Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00137-CV
IN THE INTEREST OF T.A.P., Jr.; D.C.P.; D.M.P.; D.L.Q.; and S.I.P., Children
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2015PA02543 Honorable Richard Garcia, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice
Delivered and Filed: July 19, 2017
AFFIRMED
This is an appeal from the trial court’s order terminating appellant’s parental rights to her
five children. 1 On appeal, appellant challenges the legal and factual sufficiency of the evidence to
support the trial court’s findings on the predicate statutory grounds and on whether termination of
her parental rights was in the children’s best interest. Because we conclude the evidence is legally
and factually sufficient to support the trial court’s findings, we affirm the trial court’s order.
BACKGROUND
On December 8, 2015, the Department of Family and Protective Services (“the
Department”) filed its original petition for conservatorship of the five children who are the subject
of this appeal and for termination of their parents’ parental rights.
1 The trial court also terminated the fathers’ parental rights. They did not appeal. 04-17-00137-CV
At the December 5, 2016, termination hearing, the State first called the Department
caseworker, Chelsea Solis, who testified the children were in three different family placements. 2
Solis said the Department originally removed the children because appellant allowed the children
to stay with Leo C. who sexually abused six-year-old D.L.Q. Solis said appellant told her that Leo
C. was a “friend” who stayed at their house. According to Solis, “multiple children” corroborated
the sexual abuse allegations. Solis stated appellant had not completed any of the goals under her
service plan, which required her to complete individual counseling, complete a substance abuse
program, visit her children weekly contingent on clean drug test results, maintain contact with the
Department, and obtain stable housing and employment. Appellant began three different
substance abuse programs, but was unsuccessfully discharged from all three. Solis said appellant
tested positive for methamphetamines and amphetamines throughout the case. Although appellant
attended individual counseling and completed her psychological assessment, she made no progress
toward changing her lifestyle or habits. Appellant missed most of her visitations with her children
because of her positive drug test results. However, the children looked forward to seeing their
mother and the visits were appropriate when they occurred. As for housing, Solis believed
appellant was moving from house to house, staying with friends or her grandmother.
Solis believed termination of appellant’s parental rights was in the children’s best interest
because appellant demonstrated an unwillingness to change her behavior, appellant was aware of
her drug problem but did nothing to change, and the children had bonded with their caregivers who
provided for all the children’s basic needs. Solis said none of the children has any medical
conditions or developmental issues, none takes medication, and they each were in therapy. She
said the children miss their mother and like seeing her, but they are “very bonded” to their
2 At the time of the termination hearing, T.A.P. was twelve years old, D.C.P. was ten years old, D.M.P. was eight years old, D.L.Q. was six years old, and S.I.P. was five years old.
-2- 04-17-00137-CV
caregivers and want to stay with them long-term. T.A.P. “was angry” about the removal because
he did not blame his mother, but instead, blamed the man who abused his sister. However, T.A.P.’s
anger problems have improved with therapy and he is doing well in school. Solis stated all the
children want to be adopted by their current caregivers. Although the children are with three sets
of caregivers, they continue to have sibling visits.
The State next called Leslie Vanaman, a professional counselor who saw appellant for both
counseling and drug treatment. Vanaman said appellant did not make progress towards changing
her habits, and she stopped treating appellant because appellant stopped attending her sessions.
Finally, the State called appellant who admitted she used amphetamines as recently as
November 16, 2016—less than three weeks before the termination hearing. Appellant did not
believe her parental rights should be terminated because she was “trying [her] hardest to — to get
[the children] back, but then [she] fell off.” Appellant said all her children wanted to come home.
Appellant said she was on a wait list for admission to an in-patient drug treatment program, and,
in the meantime, she intended to start a Narcotics Anonymous (“NA”) program. She did not start
the NA program earlier, when asked to do so by her caseworker, because she did not believe she
had a drug problem. She realized she had a drug problem a “couple of months ago.” Appellant
stated she lives with her grandmother in a three-bedroom house, which she said was large enough
for her children if they were returned to her.
Appellant said she was trying to find employment, and her grandmother, who is on social
security, helped her financially. She said her father’s girlfriend brings food. Appellant stated she
completed her parenting class. She said she had a job in June and July of 2015, but she was fired
because she had trouble finding transportation. She has not found other employment. Although
she admitted to using drugs a few weeks before the termination hearing, appellant claimed she was
raising her children in a happy home. -3- 04-17-00137-CV
STATUTORY PREDICATE GROUNDS
Parental rights may be terminated only upon proof of clear and convincing evidence that
the parent has committed an act prohibited by Texas Family Code section 161.001(b)(1), and that
termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp.
