in the Interest of B.F.H-J, M.Y.J, A.J.J, Children ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00461-CV
IN THE INTEREST OF B.F.H-J., M.Y.J., A.J.J., Children
From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 19-04-25755-CV
Honorable Robert J. Falkenberg, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: January 13, 2021
AFFIRMED
Appellant R.J. appeals the trial court’s order terminating his parental rights to his children,
B.F.H.-J., M.Y.J., and A.J.J. 1 He challenges the legal and factual sufficiency of the evidence
supporting the trial court’s best interest and conservatorship findings. We affirm the trial court’s
order.
BACKGROUND
On March 5, 2019, the Texas Department of Family and Protective Services (“the
Department”) received a report alleging neglectful supervision of the children by R.J. The report
claimed R.J. used drugs while caring for the children and exposed them to domestic violence
1
To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX.
R. APP. P. 9.8(b)(2).
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between him and his girlfriend. The report further alleged the children were afraid of R.J. and the
family faced eviction. To keep the children with family members and avoid legal intervention, the
Department set up a parental child safety placement plan (“the safety plan”) and placed the children
with their mother. However, when the children’s mother tested positive for drug use, the
Department placed the children with the parents of R.J.’s girlfriend. A month later, R.J.’s
girlfriend’s parents indicated they could no longer care for the children. The Department filed a
petition to terminate R.J.’s parental rights, obtained temporary managing conservatorship over the
children, and placed them in foster care together. 2 The Department also created a service plan
requiring R.J. to complete a drug and alcohol assessment, submit to random drug testing, complete
a psychological evaluation, engage in individual counseling, complete domestic violence classes,
and build a positive support system. Due to ongoing concerns surrounding R.J.’s drug use, the
Department pursued termination of his parental rights.
The trial court held a two-day bench trial at which counsel for R.J. appeared. At the time
of trial, B.F.H.-J. was twelve years old, M.Y.J. was eleven, and A.J.J. was nine. The trial court
heard testimony from four Department employees: (1) investigator Joe David Sanchez; (2)
supervisor Denise Ellinger; (3) conservatorship specialist Victoria Gonzalez; and (4) kinship
specialist Rebecca Balderaz. The trial court also admitted a certified copy of R.J.’s service plan
into the evidence. The court signed an order terminating R.J.’s parental rights after finding R.J.
engaged in conduct under Texas Family Code section 161.001(b)(1)(D), (E), (N), (O), and (P) and
that termination of R.J.’s parental rights was in the best interest of the children. The order also
appointed the Department as managing conservator of the children. R.J. appealed, challenging the
sufficiency of the evidence supporting the trial court’s best interest and conservatorship findings.
2
The Department also sought termination of the parental rights of the children’s mother, who executed an affidavit
voluntarily relinquishing her parental rights. She is not a party to this appeal.
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ANALYSIS
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 R.J.’s parental rights and
that termination was in the best interest of the children. See TEX. FAM. CODE ANN. § 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 ANN. § 101.007; In re
S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the legal and factual sufficiency of evidence supporting a trial court’s
termination order, we apply well-established standards of review. See TEX. FAM. CODE
§§ 101.007, 161.206(a); 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.” In
re J.F.C., 96 S.W.3d 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
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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 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 evidence 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 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 E.X.G., No. 04-18-00659-CV, 2018 WL
6516057, at *1 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (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 Interest
Applicable Law
There is a strong presumption that a child’s best interest is served by maintaining the
relationship with the natural parent, and the Department has the burden to rebut that presumption.
See, e.g., In re R.S.-T., 522 S.W.3d at 97. In determining whether the Department satisfied this
burden, the Texas Legislature has provided several factors for courts to consider regarding a
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parent’s willingness and ability to provide a child with a safe environment. 3 TEX. FAM. CODE
ANN. § 263.307(b). Courts may also apply the list of factors promulgated by the Texas Supreme
Court in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). 4
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. See 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).
Application
The Department produced evidence that it removed the children from R.J. because he
neglected them by using drugs while caring for them. Frequent drug use is relevant to a best
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 ANN. § 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. Id.
