Court of Appeals of Texas, Fourth District, San Antonio
the 285th Judicial District Court, Bexar County, Texas Trial
Court No. 2018PA00686 Honorable Charles E. Montemayor, Judge
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Beth Watkins, Justice
BRYAN MARION, CHIEF JUSTICE
appeals the trial court's order terminating his parental
rights to G.M. 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
G.M.'s best interest. We affirm the trial court's
April 4, 2018, the Texas Department of Family and Protective
Services filed a petition to terminate F.M.'s parental
rights to G.M. On January 15, 2019, a bench trial was held.
At the time of the trial, G.M. was five years old. The trial
court terminated F.M.'s parental rights, and he 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, 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 three predicate grounds under subsection
161.001(b)(1) to terminate F.M.'s parental rights: (1)
engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangered the child's
physical or emotional well-being; (2) failed to comply with a
court-ordered service plan; and (3) used a controlled
substance in a manner that endangered the health or safety of
the child and failed to complete a court-ordered substance
abuse treatment program. See Tex. Fam. Code Ann.
§§ 161.001(b)(1)(E), (O), (P); 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 F.M.'s parental rights was in
G.M.'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 these 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 C.H., 89 S.W.3d at 27.
"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).
was removed from F.M.'s care after a shelter's
surveillance video captured F.M. physically abusing G.M. in
the lobby of the shelter. The videotape shows F.M. repeatedly
hitting G.M. on his bottom, his back, and the back of his
head causing G.M. to fall to the floor. F.M. continued
hitting G.M. after he fell to the floor until F.M.'s
girlfriend intervened. When F.M.'s girlfriend intervened,
F.M. pushed her and started yelling at her.
too young to express his desires; however, the
Department's caseworker testified G.M. shows fear of F.M.
G.M. does not want the caseworker to tell F.M. if G.M. gets
in trouble at school or has a bad grade.
was discharged from his first domestic violence classes for
excessive absences. He re-enrolled in classes in October of
2018 and had completed seven of the fourteen classes. The
caseworker does not believe F.M. is meeting the goals of the
classes because F.M.'s girlfriend continues to report to
the caseworker that F.M. is abusive to her. See In re
T.L.B. Jr., No. 01-16-00806-CV, 2017 WL 1019520, at *11
(Tex. App.-Houston [1st Dist.] Mar. 16, 2017, no pet.) (mem.
op.) (noting evidence of domestic violence is supportive of a
trial court's best-interest finding). In addition, during
one of F.M.'s visits with G.M. in October of 2018, F.M.
began yelling at the monitor resulting in two other
Department workers and security intervening and ending the
visit. G.M. began crying and shaking, and one of the
Department workers testified the visit was traumatic for G.M.
The caseworker also testified G.M. has been adversely
affected by the domestic violence, noting he engages in
aggressive and abusive behaviors with other children. G.M. is
in therapy to address these behaviors.
was referred for parenting classes in June of 2018 but only
began classes the week before trial. Although F.M. testified
the classes did not have any openings until that time, the
caseworker testified she had several other parents who had
started and completed the classes during that period of time.
In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.-Fort
Worth 2006, no pet.) (noting failure to comply with family
service plan supports a finding that termination is in the
best interest of the child).
was referred for individual therapy in May of 2018; however,
the counseling center was unable to contact F.M. to schedule
an appointment because he did not have a stable phone number.
After that referral expired in August, the Department sent
another referral in September, and F.M. began therapy in
October. Although F.M. stated he went to therapy on a weekly
basis, the caseworker testified F.M. attended therapy twice a
month. The caseworker did not believe F.M. was being honest
with the therapist about his relationship with his girlfriend
because he told the therapist the relationship was good while
his girlfriend reported ongoing abuse.
November of 2018, F.M. tested positive for marijuana and was
referred to drug treatment. At trial, F.M. admitted he had
not started the drug treatment. See In re L.G.R.,
498 S.W.3d 195, 204 (Tex. App.-Houston [14th Dist.] 2016,
pet. denied) (noting parent's drug use supports a finding
that termination is in best interest of the child).
was living with his mother; however, the caseworker had not
visited the home. Initially, F.M. refused to provide the
caseworker with his mother's address because he stated
she did not want any involvement with the Department. F.M.
subsequently told the caseworker his mother's home was
not appropriate for G.M. because it was dirty and his mother
uses drugs. At trial, F.M. testified G.M. would be able to
stay with him at his mother's house. See In re
M.R., 243 S.W.3d 807, 821 (Tex. App.-Fort Worth 2007, no
pet.) (noting parent's inability to provide a stable home
supports a finding that termination is in the best interest
of the child).
placed with fictive kin. The caseworker testified the
placement will likely lead to permanency and adoption.
See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.-Fort
Worth 2009, pet. denied) (noting stability and permanence are
important to upbringing of a child and affirming finding that
termination was in child's best interest when child was
thriving in current placement).
reviewed the record, we hold the evidence is legally and
factually sufficient to support the trial court's finding
that terminating F.M.'s parental rights was in G.M.'s
order of the trial ...