Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00313-CV
In the Interest of G.K.T., a Child
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2021PA00800 Honorable Kimberly Burley, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice
Delivered and Filed: November 2, 2022
AFFIRMED
Appellants E.T. (“Mother”) and J.C.T. (“Father”) appeal from a judgment terminating their
parental rights to G.K.T. (“the child”). 1 Both parents contend the evidence is legally and factually
insufficient to support the trial court’s best interest finding. We affirm.
BACKGROUND
On May 7, 2021, the child, who was only nine months old at the time, was removed from
Mother’s care because of concerns about her continued drug use and unaddressed mental health
issues. On the same day, the Department filed a petition for termination of Mother’s and Father’s
parental rights. The Department prepared service plans for Mother and Father, requiring them to
1 To protect the identity of the minor child, we refer to the parties and the child by fictitious names, initials, or aliases. See TEX. FAM. CODE. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-22-00313-CV
complete substance abuse and psychosocial assessments and to participate in individual
counseling, domestic violence classes, and parenting classes. Additionally, both service plans
called for Mother and Father to demonstrate their sobriety by passing random drug tests.
On May 6, 2022, the case proceeded to a bench trial. At the time of trial, the child was
twenty-one months old. The Department presented the testimony of three witnesses—the
Department’s family-based services caseworker, the Department’s legal caseworker, and a CASA2
volunteer. Mother did not present any witnesses. Father testified on his own behalf. After hearing
the evidence, the trial court signed a judgment terminating Mother’s and Father’s parental rights
based on two predicate grounds: (1) constructive abandonment of the child, and (2) failure to
complete their court-ordered family service plans. See TEX. FAM. CODE § 161.001(b)(1)(N),(O).
The trial court also found that termination of parental rights was in the child’s best interest. Id.
§ 161.001(b)(2).
Both Mother and Father appeal the trial court’s termination judgment. Neither parent
challenges the predicate grounds for termination. However, both parents challenge the sufficiency
of the evidence to support the trial court’s best interest finding.
STANDARD OF REVIEW
To terminate parental rights under section 161.001 of the Texas Family Code, the
Department has the burden to prove by clear and convincing evidence that parental rights should
be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that
termination of parental rights is in the child’s best interest. See TEX. FAM. CODE
§ 161.001(b)(1),(2). In reviewing the legal sufficiency of the evidence to support these findings,
we look “at all the evidence in the light most favorable to the finding to determine whether a
2 Child Advocates San Antonio.
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reasonable [factfinder] could have formed a firm belief or conviction that the finding was true.” In
re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002)). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting
evidence. Id. at 345. “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.”
Id. (quoting In re J.F.C., 96 S.W.3d at 266). Under these standards, the factfinder is the sole judge
of the weight and credibility of the evidence. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
THE CHILD’S BEST INTEREST
Under Texas law, there is a strong presumption that the best interest of the child is served
by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In determining
whether the child’s parent is willing and able to provide the child with a safe environment, we
consider the factors listed in section 263.307(b) of the Texas Family Code. 3 TEX. FAM. CODE
§ 263.307(b). In addition to these statutory factors, we consider the non-exhaustive list of factors
set forth by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 4
3 These factors are: (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 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, the child’s parents, other family members, or others who have access to the child’s home; (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 consisting of extended family and friends is available to the child. TEX. FAM. CODE ANN. § 263.307(b). 4 These factors are: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) the present and 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 the proposed
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“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,
particularly if the evidence were undisputed that the parental relationship endangered the safety of
the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence that proves one or more statutory
ground for termination may also prove that termination is in the child’s best interest. Id. at 28. “A
best interest analysis may consider circumstantial evidence, subjective factors, and the totality of
the evidence as well as the direct evidence.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San
Antonio 2013, pet. denied).
MOTHER’S APPEAL
In her sole issue, Mother argues the evidence is legally and factually insufficient to support
the trial court’s finding that termination of her parental rights was in the child’s best interest.
At trial, Blanca Rosales, a family-based caseworker, testified that the Department started
working with the family because of Mother’s marijuana use and her unaddressed mental health
issues. Mother told Rosales she had been diagnosed with bipolar disorder, anxiety, and ADHD. A
doctor had prescribed medication for her, and Mother needed help with taking her medication.
