in the Interest of Z.K.W., Children

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-19-00324-CV

IN THE INTEREST OF Z.K.W., Z.K.C., V.L.S., Jr., and V.O.K.S., Children

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-02567 Honorable Monique Diaz, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: October 23, 2019

AFFIRMED

Zoe 1 appeals an order terminating her parent–child relationship with her four children. Her

sole issue is that the evidence is legally and factually insufficient to support the trial court’s finding

that termination is in the children’s best interest. We affirm the order.

PROCEDURAL BACKGROUND

On November 9, 2017, the Texas Department of Family and Protective Services filed a

petition for protection of the children and termination of the parent–child relationship between Zoe

and Z.K.W. (born in 2008), Z.K.C. (born in 2012), V.L.S., Jr. (born in 2013), and V.O.K.S. (born

in 2016). The children were removed based on allegations that Z.K.W. had called 9-1-1 because

1 To protect the identity of the minor child, we refer to the appellant by an alias and the children by their initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-19-00324-CV

Zoe “was found vomiting and in an altered state.” Zoe was transported by an ambulance to a

hospital where she tested positive for cocaine and alcohol. Zoe was placed on a safety plan, but

again tested positive for cocaine. The children were then removed from Zoe.

The case proceeded to a bench trial on May 1, 2019. 2 Zoe’s counsel appeared on her behalf

and announced “not ready” because Zoe was not physically present. Zoe’s counsel explained Zoe

was “still attempting to work services” and “went to inpatient rehab” the morning of trial. 3 Three

witnesses testified for the Department. The trial court also admitted Zoe’s family service plan into

evidence. At the close of trial, the trial court terminated Zoe’s parent–child relationship with all

four children. Zoe timely filed a notice of appeal.

DISCUSSION

Zoe’s sole issue is that there is legally and factually insufficient evidence to support the

trial court’s best-interest finding. 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 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). Zoe does not challenge the trial

court’s findings of the predicate grounds in subsection 161.001(b)(1), that she constructively

abandoned the children, failed to comply with court-ordered provisions of her family service plan,

and knowingly endangered the children by conduct, surroundings, and her drug use. We therefore

consider whether there is legally and factually sufficient evidence to support the trial court’s best-

interest finding.

2 Under section 263.401(b) of the Texas Family Code, the trial court signed an order retaining the suit on the court’s docket until May 10, 2019. 3 After a recess at trial, it was reported that Zoe had not actually enrolled in an inpatient program.

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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.

The testimony of the Department’s case investigator and Zoe’s family service plan showed

Zoe was, as of December 2017, on probation for possession and delivery of drugs since 2010.

There was also testimony that Zoe was arrested for child endangerment in 2010. On September

24, 2017, the Department received a referral reporting that Zoe was transported to a hospital

because she “was found vomiting and in an altered state,” and Z.K.W. had called 9-1-1. Zoe arrived

at the hospital unresponsive and tested positive for cocaine and alcohol. In November 2017, after

the suit was filed, Zoe against tested positive for cocaine. The Department removed the children

based on Zoe’s drug use, criminal history, and her inability to provide a safe and protective home

environment for her children. Zoe was placed on a safety plan, but she did not take advantage of

any of the services offered to avoid the removal of the children.

The evidence shows that after the children were removed, Zoe was given a family service

plan. Zoe substantially completed several of the requirements, but never completed a drug

rehabilitation program. Zoe started outpatient program services, but she was discharged several

times, and an involuntary inpatient program was recommended. Zoe did not appear for the trial

and, although Zoe’s attorney stated she had checked in for an inpatient drug program at a shelter

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earlier that morning, there was subsequent testimony showing Zoe had not enrolled in that inpatient

program. The testimony also showed the shelter had intake for its inpatient programs only on

Tuesdays and Thursdays, and trial was held on a Wednesday.

The Department’s legal caseworker testified that at the time of the temporary orders

hearing, Zoe was living in a shelter and was in the process of moving to a relative’s house. He also

testified Zoe tested positive for marijuana in February 2018, and there were concerns that Zoe was

coming to her visits with the children under the influence of drugs. The evidence showed Zoe

attended approximately 25% to 45% of her visits with the children. The evidence also showed the

oldest child, Z.K.W., and Zoe had a strong bond, and Z.K.W. missed her. There was evidence that

the other children desired to remain in their current placements. The two older children were placed

with a paternal relative, and the two younger children were placed with a foster mother who

planned to adopt them. Zoe’s parole officer testified some of the children had experienced

emotional and behavioral problems, but they improved in their current placements. He further

testified Zoe had problems maintaining stable housing and stable employment. We hold the

evidence is legally and factually sufficient to support the trial court’s best-interest finding. See id.

CONCLUSION

We affirm the order of termination.

Luz Elena D. Chapa, Justice

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