Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-23-00496-CV
IN THE INTEREST OF Z.K.M.W., a Child
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-00462 Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
Delivered and Filed: September 20, 2023
AFFIRMED
A.W. appeals the trial court’s order terminating her parental rights to her daughter,
Z.K.M.W. 1 On January 19, 2023, the trial court held a bench trial at which one witness testified.
Following the proceeding, the trial court signed an Order of Termination terminating A.W.’s
parental rights to Z.K.M.W. and naming the Department of Family and Protective Services (the
“Department”) as permanent managing conservator of the child. We affirm.
STANDARD OF REVIEW
To terminate parental rights pursuant to Family Code section 161.001, the Department has
the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in
1 To protect the privacy of minor children, we use initials to refer to the children and their biological parents. TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). Z.K.M.W. was born on January 7, 2022. 04-23-00496-CV
subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX.
FAM. CODE §§ 161.001(b), 161.206(a). In this case, the trial court found evidence of three
predicate grounds to terminate A.W.’s parental rights, specifically section 161.001(b)(1)
subsections (N), (O), and (P). The trial court also found termination of her parental rights was in
Z.K.M.W.’s best interest. In A.W.’s sole issue on appeal, she contends the evidence is legally and
factually insufficient to support the trial court’s finding that termination of her parental rights was
in Z.K.M.W.’s best interest.
When reviewing the sufficiency of the evidence, we apply the well-established standards
of review. See TEX. FAM. CODE §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per
curiam) (legal sufficiency). The trier of fact is the sole judge of the credibility of witnesses and
the weight to be given their testimony. J.P.B., 180 S.W.3d at 573. In a bench trial, such as here,
“the trial judge is best able to observe and assess the witnesses’ demeanor and credibility, and to
sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record
on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(citation omitted). We therefore defer to the trial court’s judgment regarding credibility
determinations. While we must detail the evidence relevant to the issue of parental termination
when reversing a finding based upon insufficient evidence, we need not do so when affirming a
verdict of termination. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
BEST INTEREST
When considering the best interest of the child, we recognize the existence of a strong
presumption that the child’s best interest is served by preserving the parent-child relationship. In
re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). “[T]he best interest standard does not
permit termination [of parental rights] merely because a child might be better off living elsewhere.”
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In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (citation omitted).
However, we also presume that prompt and permanent placement of the child in a safe environment
is in the child’s best interest. TEX. FAM. CODE § 263.307(a). The Department has the burden to
rebut these presumptions by clear and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d
92, 97 (Tex. App.—San Antonio 2017, no pet.). “‘Clear and convincing evidence’ means the
measure or degree of 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 § 101.007;
R.S.-T., 522 S.W.3d at 97. To determine whether the Department satisfies its burden, the Texas
Legislature has provided several statutory factors 2 for courts to consider regarding a parent’s
willingness and ability to provide a child with a safe environment, and the Texas Supreme Court
has provided a similar list of factors 3 to determine a child’s best interest. TEX. FAM. CODE
§ 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
A best-interest finding, however, does not require proof of any particular factors. See In
re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.—San Antonio Apr. 29,
2 The statutory factors 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; (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 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.” TEX. FAM. CODE § 263.307(b). 3 The Holley factors include: (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 those individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72.
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2015, no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and
“[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest.” In re J.B.-F., No. 04-18-00181-CV,
2018 WL 3551208, at *3 (Tex. App.—San Antonio July 25, 2018, pet. denied) (mem. op.).
Evidence that proves a statutory ground for termination is probative on the issue of best interest.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). “A trier of fact may measure a parent’s future conduct
by [her] past conduct [in] determin[ing] whether termination of parental rights is in the child’s best
interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). This
conduct can include drug use, which can destabilize the home and expose children to physical and
emotional harm if not resolved. See, e.g., In re K.J.G., 04-19-00102-CV, 2019 WL 3937278, at
*8 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.). In analyzing these factors,
the court must focus on the best interest of the child, not the best interest of the parent. Dupree v.
Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ).
BACKGROUND
The only witness to testify at trial was the Department caseworker, Diana Salazar. Salazar
said she had been the caseworker since the case began in March 2022. On January 10, 2022, three
days after Z.K.M.W. was born, the Department received a report stating A.W. had a history with
the Department 4 and the hospital was unable to determine if any drugs were involved. Despite
numerous attempts by the Department to contact A.W. and establish a safety plan, A.W. refused
to cooperate. On March 17, 2022, another referral was received expressing concerns that A.W.
4 This history dated back to 2011 for ongoing domestic violence and substance abuse; her parental rights to two children were terminated in 2013; in 2018, A.W.’s boyfriend was involved in a shooting while A.W.’s children were in his care; and her parental rights to another two children were terminated in 2018 because she did not consent to drug testing and failed to comply with a safety plan.
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was leaving Z.K.M.W. in the care of different people 5 up to three weeks at a time. During those
three weeks, A.W. would not contact the people with whom she left Z.K.M.W., and she did not
provide baby formula, diapers, or clothing. Due to A.W.’s history of drug use, these people
believed A.W. took the child to unhealthy environments. The last time A.W. brought Z.K.M.W.
to another person, Z.K.M.W. had severe diaper rash and several open wounds.
Z.K.M.W. was bought into the Department’s care when she was two and one-half months
old. Salazar testified A.W. refused to cooperate during the time the Department was conducting
its investigation, A.W. provided no explanation for Z.K.M.W.’s neglected condition, and A.W.
had a history of homelessness. Although A.W. gave the Department the name of Z.K.M.W.’s
father, the Department could not locate him.
The Department created a service plan for A.W. that required her to obtain stable housing
and employment, engage in substance abuse treatment, take random drug tests, address her mental
health by completing a psychological evaluation, engage in individual counseling, and complete
parenting classes. When Salazar spoke to A.W. about the plan, A.W. accused the Department of
kidnapping Z.K.M.W.
On June 16, 2022, A.W. completed a psychological evaluation. It was recommended that
she complete a psychiatric evaluation; receive treatment for bipolar disorder and anxiety; and
complete a drug and alcohol assessment and parenting and domestic violence classes. While the
case was pending, A.W. provided no proof of appropriate or safe housing, financial stability,
employment, compliance with a psychiatric evaluation or individual counseling, or that she
engaged in a parenting class or drug treatment. A.W. completed one hair follicle test on June 20,
5 Salazar did not identify these people or explain their relationship, if any, to A.W.
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2022, which showed a positive result for methamphetamine and cocaine. When confronted with
the test result, A.W. denied any drug use and provided no explanation for the positive result.
Salazar testified A.W. was currently a danger to Z.K.M.W., and she did not demonstrate
mental or emotional stability. Salazar stated the Department was concerned Z.K.M.W. could be
in immediate danger if reunited with A.W. based on A.W.’s continued drug use, unstable living
arrangements, and refusal to address her mental health. During the pendency of the case, A.W.
had six one-hour visits with Z.K.M.W., but missed thirty-two visits. A.W. had not demonstrated
any attachment to the child. Salazar stated A.W. had made no changes that would lead the
Department to consider reunification.
Salazar believed termination of parental rights was in Z.K.M.W.’s best interest. She stated
A.W. provided her cousin’s name to Salazar as a placement. Z.K.M.W. was placed with A.W.’s
cousin on July 24, 2022, and the cousin wanted to adopt Z.K.M.W. Salazar said Z.K.M.W. was
“doing great” with and bonded to her current caregiver to the extent that when Z.K.M.W. could
not see her caregiver, Z.K.M.W. cried and wanted to be held and comforted. The caregiver was
meeting all of Z.K.M.W.’s needs and provided appropriate housing for the child. Salazar believed
Z.K.M.W. was thriving in her current placement and it would be potentially harmful to the child
if she was removed.
