Court of Appeals of Texas, Fourth District, San Antonio
the 285th Judicial District Court, Bexar County, Texas Trial
Court No. 2018PA00016 Honorable Charles E. Montemayor, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Patricia O.
Alvarez, Justice, Beth Watkins, Justice.
appeals the trial court's order terminating her parental
rights to D.M.H., Jr. The only issue presented on appeal is
whether the evidence is legally and factually sufficient to
support the trial court's finding that termination was in
D.M.H., Jr.'s best interest. We affirm the trial
January 3, 2018, the Texas Department of Family and
Protective Services filed a petition to terminate S.C.'s
parental rights to D.M.H., Jr. On November 28, 2018, a bench
trial was held. At the time of the trial, D.M.H., Jr. was
sixteen months old. The trial court terminated S.C.'s
parental rights, and she appeals.
of Review and Statutory Requirements
terminate parental rights pursuant to section 161.001 of the
Texas Family Code, the Department has the burden to prove by
clear and convincing evidence: (1) one of the predicate
grounds in subsection 161.001(b)(1); and (2) that termination
is in the best interest of the child. See Tex. Fam.
Code Ann. §§ 161.001(b), 161.206(a); In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the
trial court found clear and convincing evidence of the
following two predicate grounds under subsection
161.001(b)(1) to terminate S.C.'s parental rights:
(1) S.C. constructively abandoned D.M.H., Jr. who had been in
the permanent or temporary managing conservatorship of the
Department for not less than six months and: (a) the
Department made reasonable efforts to return D.M.H., Jr. to
S.C.; (b) S.C. had not regularly visited or maintained
significant contact with D.M.H., Jr.; and (c) S.C.
demonstrated an inability to provide D.M.H., Jr. with a safe
(2) S.C. failed to comply with a court-ordered service plan.
Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O);
see also In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)
(noting evidence that proves one or more statutory grounds
for termination may be probative in proving termination is in
the child's best interest). The trial court also found
clear and convincing evidence that terminating S.C.'s
parental rights was in D.M.H., Jr.'s best interest.
evaluate the legal and factual sufficiency of the evidence to
support the trial court's findings under the standards of
review established by the Texas Supreme Court in In re
J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under these
standards, "[t]he trial court is the sole judge of the
weight and credibility of the evidence, including the
testimony of the Department's witnesses." In re
F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex.
App.-San Antonio Jan. 30, 2017, no pet.) (mem. op.).
determining the best interest of a child, courts apply the
non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976). Those factors include: (1) the desires of the
child; (2) the present and future emotional and physical
needs of the child; (3) the present and future emotional and
physical danger to the child; (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 held by the individuals seeking
custody of the child; (7) the stability of the home of the
parent and the individuals seeking custody; (8) the acts or
omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Id.
The foregoing factors are not exhaustive, and "[t]he
absence of evidence about some of [the factors] would not
preclude a factfinder from reasonably forming a strong
conviction or belief that termination is in the child's
best interest." In re ...