in the Interest of J.J.V.M.M., a Child ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00405-CV
IN THE INTEREST OF J.J.V.M.M., a Child
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2021PA01147
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Irene Rios, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: December 7, 2022
AFFIRMED
T.S. appeals the trial court’s order terminating her parental rights to her child J.J.V.M.M.
(born 2018). 1 T.S. argues the evidence is legally and factually insufficient to support the trial
court’s findings under Texas Family Code section 161.001(b)(1)(D) and (E), and its finding that
termination is in the best interest of J.J.V.M.M. We affirm the trial court’s order.
BACKGROUND
In June 2021, the Texas Department of Family and Protective Services removed
J.J.V.M.M. from T.S.’s care because of concerns that T.S. was using and selling
methamphetamines out of the home where J.J.V.M.M. resided; neglectful supervision; and T.S.’s
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).
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positive drug test for amphetamines and methamphetamines. The Department obtained temporary
managing conservatorship over J.J.V.M.M. and filed a petition to terminate T.S.’s parental rights.
The Department also created a family service plan requiring T.S. to, inter alia, obtain and maintain
legal income, submit to random drug testing, complete a drug assessment, complete a
psychological evaluation, engage in individual therapy, and complete parenting classes as a
condition of reunification. The Department ultimately pursued termination of T.S.’s parental
rights.
Approximately one year after removal, the trial court held a one-day bench trial at which
T.S. failed to appear. The trial court heard testimony from five witnesses: (1) Department
caseworker Maria Arroyo; (2) Detective Francisco Vasquez of the San Antonio Police
Department; (3) investigator Christina Dawson; (4) Department caseworker Kristen Torres; and
(5) the child’s father, T.M. At the conclusion of trial, the court signed an order terminating T.S.’s
parental rights pursuant to section 161.001(b)(1)(D), (E), (O), and (P) and its finding that
termination of T.S.’s parental rights was in the child’s best interest. T.S. appealed.
ANALYSIS
T.S. challenges not only the legal and factual sufficiency of the evidence supporting the
trial court’s findings under section 161.001(b)(1)(D) and (E), but also the legal and factual
sufficiency of the evidence on which the trial court relied to conclude that termination was in the
best interest of J.J.V.M.M.
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
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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 T.S.’s parental rights and
that termination was in the best interest of the child. TEX. FAM. CODE § 161.206; In re A.V., 113
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
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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
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).
Statutory Termination Grounds
Applicable Law
In her first and second arguments on appeal, T.S. challenges the legal and factual
sufficiency of the evidence to support the trial court’s predicate findings. When, as here, the trial
court terminates a parent’s rights on multiple predicate grounds, we may affirm on any one ground.
In re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611–12 (Tex. App.—San Antonio
2012, no pet.).
In general, assuming a best interest finding, only one predicate ground under section
161.001(b)(1) is sufficient to support a judgment of termination. In re A.V., 113 S.W.3d at 362; In
re A.R.R., No. 04-18-00578-CV, 2018 WL 6517148, at *1 (Tex. App.—San Antonio Dec. 12,
2018, pet. denied) (mem. op.). To be successful on appeal, an appellant must challenge all the
predicate grounds upon which a trial court based its termination order. In re S.J.R.-Z., 537 S.W.3d
at 682. When an appellant does not challenge all the grounds that may support an order of
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termination, we typically do not address the sufficiency of the evidence of any of the predicate
grounds for termination. See In re A.V., 113 S.W.3d at 361–62; In re S.J.R.-Z., 537 S.W.3d at 682.
Instead, we must accept the validity of the unchallenged grounds and affirm the termination order.
See In re A.V., 113 S.W.3d at 361–62; In re S.J.R.-Z., 537 S.W.3d at 682.