Salazar conceded A.W. had, at one time, been employed at a fast-food restaurant, but she
did not know whether A.W. was still employed there. A.W. was incarcerated from June 30, 2022
to approximately September 23, 2022, and Salazar did not know whether A.W. attended any
substance abuse classes while incarcerated. Salazar stated A.W. was told to communicate with a
caseworker via email because she threatened a caseworker and was verbally aggressive. Salazar
added that emailing worked well.
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Although A.W. did not take the witness stand, she was allowed to address the court and
the judge asked her a few questions. A.W. claimed she completed her parenting classes and her
substance abuse services in April 2019. Presumably she was referring to the Department’s
previous case against her on her other children, because—as the trial court noted—the underlying
case involving Z.K.M.W. was filed in 2022. A.W. told the judge she completed two drug tests.
Salazar told the court A.W. was asked to complete twenty. A.W. explained she was incarcerated
for evading arrest, and Salazar said the arrest was for injury to the elderly (A.W.’s mother). When
A.W. began to criticize Salazar—calling her “very unprofessional”—the trial court stopped her.
ANALYSIS
As stated above, a best-interest finding does not require proof of any particular factors and
none of the factors we consider are exhaustive. See G.C.D., 2015 WL 1938435, at *5; J.B.-F.,
2018 WL 3551208, at *3. “Evidence of a single factor may be sufficient for a factfinder to form
a reasonable belief or conviction that termination is in the child’s best interest”; J.B.-F., 2018 WL
3551208, at *3; and evidence proving a statutory ground for termination is probative on the issue
of best interest. C.H., 89 S.W.3d at 28. “A trier of fact may measure a parent’s future conduct by
[her] past conduct [in] determin[ing] whether termination of parental rights is in the child’s best
interest.” E.D., 419 S.W.3d at 620.
One of the grounds on which the court terminated A.W.’s parental rights was her failure to
comply with the provisions of a court order that established the actions necessary for her to obtain
the return of Z.K.M.W. The evidence shows A.W. failed to comply with the requirements of the
family plan that sought to assure Z.K.M.W. would have a safe and stable environment. A.W. did
not have a residence of her own and was not employed. The trial court therefore could have
reasonably credited this evidence as supporting its best-interest finding. See In re O.N.H., 401
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S.W.3d 681, 687 (Tex. App.—San Antonio 2013, no pet.) (noncompliance with service plan is
probative of child’s best interest).
Of the Family Code statutory factors, the trier of fact could consider that Z.K.M.W.’s age
made her vulnerable and that A.W. has a history of substance abuse. See TEX. FAM. CODE
§ 263.307(b); see In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.)
(considering parent’s substance abuse, failure to provide a stable home, and failure to comply with
service plan in holding evidence supported best-interest finding).
The Holley factors indicate Z.K.M.W. is too young to express her desires. When a child is
too young to express her desires, the factfinder may consider whether the child has bonded with
her caregivers, is well-cared for by them, and whether the child has spent minimal time with the
parent. See In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. denied). At
the time of trial, Z.K.M.W. was about one year old and had been with her caregiver for about six
months. Salazar testified A.W. visited with Z.K.M.W. six times, but missed thirty-two visits, and
had not demonstrated any attachment to the child. Z.K.M.W. was doing well, the current caregiver
was meeting her needs, and she anticipated this home to be a long-term placement for Z.K.M.W.
if A.W.’s parental rights were terminated.
The evidence of A.W.’s participation in drug counseling was disputed. A.W. claimed she
had some drug treatment while incarcerated, but Salazar testified A.W. did not complete her
service plan. We defer to the trial court’s determinations of credibility. See J.P.B., 180 S.W.3d at
573. The trial court reasonably could have believed Salazar’s testimony that A.W. did not or
would not complete her drug treatment.
Evidence as to the other Holley factors also supports the trial court’s best-interest finding.
