in the Interest of L.L.W., S.Y.W. and L.D.L., Children

• Court: Court of Appeals of Texas
• Decided: July 15, 2015
• Docket: 04-15-00221-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00221-CV

IN THE INTEREST OF L.L.W., S.Y.W. and L.D.L., Children

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2014-PA-01142 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: July 15, 2015

AFFIRMED

Appellant mother (“Mother”) appeals from a trial court’s order terminating her parental

rights. The Texas Department of Family and Protective Services (“the Department”) moved

to terminate Mother’s parental rights on numerous grounds. See TEX. FAM. CODE ANN.

§§ 161.001(A)–(G), (I)–(K), (N)–(R), 161.003 (West 2014). After a hearing, the trial court found

Mother’s parental rights should be terminated because she: (1) knowingly placed or knowingly

allowed children to remain in conditions or surroundings which endangered their physical or

emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who

engaged in conduct which endangered the physical or emotional well-being of the children; and

(3) failed to comply with the provisions of a court order that specifically established the actions

necessary for her to obtain the return of her children. See id. §§ 161.001(1)(D), (E), (O). The trial 04-15-00221-CV

court further found termination would be in the best interests of the children pursuant to section

161.001(2). Id. § 161.001(2). On appeal, Mother contends the evidence is legally and factually

insufficient to support the trial court’s finding that termination was in the children’s best interests.

We affirm the trial court’s order of termination.

BACKGROUND

The record shows that L.L.W., S.Y.W., and L.D.L. were removed by the Department in

May 2014 when Mother overdosed on heroin. The children were found by EMTs with their

unconscious mother. The children were immediately removed and placed in foster care where

they remain.

After the children were removed, service plans were created for the parents, and the

required statutory hearings were conducted. Eventually, the Department sought to terminate

Mother’s parental rights. 1 After the termination hearing, the trial court rendered an order

terminating Mother’s parental rights, finding she had violated three provisions of section

161.001(1), as set forth above, and that termination was in the children’s best interests. Thereafter,

Mother perfected this appeal.

ANALYSIS

On appeal, Mother does not contest the trial court’s findings under section 161.001(1) of

the Texas Family Code. Rather, she raises a single issue, contending the evidence is legally and

factually insufficient to support the trial court’s finding that termination was in L.L.W.’s,

S.Y.W.’s, and L.D.L.’s best interests.

1 The Department also sought to terminate the parental rights of each father of the three children — each child has a different father. The trial court also terminated the fathers’ parental rights. These terminations are not before this court as none of the fathers appealed.

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Standard of Review

Under the Texas Family Code, a court has the authority to terminate a parent’s rights to her

children only upon proof by clear and convincing evidence that termination is in the best interest

of the children. Id. § 161.001(2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re E.A.G.,

373 S.W.3d 129, 140 (Tex. App—San Antonio, 2012, pet. denied). “Clear and convincing

evidence” is defined as “proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.

§ 101.007; see J.O.A., 283 S.W.3d at 344; E.A.G., 373 S.W.3d at 140. This heightened standard

of review is required because termination of a parent’s rights to her child results in permanent and

unalterable changes for parent and child, implicating due process. E.A.G., 373 S.W.3d at 140.

Therefore, when reviewing a trial court’s termination order, we must determine whether the

evidence is such that a fact finder could reasonably form a firm belief that the termination was in

the best interest of the child. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002)).

With regard to legal sufficiency challenges in termination of parental rights cases, we view

the evidence in the light most favorable to the trial court’s finding and judgment, and any disputed

facts are resolved in favor of that court’s findings, if a reasonable fact finder could have so resolved

them. Id. We are required to disregard all evidence that a reasonable fact finder could have

disbelieved, and we must consider undisputed evidence even if such evidence is contrary to the

trial court’s findings. Id. In summary, we consider evidence favorable to termination if a

reasonable fact finder could, and we disregard contrary evidence unless a reasonable fact finder

could not. Id.

