Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-20-00525-CV

IN THE INTEREST OF F.A.M., JR., a Child

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2019PA01301

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Luz Elena D. Chapa, Justice

Beth Watkins, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: June 9, 2021

AFFIRMED

G.R. appeals the trial court’s order terminating her parental rights to her child F.A.M. (born 

2018).1 On appeal, she argues the evidence is factually insufficient to support the trial court’s 

findings under Texas Family Code section 161.001(b)(1) as well as its finding that termination is 

in F.A.M.’s best interest. She also challenges the trial court’s conservatorship findings. We affirm 

the trial court’s order.

BACKGROUND

On June 27, 2019, the Texas Department of Family and Protective Services removed 

F.A.M. from G.R.’s care after receiving a report that F.A.M. was present during an incident of 

1 To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX.

FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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domestic violence between G.R. and her mother, that the family was homeless, and that drug use 

occurred in F.A.M.’s presence. The Department obtained temporary managing conservatorship 

over F.A.M., placed him with a foster family, and filed a petition to terminate G.R.’s parental 

rights. The Department also created a family service plan requiring G.R. to, inter alia: adhere to 

random drug screens; demonstrate her ability to live a drug-free lifestyle; complete drug treatment; 

obtain safe and appropriate housing; and complete a psychological evaluation. G.R. signed the 

service plan and the trial court ordered her to comply with it. The Department ultimately pursued 

termination of G.R.’s parental rights.

Sixteen months after removal, the trial court held a two-day bench trial via Zoom at which 

G.R. appeared. The trial court heard testimony from four witnesses: (1) the Department’s initial 

caseworker, Sandra Jordan; (2) the Department’s final caseworker, Orlando Herrera; (3) F.A.M.’s

foster father; and (4) G.R. At the conclusion of trial, the court signed an order terminating G.R.’s 

parental rights pursuant to Texas Family Code section 161.001(b)(1)(N), (O), and (P), and finding 

that termination of G.R.’s parental rights was in the best interest of F.A.M.

ANALYSIS

On appeal, G.R. challenges the factual sufficiency of the evidence supporting the trial 

court’s grounds findings as well as its best interest finding.

Standard of Review

The involuntary termination of a natural parent’s rights implicates fundamental 

constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and 

powers normally existing between them, except for the child’s right to inherit from the parent.” In 

re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation 

marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination 

proceedings in favor of the parent.” Id. The Department had the burden to prove, by clear and 
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convincing evidence, both that a statutory ground existed to terminate G.R.’s parental rights and 

that termination was in the best interest of the child. TEX. FAM. CODE ANN. § 161.206; In re 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; In re S.J.R.-Z., 537 

S.W.3d at 683.

When reviewing the sufficiency of the evidence supporting a termination order, we apply 

well-established standards of review. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In a factual 

sufficiency review, we review and weigh all the evidence, including the evidence that is contrary 

to the trial court’s findings. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We consider whether 

the disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the 

challenged finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient only 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.” Id.

The trial court, as factfinder, is the sole judge of the weight and credibility of the evidence.

In re A.F., No. 04-20-00216-CV, 2020 WL 6928390, at *2 (Tex. App.—San Antonio Nov. 25, 

2020, no pet.) (mem. op.). We must defer to the factfinder’s resolution of disputed evidentiary 

issues and cannot substitute our judgment for that of the factfinder. See, e.g., In re H.R.M., 209 

S.W.3d 105, 108 (Tex. 2006) (per curiam).

Statutory Termination Grounds

Applicable Law

In her first argument on appeal, G.R. challenges the factual sufficiency of the evidence to 

support the grounds for the termination order. Under section 161.001(b)(1)(P) of the Family Code, 
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a trial court may terminate the parent-child relationship if it finds by clear and convincing evidence 

that the parent has “used a controlled substance. . . in a manner that endangered the health or safety 

of the child, and: . . . (ii) after completion of a court-ordered substance abuse treatment program, 

continued to abuse a controlled substance.” TEX. FAM. CODE ANN. § 161.001(b)(1)(P). When, as 

here, the trial court terminates a parent’s rights on multiple predicate grounds, we may affirm on 

any one ground. In re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611–12 (Tex. App.—

San Antonio 2012, no pet.).

Application

On appeal, G.R. argues factually insufficient evidence supports the subsection (P) grounds. 

