Court of Appeals of Texas, Fourth District, San Antonio
the 166th Judicial District Court, Bexar County, Texas Trial
Court No. 2017-PA-00265 Honorable Charles E. Montemayor,
Associate Judge Presiding
Sitting: Karen Angelini, Justice, Rebeca C. Martinez,
Justice, Patricia O. Alvarez, Justice
S. appeals the trial court's order terminating her
parental rights to her young daughter, J.R.H. Her parental
rights were terminated based on (E), (N), (O), and (P)
grounds. See Tex. Fam. Code Ann. §
161.001(b)(1)(E), (N), (O), (P) (West Supp. 2017). On appeal,
Rosemary S. does not contest the statutory grounds for
termination but argues only the evidence is legally and
factually insufficient to support the trial court's
finding that termination of her parental rights is in her
child's best interest. See id. §
161.001(b)(2). We review the legal and factual sufficiency of
the evidence to support the trial court's best-interest
finding under the standards enunciated in In re
J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Texas law, there is a strong presumption that the best
interest of a child is served by keeping the child with a
parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
And, in determining whether the child's parent is willing
and able to provide the child with a safe environment, a
court should consider the factors set out in section 263.307
of the Family Code. See Tex. Fam. Code Ann. §
263.307 (West Supp. 2017). In addition to these statutory
factors, in considering the best interest of the child, a
court may also consider the nonexclusive list of factors set
forth by the Texas Supreme Court in Holley v. Adams,
544 S.W.2d 367, 372 (Tex. 1976). See In re C.H., 89
S.W.3d 17, 27 (Tex. 2002). Further, in determining whether
termination of the parent-child relationship is in the best
interest of a child, a court may judge a parent's future
conduct by her past conduct. In re E.D., 419 S.W.3d
615, 620 (Tex. App.-San Antonio 2013, pet. denied).
is Rosemary S.'s eleventh child. Her parental rights to
her other ten children were previously terminated. After the
Department of Family and Protective Services initially
removed J.R.H., the trial court allowed J.R.H. to remain with
her father and Rosemary S. However, J.R.H. was subsequently
removed from the home a second time.
evidence at trial showed Rosemary S. engaged in substance
abuse and had an extensive psychiatric history. She and
J.R.H.'s father were involved in instances of domestic
violence. Rosemary S. was not able to provide stable housing
or obtain and maintain stable employment. She also failed to
comply with the court-ordered service plan.
evidence at trial consisted of testimony from psychological
professionals and therapists along with testimony from
Department investigators and caseworkers.
Augustin Sicard, a psychologist who did a psychological
assessment and treatment plan for Rosemary S., testified to
his concern about domestic violence, continued substance
abuse, uncontrollable anger issues, and bipolar disorder.
According to Dr. Sicard, Rosemary S. was willing to comply
with services offered by the Department.
psychologist Dr. Kirk Coverstone performed a psychological
evaluation on Rosemary S. and testified about a number of
risk factors being present in her case. According to Dr.
Coverstone, there is extensive psychiatric history for which
Rosemary S. needs treatment and medication. Dr. Coverstone
testified Rosemary S. has a very limited employment history,
questionable marketable skills, transportation issues,
healthcare issues, substance abuse issues, and long-standing
issues of conflict in the relationship with J.R.H.'s
father. Rosemary S. did express a desire to have her child
returned, and Dr. Coverstone testified it was apparent she
loved and cared about her child.
Berkman, who provided therapeutic services for Rosemary S.,
testified that Rosemary S. attended a number of sessions, but
made very little progress. According to Berkman, after
Rosemary S. tested positive for drugs, she did not come in as
consistently for her sessions. Berkman also testified that
Rosemary S. was unable to obtain employment and stable
housing. According to Berkman, Rosemary S. was slow to get
started with her plan and was inconsistent toward the end.
Berkman did not recommend reunification because Rosemary S.
could not maintain stable housing or employment, and was not
capable of caring for her child. Further, according to
Beckman, Rosemary S. was living in a chaotic household with
another woman. Berkman explained that Rosemary S. wanted to
comply with the Department's service plan, but did not
have a great track record with her prior terminations of
being able to comply with service plans. According to
Berkman, Rosemary S. seemed willing to work her treatment
plan and expressed a desire to have her child returned.
Berkman testified she helped Rosemary S. complete paperwork
to apply for Social Security disability, which would allow
Rosemary S. to obtain housing.
Kelly, Jr., an administrative coordinator at a substance
abuse treatment center, testified that he scheduled three
assessment appointments for Rosemary S. before she finally
appeared at an appointment. According to Kelly, at the time
of the termination hearing, Rosemary S. had only been in
outpatient treatment for a week.
Rodriguez, a Department investigator, prepared the removal
affidavit in this case. She expressed concerns about the
stability of the home, the child having access to the
maternal grandmother who had her own history with the
Department, and drug use and domestic violence in the home.
Adams, another Department investigator, testified she
received a report of domestic violence between Rosemary S.
and J.R.H.'s father, which occurred while Rosemary S. was
holding J.R.H. According to Adams, domestic violence was an
ongoing issue with the parents. Adams also testified she was
concerned about J.R.H. having contact with the ...