We remain mindful that we may not weigh a witness’s credibility because it depends on

appearance and demeanor, and these are within the domain of the trier of fact. Id. Even when -3- 04-15-00221-CV

such issues are found in the appellate record, we must defer to the fact finder’s reasonable

resolutions. Id.

In a factual sufficiency review, we also give due deference to the trier of facts’ findings,

avoiding substituting our judgment for the fact finder. 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 [in the truth of its finding], then the evidence is factually

insufficient.” Id. (quoting J.F.C., 96 S.W.3d at 266).

Application

Mother argues the evidence is legally and factually insufficient to support the trial court’s

finding that termination of her relationship with her children was in their best interests. Courts

indulge in the strong presumption that maintaining the parent–child relationship is in a child’s best

interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). We also presume, however,

that permanently placing a child in a safe place in a timely manner is in the child’s best interest.

TEX. FAM. CODE ANN. § 263.307(a). In determining whether a parent is willing and able to provide

the child with a safe environment, the court should consider the factors set out in section

263.307(b), which include: (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 the harm to the child; (4) whether the child has been the victim of repeated harm after the initial

report and intervention by the Department or other agency; (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 -4- 04-15-00221-CV

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 an extended family and friends is available to the child. Id.

§ 263.307(b); see In re A.S., No. 04–14–00505–CV, 2014 WL 5839256, at *2 (Tex. App.—San

Antonio Nov. 12, 2014, pet. denied) (mem. op.).

Courts may also take into account the factors set forth by the Texas Supreme Court in

Holley v. Adams: (1) the desires of the child; (2) the emotional and physical needs of the child now

and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the

parental abilities of the individuals seeking custody; (5) the programs available to assist these

individuals to promote the best interest of the child; (6) the plans for the child by these individuals

or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts

or omissions of the parent which may indicate that the existing parent–child relationship is not a

proper one; and (9) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371–72

(Tex. 1976). These considerations, i.e., “the Holley factors,” are neither all-encompassing nor

does a court have to find evidence of each factor before terminating the parent–child relationship.

See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Thus, lack of evidence as to some of the Holley

factors does not preclude a trier of fact from reasonably forming a strong conviction or belief that

termination is in a child’s best interest. Id.

Additionally, although proof of acts or omissions under section 161.001(1) of the Texas

Family Code does not relieve the Department from proving the best interest of the child, the same -5- 04-15-00221-CV

evidence may be probative of both issues. Id. at 28 (citing Holley, 544 S.W.2d at 370); Wiley v.

Spratlan, 543 S.W.2d 349, 351 (Tex. 1976). Moreover, in conducting a best interest analysis, a

court may consider circumstantial evidence, subjective factors, and the totality of the evidence, in

addition to direct evidence. A.S., 2014 WL 5839256, at *2 (citing In re E.D., 419 S.W.3d 615,

620 (Tex. App.—San Antonio 2013, pet. denied)). Finally, a fact finder may judge a parent’s

future conduct by her past conduct in determining whether termination of the parent–child

relationship is in the best interest of the child. Id.

As Mother points out in her brief, there was limited evidence presented at the hearing on

either the statutory or Holley factors. In fact, the Department called only one witness, Dianna

Pollan, the caseworker. However, as stated above, a court need not find evidence of each Holley

factor before terminating the parent–child relationship. See C.H., 89 S.W.3d at 27. And, just

because there is an absence of evidence as to one or more of the Holley factors, a court is not

prohibited from reasonably forming a strong conviction or belief that termination is in a child’s

best interest. Id. In this case, despite a lack of evidence as to all of the Holley or section 263.307(b)

factors, we hold the evidence that does exist is legally and factually sufficient to support the trial

court’s finding that it was in the children’s best interests to terminate Mother’s parental rights.

According to Ms. Pollan, the children are currently six, four, and thirteen months of age.

