in the Interest of N.N.C. and G.L.N v. .

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-20-00436-CV

IN THE INTEREST OF N.N.C. and G.L.N., Children

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-02273 Honorable Susan D. Reed, Judge Presiding 1

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: February 24, 2021

AFFIRMED

Appellants Trey, father of N.N.C., and Doug, father of G.L.N., appeal the trial court’s order

terminating their parental rights to their children. 2 Both fathers challenge the legal and factual

sufficiency of the evidence to support the trial court’s findings that termination is in their children’s

best interests. See TEX. FAM. CODE ANN. § 161.001(b). We affirm.

BACKGROUND

The Department became involved with the children after receiving a referral that N.N.C.

was not receiving proper medical care and the children were living in a motel and being exposed

to drug activity and domestic violence. On October 4, 2018, the Texas Department of Family and

1 Senior District Judge, sitting by assignment. 2 To protect the identities of the minor children in this appeal, we refer to appellants by a pseudonym first name and the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-20-00436-CV

Protective Services (“the Department”) filed a petition to terminate Trey’s and Doug’s parental

rights to N.N.C. and G.L.N. On August 14, 2020, the trial court held a bench trial, at which the

Department caseworker and the children’s mother (“Mother”) testified. At the time of trial, N.N.C.

was nine years old and G.L.N. was six years old. Following trial, the trial court signed an order

terminating Trey’s parental rights to N.N.C. and Doug’s parental rights to G.L.N. For Trey, the

trial court found two statutory grounds for termination: (1) Trey constructively abandoned his

child, and (2) he failed to comply with the provisions of a court order that established the actions

necessary for him to obtain the return of his child. See id. § 161.001(b)(1)(N), (O). For Doug, the

trial court found three statutory grounds for termination: (1) Doug constructively abandoned his

child, (2) he failed to comply with the provisions of a court order that established the actions

necessary for him to obtain the return of his child, and (3) he used a controlled substance in a

manner that endangered his child’s health or safety. See id. § 161.001(b)(1)(N), (O), (P). The trial

court also found that termination of Trey’s and Doug’s parental rights was in the children’s best

interests. See id. § 161.001(b)(2). Trey and Doug appeal.

STANDARD OF REVIEW

A parent-child relationship may be terminated only if the trial court finds by clear and

convincing evidence one of the predicate grounds enumerated in section 161.001(b)(1) of the

Family Code and that termination is in a child’s best interest. Id. § 161.001(b)(1), (2). Clear and

convincing evidence requires “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.” Id. § 101.007. We review

the legal and factual sufficiency of the evidence under the standards of review established by the

Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266–67 (Tex. 2002). Under a legal

sufficiency review, we must “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

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finding was true.” Id. at 266. “[A] reviewing court must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. Under a factual

sufficiency review, we “must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing.” Id. “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.

Under both standards, “[t]he trial court is the sole judge of the weight and credibility of the

evidence[.]” In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio

Jan. 30, 2017, no pet.) (mem. op.). We “must give due deference to a jury’s factfindings and

should not supplant the jury’s judgment with [our] own.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006) (per curiam).

BEST INTERESTS

Trey and Doug challenge the sufficiency of the evidence to support the trial court’s findings

that termination of their parental rights was in their children’s best interests. There is a strong

presumption that keeping a child with a parent is in a child’s best interest. In re R.R., 209 S.W.3d

112, 116 (Tex. 2006) (per curiam). However, it is equally presumed that “the prompt and

permanent placement of the child in a safe environment is . . . in the child’s best interest.” TEX.

FAM. CODE ANN. § 263.307(a). In determining whether a child’s parent is willing and able to

provide the child with a safe environment, we consider the factors set forth in Texas Family Code

section 263.307(b). See id. § 263.307(b).

Our best interest analysis is also guided by consideration of the non-exhaustive Holley

factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include: (1)

the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present

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or 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 proposed placement; (8) the parent’s acts or omissions which may

indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent’s

acts or omissions. See id.; accord In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). The

Department is not required to prove each factor, and the absence of evidence regarding some of

the factors does not preclude the factfinder from reasonably forming a firm conviction that

termination is in a child’s best interest, particularly if the evidence is undisputed that the parent-

child relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

The focus of our review is whether the evidence, as a whole, is sufficient for the trial court to have

formed a firm conviction or belief that termination of the parent-child relationship is in the best

interest of the child. Id.