The trial court heard evidence that F.A.M. came into the Department’s care after “law enforcement 

was contacted due to a domestic violence dispute between [G.R.] and her mother” while F.A.M. 

was present. At that time, G.R. tested positive for cocaine and methamphetamines, and admitted 

“that her and her mother had used cocaine laced with ICE.” The trial court heard testimony that 

G.R. successfully completed a court-ordered substance abuse treatment program on March 20, 

2020. The trial court also heard testimony that G.R. “had negative UA’s up until August 14th, 

when [she] had a UA which was positive for synthetic marijuana.” When asked about the August 

14 drug test, G.R. testified that the drug testing center “had messed up.” She testified emphatically 

that she had not used drugs “since December of last year.” However, when G.R. took a drug test 

in September of 2020, that test came back positive for cocaine. G.R.’s caseworker also testified 

that when she saw G.R. eight days after the August 14 drug test, “her appearance had changed 

back to the way it was the first six months when she had been using.”

After the August 14 drug test, the Department referred G.R. to a drug relapse program. 

Instead of re-enrolling in drug treatment, she “stated she was not doing anymore services, because 

she had already completed services.” F.A.M.’s foster father also testified that three days before 
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trial, G.R. posted a brief video of her smoking a marijuana cigarette on Facebook, and she “posted 

numerous photos on Facebook about using drugs and photos of drugs” in the weeks before trial. 

G.R. admitted that in the video, she “was smoking, but it was not marijuana or synthetic. It was a 

cigar.” She also explained, “I post stuff that I think is funny. It doesn’t mean it relates to me.”

Here, the trial court could have reasonably credited the Department’s evidence and 

discredited G.R.’s evidence. See In re A.F., 2020 WL 6928390, at *2. After reviewing and 

weighing all the evidence, including the evidence that is contrary to the trial court’s findings, we 

conclude the evidence presented would have allowed the trial court to form a firm belief that G.R. 

had used a controlled substance in a manner that endangered the health or safety of F.A.M. and 

continued to abuse a controlled substance after completing a court-ordered substance abuse 

treatment program. See In re R.S.-T., 522 S.W.3d 92, 98 (Tex. App.—San Antonio 2017, no. pet.). 

We conclude factually sufficient evidence supports the trial court’s finding that G.R. violated 

section 161.001(b)(1)(P), and therefore overrule G.R.’s first argument on appeal.

Best Interest

Applicable Law

Next, G.R. challenges the factual sufficiency of the evidence supporting the trial court’s 

finding that termination of her parental rights was in F.A.M.’s best interest. There is a strong 

presumption that a child’s best interest is served by maintaining the relationship between a child 

and the natural parent, and the Department has the burden to rebut that presumption by clear and 

convincing evidence. See, e.g., id. at 97. To determine whether the Department satisfied this 

burden, the Texas Legislature has provided several factors2 for courts to consider regarding a 

2 These factors include, inter alia: “(1) the child’s age and physical and mental vulnerabilities; (2) the frequency and 

nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) 

whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) 

whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, 
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parent’s willingness and ability to provide a child with a safe environment, and the Texas Supreme 

Court has provided a similar list of factors3 to determine a child’s best interest. TEX. FAM. CODE 

ANN. § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

A best interest finding, however, does not require proof of any particular factors. See In re 

Z.F.S., No. 04-20-00489-CV, 2021 WL 603372, at *6 (Tex. App.—San Antonio Feb. 17, 2021, 

no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and 

“[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or 

conviction that termination is in the child’s best interest.” See id. Finally, “[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.” See id.

Application

The trial court received evidence that in 2018, before this legal case began, the Department 

investigated G.R. and F.A.M.’s father for domestic violence and found a reason to believe 

neglectful supervision had occurred. G.R. began receiving family-based services from the 

Department at that point. Then, in June of 2019, after receiving the report that F.A.M. was present 

or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the 

child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have 

access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have 

access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) 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; (11) the willingness and ability of the child’s family to effect positive 

environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates 

adequate parenting skills [. . .]; and (13) whether an adequate social support system consisting of an extended family 

and friends is available to the child.” TEX. FAM. CODE § 263.307(b). 3 Those factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the 

future; (3) the 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 those individuals to promote the best interest of the 

child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or 

proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is 

not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371–72.
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during an incident of domestic violence between G.R. and her mother, the Department removed 

F.A.M. from G.R.’s care and initiated this case. 

During this legal proceeding, G.R. completed parenting and domestic violence classes, as 

well as the psychological evaluation and much of the counseling the Department required. After 

monitoring her progress, the court found that G.R. had demonstrated adequate compliance with 

the service plan and returned F.A.M. to her care for “a monitored reunification.” The Department 

obtained housing for G.R. and F.A.M. at Seton Home, a facility dedicated to helping young parents 

become independent. While at Seton Home, F.A.M. had daycare and G.R. enrolled in GED classes. 