However, because termination under subsection 161.001(b)(1)(D) or (E) may have
implications for a parent’s parental rights to other children, appellate courts are instructed to
address issues challenging a trial court’s findings under those subsections. In re N.G., 577 S.W.3d
230, 236–37 (Tex. 2019). Therefore, we will consider T.S.’s sufficiency argument as to
subsections (D) and (E) even though she does not challenge termination under subsections (O) and
(P). See In re L.C., No. 12-19-00137-CV, 2019 WL 4727826, at *2 (Tex. App.—Tyler Sept. 27,
2019, no pet.) (mem. op.) (addressing parents’ sufficiency challenges to subsections (D) and (E)
even though they did not challenge all grounds upon which termination could be supported). We
consolidate our analysis as to both statutory grounds because the evidence concerning those two
grounds is interrelated. See In re J.T.G., 121 S.W.3d 117, 126 (Tex. App.—Fort Worth 2003, no
pet.).
Subsection (D) allows a trial court to terminate parental rights if it finds by clear and
convincing evidence that the parent has “knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being of the
child.” TEX. FAM. CODE § 161.001(b)(1)(D). Under subsection (D), the trial court examines
“evidence related to the environment of the children to determine if the environment was the source
of endangerment to the children’s physical or emotional well-being.” In re J.T.G., 121 S.W.3d at
125. “Environment” refers to the acceptability of the child’s living conditions and a parent’s
conduct in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). “A child is endangered when the environment creates a potential for danger that the parent
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is aware of but consciously disregards.” Id. A parent does not need to know for certain that the
child is in an endangering environment. In re R.S.-T., 522 S.W.3d at 109. Awareness of a potential
for danger is sufficient. Id.Subsection (E) allows a trial court to terminate a parent’s rights if it finds by clear and
convincing evidence that the parent “engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-being of the
child.” TEX. FAM. CODE § 161.001(b)(1)(E). Under subsection (E), the trial court determines
whether there is evidence that a parent’s acts, omissions, or failures to act endangered the child’s
physical or emotional well-being. See In re J.T.G., 121 S.W.3d at 125. “It is not necessary that the
parent’s conduct be directed at the child or that the child actually be injured; rather, a child is
endangered when the environment or the parent’s course of conduct creates a potential for danger
which the parent is aware of but disregards.” In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—
Houston [14th Dist.] 2005, no pet.).
Application
With respect to subsection (D), T.S. argues that the evidence was legally and factually
insufficient to support termination because “[m]uch of the evidence presented at trial concerned
the gunshot wound to J.J.V.M.M.’s foot while the suit was pending.” However, contrary to T.S.’s
argument, the Department presented additional, pre-removal evidence at trial bearing on
subsection (D).
Arroyo testified the case originally came to the Department’s attention in August 2020
because of concerns T.S. was “using and selling methamphetamines out of the home where
[J.J.V.M.M.] was residing.” In September 2020, T.S. left J.J.V.M.M.—then under two years old—
unattended in a dangerous area of the neighborhood where there had been recent shootings. In
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December 2020, J.J.V.M.M. was admitted to the hospital with respiratory distress; 2 that same day,
T.S. had chemical burns, gave inconsistent stories, and there were concerns she was under the
influence of methamphetamines. In March 2021, T.S. was admitted to the hospital with
hallucinations; tested positive for methamphetamines and marijuana; and admitted to using
methamphetamines, ecstasy, and marijuana. The Department removed J.J.V.M.M. after T.S. tested
positive for amphetamines and methamphetamines in April 2021. After removal, the child was
placed with his maternal aunt, J.D.
After reviewing the evidence under the appropriate standards of review, we conclude that
a factfinder could reasonably have formed a firm belief or conviction that T.S. knowingly placed
or knowingly allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child. We therefore hold legally and factually sufficient
evidence supports the trial court’s finding that termination was warranted under section
161.001(b)(1)(D), and overrule T.S.’s arguments to the contrary.
T.S. further argues there is legally and factually insufficient evidence to support
termination under subsection (E) because “no evidence was presented [T.S.] knew or had reason
to know there was a gun in the home.” We disagree. In September 2021, J.D. asked T.S. to take
J.J.V.M.M. for a few days. Although T.S. was not allowed possession of the child at the time, she
nevertheless took him for three days. On the third day, the child shot himself with a gun.
