Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00352-CV

In the Interest of A.M.Y., R.C.M., and E.J.M.Y., Children

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2014-PA-01855

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Patricia O. Alvarez, Justice

Jason Pulliam, Justice

Delivered and Filed: October 21, 2015

AFFIRMED

Mary appeals from an order terminating her parental rights to her children, A.M.Y.,

R.C.M., and E.J.M.Y. Frank appeals from an order terminating his parental rights to his child, 

E.J.M.Y. In separate briefs, Mary and Frank1 argue the evidence was legally and factually 

insufficient to support the trial court’s findings that termination of their parental rights was in the 

children’s best interest. We affirm. 

 1

To protect the identity of the children we refer to the parents by fictitious names. See TEX. FAM. CODE ANN. § 109.002 

(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
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BACKGROUND

Mary and Frank have one child together, E.J.M.Y. Mary has two additional children, 

A.M.Y. and R.C.M., who have different fathers. A.M.Y. and R.C.M.’s fathers were parties to the 

trial court proceedings but they did not appeal.

When the Department first became involved with this family, A.M.Y. was four years old, 

R.C.M. was one year old, and E.J.M.Y. was not born. After working with Mary and Frank for 

about a year, the Texas Department of Family and Protective Services filed an original petition for 

protection of the children and sought temporary conservatorship. By this time, E.J.M.Y. had been 

born, but was still only an infant. According to the affidavit filed in support of the petition, the

Department’s main concerns were that the children were living in unsanitary conditions, Frank 

was using cocaine, and Mary and Frank were engaging in domestic violence. Another concern was 

that Mary, who was supposed to be supervising Frank’s interaction with the three young children, 

was failing to do so. The trial court ordered the children removed from the home. After an 

adversarial hearing, the Department was appointed temporary managing conservator of the 

children. R.C.M. was placed in the home of her paternal grandmother. A.M.Y. and E.J.M.Y. were 

placed in a foster home. 

The Department’s initial goal was to reunify the family. Amended service plans were 

prepared for Mary and Frank, and they were informed of their plans. Later, however, the 

Department’s goal shifted to termination. Nine months after the Department filed its petition, the 

case was tried to the court. 

At trial, the Department called two witnesses. The first witness was a caseworker, Crystal 

Tipton. Tipton testified that A.M.Y. was now six years old, R.C.M. was three years old, and 

E.J.M.Y. was one year old. The Department had been involved with the family for about a year 

before removing the children. Removal was triggered by the unsanitary conditions of Mary and 
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Frank’s home, domestic violence between Mary and Frank, and Frank’s continued substance 

abuse. The substance Frank abused was cocaine. When the children were removed, another 

caseworker informed Mary and Frank that if they failed to complete their service plans, the 

Department would not recommend the children’s return. Tipton discussed the domestic violence 

issues with Mary and Frank. Mary denied any domestic violence between her and Frank. On the 

other hand, Frank acknowledged the domestic violence, telling Tipton that he was afraid of Mary. 

Tipton was of the opinion that Mary was the perpetrator of the domestic violence and Frank was 

the victim.

Tipton was aware of two domestic violence incidents that occurred after the children’s 

removal. About two months before trial, Mary and Frank had an altercation. Frank, who received 

disability benefits for mental health issues, reported to Tipton that Mary had beat him up and “put 

him out” for his money. Another domestic violence incident occurred about a month before trial. 

This altercation was inadvertently recorded as a voice message on Tipton’s phone and she listened 

to it. Mary and Frank were arguing about Mary not giving Frank his money, and Frank was calling 

her obscenities. It was apparent from the recording that the altercation was physical, and Tipton 

said if the children had heard it, it would have been “concerning.” 

Just three weeks before trial, Frank tested positive for cocaine. Frank admitted to Tipton 

that he had used cocaine. 

By the time of trial, Frank had completed some, but not all, of the items on his service plan. 

Frank had completed a domestic violence course, several parenting courses, and an anger 

management course. However, because of the new domestic violence incidents, Frank was in the 

process of taking the domestic violence course for a second time. Frank had completed a drug 

assessment, and was ordered to participate in outpatient services and individual counseling. Frank 

was engaged in these services at the time of trial. Similarly, Mary had not completed all of the 
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items on her service plan. Mary had completed several parenting courses, an anger management 

course, and a domestic violence course. Again, because of the new domestic violence incidents, 

Mary was in the process of taking the domestic violence course for a second time.