A. Trey

The Department produced evidence that Trey did not provide a stable and safe environment

for N.N.C. See In re T.N.J.J., No. 04-19-00228-CV, 2019 WL 6333470, at *7 (Tex. App.—San

Antonio Nov. 27, 2019, no pet.) (mem. op.) (highlighting that child’s need for stable and safe home

is paramount in best interest determination). According to the caseworker, Trey lived in different

motels while caring for N.N.C. The caseworker testified that these motels had been reported as

being under surveillance for drug sales and activities, and N.N.C had been exposed to inappropriate

adults and domestic violence when residing at these hotels with Trey. The trial court also heard

testimony from Mother, who is currently caring for N.N.C. Mother testified Trey did not have a

stable home and she was concerned that if the trial court did not terminate Trey’s parental rights,

she would not know where to find N.N.C. when he was staying with Trey. Based on this evidence,

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the trial court could have reasonably determined Trey’s unstable lifestyle would subject N.N.C. to

a life of uncertainty and instability. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston

[14th Dist.] 2016, pet. denied) (recognizing a child’s need for stable, permanent home as

paramount consideration in best interest determination); In re K.J.G., No. 04-19-00102-CV, 2019

WL 3937278, at *5 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.) (parent’s

failure to obtain and maintain stable housing subjected children to life of uncertainty and

instability).

The evidence also shows Trey did not comply with his service plan requirements. The

caseworker testified that Trey failed to engage in or to complete any of his court ordered services,

which required him to engage in counseling and complete parenting and family violence classes,

a drug assessment, and a psychological assessment. See In re I.L.G., 531 S.W.3d 346, 355–56

(Tex. App.—Houston [14th Dist.] 2017, pet. denied) (pointing out parent’s failure to comply with

court ordered service plan goes to best interest determination). Specifically, the caseworker

testified that Trey refused to submit to drug testing. Based on this testimony, the trial court could

have reasonably determined that Trey’s failure to comply with his service plan requirements

indicates that he did not have the motivation or willingness to take advantage of the services

offered to him by the Department, casting doubt on his parenting abilities. See id.; In re J.M.T.,

519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see also TEX. FAM. CODE

ANN. § 263.307(b)(10), (11) (courts may consider willingness and ability of parent to seek out,

accept, or complete counseling services and willingness and ability of the parent to effect positive

environmental and personal changes within reasonable time period); Holley, 544 S.W.2d at 371–

72.

The Department also presented evidence that Trey has not had any contact with N.N.C.

since September of 2019. A parent’s lack of contact with his child supports a best interest finding.

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See In re R.A.G., 545 S.W.3d 645, 654 (Tex. App.—El Paso 2017, no pet.). The caseworker

testified that Trey initially participated in visits with N.N.C. but has not participated in a visit since

September 2019. Since then, she has been unable to locate Trey. She specified that he did not live

at any of the addresses he provided to her as his residence, and he did not respond to any of the

letters she sent him. She further testified she attempted to contact him by phone and through social

media, but she was not successful. Her last attempt was made in July—one month before trial.

Finally, she testified that Trey has not contacted her or attempted to provide for the care and

support of N.N.C. during the pendency of this case.

The Department also presented evidence that N.N.C. is thriving in his current placement

with Mother and that both Mother and N.N.C. are getting the services they need, such as family

counseling and behavioral therapy. See Holley, 544 S.W.2d at 372 (considering plans for children

by those seeking custody in best interest analysis). According to the caseworker, N.N.C. prefers

to be in Mother’s care, is not bonded to Trey, and does not want to have visits with Trey because

Trey “would promise things and wouldn’t show up.” See id. (including the children’s desires as

best interest factor).

After reviewing 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

Trey’s parental rights was in the best interest of N.N.C. In re J.F.C., 96 S.W.3d at 266. Moreover,

after reviewing all the evidence, we conclude the evidence contrary to the trial court’s finding is

not so significant that a factfinder could not have formed a firm belief or conviction in favor of

that finding. In re J.O.A., 283 S.W.3d at 345. Therefore, we hold the evidence is legally and

factually sufficient to support the trial court’s finding that termination of Trey’s parental rights

was in N.N.C.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).

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B. Doug

According to the record, one reason for removal was illegal drug use by Doug. According

to the caseworker, at the beginning of the case, Doug completed a drug assessment, which

recommended that he complete outpatient drug treatment; however, Doug was unsuccessfully

discharged because he did not participate in the treatment. As recent as May of 2020, Doug tested

positive for hydrocodone and hydromorphone and failed to provide proof that he was under a

physician’s care when the caseworker requested it. Doug also failed to submit hair follicles for

additional drug tests. See In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex.