Vasquez—the SAPD detective responsible for investigating J.J.V.M.M.’s suspected gunshot
wound—testified, based on his conversations with T.S, that J.J.V.M.M was “taking a bath” while
she was in bed with a man, “Shade.” Shade brought a gun to the house and “left the weapon out
on the bed.” After J.J.V.M.M. crawled out of the bathtub, T.S. told him to go back to the bathtub
2
J.J.V.M.M. suffers from asthma and additional severe respiratory issues.
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because she was with Shade. She then heard a “pop” and shortly after realized that J.J.V.M.M. had
shot himself in the foot with the gun. The trial court could have concluded that T.S. knew there
was a gun in her home because the gun was left on the same bed she was lying on immediately
before the child shot himself.
After J.J.V.M.M. shot himself in the foot, T.S. had sexual relations with Shade. She then
drove Shade back to his home before returning home to clean the child’s wound in the bathtub.
T.S. then called her father—who alerted J.D.—and her father and J.D. took the child to the hospital
without T.S. Vasquez testified he filed charges against T.S. for injury to a child by omission.
We conclude that a factfinder could reasonably have formed a firm belief or conviction
that T.S. engaged in conduct—including leaving a two-year-old child in the bathtub alone;
allowing a gun to be in such proximity that a two-year-old child could obtain it and shoot himself;
delaying treatment to her child so that she could have sexual relations with Shade and drive Shade
home; and refusing to take her child to the hospital after he was shot with a gun—that endangers
the physical or emotional well-being of the child. We therefore hold legally and factually sufficient
evidence supports the trial court’s finding that termination was warranted under section
161.001(b)(1)(E), and overrule T.S.’s arguments to the contrary.
Best Interest
Applicable Law
In her final issue, T.S. challenges the legal sufficiency of the trial court’s order that
termination of her parental rights was in the best interest of J.J.V.M.M. 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
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Department satisfied this burden, the Texas Legislature has provided several factors 3 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 4 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.). Additionally,
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). Finally, “[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).
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).
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, 544 S.W.2d at 371–72.
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Application
The evidence at trial established that T.S. was addicted to methamphetamines; that she
tested positive for methamphetamines and other drugs; that she thereafter refused to submit to
further drug tests—including court-ordered drug testing; and that she failed to complete treatment
for her drug addiction. 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., No. 04-19-00102-CV, 2019 WL 3937278,
at *8 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.). Given T.S.’s failure to
complete the drug testing and treatment requirements of her service plan, the factfinder could have
determined that T.S. would be unable to obtain the treatment she required to adequately care for
J.J.V.M.M. See In re E.D., 419 S.W.3d at 620.
The trial court also considered testimony relating to the child’s foster-to-adopt placement.
When he was first placed, J.J.V.M.M. was small, skinny, did not speak, was not social, did not
make eye contact, and was not interactive. After time in placement, he spoke in five-to-six word
sentences, asked and answered questions, had gained weight, and was more physically active.
J.J.V.M.M. bonded with his foster family, referring to them as mommy and daddy. His foster
mother is a nurse, and through her knowledge of medicine has been able to get the child’s
respiratory issues under control. 5
At the time of trial, T.S. faced multiple pending charges, including criminal allegations
related to J.J.V.M.M. In addition to her charge for injury to a child by omission resulting from the
gunshot incident, T.S. was charged with aggravated assault with a deadly weapon arising after T.S.
confronted J.J.V.M.M.’s father’s wife. 6
5
The child’s respiratory issues were so severe that he experienced cardiac arrest in July 2021.
6
The Department considered (and rejected) the father’s wife as a possible placement while the father remained
incarcerated.
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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 T.S.’s
parental rights was in the best interest of J.J.V.M.M. 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 T.S.’s arguments to the contrary.
CONCLUSION
We affirm the trial court’s order of termination.
Lori I. Valenzuela, Justice
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