Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00211-CV
IN THE INTEREST OF R.M.V., a Child
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-00202 Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
Delivered and Filed: July 10, 2019
AFFIRMED
Ray1 appeals the trial court’s order terminating his parental rights to his child, R.M.V. Ray
challenges the sufficiency of the evidence supporting the trial court’s finding that termination is in
the child’s best interest. We affirm the trial court’s judgment.
BACKGROUND
The Texas Department of Family and Protective Services removed R.M.V. and her younger
half-brother from their mother’s custody after R.M.V. made outcries of witnessing her mother
using drugs and leaving the children home alone without food. The Department filed a petition in
February 2018 to terminate the parental rights of Ray, the mother, and the younger child’s father.
1 To protect the identity of the minor child, we refer to the appellant by his first name only and the child by her initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-19-00211-CV
At the time this case was initiated, Ray was living in a halfway house following his release
from prison in December 2017. In April 2018, Ray removed his ankle monitor and went “on the
run” until he turned himself in to authorities in October 2018. Ray admitted he was aware of this
case as early as June 2018, but he did not contact the Department caseworker until January 2019
because “he was on the run and had a lot of things going on that he was trying to take care of.”
Ray was personally served with citation on January 3, 2019.
When Ray contacted the Department, he expressed a desire to engage in services and was
given a service plan requiring him to attend counseling and a parenting class. By the time the trial
court held a bench trial on March 19, 2019, Ray had begun services but had not completed them.
R.M.V.’s mother and the other child’s father did not personally appear at trial. Ray appeared for
trial with counsel and announced “not ready.” The trial court overruled Ray’s “not ready”
announcement.
The Department caseworker testified R.M.V. was eleven years old on the date of trial. Ray
admitted to the caseworker that he had not seen R.M.V. in nine years. The caseworker attempted
to arrange communication between Ray and R.M.V., but R.M.V. did not want to communicate
with him at that time. The caseworker informed Ray he could write R.M.V. a letter, but he did not
do so. Because Ray had not asked about R.M.V. or inquired about visiting her, the caseworker
concluded Ray had not displayed a desire to have a relationship with R.M.V. Ray “has an address”
and is employed, but the caseworker did not visit Ray’s home or inquire into his living situation
and employment. Shortly before trial, Ray admitted to the caseworker that he had used marijuana
in October 2018.
At the time of trial, R.M.V. and her brother were placed with their maternal aunt and uncle.
Both children were doing well in the placement and expressed a desire to remain there. The aunt
and uncle were meeting the children’s emotional and physical needs, providing them a safe, stable,
-2- 04-19-00211-CV
and loving home, and taking the children to counseling and extracurricular activities. The
caseworker observed a visible bond and attachment between the children and their aunt and uncle.
R.M.V.’s aunt testified she believes the children are happy living with her, and she wants to adopt
them. The caseworker testified she believes that if the children are removed from their current
placement and returned to their parents they will “suffer severe emotional trauma.”
Ray testified he personally visited R.M.V. more than one dozen times in eleven years and
last saw her in 2011. Ray also testified he paid child support for R.M.V. until 2011. Although Ray
has not seen R.M.V. since he was released from prison in December 2017, he testified he turned
himself in to authorities in October 2018 so he could be involved with R.M.V. and this case. While
incarcerated, Ray voluntarily availed himself of parenting and anger management classes because
he has the desire to be in R.M.V.’s and his other children’s lives and give them the things he did
not have. Ray testified that while this case was pending, he asked R.M.V.’s aunt three times if he
could visit R.M.V., but the aunt said that was not possible.
Ray admitted he has two prior convictions for injury to a child. In 2011, Ray was convicted
of intentionally and knowingly causing body injury to a child younger than fourteen. Ray’s
parental rights to that then two-year-old child and another child were subsequently terminated in
2014. In 2017, Ray was convicted of serious bodily injury by omission to a child younger than
fourteen. That child was Ray’s girlfriend’s infant daughter, who died of malnourishment after
being released from the hospital to live with Ray and his girlfriend.
