Court of Appeals of Texas, Fourth District, San Antonio
the 438th Judicial District Court, Bexar County, Texas Trial
Court No. 2018-PA-00683 Honorable Charles E. Montemayor,
Associate Judge Presiding.
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
A. Rodriguez, Justice.
Jennifer W. appeals the trial court's order
terminating her parental rights to her nine-year-old
daughter, N.R.G. After a bench trial, the trial court
terminated Jennifer W.'s parental rights based on
subsections (E), (N), (O) and (P) of section 161.001(b)(1) of
the Texas Family Code. See Tex. Fam. Code Ann.
§ 161.001(b)(1). The trial court also found that
termination of her parental rights was in the best interest
of her child. See id. § 161.001(b)(2). On
appeal, she argues the evidence is legally and factually
insufficient to support the trial court's best-interest
finding. We affirm.
reviewing the legal sufficiency of the evidence to support
the trial court's best-interest finding, we 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.O.A., 283 S.W.3d 336, 344 (Tex.
2009) (quoting In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002)). In reviewing the factual sufficiency of the
evidence, we consider disputed or conflicting evidence.
Id. at 345. "If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that
a factfinder could not reasonably have formed a firm belief
or conviction, then the evidence is factually
insufficient." Id. (quoting In re
J.F.C., 96 S.W.3d at 266).
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).
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(b). 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). The Holley factors are neither
all-encompassing nor does a court need to find evidence of
each factor before terminating the parent-child relationship.
See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Finally, 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).
evidence at trial shows that the Department filed suit to
terminate Jennifer W.'s parental rights as a result of
Jennifer W. fleeing the scene of a car accident in which she
was the driver and N.R.G. was the passenger. Jennifer
W.'s brother, Nicholas G., testified that on the night of
March 15, 2018, he received a phone call from Jennifer W.
stating that she had been involved in an accident and asking
him to come and get her and N.R.G. According to Nicholas G.,
when he arrived, N.R.G. ran into his arms crying. She had
marks on her ankles and across her stomach. Nicholas G.
testified that Jennifer W. had "a bunch of little
marks" all over her face, which appeared to have been
caused by glass shattering in the accident. N.R.G. told him
that she had woken up in the car when her mother made her get
out and hide in the woods. Nicholas G. testified that based
on his observations of Jennifer W. that night, he believed
she had been drinking. He picked up N.R.G. and put her in his
car, leaving Jennifer W. "[w]here she was."
Nicholas G. testified he did not take N.R.G. to the hospital
because he "examined her very thoroughly and sent
messages to CPS." He explained that he "had no
rights to [N.R.G.] at the time of the accident." When
asked if Jennifer W. had ever told him whether she had been
drinking that night, Nicholas G. replied that Jennifer W. had
admitted to drinking. She told Nicholas G. that she had left
the scene because she did not have a license to drive.
trial, the caseworker testified that Jennifer W. had a
substance abuse problem and that she continued to use illegal
substances during the pendency of this case. Although the
evidence was somewhat unclear as to whether Jennifer W.
admitted to having "relapsed" sometime during
October or November of 2018, a hair-follicle test in April of
2019 was positive for methamphetamines. The caseworker also
testified that Jennifer W. refused to submit to drug testing
on multiple occasions during the pendency of the case.
See In re C.A.B., 289 S.W.3d 874, 885 (Tex.
App.-Houston [14th Dist.] 2009, no pet.) ("A factfinder
reasonably could infer that [the mother's] failure to
submit to the court-ordered drug screening indicated she was
avoiding testing because she was using drugs."); In
re W.E.C., 110 S.W.3d 231, 239 (Tex. App.-Fort Worth
2003, no pet.) ("The jury could reasonably infer that
appellant's failure to complete the scheduled screenings
indicated she was avoiding testing because she was using
drugs."). Based on this information, the caseworker
believed that Jennifer W. was unable to address her
the Department presented evidence that although mom had a
regularly scheduled day and time to visit with N.R.G., out of
fifty-two scheduled visits with her daughter, Jennifer W.
attended only sixteen, which the caseworker testified upset
N.R.G. When asked whether Jennifer W. had any excuses as to
why she did not attend these visits, the caseworker replied
Jennifer W. "would often state that she had other issues
going on-that this was a lot for her." The caseworker
noted that Jennifer W. never claimed her missed appointments
were because of transportation issues. Notably, although both
the caseworker and Nicholas G. testified Jennifer W. knew of
the trial setting, she did not appear at trial. Finally, the
Department presented evidence that Jennifer W. did not have
stable and safe housing. According to the caseworker,
throughout the case, Jennifer W. lived with friends and more
recently said she was going to Haven for Hope.
regard to N.R.G.'s current placement, the Department
presented evidence that N.R.G. was "doing great"
and was "very happy" in the care of Nicholas G.,
her maternal uncle. The caseworker testified Nicholas G. had
a safe and stable home. N.R.G. was making good grades at
school and was involved in many activities. She was bonded
with Nicholas G. and was very happy living in his home.
Although the record is void as to N.R.G.'s feelings about
her relationship with mom, when the caseworker asked N.R.G.
whether she would like to be adopted by Nicholas G., N.R.G.
replied that it would be "amazing." Nicholas G.
testified that N.R.G. is doing wonderfully, is very
comfortable in his home, and considers him a father figure.
According to Nicholas G., he attends every school function
and supports N.R.G. fully. When asked whether he had told his
sister, Jennifer W., about the trial setting, Nicholas G.
replied he had, and "[s]he said that she wasn't sure
if she was going to be able to make it." She said she
"was trying to get into an inpatient rehab."
Nicholas G. testified that she had also left a voice message
the morning of trial, stating "that if the court ends up
ruling adoption by a family member, she's okay with
brief, Jennifer W. relies on the following fact to show the
evidence is legally and factually insufficient to support the
trial court's best-interest finding: after the accident,
"it was [Jennifer W.] who arranged for [Nicholas G.] to
pick up the child." Jennifer W. claims, "It appears
this was a very good decision by [Jennifer W.] and in the
child's best interest." While Jennifer W. did call
Nicholas G. to pick up N.R.G. after the accident, there was
also evidence that she was drinking and driving without a
license while her child was a passenger in the car.
Considering the entire record, we hold the evidence is
legally and factually sufficient to support the trial
court's finding that termination of Jennifer W.'s
parental rights is in the child's best interest. See
In re M.R., 243 S.W.3d 807, 821 (Tex. App.-Fort Worth
2007, no pet.) (holding that evidence of "[a]
parent's drug use, inability to provide a stable home,
and failure to comply with a family service plan support[s] a
finding that termination is in the best interest of the
child"). We therefore affirm the trial court's order
terminating Jennifer W.'s parental rights.
 To protect the identity of the minor
child, we refer to the parties by fictitious names, initials,
or aliases. See Tex. Fam. Code § 109.002(d);