2016). If the trial court terminates the parent-child relationship on multiple grounds under section
161.001(b)(1), we may affirm on any one ground because, in addition to finding that termination
is in the child’s best interest, only one predicate violation under section 161.001(b)(1) is necessary
to support a termination decree. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Here, the trial court terminated appellant’s parental rights on four predicate grounds under
Family Code section 161.001(b)(1)—grounds (D), (E), (O), and (P). On appeal, appellant argues
the evidence is legally and factually insufficient to support the trial court’s findings, under grounds
(D) and (E), that (1) she knowingly placed or knowingly allowed her children to remain in
conditions or surroundings that endangered their physical or emotional well-being; and (2) she
engaged in conduct or knowingly placed the children with persons engaged in conduct that
endangered the physical or emotional well-being of the children. As to ground (P)—that she used
a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that
endangered the health or safety of the children, and failed to complete a court-ordered substance
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00137-CV
IN THE INTEREST OF T.A.P., Jr.; D.C.P.; D.M.P.; D.L.Q.; and S.I.P., Children
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2015PA02543 Honorable Richard Garcia, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice
Delivered and Filed: July 19, 2017
AFFIRMED
This is an appeal from the trial court’s order terminating appellant’s parental rights to her
five children. 1 On appeal, appellant challenges the legal and factual sufficiency of the evidence to
support the trial court’s findings on the predicate statutory grounds and on whether termination of
her parental rights was in the children’s best interest. Because we conclude the evidence is legally
and factually sufficient to support the trial court’s findings, we affirm the trial court’s order.
BACKGROUND
On December 8, 2015, the Department of Family and Protective Services (“the
Department”) filed its original petition for conservatorship of the five children who are the subject
of this appeal and for termination of their parents’ parental rights.
1 The trial court also terminated the fathers’ parental rights. They did not appeal. 04-17-00137-CV
At the December 5, 2016, termination hearing, the State first called the Department
caseworker, Chelsea Solis, who testified the children were in three different family placements. 2
Solis said the Department originally removed the children because appellant allowed the children
to stay with Leo C. who sexually abused six-year-old D.L.Q. Solis said appellant told her that Leo
C. was a “friend” who stayed at their house. According to Solis, “multiple children” corroborated
the sexual abuse allegations. Solis stated appellant had not completed any of the goals under her
service plan, which required her to complete individual counseling, complete a substance abuse
program, visit her children weekly contingent on clean drug test results, maintain contact with the
Department, and obtain stable housing and employment. Appellant began three different
substance abuse programs, but was unsuccessfully discharged from all three. Solis said appellant
tested positive for methamphetamines and amphetamines throughout the case. Although appellant
attended individual counseling and completed her psychological assessment, she made no progress
toward changing her lifestyle or habits. Appellant missed most of her visitations with her children
because of her positive drug test results. However, the children looked forward to seeing their
mother and the visits were appropriate when they occurred. As for housing, Solis believed
appellant was moving from house to house, staying with friends or her grandmother.
Solis believed termination of appellant’s parental rights was in the children’s best interest
because appellant demonstrated an unwillingness to change her behavior, appellant was aware of
her drug problem but did nothing to change, and the children had bonded with their caregivers who
provided for all the children’s basic needs. Solis said none of the children has any medical
conditions or developmental issues, none takes medication, and they each were in therapy. She
said the children miss their mother and like seeing her, but they are “very bonded” to their
2 At the time of the termination hearing, T.A.P. was twelve years old, D.C.P. was ten years old, D.M.P. was eight years old, D.L.Q. was six years old, and S.I.P. was five years old.
-2- 04-17-00137-CV
caregivers and want to stay with them long-term. T.A.P. “was angry” about the removal because
he did not blame his mother, but instead, blamed the man who abused his sister. However, T.A.P.’s
anger problems have improved with therapy and he is doing well in school. Solis stated all the
children want to be adopted by their current caregivers. Although the children are with three sets
of caregivers, they continue to have sibling visits.
The State next called Leslie Vanaman, a professional counselor who saw appellant for both
counseling and drug treatment. Vanaman said appellant did not make progress towards changing
her habits, and she stopped treating appellant because appellant stopped attending her sessions.
Finally, the State called appellant who admitted she used amphetamines as recently as
November 16, 2016—less than three weeks before the termination hearing. Appellant did not
believe her parental rights should be terminated because she was “trying [her] hardest to — to get
[the children] back, but then [she] fell off.” Appellant said all her children wanted to come home.
Appellant said she was on a wait list for admission to an in-patient drug treatment program, and,
in the meantime, she intended to start a Narcotics Anonymous (“NA”) program. She did not start
the NA program earlier, when asked to do so by her caseworker, because she did not believe she
had a drug problem. She realized she had a drug problem a “couple of months ago.” Appellant
stated she lives with her grandmother in a three-bedroom house, which she said was large enough
for her children if they were returned to her.