See TEX. FAM. CODE ANN. § 263.306(b)(1) (child’s age and physical and mental vulnerabilities);

Holley, 544 S.W.2d at 371–72. L.L.W. and S.Y.W. have special needs and are being seen by

occupational therapists. See TEX. FAM. CODE ANN. § 263.306(b)(1); Holley, 544 S.W.2d at 371–

72. S.Y.W. also has a referral to an ENT, an ear-nose-throat physician. See TEX. FAM. CODE ANN.

§ 263.306(b)(1); Holley, 544 S.W.2d at 371–72. L.D.L. is being monitored for asthma. See TEX.

FAM. CODE ANN. § 263.306(b)(1); Holley, 544 S.W.2d at 371–72. No evidence was presented as

to the desires of the children with regard to conservatorship. See Holley, 544 S.W.2d at 371–72. -6- 04-15-00221-CV

However, two of the children were too young to express such desires, but there was no evidence

even as to the six-year-old, who might have been capable of expressing an opinion.

The Department case worker testified the children were removed from Mother’s care in

May 2014, when Mother overdosed on heroin. See TEX. FAM. CODE ANN. § 263.306(b)(8) (history

of substance abuse by child’s family or others with access to child’s home); Holley, 544 S.W.2d

at 371–72. EMTs, who had been called to the home because of the overdose, found the children

with their unconscious mother; the children were dirty and hungry. See TEX. FAM. CODE ANN.

§ 263.306(b)(3) (magnitude, frequency, and circumstances of harm to child); id. § 263.306(b)(12)

(whether child’s family demonstrates adequate parenting skills); Holley, 544 S.W.2d at 371–72.

According to Ms. Pollan, Mother has a lengthy criminal history, dating back many years,

that demonstrates she has endangered the welfare of her children. See TEX. FAM. CODE ANN.

§ 263.306(b)(8); id. § 263.306(b)(12); Holley, 544 S.W.2d at 371–72. First, Mother has a history

of drug abuse. See TEX. FAM. CODE ANN. § 263.306(b)(8); id. § 263.306(b)(12); Holley, 544

S.W.2d at 371–72. As noted above, she overdosed on heroin with her children in the home. See

TEX. FAM. CODE ANN. § 263.306(b)(8); id. § 263.306(b)(12); Holley, 544 S.W.2d at 371–72.

When Mother overdosed, several prescription bottles were found strewn about the house. See TEX.

FAM. CODE ANN. § 263.306(b)(8); id. § 263.306(b)(12); Holley, 544 S.W.2d at 371–72. Second,

Ms. Pollan testified Mother had “at least one family assault charge,” and there is evidence of

domestic violence between Mother and two of the three fathers. See TEX. FAM. CODE ANN.

§ 263.306(b)(7) (history of abusive or assaultive conduct by child’s family or others with access

to child’s home); id. § 263.306(b)(12); Holley, 544 S.W.2d at 371–72. Ms. Pollan testified she

has concerns that Mother “continues to be involved with men who are abusive.” See TEX. FAM.

CODE ANN. § 263.306(b)(7); id. § 263.306(b)(12); Holley, 544 S.W.2d at 371–72. However,

Mother testified she was not in any relationship at the time of the hearing and had no plans to enter -7- 04-15-00221-CV

a relationship in the future. Third, even after the Department intervened and removed the children,

Mother engaged in new criminal activity. See TEX. FAM. CODE ANN. § 263.306(b)(7); id.

§ 263.306(b)(12); Holley, 544 S.W.2d at 371–72. Specifically, Mother obstructed the arrest of the

father of one of the children, who was assaulting her great-grandmother. See TEX. FAM. CODE

ANN. § 263.306(b)(7); id. § 263.306(b)(12); Holley, 544 S.W.2d at 371–72. Ms. Pollan testified

that she had no confidence the Mother would refrain from future criminal activities if the children

were returned to her, resulting in continued danger to the children.

As to her service plan, which set out the tasks and goals Mother needed to complete to

obtain the return of her children, the evidence showed Mother failed to complete several tasks, not

the least of which was failing one drug test and missing another, claiming she was out of town.