Following trial, the trial court granted the Department’s petition for termination and
terminated Ray’s and the other parents’ parental rights to both children. Ray appeals.
STANDARD OF REVIEW
To terminate parental rights, the Department must prove by clear and convincing evidence:
(1) one of the predicate grounds in subsection 161.001(b)(1), and (2) termination is in the child’s
-3- 04-19-00211-CV
best interest. TEX. FAM. CODE §§ 161.001(b), 161.206(a). We review the legal and factual
sufficiency of the evidence using well-established standards of review. See id. § 101.007; In re
J.F.C., 96 S.W.3d 256, 263–67 (Tex. 2002).
DISCUSSION
In a single issue, Ray challenges the trial court’s finding that termination is in R.M.V.’s
best interest. 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). In determining the best interest
of a child, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future
emotional and physical needs of the child; (3) the present and future physical danger to the child;
(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 held by the individuals
seeking custody; (7) the stability of the home of the parent and the individuals seeking custody;
(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. Id.
Here, R.M.V. expressed a desire to remain with her aunt and uncle and rejected the
Department’s attempts to facilitate communication with Ray. R.M.V.’s aunt testified: “[R.M.V.]
doesn’t want to see [Ray]. I asked her . . . what does she want, and she told me she—she doesn’t
know her dad.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00211-CV
IN THE INTEREST OF R.M.V., a Child
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-00202 Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
Delivered and Filed: July 10, 2019
AFFIRMED
Ray1 appeals the trial court’s order terminating his parental rights to his child, R.M.V. Ray
challenges the sufficiency of the evidence supporting the trial court’s finding that termination is in
the child’s best interest. We affirm the trial court’s judgment.
BACKGROUND
The Texas Department of Family and Protective Services removed R.M.V. and her younger
half-brother from their mother’s custody after R.M.V. made outcries of witnessing her mother
using drugs and leaving the children home alone without food. The Department filed a petition in
February 2018 to terminate the parental rights of Ray, the mother, and the younger child’s father.
1 To protect the identity of the minor child, we refer to the appellant by his first name only and the child by her initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-19-00211-CV
At the time this case was initiated, Ray was living in a halfway house following his release
from prison in December 2017. In April 2018, Ray removed his ankle monitor and went “on the
run” until he turned himself in to authorities in October 2018. Ray admitted he was aware of this
case as early as June 2018, but he did not contact the Department caseworker until January 2019
because “he was on the run and had a lot of things going on that he was trying to take care of.”
Ray was personally served with citation on January 3, 2019.
When Ray contacted the Department, he expressed a desire to engage in services and was
given a service plan requiring him to attend counseling and a parenting class. By the time the trial
court held a bench trial on March 19, 2019, Ray had begun services but had not completed them.
R.M.V.’s mother and the other child’s father did not personally appear at trial. Ray appeared for
trial with counsel and announced “not ready.” The trial court overruled Ray’s “not ready”
announcement.
The Department caseworker testified R.M.V. was eleven years old on the date of trial. Ray
admitted to the caseworker that he had not seen R.M.V. in nine years. The caseworker attempted
to arrange communication between Ray and R.M.V., but R.M.V. did not want to communicate
with him at that time. The caseworker informed Ray he could write R.M.V. a letter, but he did not
do so. Because Ray had not asked about R.M.V. or inquired about visiting her, the caseworker
concluded Ray had not displayed a desire to have a relationship with R.M.V. Ray “has an address”
and is employed, but the caseworker did not visit Ray’s home or inquire into his living situation
and employment. Shortly before trial, Ray admitted to the caseworker that he had used marijuana
in October 2018.
At the time of trial, R.M.V. and her brother were placed with their maternal aunt and uncle.
Both children were doing well in the placement and expressed a desire to remain there. The aunt
and uncle were meeting the children’s emotional and physical needs, providing them a safe, stable,
-2- 04-19-00211-CV
and loving home, and taking the children to counseling and extracurricular activities. The
caseworker observed a visible bond and attachment between the children and their aunt and uncle.