A.W. tested positive for controlled substances and failed to complete drug treatment. Illicit drug
use is relevant to multiple Holley factors, including a child’s emotional and physical needs now
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and in the future, the emotional and physical danger to the child now and in the future, A.W.’s
parental abilities, the lack of stability of A.W.’s home, and the acts or omissions that may indicate
an improper parent-child relationship. See Holley, 544 S.W.2d at 371-72. “Additionally, a
parent’s illegal drug use exposes [a] child to the possibility that the parent may be impaired or
imprisoned.” 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.) (explaining drug use implicates multiple Holley
factors).
A parent’s criminal history is also relevant to a best-interest finding. See re A.M.M., 04-
19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.—San Antonio May 6, 2020, pet. denied)
(mem. op.) (considering criminal history in determining whether termination of parental rights was
necessary to protect child in the future and was in child’s best interest); In re A. L. T., 04-17-00452-
CV, 2017 WL 5162173, at *3 (Tex. App.—San Antonio Nov. 8, 2017, pet. denied) (mem. op.)
(parent’s criminal history and drug use indicated he had not and could not provide for child’s
physical and emotional needs or provide her with a safe and stable environment). Here, the
evidence showed a past history of domestic violence, substance abuse, incarceration, evading
arrest, and elder abuse.
Additionally, the trial court could have inferred from A.W.’s past drug use and failure to
complete drug treatment and her services that she lacked parental abilities, including the
motivation to seek out and utilize available resources. See In re J.M.T., 519 S.W.3d 258, 270 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied) (“A fact finder may infer from a parent’s failure to
take the initiative to complete the services required to regain possession of [her] child that [she]
does not have the ability to motivate [herself] to seek out available resources needed now or in the
future.”); see also TEX. FAM. CODE § 263.307(b)(10), (11) (providing courts may consider
willingness and ability of child’s family to seek out, accept, and complete counseling services and
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willingness and ability of child’s family to effect positive environmental and personal changes
within a reasonable period of time).
The trial court also could have reasonably considered the termination of A.W.’s parental
rights to four other children, two as recently as 2018, as evidence of A.W.’s inability to parent.
See In re J.M.G., 608 S.W.3d 51, 57-58 (Tex. App.—San Antonio 2020, pet. denied) (“The
evidence shows Mother has had a long and recent history of abandoning her children and has not
been capable of being present in their lives or meeting their basic emotional and physical needs.”).
The trial court also could have reasonably considered the Department’s concerns that A.W. left
Z.K.M.W. with other people up to three weeks at a time; she did not provide baby formula, diapers,
or clothing for Z.K.M.W.; and the child’s severe diaper rash and open wounds when the child was
brought back to a caregiver as evidence of A.W.’s inability to parent.
Evidence of A.W.’s instability in employment and housing also supports the best-interest
finding. “A child’s need for permanence through the establishment of a ‘stable, permanent home’
has been recognized as the paramount consideration in a best-interest determination.” In re L.G.R.,
498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Although Salazar
conceded A.W. had at one time been employed, the trial court reasonably could have determined
that any stability A.W. might achieve was unlikely to last. Cf. In re J.O.A., 283 S.W.3d 336, 346
(Tex. 2009) (“[E]vidence of improved conduct, especially of short-duration, does not conclusively
negate the probative value of a long history of . . . irresponsible choices.”).
Viewing all of the evidence in the light most favorable to the best-interest finding and
applying the appropriate factors, we conclude the trial court could have formed a firm belief or
conviction that termination of A.W.’s parental rights was in Z.K.M.W.’s best interest. We further
conclude that any disputed evidence, viewed in light of the entire record, could have been
reconciled in favor of the trial court’s best-interest finding or was not so significant that the trial
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court could not reasonably have formed a firm belief or conviction that termination was in
Z.K.M.W.’s best interest. Therefore, we hold the evidence is legally and factually sufficient to
support the trial court’s best-interest finding.
CONCLUSION
We overrule A.W.’s sole issue and affirm the trial court’s Order of Termination.
Lori I. Valenzuela, Justice
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