Court of Appeals of Texas, Fourth District, San Antonio
the 57th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-PA-02486 Honorable Charles E. Montemayor,
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Patricia O. Alvarez, Justice.
C.P. appeals the trial court's order terminating her
parental rights to her child I.P. C.P. asserts the evidence is
neither legally nor factually sufficient for the trial court
to have found by clear and convincing evidence that
terminating her parental rights is in I.P.'s best
reviewed the evidence, we conclude it is legally and
factually sufficient to support the findings, and we affirm
the trial court's order.
September 14, 2016, the Department of Family and Protective
Services received a report that C.P. was on probation for
theft and had tested positive for methamphetamines. From that
date, the Department tried to contact C.P. at least ten times
to offer her Family-Based Safety Services including drug
addiction treatment and rehabilitation services. In its
investigation, the Department discovered that I.P., an
elementary school student, was frequently tardy and had
multiple unexcused absences. I.P. also had a long-term ear
infection which was degrading his hearing, affecting his
speech development, and causing I.P. to fall behind in
school. Because of C.P.'s failure to engage in services
or provide essential care for I.P., on November 3, 2016, the
Department removed I.P. from C.P.'s home.
December 2016, the Department created a service plan for
C.P., but she was "overwhelmed" by its
requirements. The Department tailored a plan to help her meet
her plan and probation obligations, but despite this
accommodation, C.P. failed to comply with her service plan.
C.P. continued using drugs. She tested positive for cocaine
twice with the Department and twice with the probation
office. On October 31, 2017, after a one-day bench trial, the
trial court terminated C.P.'s parental rights to I.P.,
and she appeals.
Required to Terminate Parental Rights
Department moves to terminate a parent's rights to a
child, the Department must prove by clear and convincing
evidence that the parent's acts or omissions met one or
more of the grounds for involuntary termination listed in
section 161.001(b)(1) of the Family Code, and terminating the
parent's rights is in the best interest of the child.
Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2017);
In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The
same evidence used to prove the parent's acts or
omissions under section 161.001(b)(1) may be used in
determining the best interest of the child under section
161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex.
2002); In re D.M., 452 S.W.3d 462, 471 (Tex.
App.-San Antonio 2014, no pet.); see also Tex. Fam.
Code Ann. § 161.001(b). The trial court may consider a
parent's past deliberate conduct to infer future conduct
in a similar situation. D.M., 452 S.W.3d at 472.
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).
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.
C.P.'s Course of Parental Conduct
trial court found by clear and convincing evidence that C.P.
constructively abandoned I.P., failed to comply with her
court-ordered service plan, and used a controlled substance
in a manner that endangered I.P.'s health and safety.
See Tex. Fam. Code Ann. § 161.001(b)(1)(N),
(O), (P). On appeal, C.P. does not challenge the
trial court's statutory grounds findings.
Best Interest of the Child
C.P. challenges the sufficiency of the evidence supporting
the trial court's finding that terminating her parental
rights is in her child's best interest. See id.
§ 161.001(b)(2). We briefly review the law pertaining to
determining the best interest of the child.
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
(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
(9) whether the perpetrator of the harm to the child is
(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
(11) the willingness and ability of the child's family to
effect positive environmental and personal changes within a