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Date: 10-02-2022

Case Style:

In the Interest of M. L. H., a Child

Case Number: 04-21-00408-CV

Judge: Lori I. Valenzuela


Fourth Court of Appeals San Antonio, Texas

On appeal from the 57th Judicial District Court of Bexar County

Plaintiff's Attorney:

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Defendant's Attorney: Nathan E. Morey Joe D. Gonzales Sarah Elizabeth Jennings


San Antonio, Texas – Family Law lawyer represented Appellant with appealing an order terminating her parental rights.

C.H. was referred to the Texas Department of Family and Protective Services in November 2019 when she took M.L.H. to the emergency room insisting that M.L.H. had parasites coming out of his head. On December 27, 2019, the Department removed M.L.H. from C.H.’s care because of mental health concerns and a positive test for methamphetamines and amphetamines. The 1 To protect the privacy of the minor child, we use initials to refer to the child and his biological parents. TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-21-00408-CV - 2 - Department obtained temporary managing conservatorship over M.L.H., placed M.L.H. with a foster family, and filed a petition to terminate C.H.’s parental rights. The Department also created a family service plan requiring C.H. to, inter alia, complete a psychological evaluation, complete a substance abuse assessment, submit to random drug analyses, attend individual counseling, and take a parenting class as a condition of reunification. The Department ultimately pursued termination of C.H.’s parental rights. Beginning on June 9, 2021, and continuing on July 8, 2021, the trial court held a bench trial at which C.H. appeared. The trial court heard testimony from six witnesses: (1) the Department’s caseworker, Marcela Cantu; (2) the court-appointed special advocate; (3) one of the foster parents, K.M.; (4) C.H.’s mother (M.L.H.’s grandmother); (5) the father, R.M.;2 and (6) C.H. At the conclusion of trial, the court signed an order terminating C.H.’s parental rights pursuant to sections 161.001(b)(1)(E), (N), (O), and (P) and made a finding that termination of C.H.’s parental rights was in the best interests of M.L.H. C.H. appealed. STANDARD OF REVIEW The involuntary termination of a natural parent’s rights implicates fundamental constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit from the parent.” In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent.” Id. The Department had the burden to prove, by clear and convincing evidence, both that a statutory ground existed to terminate C.H.’s parental rights and that termination was in the best interests of the child. TEX. FAM. CODE § 161.206; In re A.V., 113 2 R.M. did not appeal the trial court’s termination of his parental rights. 04-21-00408-CV - 3 - S.W.3d 355, 362 (Tex. 2003). “‘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; In re S.J.R.-Z., 537 S.W.3d at 683. When reviewing the sufficiency of the evidence supporting a trial court’s order of termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). To determine whether the Department presented clear and convincing evidence, a legal sufficiency review requires us to “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 finding was true.” Id. at 266. We “assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” In re R.S.-T., 522 S.W.3d 92, 98 (Tex. App.—San Antonio 2017, no pet.). “A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” In re J.F.C., 96 S.W.3d at 266. Nevertheless, “we may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the heightened burden of proof by clear and convincing evidence.” In re S.L.M., 513 S.W.3d 746, 748 (Tex. App.—San Antonio 2017, no pet.). If a reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then the evidence is legally sufficient. Id. at 747. In contrast, in conducting a factual sufficiency review, we must review and weigh all the evidence, including the evidence that is contrary to the trial court’s findings. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the challenged finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient only if “in light of the entire record, the disputed 04-21-00408-CV - 4 - 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.” Id. In both legal and factual sufficiency review, the trial court, as factfinder, is the sole judge of the weight and credibility of the evidence. In re A.F., No. 04-20-00216-CV, 2020 WL 6928390, at *2 (Tex. App.—San Antonio Nov. 25, 2020, no pet.) (mem. op.). We must defer to the factfinder’s resolution of disputed evidentiary issues and cannot substitute our judgment for that of the factfinder. See, e.g., 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) (legal sufficiency). BEST INTERESTS Applicable Law C.H. challenges the legal and factual sufficiency of the trial court’s order that termination of her parental rights was in the best interests of the child. There is a strong presumption that a child’s best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption by clear and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d at 97. To determine whether the Department satisfied this burden, the Texas Legislature has provided several factors3 for courts to consider regarding a parent’s willingness and ability to provide a child with a safe environment, and the Texas Supreme 3 These factors include, inter alia: “(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). 04-21-00408-CV - 5 - Court has provided a similar list of factors4 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, 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. Drug use can destabilize the home and expose children to physical and emotional harm if not resolved. See, e.g., In re K.J.G., 2019 WL 3937278, at *8 (Tex. App.