in the Interest of E.X.G., Minor Child ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00659-CV
IN THE INTEREST OF E.X.G., a Child
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-01161
Honorable Richard Garcia, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 12, 2018
AFFIRMED
S.G. appeals the trial court’s order terminating her parental rights to E.X.G. The only issue
presented on appeal is whether the evidence is legally and factually sufficient to support the trial
court’s finding that termination was in E.X.G.’s best interest. We affirm the trial court’s order.
BACKGROUND
On May 30, 2017, the Texas Department of Family and Protective Services filed a petition
to terminate S.G.’s parental rights to E.X.G. On the date the petition was filed, E.X.G. was five.
A bench trial was held on July 25, 2018. At the conclusion of the trial, the trial court
terminated S.G.’s parental rights, and she appeals.
04-18-00659-CV
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the
Department has the burden to prove by clear and convincing evidence: (1) one of the predicate
grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child.
See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In this case, the trial court found clear and convincing evidence of the following four predicate
grounds under subsection 161.001(b)(1) to terminate S.G.’s parental rights: (1) engaged in conduct
or knowingly placed E.X.G. with persons who engaged in conduct which endangers his physical
or emotional well-being; (2) constructively abandoned E.X.G.; (3) failed to comply with the court-
ordered service plan; (4) used a controlled substance in a manner that endangered E.X.G.’s health
and safety and failed to complete a court-ordered substance abuse treatment plan. See TEX. FAM.
CODE ANN. §§ 161.001(b)(1)(E), (N), (O) (P); see also In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)
(noting evidence that proves one or more statutory grounds for termination may be probative in
proving termination is in the child’s best interest). The trial court also found clear and convincing
evidence that termination of S.G.’s parental rights was in E.X.G.’s best interest.
We evaluate the legal and factual sufficiency of the evidence to support the trial court’s
findings under the standards of review established by the Texas Supreme Court in In re J.F.C., 96
S.W.3d 256, 266-67 (Tex. 2002). Under these standards, “[t]he trial court is the sole judge of the
weight and credibility of the evidence, including the testimony of the Department’s witnesses.” In
re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017,
no pet.) (mem. op.).
BEST INTEREST FINDING
In determining the best interest of a child, courts apply the non-exhaustive Holley factors
to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors
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include: (1) the desires of the child; (2) the present and future emotional and physical needs of the
child; (3) the present and future emotional and 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 of the child; (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 foregoing factors are not exhaustive,
and “[t]he absence of evidence about some of [the factors] would not preclude a factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s best interest.” In
re C.H., 89 S.W.3d at 27. “A trier of fact may measure a parent’s future conduct by his 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).
The testimony established E.X.G. was removed from S.G.’s care because she was smoking
methamphetamines while E.X.G. was present in the home. By the time of trial, S.G. had not
completed any services despite the caseworker’s efforts to personally transport her on multiple
occasions to and from appointments. See In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort
Worth 2006, no pet.) (noting failure to comply with family service plan supports a finding that
termination is in the best interest of the child). S.G. either failed to attend appointments to be
screened for drug treatment or was dismissed from treatment as unsuccessful. Two months before
trial, S.G. was arrested for possession of heroin. Although she was released from jail, the charge
remained pending. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied) (noting parent’s drug use supports a finding that termination is in best interest of the
child). S.G. began an outpatient drug treatment program one month before trial; however, the
caseworker testified S.G. began demonstrating aggressive behavior the week before trial which
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S.G. previously described as a symptom of her drug use. Two days before trial, S.G. refused to
take a drug test and was cussing at the caseworker. S.G. testified she was frustrated because she
was undergoing weekly drug tests through her outpatient treatment.
S.G.’s visits with E.X.G. were contingent on negative drug tests, and she failed to attend
many of her drug tests. Since February of 2018, five months before trial, S.G. had visited with
E.X.G. only seven times, and six of those visits occurred after she was arrested and released in
May of 2018. See K.M. v. Tex. Dep’t of Family & Protective Servs., 388 S.W.3d 396, 405 (Tex.
App.—El Paso 2012, no pet.) (discussing parent’s failure to visit child as a factor supporting a
decision that the best interest of the child required termination). S.G. admitted she was not
employed and was living with her mother; however, she testified her relationship with her mother
involved “a lot of altercations.” See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth
2007, no pet.) (noting parent’s inability to provide a stable home supports a finding that termination
is in the best interest of the child).
S.G. was also a victim of domestic violence. The caseworker observed bruises on S.G.’s
face and arms, and S.G. admitted to the caseworker that one man threatened to kill E.X.G. to get
back at her. The caseworker testified the domestic abuse continued throughout the pendency of
the case. In re O.N.H., 401 S.W.3d 681, 685-86 (Tex. App.—San Antonio 2013, no pet.)
(considering evidence of domestic violence as relevant to a child’s best interest).
Although E.X.G. stated he loved his mom, he felt disappointed and betrayed when she
failed to visit. E.X.G. was placed with his maternal uncle in 2016 during family based services
before the Department filed the petition to terminate S.G.’s parental rights. E.X.G. is bonded with
his uncle who wants to adopt him.
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Having reviewed the record, we hold the evidence is legally and factually sufficient to
support the trial court’s finding that termination of S.G.’s parental rights was in E.X.G.’s best
interest.
CONCLUSION
The order of the trial court is affirmed.
Sandee Bryan Marion, Chief Justice
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