Appellant said she was trying to find employment, and her grandmother, who is on social
security, helped her financially. She said her father’s girlfriend brings food. Appellant stated she
completed her parenting class. She said she had a job in June and July of 2015, but she was fired
because she had trouble finding transportation. She has not found other employment. Although
she admitted to using drugs a few weeks before the termination hearing, appellant claimed she was
raising her children in a happy home. -3- 04-17-00137-CV
STATUTORY PREDICATE GROUNDS
Parental rights may be terminated only upon proof of clear and convincing evidence that
the parent has committed an act prohibited by Texas Family Code section 161.001(b)(1), and that
termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp.
2016). If the trial court terminates the parent-child relationship on multiple grounds under section
161.001(b)(1), we may affirm on any one ground because, in addition to finding that termination
is in the child’s best interest, only one predicate violation under section 161.001(b)(1) is necessary
to support a termination decree. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Here, the trial court terminated appellant’s parental rights on four predicate grounds under
Family Code section 161.001(b)(1)—grounds (D), (E), (O), and (P). On appeal, appellant argues
the evidence is legally and factually insufficient to support the trial court’s findings, under grounds
(D) and (E), that (1) she knowingly placed or knowingly allowed her children to remain in
conditions or surroundings that endangered their physical or emotional well-being; and (2) she
engaged in conduct or knowingly placed the children with persons engaged in conduct that
endangered the physical or emotional well-being of the children. As to ground (P)—that she used
a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that
endangered the health or safety of the children, and failed to complete a court-ordered substance
abuse treatment program; or after completion of a court-ordered substance abuse treatment
program, continued to abuse a controlled substance—appellant asserts the Department sought
termination only on grounds (D), (E), and (O), but not on ground (P). Appellant’s arguments, thus,
challenge the trial court’s findings on grounds (D), (E), and (P).
However, appellant does not attack the sufficiency of the trial court’s findings with respect
to ground (O)—that she failed to comply with the provisions of a court order which specifically
established the actions necessary for her to obtain the return of the children. By not challenging -4- 04-17-00137-CV
the sufficiency of the evidence in support of the trial court’s finding on ground (O), appellant
waived any complaint concerning the sufficiency of the evidence to support that finding. See In
re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.). Therefore, the trial
court’s termination order is supported by sufficient evidence, and we need not address appellant’s
challenges to the trial court’s findings on grounds (D), (E), and (P).
BEST INTEREST
Appellant also challenges the legal and factual sufficiency of the trial court’s finding that
termination of her parental rights was in her children’s best interest. See TEX. FAM. CODE
§ 161.001(b)(2). We review the legal and factual sufficiency of the evidence under well-
established standards of review. See In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).
Under Texas law, there is a strong presumption that the best interest of a child is served by
keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, there is
also a presumption that when the court considers factors related to the best interest of the child,
“the 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) (West Supp. 2016). 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 Family Code section 263.307(b). We also apply the non-exhaustive Holley
factors to our analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). And finally,
evidence that proves one or more statutory grounds for termination may constitute evidence
illustrating that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)
(holding same evidence may be probative of both section 161.001(1) grounds and best interest,
but such evidence does not relieve the State of its burden to prove best interest). 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, -5- 04-17-00137-CV
pet. denied). A trier of fact may measure a parent’s future conduct by her past conduct and
determine whether termination of parental rights is in the child’s best interest. Id.
Here, there appears to be no dispute the children miss their mother, and T.A.P. was angry
about his removal from his mother’s care. However, according to the Department caseworker, the
children all expressed a desire to be adopted by their current caregivers. The trial court had before
it evidence concerning appellant’s drug use, her unsuccessful discharge from three different
substance abuse treatment programs, and that she tested positive for drugs less than three weeks
before the termination hearing. Although appellant attended counseling, she made no progress on
improving her life. The evidence indicated appellant could not meet the children’s current
emotional and physical needs, and it was uncertain whether she would ever be able to meet those
needs in the future based on her continued drug use. On the other hand, the trial court also had
before it evidence that the children thrived in the care of their caregivers who wished to adopt
them.
Based on the evidence presented, the trial court could have evaluated many of the factors
listed under Family Code section 263.307(b). Additionally, after reviewing the evidence
presented, we believe the trial court had ample evidence before it from which it could evaluate
many of the Holley factors. Viewing all of the evidence in the light most favorable to the trial
court’s finding, we conclude the trial court could have formed a firm belief or conviction that
terminating appellant’s parental rights was in the children’s best interest. Therefore, we conclude
the evidence was legally sufficient to support the trial court’s best interest finding. Except for
appellant’s testimony that she was “trying” to stop her drug use and she held a job for two months,
the evidence presented relevant to the trial court’s decision to terminate appellant’s parental rights
was essentially undisputed. Therefore, we conclude the evidence was factually sufficient to
support the trial court’s best interest finding. -6- 04-17-00137-CV
CONCLUSION
We overrule appellant’s issues on appeal and affirm the trial court’s Order of Termination.
Rebeca C. Martinez, Justice
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