Mary and Frank attended weekly supervised visits with the children. Tipton observed these 

visits and stated they were appropriate, for the most part. According to Tipton, Mary tended to 

take on the roles of both parents; while Frank was not actively engaged. On one occasion, Mary 

had made a comment that she was doing the best she could during visits, but it was difficult because 

there were multiple children and Frank did not really get involved. There were also concerns that 

the oldest child, A.M.Y., was taking on a parental role during these visits. Tipton had observed 

instances in which Frank would tell A.M.Y. to go get E.J.M.Y., instead of going to E.J.M.Y. and 

redirecting the child himself. Tipton had told Frank that he needed to be more engaged during 

visits.

Tipton had recently visited Mary and Frank’s home and it continued to be an unsanitary 

place for children to live. Four dogs were in the house, but Mary and Frank had not provided 

Tipton with vaccination records for the animals. At the beginning of the case, Mary and Frank had 

told a caseworker that they were going to get rid of the dogs, but they had not done so. As was the 

case when the Department first became involved with the family, the dishes were not washed, and 

pots, pans, and food were scattered all over the house. The floors were filthy. There were no sheets 

on the beds. 

Tipton believed that Mary and Frank were still involved in a relationship. In fact, Mary 

admitted to Tipton that she was still involved in a relationship with Frank. The Department was 

concerned about Mary’s decision to continue her relationship with Frank. Mary was aware that 

Frank still had a substance abuse problem.
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As to the Department’s plans for the children, R.C.M. was living in a home with her father 

and her paternal grandmother. The Department was recommending that R.C.M.’s father and 

grandmother be appointed joint managing conservators of R.C.M. The other children, A.M.Y. and 

E.J.M.Y., were living in a foster home together. The Department had studied one of the children’s 

relatives for a potential placement, but it did not work out. The long-term plan for A.M.Y. and 

E.J.M.Y. was either a relative placement or adoption by a non-relative. A.M.Y. and E.J.M.Y.’s 

current foster mother was interested in adopting both children. The foster mother had also 

expressed a willingness to work with R.C.M.’s father to ensure that A.M.Y. and E.J.M.Y. have an 

ongoing relationship with R.C.M. Finally, A.M.Y. was “very verbal” about wanting to stay in her 

current placement and she identified her foster mother as her mother. 

Tipton believed that termination of Frank’s parental rights was in E.J.M.Y.’s best interest 

because Frank continued to abuse cocaine and to be involved in domestic violence. Tipton 

acknowledged that Frank had made positive changes. Specifically, Frank was engaged in 

individual therapy, and a therapist had noticed positive changes. Tipton stated that at the beginning 

of the case, Frank was very quiet and not really engaged; she acknowledged that he had become 

more vocal and assertive. However, Tipton did not believe that these changes were significant 

enough to overcome Frank’s other problems. The substance abuse and the ongoing domestic 

violence with Mary still presented harm to the children. 

Tipton also believed that termination of Mary’s parental rights was in the best interest of 

all of the children because Mary continued to be involved in a relationship with Frank knowing 

that he had a substance abuse problem, Mary continued to engage in domestic violence with Frank, 

and Mary did not complete every item on her service plan. 

The second witness called by the Department was Frank. In his testimony, Frank admitted 

that he had used cocaine twice since the children’s removal. The first time was about six months 
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before trial, around the time of his birthday. The second time was about three weeks before trial. 

Frank denied that he had been using cocaine throughout the whole case. Frank agreed that it was 

not smart to use cocaine and that using cocaine around children can be harmful. 

Frank further testified that he and Mary were married the year before. However, one or two 

months ago, Mary kicked him out of her home, and he was now living with his mother. Frank 

denied that he and Mary were in a relationship at the time of trial. Frank said that he and Mary 

talked but that was all; they were not “together.” After testing positive for cocaine three weeks 

before trial, Frank started a new drug treatment program, but admitted that in the span of only a 

few weeks he had missed three of his drug treatment appointments.

The trial court found by clear and convincing evidence that Mary failed to comply with the 

provisions of a court order that specifically established the actions necessary for her to obtain 

return of her children. See TEX. FAM. CODE ANN. § 161.001(1)(O) (West 2014). The trial court 

also found by clear and convincing evidence that Frank (1) failed to comply with the provisions 

of a court order that specifically established the actions necessary for him to obtain return of his 

child, and (2) used a controlled substance in a manner that that endangered the health and safety 

of the child and failed to complete a court-ordered substance abuse treatment program or after 

completion of a court-ordered substance abuse treatment program continued to abuse a controlled 

substance. See id. § 161.001(1)(O), (P). The trial court further found by clear and convincing 

evidence that termination of Mary and Frank’s parental rights was in the best interest of the 

children. See id. § 161.001(2). Mary and Frank appealed. 