App.—San Antonio Dec. 11, 2019, pet. denied) (mem. op.) (trial court could infer parent’s drug

abuse from parent’s failure to submit to drug testing). When asked whether she had personal

knowledge that Doug currently used illegal substances, the caseworker testified Doug admitted

“he had messed up and that he was doing things he wasn’t supposed to do.” Accordingly, a trial

court could have reasonably determined Doug was using drugs, and Doug’s drug use impacts

several Holley factors. See Holley, 54 S.W.2d at 372; In re A.N., No. 04-19-00584-CV, 2020 WL

354773, at *3 (Tex. App.—San Antonio Jan. 22, 2020, no pet.) (mem. op.) (a parent’s drug use is

relevant to multiple Holley factors). Drug use supports a finding that a parent engages in conduct

that endangers the physical and emotional well-being of his children. See In re K.J.G., 2019 WL

3937278, at *5. It also suggests inadequate parenting skills and that a parent cannot provide his

child with a safe and stable home. See In re T.N.J.J., 2019 WL 6333470, at *5; In re D.D.M., No.

01-18-01033-CV, 2019 WL 2939259, at *7 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.)

(mem. op.); see also In re A.H.L., No. 01-16-00784-CV, 2017 WL 1149222, at *5 (Tex. App.—

Houston [1st Dist.] Mar. 28, 2017, pet. denied) (mem. op.) (parent’s drug use may indicate

instability, exposing risk of exposure to a parent’s impairment or possible incarceration).

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The trial court also heard testimony that Doug did not complete his service plan

requirements. Doug was court-ordered to complete counseling, psychological services, and a drug

assessment. As indicated above, Doug completed his initial drug assessment but did not participate

in the recommended outpatient treatment. The caseworker also testified she set up counseling

services for Doug, but he did not attend any sessions. See Holley, 544 S.W.2d at 372; see also In

re J.M.T., 519 S.W.3d at 270 (failure to complete required services to regain possession allows

fact finder to infer that parent lacks motivation to seek resources now or in future). The caseworker

also testified that Doug did not consistently attend visits with G.L.N. and has not participated in a

visit with G.L.N. since August 2019. See In re R.A.G., 545 S.W.3d at 654. According to the

caseworker, Doug provided various excuses for missing visits, stating that he either forgot or was

not feeling well.

The trial court also heard testimony from the caseworker about Doug’s extensive criminal

history including his prior arrests for assault on a security guard, possession of dangerous drugs,

driving while intoxicated, and theft of property. Cf. In re F.M.E.A.F., 572 S.W.3d 716, 732 (Tex.

App.—Houston [14th Dist.] 2019, pet. denied) (repeated violations of the law and imprisonment

support finding that termination is in best interest of child). Mother testified about Doug’s violent

tendencies and prior threats to take G.L.N. She testified she sought a protective order against

Doug, but it was denied; however, she plans to try again. Recently, she blocked Doug on social

media, but he continues to use different pages to try to contact her. She testified that she fears for

the safety of G.L.N. if he is under Doug’s care. See In re R.R., Jr., 294 S.W.3d 213, 237 (Tex.

App.—Fort Worth 2009, no pet.) (considering father’s long history of domestic violence). There

is also evidence that Doug does not have a home and has failed to maintain stable housing. See In

re L.G.R., 498 S.W.3d at 205.

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Finally, as it did with N.N.C., the Department presented evidence that G.L.N. prefers to

remain in Mother’s care, does not want to have visits with Doug, is thriving in his current

placement, and is receiving the family counseling and behavioral therapy he needs. See Holley,

544 S.W.2d at 372; see also TEX. FAM. CODE ANN. § 263.307(b)(5).

After reviewing 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

Doug’s parental rights was in G.L.N.’s best interest. In re J.F.C., 96 S.W.3d at 266. Moreover,

after reviewing all the evidence, we conclude the evidence contrary to the trial court’s finding is

not so significant that a factfinder could not have formed a firm belief or conviction in favor of

that finding. In re J.O.A., 283 S.W.3d at 345. Therefore, we hold the evidence is legally and

factually sufficient to support the trial court’s finding that termination of Doug’s parental rights

was in G.L.N.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).

CONCLUSION

We affirm the trial court’s order.

Rebeca C. Martinez, Chief Justice

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