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in the Interest of A.M.S., a Child
04-18-00650-CV.
Court of Appeals of Texas.
Jan 9, 2019.
Published
Fourth Court of Appeals
San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00650-CV

IN THE INTEREST OF A.M.S., a Child

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-02129 Honorable Susan D. Reed, Judge Presiding i Opinion by: Patricia O. Alvarez, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice Delivered and Filed: January 9, 2019 AFFIRMED

Appellant Mom appeals the trial court’s order terminating her parental rights to her child A.M.S. ii She asserts the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that her course of conduct met any statutory ground for termination or that terminating her parental rights is in her child’s best interest.

Because the evidence was legally and factually sufficient to support the trial court’s best interest finding and at least one of the statutory grounds findings, iii we affirm the trial court’s order.

i The Honorable Stephani Walsh is the presiding judge of the 45th District Court. The Honorable Susan D. Reed was sitting by assignment. ii To protect the minor’s identity, we refer to Mom and the child using aliases. See TEX. R. APP. P. 9.8. iii Because Mom is the only appellant, we recite only those facts that pertain to Mom or the child. 04-18-00650-CV BACKGROUND In August 2017, the Department of Family and Protective Services received a referral because Mom’s natural child, A.M.S., tested positive for drugs at birth. The investigator saw A.M.S. in the hospital where the infant was suffering from tremors and shaking violently. The investigator interviewed Mom and they discussed her drug use. Mom admitted using methamphetamine a few days before, and heroin the day before, A.M.S. was born. The Department petitioned for conservatorship of A.M.S. The trial court appointed the Department as A.M.S.’s temporary managing conservator and placed Mom on a service plan. Mom did not complete her service plan or appear at trial. Citing grounds (D), (E), (O), and (R), and the best interest of the child, the trial court terminated Mom’s parental rights to A.M.S. Mom appeals. EVIDENCE REQUIRED, STANDARDS OF REVIEW The evidentiary standards 1 the Department must meet and the statutory grounds 2 the trial court must find to terminate a parent’s rights to a child are well known, as are the legal 3 and factual 4 sufficiency standards of review. We apply them here. BASES FOR TERMINATING MOM’S PARENTAL RIGHTS A. Witnesses at Trial In a one-day bench trial, the trial court heard testimony from two Department witnesses: Edward Gentry, the investigator; and Shameka Atkins, the case worker. Mom had notice of the trial, but she did not appear. The trial court was the “sole judge[] of the credibility of the witnesses and the weight to give their testimony.” See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); cf. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

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B. Mom’s Course of Parental Conduct

At the close of trial, the court found Mom’s course of conduct met statutory grounds (D), (E), (O), and (R). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (R). Because a single statutory ground finding, when accompanied by a best interest of the child finding, is sufficient to support a parental rights termination order, In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.), we will address only two grounds: (O) and (R). We begin with (O), failure to comply with a court-ordered service plan.

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supports the integrity of the fact-finder’s ruling, judicial notice may properly be taken for the first time on appeal even though it was not requested in the trial court.”).

The investigator testified that Mom admitted using heroin and methamphetamine before A.M.S. was born. Mom stated she wanted to get clean, but she was having trouble finding a methadone clinic to take her. At trial, Mom’s attorney explained that Mom was absent because “she placed herself in a residential treatment facility” a few days earlier.

Considering all the evidence in the light most favorable to the trial court’s findings, we conclude the trial court could have formed a firm belief or conviction that Mom was the cause of A.M.S.’s being born addicted to a controlled substance that Mom had not legally obtained by prescription. See TEX. FAM. CODE ANN. § 161.001(1)(R); In re L.G.R., 498 S.W.3d 195, 203 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

C. Best Interest of the Child

Mom also challenges the sufficiency of the evidence supporting the trial court’s finding that terminating her parental rights is in A.M.S.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). The Family Code statutory factors 5 and the Holley factors 6 for the best interests of a child are well known. Applying each standard of review and the applicable statutory and common law factors, we examine the evidence pertaining to the best interest of the child.

D. Evidence of Best Interest of the Child

The trial court heard the following testimony.

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an extended period. See TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (8), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (H), (I)).

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child was in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012).

CONCLUSION

Because the evidence was legally and factually sufficient to support the trial court’s findings by clear and convincing evidence (1) of at least one predicate ground for termination and (2) that termination of Mom’s parental rights is in the best interest of the child, we affirm the trial court’s order.

Patricia O. Alvarez, Justice 04-18-00650-CV

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1 Mom’s Prenatal Conduct Mom admitted she used methamphetamine a few days before A.M.S. was born, and she used heroin the day before A.M.S.’s birth. A.M.S. tested positive for drugs at birth. In the hospital, A.M.S. suffered from tremors and violent shaking after birth that required medical treatment for
2 Mom’s Plan Compliance Mom was ordered to complete drug treatment and courses in counseling and parenting. Mom initially engaged in parenting classes, but she did not provide a completion certificate. Mom enrolled in counseling, but “had two no-shows, and then never went back.” She began outpatient drug treatment, but she was “unsuccessfully discharged.” The Department scheduled her for in- patient treatment, but she did not go. When the case worker asked Mom why she did not participate in services, Mom “just said she had no—no excuse.” A few days before trial, Mom admitted herself to an in-patient drug treatment program. See TEX. FAM. CODE ANN. § 263.307(b)(1), (8), (10), (11), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (H), (I)).
3 Legal Sufficiency. When a clear and convincing evidence standard applies, a legal sufficiency review requires a court 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.’” In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court “‘determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true,’” the evidence is legally sufficient. See id. (quoting J.F.C., 96 S.W.3d at 266).
4 Factual Sufficiency. Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” C.H., 89 S.W.3d at 25; accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider “whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266; accord H.R.M., 209 S.W.3d at 108.
5 Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in determining the best interest of a child: (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 ANN. § 263.307(b); see [citations to cases in COA jurisdiction].
6 Holley Factors. The Supreme Court of Texas identified the following factors to determine the best interest of a child in its landmark case Holley v. Adams: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).