APPLICABLE LAW

Termination of parental rights requires proof by clear and convincing evidence that the 

parent committed one of the acts or omissions listed in section 161.001(1)(A)-(T) of the Texas 

Family Code and that termination is in the child’s best interest. TEX. FAM. CODE ANN.
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§ 161.001(1), (2); In the Interest of A.V., 113 S.W.3d 355, 362 (Tex. 2003). Clear and convincing 

evidence means the measure or degree of proof that will produce in the mind of the trier of fact a 

firm belief or conviction as to the truth of the allegations sought to be established. TEX. FAM. CODE 

ANN. § 101.007 (West 2014). 

There is a strong presumption that the child’s best interest is served by keeping a child with 

the parent. In the Interest of R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, in analyzing the 

factors relevant to the child’s best interest we also adhere to the principle that “the prompt and 

permanent placement of the child in a safe environment is presumed to be in the child’s best 

interest.” TEX. FAM. CODE ANN. § 263.307(a) (West 2014). The Texas Family Code lists factors 

courts should consider in determining whether parents are willing and able to provide the child 

with a safe environment. Id. § 263.307(b). Among the listed factors are the child’s age and physical 

and mental vulnerabilities; a history of abusive or assaultive conduct by the child’s family or others 

who have access to the child’s home; a history of substance abuse by the child’s family or others 

who have access to the child’s home; the willingness and ability of the child’s family to seek out, 

accept, and complete counseling services and to cooperate with and facilitate an appropriate 

agency’s close supervision; the willingness and ability of the child’s family to effect positive 

environmental and personal changes within a reasonable period of time; and whether the child’s 

family demonstrates adequate parenting skills, including providing the child and other children 

under the family’s care with guidance and supervision consistent with the child’s safety, a safe 

physical home environment, and protection from repeated exposure to violence even though the 

violence may not be directed at the child. Id. § 263.307 (b)(1),(7),(8),(10),(11),(12)(C-E).

In evaluating the best interest of the child, courts also consider the factors articulated in 

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include: (1) the desires 

of the child; (2) the emotional and physical needs of the child now and in the future; (3) the 
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emotional and physical danger to the child now and in the future; (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 for the child by these individuals or by the agency seeking 

custody; (7) the stability of the home or proposed placement; (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.

There is no requirement that evidence be presented as to each of the Holley factors. In the 

Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2002). “The absence of evidence about some of these 

considerations would not preclude a factfinder from reasonably forming a strong conviction or 

belief that termination is in the child’s best interest, particularly if the evidence were undisputed 

that the parental relationship endangered the safety of the child.” Id.

The same evidence proving acts or omissions under section 161.001(1) of the Texas Family 

Code may be probative of the child’s best interest. Id. at 28. In analyzing the best interest of the 

child, we may consider direct and circumstantial evidence, subjective factors, and the totality of 

the evidence. In the Interest of E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. 

denied). 

STANDARDS OF REVIEW

In reviewing the legal sufficiency of the evidence in a parental termination case, we 

consider all of the evidence in the light most favorable to the finding to determine whether a 

reasonable trier of fact could have formed a strong belief or conviction that its finding was true. In 

the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the factfinder 

resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. If we 

conclude that no reasonable factfinder could form a firm belief or conviction that the matter that 

must be proven is true, then we must conclude the evidence is legally insufficient. Id. 
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In a factual sufficiency review, we give due consideration to evidence that the factfinder 

could reasonably have found to be clear and convincing. Id. We must consider whether disputed 

evidence is such that a reasonable factfinder could not have resolved that evidence in favor of its 

finding. Id. 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.

DISCUSSION

Both Mary and Frank argue the evidence was legally and factually insufficient to support 

the trial court’s finding that termination of their parental rights was in the best interest of their 

children. 

A factfinder can give great weight to drug-related conduct. In the Interest of K.C., 219 

S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.). Evidence of a parent’s drug use and his or 

her inability to modify drug-related conduct supports a finding that termination is in a child’s best 

interest. In the Interest of M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). 

Additionally, exposure to domestic violence supports a finding that termination of parental rights 

is in the child’s best interest. Id.; In the Interest of J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). 

We first consider the relevant factors listed in section 263.307. The children in this case 

were all very young—ages six, three, and one—and therefore they were particularly vulnerable. 

