Court of Appeals of Texas, Fourth District, San Antonio
IN THE INTEREST OF Z.K.W., Z.K.C., V.L.S., Jr., and V.O.K.S., Children
the 408th Judicial District Court, Bexar County, Texas Trial
Court No. 2017-PA-02567 Honorable Monique Diaz, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice
Elena D. Chapa, Justice
Zoe appeals an order terminating
her parent-child relationship with her four children. Her
sole issue is that the evidence is legally and factually
insufficient to support the trial court's finding that
termination is in the children's best interest. We affirm
November 9, 2017, the Texas Department of Family and
Protective Services filed a petition for protection of the
children and termination of the parent-child relationship
between Zoe and Z.K.W. (born in 2008), Z.K.C. (born in 2012),
V.L.S., Jr. (born in 2013), and V.O.K.S. (born in 2016). The
children were removed based on allegations that Z.K.W. had
called 9-1-1 because Zoe "was found vomiting and in an
altered state." Zoe was transported by an ambulance to a
hospital where she tested positive for cocaine and alcohol.
Zoe was placed on a safety plan, but again tested positive
for cocaine. The children were then removed from Zoe.
case proceeded to a bench trial on May 1, 2019. Zoe's counsel
appeared on her behalf and announced "not ready"
because Zoe was not physically present. Zoe's counsel
explained Zoe was "still attempting to work
services" and "went to inpatient rehab" the
morning of trial. Three witnesses testified for the
Department. The trial court also admitted Zoe's family
service plan into evidence. At the close of trial, the trial
court terminated Zoe's parent-child relationship with all
four children. Zoe timely filed a notice of appeal.
sole issue is that there is legally and factually
insufficient evidence to support the trial court's
best-interest finding. To terminate parental rights, the
Department must prove by clear and convincing evidence: (1)
one of the predicate grounds in subsection 161.001(b)(1) and
(2) termination is in the child's best interest. Tex.
Fam. Code §§ 161.001(b), 161.206(a). We review the
legal and factual sufficiency of the evidence using
well-established standards of review. See id. §
101.007; In re J.F.C., 96 S.W.3d 256, 263-67 (Tex.
2002). Zoe does not challenge the trial court's findings
of the predicate grounds in subsection 161.001(b)(1), that
she constructively abandoned the children, failed to comply
with court-ordered provisions of her family service plan, and
knowingly endangered the children by conduct, surroundings,
and her drug use. We therefore consider whether there is
legally and factually sufficient evidence to support the
trial court's best-interest finding.
determining the best interest of a child, we apply the
non-exhaustive Holley factors. See 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 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; (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.
testimony of the Department's case investigator and
Zoe's family service plan showed Zoe was, as of December
2017, on probation for possession and delivery of drugs since
2010. There was also testimony that Zoe was arrested for
child endangerment in 2010. On September 24, 2017, the
Department received a referral reporting that Zoe was
transported to a hospital because she "was found
vomiting and in an altered state," and Z.K.W. had called
9-1-1. Zoe arrived at the hospital unresponsive and tested
positive for cocaine and alcohol. In November 2017, after the
suit was filed, Zoe against tested positive for cocaine. The
Department removed the children based on Zoe's drug use,
criminal history, and her inability to provide a safe and
protective home environment for her children. Zoe was placed
on a safety plan, but she did not take advantage of any of
the services offered to avoid the removal of the children.
evidence shows that after the children were removed, Zoe was
given a family service plan. Zoe substantially completed
several of the requirements, but never completed a drug
rehabilitation program. Zoe started outpatient program
services, but she was discharged several times, and an
involuntary inpatient program was recommended. Zoe did not
appear for the trial and, although Zoe's attorney stated
she had checked in for an inpatient drug program at a shelter
earlier that morning, there was subsequent testimony showing
Zoe had not enrolled in that inpatient program. The testimony
also showed the shelter had intake for its inpatient programs
only on Tuesdays and Thursdays, and trial was held on a
Department's legal caseworker testified that at the time
of the temporary orders hearing, Zoe was living in a shelter
and was in the process of moving to a relative's house.
He also testified Zoe tested positive for marijuana in
February 2018, and there were concerns that Zoe was coming to
her visits with the children under the influence of drugs.
The evidence showed Zoe attended approximately 25% to 45% of
her visits with the children. The evidence also showed the
oldest child, Z.K.W., and Zoe had a strong bond, and Z.K.W.
missed her. There was evidence that the other children
desired to remain in their current placements. The two older
children were placed with a paternal relative, and the two
younger children were placed with a foster mother who planned
to adopt them. Zoe's parole officer testified some of the
children had experienced emotional and behavioral problems,
but they ...