in the Interest of R.H.Z., A.S.Z., and F.V.Z., Children ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00094-CV
IN THE INTEREST OF R.H.Z., A.S.Z., and F.V.Z., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02484
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 18, 2018
AFFIRMED
Raymond 1 and Victoria appeal the trial court’s termination of their parental rights to their
sons R.H.Z. (born in 2012), A.S.Z. (born in 2015), and F.V.Z. (born in 2016). Victoria’s court-
appointed appellate counsel has filed a brief and motion to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967). Raymond’s sole issue on appeal is that there is legally and
factually insufficient evidence that termination of his parental rights is in the children’s best
interest. We affirm the trial court’s judgment.
BACKGROUND
The Department of Family and Protective Services filed an original petition for
conservatorship of the children and to terminate Raymond and Victoria’s parental rights. The
1
To protect the identity of minor children in an appeal from an order terminating parental rights, parents are referred
to by their first names and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West
2014); TEX. R. APP. P. 9.8(b)(2).
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Department obtained temporary conservatorship of the children based on allegations of the
parents’ drug use and domestic violence in the children’s presence.
The case proceeded to a one-day bench trial at which several witnesses testified, including
Raymond, his counselor David Bonet, and Department caseworkers Arianne Jones and Sherrell
Gibbs. Victoria did not testify and was not present. At the beginning of the trial, Victoria’s counsel
announced “not ready,” stated she believed Victoria was “probably just running late,” and stated
Victoria wanted to “ask for more time from the Court.” The record does not affirmatively show
Victoria personally appeared at any time during the trial.
At trial, the witnesses’ testimony showed A.S.Z. and F.V.Z. tested positive at birth for
opiates, and Raymond admitted he provided drugs to Victoria. Raymond also admitted the children
witnessed domestic violence between him and Victoria. Raymond completed the court-ordered
services on his family service plan, but the Department’s evidence showed Raymond had not
achieved the goals of those services. Raymond testified he tested positive for cocaine during the
case, but he denied using drugs.
After trial, the trial court signed a judgment terminating Raymond’s and Victoria’s parental
rights to the children. The grounds the trial court found for terminating Raymond’s and Victoria’s
parental rights were that they:
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endanger the physical or emotional well-being of the children,
pursuant to § 161.001(b)(1)(D), Texas Family Code;
engaged in conduct or knowingly placed the children with persons who engaged in
conduct which endangers the physical or emotional well-being of the children,
pursuant to § 161.001 (b)(1)(E), Texas Family Code;
failed to comply with the provisions of a court order that specifically established
the actions necessary for the mother to obtain the return of the children who have
been in the permanent or temporary managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a result of the
children's removal from the parent under Chapter 262 for the abuse or neglect of
the children, pursuant to § 161.00(b)(1)(0), Texas Family Code; and
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used a controlled substance, as defined by Chapter 481, Health and Safety Code, in
a manner that endangered the health or safety of the children, and (1) failed to
complete a court-ordered substance abuse treatment program; or (2) after
completion of a court-ordered substance abuse treatment program continued to
abuse a controlled substance, pursuant to § 161.001(b)(1)(P), Texas Family Code.
The trial court also found Victoria was the cause of the children being born addicted to alcohol or
a controlled substance, other than a controlled substance legally obtained by prescription.
Furthermore, the trial court found by clear and convincing evidence that termination of Raymond’s
and Victoria’s parental rights is in the children’s best interest.
VICTORIA’S APPEAL
Victoria’s court-appointed appellate counsel has filed a brief and motion to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). See In re P.M., 520 S.W.3d 24, 27 (Tex.
2016); In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.—San Antonio May
21, 2003, no pet.) (mem. op.) (applying Anders procedure in appeal from termination of parental
rights). Counsel’s brief meets the requirements of Anders. Counsel provided Appellant with a copy
of the brief. Victoria was informed of her right to review the record and was advised of her right
to file a pro se brief. The State waived its right to file an appellee’s brief unless Victoria filed a pro
se brief. Victoria has not requested the record or filed a brief.
Counsel’s brief concludes there are no arguable grounds to be advanced and that the appeal
is frivolous. After reviewing the record and counsel’s brief, we agree the appeal is frivolous and
without merit. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no
writ). We affirm the judgment as to Victoria, but we deny counsel’s motion to withdraw because
counsel does not assert any ground for withdrawal other than his conclusion that the appeal is
frivolous. See In re P.M., 520 S.W.3d at 27.
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RAYMOND’S APPEAL
Raymond’s sole issue on appeal is that there is legally and factually insufficient evidence
that termination of his parental rights is in the children’s best interest.
A. Standard of Review
A judgment terminating parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). To determine whether this
heightened burden of proof was met, we employ a heightened standard of review to determine
whether a “factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). “This standard guards the
constitutional interests implicated by termination, while retaining the deference an appellate court
must have for the factfinder’s role.” In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio
2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder’s
reasonable credibility determinations. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have
done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found
incredible. Id. When conducting a factual sufficiency review, we evaluate “whether disputed
evidence is such that a reasonable factfinder could not have resolved that disputed evidence in
favor of its finding.” Id. The evidence is factually insufficient “[i]f, in light of the entire record,
the disputed 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.