She qualified to stay at Seton Home “‘til ’21. . . if she was going to school, she could have stayed 

longer than that.” The Department believed G.R.’s conditions at Seton Home qualified as stable 

housing. According to G.R., Seton Home was supposed to help her get her birth certificate, social 

security, housing, and a job, but because of the Coronavirus pandemic, those services did not occur. 

Concerned about how she was going to pay her bills, G.R. told Jordan she wanted to leave Seton 

Home after approximately three months to move in with her boyfriend. Jordan counseled her about 

the risks of “walking out on a very good program,” but G.R. reported she had a job waiting for her 

and needed to leave to take it.

After an investigation, the Department approved G.R.’s move from Seton Home into her 

boyfriend’s home. The Department arranged for daycare for F.A.M., but G.R. did not take him to 

daycare. Jordan testified that “it turned out [G.R.] did not” have the job she left Seton Home to 

take. After approximately two weeks, G.R. and F.A.M. left her boyfriend’s home at 1:30 in the 

morning after an argument. She went to her mother’s home, but wanted to go back to Seton Home, 

so the Department arranged for G.R. and F.A.M.’s return. Then, twenty-six hours after returning 

to Seton Home, G.R. “broke her safety plan and left” Seton Home to return to her boyfriend’s 

home. See TEX. FAM. CODE § 263.307(b)(10), (11) (court may consider parent’s willingness and 
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ability to “cooperate with and facilitate an appropriate agency’s close supervision” and to effect 

positive changes within a reasonable time). Jordan testified unequivocally, “This is just not stable 

for a child of two.” G.R. has since asked to return to Seton Home, but Seton Home reported that 

G.R. would not be allowed back in the program. See Jordan v. Dossey, 325 S.W.3d 700, 731 (Tex. 

App.—Houston [1st Dist.] 2010, pet. denied) (finding instability of child’s home supported 

termination finding).

G.R. is now living with her mother—from whom G.R. herself was removed as a child. 

G.R.’s mother “has extensive criminal history, extensive CPS history.” See In re J.M., No. 09-09-

00042-CV, 2009 WL 5214921, at *4 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.) 

(noting Department’s concerns that mother allowed family members with criminal histories to stay 

overnight in child’s home). G.R. admitted to having used drugs with her mother while receiving 

family-based services from the Department. TEX. FAM. CODE § 263.307(b)(8) (court may consider 

“history of substance abuse by the child’s family or others who have access to the child’s home”). 

Despite having completed a domestic violence class and removing herself from arguments with 

her boyfriend before they could turn violent, G.R. and her mother have gotten into physical fights.

Id. at § 263.307(b)(7) (court may consider “whether there is a history of abusive or assaultive 

conduct by the child’s family or others who have access to the child’s home”); id. at 

§ 263.307(b)(12)(E) (court may consider whether parent “demonstrates adequate parenting skills” 

by, inter alia, protecting child “from repeated exposure to violence even though the violence may 

not be directed at the child”). G.R. testified that she has lived with her mother for about one year

and was aware of her mother’s criminal history, but was not aware her mother had obtained two 

new criminal charges—including a drug charge—one month before trial. She also testified that 

she would agree to a condition of no contact between F.A.M. and his maternal grandmother if the 
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Department made that a condition of his return. G.R.’s plan was to stay in her mother’s home and 

for her mother to move out. 

G.R. testified she was working full-time at “a convenient store on Ruiz,” but could not 

remember the store’s name and could not provide the name of her supervisor. She explained that 

her supervisor was not willing to write a letter verifying that she works there but had agreed to 

sign a letter provided by the Department to verify her employment. As of the date of trial, however, 

G.R. had not provided proof of employment. See In re A.J.Z., No. 04-20-00218-CV, 2020 WL 

5913845, at *5 (Tex. App.—San Antonio Oct. 7, 2020, no pet.) (mem. op.) (considering parent’s 

failure to provide proof of employment). She did, however, testify that she was making $7.25 per 

hour, and believed she was earning enough to provide for F.A.M. and pay monthly rent of $950, 

including some utilities. 