See TEX. FAM. CODE ANN. § 263.306(b)(10) (willingness and ability of child’s family to seek out,

accept, and complete counseling services); id. § 263.306(b)(11) (willingness and ability of child’s

family to effect positive environmental and personal changes within reasonable time period);

Holley, 544 S.W.2d at 371–72. According to Ms. Pollan, Mother was uncooperative with regard

to the mandated drug testing and Mother failed to address her drug-related issues. See TEX. FAM.

CODE ANN. § 263.306(b)(10); id. § 263.306(b)(11); Holley, 544 S.W.2d at 371–72.

Mother was also required to engage in counseling. See TEX. FAM. CODE ANN.

§ 263.306(b)(10); id. § 263.306(b)(11); Holley, 544 S.W.2d at 371–72. Ms. Pollan testified

Mother was only “semi-engaged” in counseling, missing about half of her recent appointments.

Mother stated she wanted to keep working with her therapist toward the goal of reunification with

her children. See TEX. FAM. CODE ANN. § 263.306(b)(10); id. § 263.306(b)(11); Holley, 544

S.W.2d at 371–72.

Mother completed her parenting classes and faithfully exercised her rights to visitation

as set out in the service plan, seeing her children every week. See TEX. FAM. CODE ANN. -8- 04-15-00221-CV

§ 263.306(b)(10); id. § 263.306(b)(11); Holley, 544 S.W.2d at 371–72. During visitations, Ms.

Pollan saw Mother using skills she learned in parenting classes when interacting with her children.

See TEX. FAM. CODE ANN. § 263.306(b)(10); id. § 263.306(b)(11); Holley, 544 S.W.2d at 371–72.

She appeared bonded with her children and seemed to have a good relationship with them. Mother

also participated in all three of the mandated family group conferences. See TEX. FAM. CODE ANN.

§ 263.306(b)(10); id. § 263.306(b)(11); Holley, 544 S.W.2d at 371–72.

Despite the completion of the parenting class and implementation of the information

learned therein, as well as Mother’s bond with the children, Ms. Pollan concluded termination was

in the children’s best interests because Mother had significant time to address her numerous issues,

but made no significant progress in many areas, especially with regard to her drug use and abusive

relationships. See TEX. FAM. CODE ANN. § 263.306(b)(10); id. § 263.306(b)(11); Holley, 544

As for the current and future placement of the children, the children remained in foster care

as of the date of the hearing and their needs are being met. See Holley, 544 S.W.2d at 371–72.

According to Ms. Pollan, the Department’s long-range plan for the children — in the event of

termination — is adoption. Id. The Department has contacted relatives who may be willing to

adopt; if not, the Department will seek adoption by non-relatives. Id. Mother testified there might

be relatives who would take the children, but she would “have to talk to them.” See TEX. FAM.

CODE ANN. § 263.306(b) (13) (adequate social support system in nature of extended family and

friends); Holley, 544 S.W.2d at 371–72.

Finally, the evidence establishes, and Mother does not contest, she committed several acts

or omissions under section 161.001(1). See C.H., 89 S.W.3d at 28. Specifically, Mother: (1)

knowingly placed or knowingly allowed children to remain in conditions or surroundings which

endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed -9- 04-15-00221-CV

the children with persons who engaged in conduct which endangered the physical or emotional

well-being of the children; and (3) failed to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of her children. See TEX.

FAM. CODE ANN. §§ 161.001(1) (D), (E), (O).

Given that the trial court was permitted to consider circumstantial evidence, subjective

factors, and the totality of the evidence, in addition to the direct evidence presented, we hold the

trial court was within its discretion in finding termination of Mother’s parental rights would be in

her children’s best interests. See A.S., 2014 WL 5839256, at *2. In other words, we hold the

evidence is such that the trial court could have reasonably formed a firm belief or conviction that

termination was in the children’s best interests. See J.P.B., 180 S.W.3d at 573.

CONCLUSION

We hold the trial court did not err in finding that termination of the Mother’s parental rights

was in the children’s best interests. There was both legally and factually sufficient evidence to

support the trial court’s finding. Accordingly, we overrule Mother’s sole appellate issue and affirm

the trial court’s order of termination.

Marialyn Barnard, Justice

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