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B. The Best-Interest Determination
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court
has set out some factors relevant to the determination:
• the desires of the child;
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor
must be proved to find that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.
Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest—especially when undisputed evidence
shows that the parental relationship endangered the child’s safety. Id. “A factfinder may infer that
past conduct endangering the well-being of a child may recur in the future if the child is returned
to the parent.” In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
C. Analysis
At the time of trial, the children were all under the age of six and did not testify about their
desires. When, as here, a child is too young to express his desires, the factfinder may consider
whether the child has bonded with a foster family, is well cared for by them, and has spent minimal
time with the parent. In re M.C.L., No. 04-17-00408-CV, 2017 WL 5759376, at *3 (Tex. App.—
San Antonio Nov. 29, 2017, no pet.) (mem. op.). There is no evidence regarding the children’s
bond with Raymond or the foster parents, but not every factor must be proved to find that
termination is in the child’s best interest. See In re C.H., 89 S.W.3d at 27.
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The evidence shows Raymond knowingly endangered the children by supplying Victoria
with drugs and used drugs himself. See id. (noting evidence of only one factor may be sufficient
for best interest especially when undisputed evidence shows that the parent endangered the child’s
safety); In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(“A parent’s drug use supports a finding that termination is in the best interest of the child.”).
Caseworker Jones testified, as did Raymond, that Raymond had supplied Victoria with illegal
drugs. Jones further testified Victoria tested positive for opiates and methadone when F.V.Z. was
born, A.S.Z. and F.V.Z. tested positive at birth for opiates, Victoria had also tested positive for
cocaine and methamphetamines, Victoria used drugs while taking care of the children, and
Raymond admitted he knew Victoria was using drugs. According to Jones, Raymond’s excuse for
supplying Victoria with drugs was that he was concerned that Victoria suffered from post-partum
depression. Raymond testified that he realized supplying Victoria with drugs was a mistake and
that he had learned to exercise better judgment. But he also testified that he had tested positive for
cocaine during the pendency of the case. Although Raymond stated he did not agree with the
results of his drug test, we must defer to the factfinder’s reasonable credibility determinations. See
In re J.P.B., 180 S.W.3d at 573.
The evidence also shows there was domestic violence between Raymond and Victoria. See
In re O.N.H., 401 S.W.3d at 685 (considering evidence of domestic violence as relevant to best-
interest determination). Jones testified Raymond and Victoria admitted there was domestic
violence in their relationship. Raymond told Jones that Victoria had attacked him in the presence
of R.H.Z., and Jones testified domestic violence in the children’s presence presented a risk to the
children’s safety. Caseworker Gibbs testified R.H.Z. asked Victoria at one of the visits whether
Raymond had hit her again and R.H.Z. told “his foster dad to beat foster mom’s ass when he got
upset.” Raymond testified his children had, on multiple occasions, witnessed domestic violence
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between him and Victoria. Although Raymond testified he separated from Victoria and had no
plans to reunite with her, Gibbs testified Raymond “tends to manipulate and deceive the
Department, kind of telling us what we want to hear. He’s made statements that he’s done this
before to get back [his oldest daughter], so he’ll just do what he needs to do again.”
The evidence showed Raymond completed his family service plan, his visits with the
children went well, he had housing and a job, and counselor Bonet saw no red flags that should
prevent reunification, but other evidence showed Raymond had not met the goals of the services
in his family service plan and would be unable to meet the children’s needs. See Holley, 544
S.W.2d at 372. In light of Raymond’s testimony that he tested positive for cocaine during the case,
and was on probation at the time, the trial court reasonably could have discredited Raymond’s
testimony that he had learned from his services to exercise better judgment. Gibbs testified
Raymond’s drug dependency demonstrated that, although Raymond had completed his services,
he had not met the goals of those services in order to provide for the children’s needs. The evidence
showed that, while the children improved in foster care, R.H.Z. continued to have physical and
emotional needs. Gibbs testified R.H.Z. is a very aggressive child and was “taken out of
Kinder . . . due to him spitting, grabbing other children's food and eating it, standing on the table,
cursing, destroying the property on the school bus.” She further testified R.H.Z. attempted to
penetrate F.V.Z.’s anus with a toy. Thus, the trial court reasonably could have found Raymond
had not made the necessary improvements to be able to meet the children’s ongoing needs.
Having reviewed the evidence, we hold a factfinder could have reasonably formed a firm
belief or conviction that termination of Raymond’s parental rights is in the children’s best interest.
See In re C.H., 89 S.W.3d at 25. We therefore conclude there is legally and factually sufficient
evidence to support the trial court’s finding that termination of Raymond’s parental rights is in the
children’s best interest.
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CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
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