Rosales tried to get Mother the assistance she needed to address her mental health issues. On one
occasion, Rosales even arranged transportation for Mother to attend an appointment at a mental
health facility.
Rosales testified that, during the family-based services phase of the case, Mother tested
positive for methamphetamines. Mother admitted that she struggled with cocaine, marijuana, and
heroin use, but nevertheless insisted that she was able to use illegal drugs and care for the child.
Mother did not acknowledge the threat her drug use posed to the child. During one home visit,
placement; (8) the parent’s acts or omissions indicating that the existing parent-child relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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Rosales noticed that Mother appeared to be under the influence—Mother was argumentative,
fidgety, and unable to walk properly. Rosales sent Mother for a drug test and the results showed
that Mother was using the same drugs that she had admitted to using in the past. Rosales tried to
work with Mother to develop a safety plan for the child, such as finding someone to supervise
Mother with the child. However, these efforts were unsuccessful. Additionally, when Rosales
arranged for the child to participate in early childhood intervention (“ECI”) services, Mother failed
to ensure that the child participated in these services.
Kisha Mitchell-Dinkins, a legal caseworker for the Department, testified that Mother failed
to participate in individual counseling, but she did complete parenting classes, domestic violence
classes, and an inpatient substance abuse program. Unfortunately, Mother soon relapsed. Mother,
who was then pregnant with another child, admitted to Mitchell-Dinkins that she was continuing
to use cocaine. Mitchell-Dinkins twice referred Mother for another substance abuse assessment,
but she refused to participate. “Illicit drug use is relevant to multiple Holley factors, including the
child[]’s emotional and physical needs now and in the future, the emotional and physical danger
to the child[] now and in the future, Mother’s parental abilities, the stability of Mother’s home,
and the acts or omissions which may indicate an improper parent-child relationship.” In re A.N.,
No. 04-19-00584-CV, 2020 WL 354773, at *3 (Tex. App.—San Antonio Jan. 22, 2020, no pet.).
Mitchell-Dinkins testified that she also sent Mother for drug testing. On all but one
occasion, Mother failed to show up for drug testing. Mother’s failures to show up for drug testing
when requested by the Department are treated as positive results. See In re E.R.W., 528 S.W.3d
251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[A] fact finder can reasonably infer
that a parent’s failure to submit to court-ordered drug tests indicates the parent is avoiding testing
because they were using illegal drugs.”). The one time Mother showed up to take a drug test, the
results showed that Mother was using some of the same illegal drugs that she had used in the past.
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Mitchell-Dinkins further testified that initially Mother attended her visits with the child.
However, in the four months preceding trial, Mother missed eight of her visits with the child.
Based on her observations of Mother’s visits, she noticed an improvement in the way Mother held
the child and talked to him. Mitchell-Dinkins attributed this improvement to Mother’s participation
in parenting classes. Mitchell-Dinkins acknowledged that there was a bond between Mother and
the child. Nevertheless, Mitchell-Dinkins expressed concern that Mother did not have the stability
to provide for the child, noting that during the pendency of this case Mother was unemployed and
had lived in five different places.
The evidence showed that the child had been placed in a foster home immediately upon
removal and was living in the same foster home 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 the foster
family, is well-cared for by them, and has spent minimal time with a parent.” In re F.M.A., No.
04-16-00318-CV, 2016 WL 4379456, at *3 (Tex. App.—San Antonio 2016, pet. denied). “The
stability of the proposed home environment is an important consideration in determining whether
termination of parental rights is in the child’s best interest.” In re J.D., 436 S.W.3d 105, 120 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). “Stability and permanence are paramount in the
upbringing of children.” Id. “[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 § 263.307(a).
A CASA volunteer testified that he performed an unexpected visit to the foster home where
the child was living. During the visit, the CASA volunteer observed the foster father interacting
with the child and teaching him how to play with a toy. According to the CASA volunteer, the
foster home was well-kept, and the foster mother worked at caring for the child.
Mitchell-Dinkins testified the child’s foster home was safe and stable. She observed the
interaction between the foster mother and the child. Mitchell-Dinkins saw the way the child looked
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at and responded to the foster mother. She also saw the way the foster mother responded to the
child. Mitchell-Dinkins described the child as adventurous, talkative, and very smart. The child’s
younger sister was living in the same foster home. Both children had a bond with the foster parents,
who were very attentive to the children and cared for their needs. According to Mitchell-Dinkins,
the foster home was “directed toward the children” and the foster mother “ha[d] dedicated herself
to the children.” Mitchell-Dinkins explained that if the court were to terminate Mother’s and
Father’s parental rights, the foster parents wanted to adopt both children. She thought the foster
parents would be an appropriate long-term placement for the child.