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interest determination, and it can support a factfinder’s firm belief or conviction that termination
of R.J.’s parental rights is in the children’s best interest. See In re Z.R.M., No. 04-15-00063-CV,
2015 WL 4116049, at *6 (Tex. App.—San Antonio July 8, 2015, no pet.) (mem. op.). Department
investigator Joe David Sanchez testified that during his investigation, he spoke to R.J., who was
the children’s primary caregiver, about the allegations. R.J. admitted he used methamphetamines
daily for the last two months to give himself energy. The trial court next heard testimony from
Department supervisor Denise Ellinger, who testified she spoke to R.J. at the beginning of the
Department’s involvement about his drug usage and the safety plan. Ellinger testified she
explained to R.J. that the safety plan required him to take a drug and alcohol assessment, but R.J.
never completed the assessment at the safety plan stage. He did, however, test positive for
methamphetamines. Ellinger testified R.J. did not accept responsibility for his positive test results
and refused to work with the Department to address his drug use.
Department conservatorship specialist Victoria Gonzalez also testified she worked with
R.J. and designed his service plan, which required him to take a drug and alcohol assessment,
complete the programs recommended as a result of the assessment, and submit to random drug
testing. According to Gonzalez, the Department wanted R.J. to complete the programs
recommended after the drug and alcohol assessment before completing any of the other service
plan requirements because the Department was most concerned about his drug use. She testified
she believed R.J. understood the service plan even though he did not sign it, and he completed a
drug and alcohol assessment on May 3, 2019. However, he failed to follow through with the
assessment’s recommendation to complete outpatient substance abuse treatment. On June 26,
2019, R.J. tested positive for methamphetamines and admitted to using marijuana—albeit, in
California where it is legal—and methamphetamines. After he completed a second assessment on
July 29, 2019, residential treatment was recommended. R.J. refused to engage in the residential
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treatment program and told Gonzalez he would participate in the previously recommended
outpatient substance abuse treatment. Gonzalez testified that when she followed up with the
outpatient treatment center, she learned R.J. did not attend any sessions. R.J. also tested positive
for methamphetamines on August 29, 2019. She then scheduled additional assessments in October
and November of 2019, which R.J. missed. In February of 2020, R.J. admitted to Gonzalez that
he was still using methamphetamines. In April of 2020, R.J. completed another assessment, and
while outpatient substance abuse treatment was recommended, he failed to attend. Gonzalez
testified that of the ten drug tests she scheduled for R.J. during this case, he missed eight of them
without any explanation and tested positive for the two he took. She also testified these missed
tests are considered positive results.
The Department also produced evidence that R.J. exposed the children to domestic
violence. This court has recognized that exposing a child to such violence is relevant in a best
interest determination. In re O.N.H., 401 S.W.3d 681, 684–85 (Tex. App.—San Antonio 2013, no
pet.). Here, the evidence shows the children were afraid of R.J. as a result of his violent behavior.
Sanchez testified he did not observe any signs of physical abuse after the children were removed
from the home, but B.F.H.-J. told him she feared her father. See In re E.R., No. 01-17-00503-CV,
2017 WL 5892402, at *11 (Tex. App.—Houston [1st Dist.] Nov. 30, 2017, pet. denied) (mem.
op.). B.F.H.-J. specifically recalled an incident when her father ran around the house with an axe
threatening his girlfriend. Sanchez testified B.F.H.-J. told him her father made her and her siblings
“remain in positions” while wielding the axe and she was afraid. B.F.H.-J. also told Sanchez she
had witnessed her father argue with his girlfriend multiple times.
Gonzalez further testified R.J. has not had any contact with his children since September
of 2019. A parent’s lack of contact with their child supports a best interest finding. See In re
R.A.G., 545 S.W.3d 645, 654 (Tex. App.—El Paso 2017, no pet.). Here, Gonzalez testified that
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the court suspended R.J.’s visitations until he completed the residential treatment program
recommended after his second assessment. According to Gonzalez, since that hearing, R.J. has
not reached out to her to see how the children are doing or offered any form of support. Gonzalez
acknowledged, however, that R.J. recently contacted the children’s maternal grandmother, with
whom the children are currently living, to tell M.Y.J. happy birthday.