See TEX. FAM. CODE ANN. § 263.307(b)(1). The evidence showed that Mary and Frank exhibited 

an unwillingness and an inability to effect positive environmental and personal changes within a 

reasonable period of time. See id. § 263.307(b)(11). The Department had been involved with Mary 

and Frank’s family for about two years. The children had been removed from Mary and Frank’s 

home for about nine months. Nevertheless, Mary and Frank continued to engage in domestic 
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violence, even after each of them had completed a domestic violence course. Frank was unable to 

stop using cocaine, and Mary was aware that Frank continued to use cocaine, but was unable to 

distance herself from Frank. Repeated exposure to violence, even if the violence is not directed at 

the children, undermines the safety of the home environment. See id. 263.307(b)(12)(E). 

Furthermore, the unsanitary conditions of the family household had not been remedied during the 

pendency of this case. In sum, the evidence supports a finding that Mary and Frank could not 

provide the children with a safe environment, which is critical to a determination of the child’s 

best interest. See id. § 263.307(a) (stating that the prompt and permanent placement of the child in 

a safe environment is presumed to be in the child’s best interest).

We next consider the evidence as it relates to the pertinent Holley factors. First, as to the 

desires of the children, only one child, A.M.Y., was old enough to express her desires. A.M.Y. 

said that she wanted to remain in the foster home where she currently lived with her sibling, 

E.J.M.Y. Second, as to the physical and emotional danger to the children now and in the future, 

the evidence showed continued drug use and domestic violence. See J.I.T.P., 99 S.W.3d at 846 

(acknowledging that even though the child was not the intended victim, domestic violence between 

parents was evidence of physical and emotional danger to the child). Third, as to parental abilities, 

the evidence showed that Mary and Frank had weekly supervised visits with the children. Both 

Mary and Frank attended all of the visits, and the caseworker noted that the visits were appropriate, 

for the most part. However, the caseworker testified that Frank was not fully engaged with 

E.J.M.Y., and the caseworker told Frank that he needed to take a more active role. Fourth, as to 

acts or omissions by the parents and any excuses for these acts or omissions, the evidence showed 

that Frank continued to use cocaine, and Mary remained in a relationship with Frank while he 

continued to use cocaine. Additionally, Mary and Frank continued engaging in domestic violence, 

and failed to make their home sanitary. In his testimony, Frank admitted that his use of cocaine 
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was not a smart decision, agreed that using cocaine around the children was harmful, and described 

his decision to use cocaine three weeks before the trial as a “mistake.” Frank also testified that he 

moved out of Mary’s house one to two months before trial, and was currently living with his 

mother. Frank indicated that he and Mary were no longer involved in a relationship. On the other 

hand, the caseworker said that Mary admitted to her that she and Frank were still involved in a 

relationship, and the caseworker believed that they were. Finally, the caseworker testified about 

the Department’s plans for the children. The Department’s long-term plan for R.C.M. was for her 

to continue to live with her father and her paternal grandmother; its long-term plan for A.M.Y. and 

E.J.M.Y. was either a relative placement or adoption by a non-relative. A.M.Y. and E.J.M.Y.’s 

foster mother was interested in adopting both children.

Viewed in the light most favorable to the trial court’s ruling, the evidence in this case 

showed that Frank had a longstanding substance abuse problem. Frank was using cocaine before 

the children were removed from the home, and continued to use cocaine after the children were 

removed from the home. Although Mary was aware of Frank’s cocaine use, she continued to have 

a relationship with him. In addition, Mary and Frank engaged in domestic violence and continued 

to do so, even after they had completed a course to help them modify their volatile behavior. 

Neither Mary nor Frank had completed their respective service plans, even though they had been 

informed that the Department would not recommend reunification with the children unless they 

had completed their plans. The only controverting evidence was from Frank, who claimed that his 

cocaine use was sporadic, that he and Mary were no longer in a relationship, and that he and Mary 

had stopped living together a month or two before trial. However, this evidence was not such that 

a reasonable factfinder could not have resolved it in favor of a finding that termination was in the 

children’s best interest. 
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Considering the evidence under the appropriate standards of review, we conclude that the 

trial court could have formed a firm belief or conviction that terminating Frank’s parental rights 

was in the best interest of E.J.M.Y., and could have formed a firm belief or conviction that 

terminating Mary’s parental rights was in the best interest of A.M.Y., R.C.M., and E.J.M.Y.

CONCLUSION

The trial court’s termination order is affirmed.

Karen Angelini, Justice