In reviewing all the evidence in the light most favorable to the trial court’s finding, we
conclude a reasonable factfinder could have formed a firm belief or conviction that termination of
Mother’s parental rights was in the child’s best interest. There was ample evidence from which the
trial court could have concluded that Mother did not address her sobriety during the pendency of
the case, that she was unwilling to complete counseling services, that she lacked stable housing
and employment, and that she was inconsistent in visiting the child. Based on the evidence, the
trial court could have reasonably concluded that Mother was incapable of meeting the child’s
emotional and physical needs now and in the future, that the child’s foster parents were meeting
his current emotional and physical needs, and that the Department would ensure that the child’s
future emotional and physical needs were met. We conclude the evidence is legally sufficient to
support the trial court’s finding that termination of Mother’s parental rights was in the child’s best
interest.
With regard to factual sufficiency, we recognize there was some evidence that relapses
may be part of the recovery process and that Mother completed some of the services in her service
plan. However, given all the other evidence presented, we conclude the evidence is factually
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sufficient to support the trial court’s finding that termination of Mother’s parental rights was in the
child’s best interest.
We overrule Mother’s issue.
FATHER’S APPEAL
In his sole issue, Father argues the evidence is legally and factually insufficient to support
the trial court’s finding that termination of his parental rights was in the child’s best interest.
Rosales testified that the Department’s involvement in the case began in Laredo, Texas.
During the family-based phase of the case, Father was asked to complete random drug tests. One
time when Father was asked to drug test, he failed to show. Instead, the family left Laredo and
moved to San Antonio. Father admitted to Rosales that the family left Laredo because he knew
that if he took a drug test, the results would be positive for illegal drugs. After the family moved
to San Antonio, the Department contacted Father and directed him to take another drug test. Father
appeared for this drug test and the results were positive. Father did not dispute the results and he
admitted to using illegal drugs. At the time, Father acknowledged that he needed help with a drug
assessment and treatment, yet he missed multiple drug assessment appointments. Father finally
completed a drug assessment, and he was referred to the Best Option drug treatment program.
Mitchell-Dinkins testified that Father failed to complete the Best Option drug treatment
program. Father was discharged from the program twice for failing to participate. However, Father
did participate in some Department-mandated drug testing. Mitchell-Dinkins said Father’s drug
test results from August 2021, January 2022, and April 2022 were “concerning.” When asked
about the first two drug test results, Father acknowledged that he was struggling with marijuana.
Father told Mitchell-Dinkins that he was having mental health issues. According to Mitchell-
Dinkins, the April 2022 drug test result was positive for drugs “beyond marijuana.” As to this drug
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test, Father said the results could not be true because he was drug testing for pretrial services and
those results were negative.
Mitchell-Dinkins testified that Father had been arrested multiple times for offenses
involving drugs. At the beginning of the family-based case, Father was on parole in Laredo. Then,
in November 2021, eight months after the Department filed its termination petition, Father was
arrested for manufacturing of a controlled substance, a first-degree felony. Father told Mitchell-
Dinkins he was on probation for this offense, but he did not provide her with any supporting
documentation. According to Mitchell-Dinkins, Father’s pattern of criminal activity and
incarceration interfered with his ability to care for the child. “A history of drug abuse and an
inability to maintain a lifestyle free from arrests and incarcerations is relevant to a trial court’s
best-interest determination.” In re F.M.A., 2016 WL 4379456, at *3.
Mitchell-Dinkins testified that Mother and Father were in a relationship for much of this
case. She had seen Mother and Father “cussing in the lobby, at the Department.” However, by the
time the case went to trial, Mother and Father were no longer in a relationship. Early in the case,
Father admitted that he and Mother had arguments that included physical contact such as throwing
objects. Later in the case, Father said that he and Mother still had arguments but he insisted that
they were only verbal in nature.