After F.A.M. was removed from G.R.’s care the first time, he was placed in two foster 

homes before being placed with his third and final foster family. During the pendency of this case, 

he was removed from the third foster family and returned to his mother’s care. When F.A.M. was 

removed from G.R.’s care the second time and returned to the third foster family, his foster father 

testified F.A.M. had grown educationally, intellectually, and physically while he was with his 

mother. When returned to the foster father’s care, F.A.M. “would spout out a few words that I 

would not repeat in front of the Court, but we were able to strip him from that vocabulary to 

something more appropriate.” Since then, the foster father explained, F.A.M. has developed a good 

bond and attachment with his foster parents—he has started calling them mommy and daddy on 

occasion. The caseworker testified F.A.M. “is very bonded with [his foster parents], very 

comfortable in their home, there is structure, there is routine, and he’s really happy there.” The 

foster parents love F.A.M., and “he just absolutely loves being here.” See In re D.A.B., No. 04-19-

00629-CV, 2020 WL 1036433, at *7 (Tex. App.—San Antonio Mar. 4, 2020, no pet.) (mem. op.) 
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(noting when, as here, a child is too young to express his desires, the trial court may consider 

whether the child has bonded with current caregivers). The foster parents plan to adopt F.A.M. if 

his parents’ rights are terminated. See In re L.J.T., No. 04-17-00567-CV, 2018 WL 1072346, at *7 

(Tex. App.—San Antonio Feb. 28, 2018, no pet.) (mem. op.) (evidence child is doing well in foster 

care is relevant to best interest determination).

At trial, G.R. testified that F.A.M. should be placed with his biological family and asked 

that he be placed with her sister, who was willing to take him. G.R. admitted, however, that her 

sister had a criminal record. As a result, the Department did not believe G.R.’s sister was an 

appropriate placement. And, as previously described, the caseworkers explained their belief that 

G.R.’s mother was not an appropriate placement.

The caseworkers both testified that termination of G.R.’s parental rights was in F.A.M.’s 

best interest. Jordan testified that G.R. has not demonstrated the ability to manage the care of her 

child independently—she has always relied on an organization like Seton Home to provide her 

with the stability that she needed to be an appropriate parent. TEX. FAM. CODE § 263.307(b)(12); 

Jordan, 325 S.W.3d at 731. Jordan explained G.R.’s decision to “turn her back on” the support 

provided by Seton Home, and to engage in a relationship with her mother indicated that G.R. 

lacked the judgment necessary to protect F.A.M. Jordan also testified that G.R. was unable to 

provide F.A.M. with a safe and stable home independent of Seton Home, and that “bouncing 

around from place to place” had a negative impact on F.A.M. See In re K.J.G., No. 04-19-00102-

CV, 2019 WL 3937278, at *8–9 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.) 

(evidence that mother’s conduct subjected children “to a life of uncertainty and instability”

supported finding that termination was in children’s best interest).

Finally, evidence that proves a statutory ground for termination is probative on the issue of 

best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Moreover, a factfinder in a termination 
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case may infer “that a parent’s future conduct may well be measured by recent deliberate past 

conduct as it relates to the same or a similar situation.” In re D.M., 452 S.W.3d 462, 472 (Tex. 

App.—San Antonio 2014, no pet.). Here, as noted above, the trial court heard evidence that G.R. 

used drugs after completing a court-ordered substance abuse treatment program. See In re C.H., 

89 S.W.3d at 28; see also TEX. FAM. CODE § 161.001(b)(1)(P).

Earlier in the case, it appears the Holley factors were divided and, as a result, the 

Department attempted a monitored reunification. See Holley, 544 S.W.2d at 371–72. G.R.’s lack 

of stable housing, however, became more of a problem as F.A.M. became a toddler. See id. The 

evidence about G.R.’s recent drug use as well as her mother’s recent drug charge support the trial 

court’s best interest finding. See, e.g., In re K.J.G., 2019 WL 3937278, at *8; see also TEX. FAM.

CODE § 263.307(b)(8) (considering history of substance abuse by those who have access to child’s 

home). While F.A.M.’s two initial placements were not stable, his third and final one was, and that 

foster family intends to adopt him. TEX. FAM. CODE § 263.307(b)(1), (2) (court may consider 

child’s age and vulnerabilities and frequency and nature of out-of-home placements).

After reviewing all the evidence, we conclude a reasonable factfinder could have formed a 

firm belief or conviction that termination of G.R.’s parental rights was in the best interest of F.A.M.

In re J.F.C., 96 S.W.3d at 266. We therefore hold factually sufficient evidence supports the trial 

court’s best interest finding and overrule G.R.’s arguments to the contrary.

Conservatorship

We review the trial court’s appointment of a nonparent as sole managing conservator for 

an abuse of discretion and will reverse that appointment only if we determine it is arbitrary or 

unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Having determined the evidence is 

factually sufficient to support the termination of G.R.’s parental rights, we further hold that the 

trial court did not abuse its discretion in appointing the Department F.A.M.’s managing 
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conservator. See In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—Houston [14th Dist.] 2016, pet. 

denied). We overrule G.R.’s final issue on appeal.

CONCLUSION

We affirm the trial court’s order of termination.

Beth Watkins, Justice