guidance and supervision for the child’s safety, a safe physical home environment, protection for exposure to violence even if not directed at the child, and an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE ANN. § 263.307(b) (West 2008).

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(3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of those seeking custody; (5) the programs available to assist 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 acts or omissions of the parents, which may indicate the existing parent- child relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions.

Holley, 544 S.W.2d at 371-72. Though nine factors are listed, no single factor controls, and the

trier of fact need not consider all of them. Id. at 372. “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.” In re C.H., 89 S.W.3d at 27.

And, undisputed evidence of just one factor may be sufficient in a particular case to support a

finding that termination is in the child’s best interest. Id. Although the focus of the Holley

factors is on the best interest of the child and not the best interest of the parent, courts should

nevertheless indulge the strong presumption that the child’s best interests will be served by

preserving the parent-child relationship. See In re R.R., 209 S.W.3d at 116.

In examining the Holley factors, we note the following testimony. Emily Winfield, a

Department investigator, testified that she prepared the affidavit used to remove the children

from the home in May 2010. The affidavit related that the children had witnessed domestic

violence between Kathy and her paramour, Matthew White, and specified an altercation

involving a frying pan and a knife. Kathy subsequently told the Department that she was no

longer involved with White, but when Winfield visited Kathy’s home for a follow up, White

answered the door.

Sherry Mullen is a psychotherapist who treated Kathy in July 2011; Kathy saw Mullen

for two visits and did not attend any further appointments. Kathy came to Mullen three days

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before a court hearing after she had been discharged from the hospital for an overdose. Mullen

stated that Kathy had previously been diagnosed as bipolar and schizophrenic. Based on Kathy’s

chronic mental illness and her non-compliance with treatment, Mullen was inclined to say that

Kathy’s parental rights should be terminated, but she was “not sure” due to her limited

interaction with Kathy.

Marie Martin-Joseph testified that she saw Kathy for five therapy sessions in July 2010-

September 2010. Martin-Joseph learned through a fellow therapist that Matthew White said he

and Kathy still smoked marijuana and fought. When Martin-Joseph confronted Kathy with this

information, Kathy was both in denial and angry. Martin-Joseph stated that Kathy’s behavior is

explosive and that she needs substance abuse treatment. Martin-Joseph did not state an opinion

as to termination of Kathy’s parental rights.

Norma Saenz, Kathy’s probation officer, testified that Kathy was currently serving a six-

year term of probation for burglary of a habitation that she committed on July 12, 2010. While

Kathy had completed some of the requirements to successfully complete probation, Saenz felt

that Kathy should have completed more of the requirements by this time.

Michelle Castro, Kathy’s current Department caseworker, stated that Kathy has a good

relationship with her children, but that they see her more as a friend than as their mother. Castro

expressed no opinion as to whether Kathy’s parental rights should be terminated.

Marcella Pena, Kathy’s first Department caseworker, testified that she observed Kathy’s

visits with the boys to be chaotic and somewhat inappropriate. Kathy often invited the boys to

family events that she knew they would be unable to attend. Pena felt that termination was in the

boys’ best interest because, in her opinion, Kathy was unable to provide a safe home

environment and continued to engage in violent relationships and was aggressive and hostile.

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The fact that Kathy committed a crime during the pendency of the case demonstrated to Pena

that Kathy had not dealt with her mental health issues, and this opinion was bolstered by the fact

that Kathy was inconsistent in attending therapy sessions. Pena admitted that the Department

had been seeking termination, and not reunification, since at least November 2010.

Natalie Lizarralde, a case manager for Bexar County Detention Ministries and Family

Renewal Center, testified that Kathy completed the MATCH (“mamas and their children”)

program which contained core classes in character development, chemical addition, and anger

awareness. Lizarralde stated that Kathy was adamant about doing what she needed to do to get

her children back. Lizarralde had no concerns about the safety and well-being of the children in

Kathy’s care, and stated that, in her opinion, Kathy does not pose a danger to the children.

Cathleen Rodriguez, the boys’ foster mother, testified that the boys told her they would

like to stay with her. There was testimony from the Department that the boys’ current placement

was non-foster-adopt, and that the goal for the boys’ placement was non-family adoption.

Kathy testified that she was no longer in a relationship with Matthew White and that she

was employed full-time and was about to move into her own apartment.

In addition, both boys were interviewed by the trial court and asked whether they wanted

to return home to live with their mother. D.J.H., who was 13 years old, stated that he wanted to

go back with his mother, but that he was satisfied living with his foster family because he gets

along well with his classmates. D.A.H., who was 8 years old, stated that he liked living with his

foster family, but that he wanted to return home to his mother.

While some of this evidence was favorable to Kathy, we conclude there was both legally

and factually sufficient evidence to support the trial court’s determination that termination was in

the best interest of the children. Given Kathy’s recent drug overdose and her failure to complete

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the tasks needed to obtain the return of her children during the one and a half years that the case

was pending—most notably her failure to attend domestic violence classes and complete

substance abuse treatment—the trial court could have reasonably believed that the children

would continue to be subjected to a home environment in which drug use and domestic violence

were present. Considering the evidence in this record, the trial court could have formed a firm

belief or conviction that terminating Kathy’s parental rights was in the best interest of D.J.H. and

D.A.H. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25, 28. As such, Kathy’s

sixth issue is overruled, and the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

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