Mitchell-Dinkins further testified that Father failed to complete the domestic violence
course as required by his service plan. The first time that Father enrolled in a domestic violence
course, he was discharged for failing to attend classes. The month before trial, Father enrolled in
another domestic violence course, which consisted of eighteen classes. By the time of trial, Father
had only attended one of the classes. 5 Additionally, during much of the case, Father failed to
5 There was evidence that Father attended other domestic violence classes, but they were not the correct program for him.
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participate in individual counseling as required by his service plan. Father was discharged by three
separate counselors for failing to show up or for failing to schedule appointments. At the time of
trial, Father was seeing a new counselor, but he had not attended very many sessions. The first
time Father enrolled in parenting classes, he was discharged for failing to participate. Father had
recently re-enrolled in parenting classes, but he had not completed the course. Mitchell-Dinkins
recognized that Father had some mental health issues in January and February 2022, which may
have affected his ability to engage in services for a brief time. However, she pointed out that the
Department’s suit was filed in May 2021. Father could have engaged in services for the first half
of the case, but he failed to do so.
Mitchell-Dinkins testified that Father’s record of visiting the child was inconsistent. Father
participated in thirty-seven visits and missed thirteen visits. Father told Mitchell-Dinkins that the
reason he missed some visits was because he was in a psychiatric facility. Father also represented
to Mitchell-Dinkins that he was late to some visits because of his job. During the visits, the child
and Father watched movies and played with toys, and Father encouraged the child to eat. Mitchell-
Dinkins acknowledged that the Father had a bond with the child.
According to Mitchell-Dinkins, Father told her that he worked in construction and lived
with his father. On the morning of trial, Father provided Mitchell-Dinkins with paystubs.
Nevertheless, Mitchell-Dinkins characterized Father’s life as unstable because of his recent
incarcerations and continued drug use. Based on the facts and circumstances of the case, Mitchell-
Dinkins believed that Father’s relationship with the child was not a proper one. Finally, as
previously detailed, the child was living in a foster home with foster parents who were very
attentive and caring for his needs.
Father testified on his own behalf. He attributed his delay in engaging in services to his
incarceration, stating that his “mentality was more about being in prison.” However, Father said
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he now realized that his children were the most important part of his life. Father confirmed he had
past arrests for controlled substances and harassment of a public servant, and a recent arrest for
manufacturing and delivery of a controlled substance.
Father contended that he was discharged from the Best Options drug treatment program
because of scheduling conflicts with his job. Father said that he had an upcoming drug assessment
and he planned to keep this appointment. As to his other service plan requirements, Father testified
he needed only two more classes to finish the parenting course, and he recently participated in two
individual counseling sessions.
Father disputed the accuracy of his recent Department drug test, which was positive for
cocaine and marijuana. Father noted that his recent drug tests for pretrial services were clean, but
admitted that the Department drug test was different from the pretrial services drug test. The
Department drug test included a hair follicle test, which can detect drug use over a longer time
period. The pretrial services drug test was only a urinalysis and did not include a hair follicle test.
Finally, Father testified that he had four other children from another relationship, but he
was not raising them. Father’s four other children lived with his mother. Father said he was not
raising his other children because he was saving money to buy a house.
In reviewing all the evidence in the light most favorable to the trial court’s finding, we
conclude a reasonable factfinder could have formed a firm belief or conviction that termination of
Father’s parental rights was in the child’s best interest. There was ample evidence from which the
trial court could have concluded that Father did not address his sobriety, that he was inconsistent
in visiting the child, that he was unwilling to complete counseling services, and that he was
unwilling to effectuate positive personal changes in his life within a reasonable time period. Based
on the evidence, the trial court could have reasonably concluded that Father was incapable of
meeting the child’s emotional and physical needs now and in the future, that the child’s foster
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parents were meeting the child’s current emotional and physical needs, and that the Department
would ensure that the child’s future emotional and physical needs were met. We conclude the
evidence is legally sufficient to support the trial court’s finding that termination of Father’s
parental rights was in the child’s best interest.
With regard to factual sufficiency, Father disputed the accuracy of his recent drug test
results. In addition, there was some evidence that Father’s work schedule and his mental health
issues affected his participation in services and his visitation with the child. However, given the
other evidence presented, we conclude the evidence is factually sufficient to support the trial
court’s finding that termination of Father’s parental rights was in the child’s best interest.
We overrule Father’s issue.
CONCLUSION
The trial court’s judgment is affirmed.
Liza A. Rodriguez, Justice
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