R.M.V.’s aunt testified she believes the children are happy living with her, and she wants to adopt
them. The caseworker testified she believes that if the children are removed from their current
placement and returned to their parents they will “suffer severe emotional trauma.”
Ray testified he personally visited R.M.V. more than one dozen times in eleven years and
last saw her in 2011. Ray also testified he paid child support for R.M.V. until 2011. Although Ray
has not seen R.M.V. since he was released from prison in December 2017, he testified he turned
himself in to authorities in October 2018 so he could be involved with R.M.V. and this case. While
incarcerated, Ray voluntarily availed himself of parenting and anger management classes because
he has the desire to be in R.M.V.’s and his other children’s lives and give them the things he did
not have. Ray testified that while this case was pending, he asked R.M.V.’s aunt three times if he
could visit R.M.V., but the aunt said that was not possible.
Ray admitted he has two prior convictions for injury to a child. In 2011, Ray was convicted
of intentionally and knowingly causing body injury to a child younger than fourteen. Ray’s
parental rights to that then two-year-old child and another child were subsequently terminated in
2014. In 2017, Ray was convicted of serious bodily injury by omission to a child younger than
fourteen. That child was Ray’s girlfriend’s infant daughter, who died of malnourishment after
being released from the hospital to live with Ray and his girlfriend.
Following trial, the trial court granted the Department’s petition for termination and
terminated Ray’s and the other parents’ parental rights to both children. Ray appeals.
STANDARD OF REVIEW
To terminate parental rights, the Department must prove by clear and convincing evidence:
(1) one of the predicate grounds in subsection 161.001(b)(1), and (2) termination is in the child’s
-3- 04-19-00211-CV
best interest. TEX. FAM. CODE §§ 161.001(b), 161.206(a). We review the legal and factual
sufficiency of the evidence using well-established standards of review. See id. § 101.007; In re
J.F.C., 96 S.W.3d 256, 263–67 (Tex. 2002).
DISCUSSION
In a single issue, Ray challenges the trial court’s finding that termination is in R.M.V.’s
best interest. 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). In determining the best interest
of a child, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future
emotional and physical needs of the child; (3) the present and future physical danger to the child;
(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 held by the individuals
seeking custody; (7) the stability of the home of the parent and the individuals seeking custody;
(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. Id.
Here, R.M.V. expressed a desire to remain with her aunt and uncle and rejected the
Department’s attempts to facilitate communication with Ray. R.M.V.’s aunt testified: “[R.M.V.]
doesn’t want to see [Ray]. I asked her . . . what does she want, and she told me she—she doesn’t
know her dad. She doesn’t want—she’s afraid.” R.M.V.’s aunt and uncle have demonstrated they
can meet R.M.V.’s present and future emotional and physical needs, while the Department
caseworker testified Ray has not demonstrated the ability to do so. The Department caseworker
believes it would be traumatic for R.M.V. to be removed from her aunt and uncle, who plan to
adopt R.M.V. and her brother.
-4- 04-19-00211-CV
Although Ray has expressed a desire and willingness to work services in order to be
reunited with R.M.V., he failed to contact the Department or engage in services for six months
after he became aware of this case. Ray testified he currently has stable housing, but while the case
was pending, Ray was “on the run” from authorities and later incarcerated. Ray also admitted to
using marijuana while the case was pending and to two prior convictions for injuring other
children. While Ray testified he wants to have a relationship with R.M.V., he has not seen her in
years, did not write her a letter when given the opportunity to do so, and did not ask the caseworker
any questions about R.M.V. or ask the caseworker to visit R.M.V. The Department caseworker
testified Ray had not displayed a desire to have a relationship with R.M.V.
After considering all of the evidence in the record in light of the Holley factors, we
conclude legally and factually sufficient evidence supports the trial court’s best interest finding.
CONCLUSION
We overrule Ray’s sole issue and affirm the trial court’s order of termination.
Luz Elena D. Chapa, Justice
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