The evidence also shows the children are “doing extremely well” living with their maternal
grandmother and have each independently expressed a desire to remain with her. See In re I.N.D.,
No. 04-20-00121-CV, 2020 WL 2441375, at *6 (Tex. App.—San Antonio May 13, 2020, no pet.)
(mem. op.). The evidence shows the Department moved the children from foster care to their
maternal grandmother’s home in July of 2019 after performing a home study and approving that
placement. The home study indicated the grandmother had been living alone since her husband
was incarcerated for indecency with a child. According to Gonzalez, the grandmother was
pursuing a divorce, which is why the Department approved the placement. Gonzalez also testified
the children are excited, happy, and loved in the home, and each time she has visited them, they
are engaged in activities together. Department kinship specialist Rebeca Balderaz also testified
she visited the children multiple times after they were placed with their grandmother, and the
children are happy, well adjusted, and bonded to their grandmother. Both Gonzalez and Balderaz
testified the children’s grandmother has appropriate parenting skills, is meeting all the children’s
needs, and has cooperated with the Department to make adoption possible. According to
Gonzalez, it would be in the children’s best interest for R.J.’s parental rights to be terminated and
for the children to be adopted by their maternal grandmother.
After viewing the evidence in the light most favorable to the finding, we conclude a
reasonable factfinder could have formed a firm belief or conviction that termination of R.J.’s
parental rights is in the children’s best interest. See In re J.F.C., 96 S.W.3d at 266; In re S.L.M.,
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513 S.W.3d at 750. The trial court heard extensive testimony about the severity and persistence
of R.J.’s drug use and his refusal to complete a treatment program. See 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.”); see also TEX. FAM. CODE
§ 263.307(b)(8), (10), (11). It also heard evidence that R.J. subjected the children to domestic
violence and, as a result, they are afraid of R.J. and want to remain with their maternal
grandmother, who plans to adopt them. See TEX. FAM. CODE § 263.307(b)(5), (7).
R.J. contends, however, this evidence is factually insufficient because the majority of the
Holley factors weigh against the trial court’s best interest finding. He argues: (1) the Department
did not produce evidence that the children were against reunification or were physically abused;
(2) no criminal charges were pending against him; and (3) he had complied with the Department’s
requirements to take drug assessments. While these statements may be true, the Holley factors are
not all-encompassing, and the lack of evidence as to some factors does not preclude a reasonable
factfinder from forming a firm belief or conviction that termination is in a child’s best interest. In
re G.C.D., 2015 WL 1938435, at *5. Here, the Department produced clear and convincing
evidence weighing in favor of termination: the children feared their father and desired to remained
with their grandmother; they were exposed to emotional and physical danger with R.J.; R.J.
demonstrated an absence of parenting abilities by continuing to use drugs and refusing to
participate in a drug treatment program; and the children were placed in a stable environment with
a caretaker who planned to adopt them. See Holley, 544 S.W.2d at 371–72. When reviewing and
weighing all the evidence, including evidence contrary to the trial court’s findings, we conclude
the disputed evidence weighing against the trial court’s best interest finding is not so significant
that a factfinder could not have resolved it in favor of the finding. See In re J.F.C., 96 S.W.3d at
266.
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Accordingly, we overrule R.J.’s arguments and hold that legally and factually sufficient
evidence supports the trial court’s best interest finding that termination of R.J.’s parental rights is
in the best interest of his children.
Conservatorship
We review the trial court’s appointment of a nonparent as sole managing conservator for
an abuse of discretion, and we will reverse that appointment only if we determine it is arbitrary or
unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Having determined the evidence is
legally and factually sufficient to support the termination of R.J.’s parental rights, we further hold
the trial court did not abuse its discretion in appointing the Department as the managing
conservator of the children. See In re L.G.R., 498 S.W.3d at 207 (concluding no abuse of discretion
in conservatorship finding where the evidence was sufficient to support termination of parental
rights). We overrule R.J.’s last issue.
CONCLUSION
Based on the foregoing, we affirm the trial court’s order of termination.
Beth Watkins, Justice
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