—San Antonio Aug. 21, 2019, pet denied). Application C.H. asserts this case presents a unique situation in which she was making solid progress towards completing services and was bonded with M.L.H. According to C.H., the Department should have sought reunification as it worked with C.H. to address outstanding mental health issues. In short, C.H. asserts there is no legally or factually sufficient evidence weighing in favor 4 Those 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 v. Adams, 544 S.W.2d 367, 371– 72 (Tex. 1976). 04-21-00408-CV - 6 - of termination in applying the Holley factors. In response, the State asserts the evidence supports termination was in the child’s best interest because C.H. led an unstable life, failed to address the Department’s concerns, and the Holley factors weigh in favor of termination. In assessing the best interests of the child, the trial court could consider C.H.’s inability to meet M.L.H.’s needs, M.L.H.’s improvement in the foster home, and C.H.’s ongoing drug use. See In re L.M.M., 522 S.W.3d 34, 47 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (finding best interest to terminate based in part on parent’s inability to meet child’s needs); In re J.I.M., 517 S.W.3d 277, 286–87 (Tex. App.—San Antonio 2017, pet. denied) (finding best interest to terminate based in part on child’s destructive behaviors and speech improving in foster home); In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (parent’s pattern of drug use supported finding that termination was in best interest). C.H.’s initial referral and Department plan arose out of methamphetamine and amphetamine use. Despite the plan’s requirement that C.H. submit to random drug analyses, there were numerous instances where C.H. avoided drug testing. One such example was the result of a hair follicle test that concerned the Department. The Department requested C.H. take a urine analysis test the following day, which she failed to do. Instead, C.H. isolated herself and refused to answer the door or return calls or textsfrom her case worker. Even after the Department arranged for transportation for a drug test, C.H. refused to answer the door, avoided communicating with the Department, and did not try to reschedule when she later contacted the Department. C.H.’s mother testified to a seventeen year history of C.H.’s instability in which the “pattern repeats itself.” C.H.’s mother expressed concern about C.H. being able to provide a stable environment for M.L.H. For example, C.H.’s mother did not want M.L.H. “living out of a car again.” See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (“A parent’s inability to provide a stable home and failure to comply with a family service plan support a finding 04-21-00408-CV - 7 - that termination is in the best interest of the child.”). She also expressed concern about her daughter’s history of mental illness and drug use, which C.H.’s mother testified have both gone untreated, resulting in C.H.’s inability to provide a stable home. Ms. Cantu testified about C.H.’s serious mental health issues, including psychosis directed towards M.L.H. C.H. attended three support group sessions by the National Alliance for Mental Illness, but provided no proof since December 2020 that she attended additional sessions. Over the life of the case, Ms. Cantu never saw proof that C.H. attended her required mental health sessions with the Center for Disease Control. Instead, C.H. only sent screenshots of her mental health appointment cards. M.L.H. has been with his foster family since December 2019—when the case began. When he initially arrived at his foster home, he had a speech impediment that required a year of speech therapy and resulted in delayed speech; he was also aggressive and possessive of toys. These issues were resolved by his foster family. The foster parents have provided M.L.H. a stable and safe environment and intend for M.L.H. to have continued contact with his biological sister and grandparents. M.L.H. has expressed happiness and his love for his foster parents and siblings and refers to them, respectively, as his mom, dad, and sisters. M.L.H.’s foster family intends to adopt him, they maintain a good relationship with M.L.H.’s grandparents, and M.L.H. has bonded with his extended foster family. See In re R.S.-T., 522 S.W.3d 92, 113 (Tex. App.—San Antonio 2017, no pet.). C.H.’s service plan required her to complete a psychological evaluation, complete a substance abuse assessment, submit to random drug analyses, attend individual counseling, and take a parenting class. Although C.H. completed a parenting class, she never completed her individual counseling. While she engaged in her service plan, she failed to successfully complete it. See In re E.A.F., 424 S.W.3d 742, 752 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) 04-21-00408-CV - 8 - (failure to comply with court-ordered service plan for reunification with the child under subsection (O) relevant to best interest finding). C.H. missed several visits with M.L.H. Her visits are best described as inconsistent. At times, the foster family transported M.L.H. to the location of visitation, but C.H. failed to show up. After C.H. failed to appear at scheduled visitations, M.L.H. expressed that he was “upset and mad.” And when M.L.H. had increased visits with C.H., it resulted in verbally and physically aggressive behavior by M.L.H. at school and at home. After reviewing the evidence under the appropriate standards of review, we conclude a reasonable factfinder could have formed a firm belief or conviction that termination of C.H.’s parental rights was in the best interests of her child. In re J.F.C., 96 S.W.3d at 266. We therefore hold legally and factually sufficient evidence supports the trial court’s best interest finding, and we overrule C.H.’s arguments to the contrary

Outcome: We affirm the trial court’s order of termination.

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