NUMBER 13-12-00674-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF J.A.C., JR., ET AL.

On appeal from the County Court at Law 

of Aransas County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

This case involves the termination of parental rights. By two issues, appellant 

S.C. (“Mother”)1contends that there was legally and factually insufficient evidence to 

support that termination of her parental rights was in her children’s best interests, or to 

support the termination under sections 161.001(1) (D), (E), (F), (O), and (P) of the 

Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (F), (O), (P) (West 

Supp. 2011). We affirm. 

 

1 We use aliases to protect the minors’ identities. See TEX. R. APP. P. 9.8(b). 
2

I. BACKGROUND

The Texas Department of Family and Protective Services (the “Department”) 

received a complaint about the medical neglect of a child, J.J., in Aransas County, 

Texas. When a Department employee arrived at the home to investigate, she was 

surprised to find Mother living there with her three sons, J.A.C., Jr. (“Child One”), J.A.C. 

(“Child Two”), and J.A.C. (“Child Three”).2 Mother already had an open Family Based 

Safety Services (“FBSS”) case. According to Stephanie Diaz, an investigation 

supervisor for the Department, FBSS cases offer voluntary services to families “in which 

abuse and neglect has either occurred or there is a significant risk of abuse or neglect.” 

As part of her FBSS case, Mother’s mom, “Grandmother,” was supposed to 

supervise and care for Child One, Two, and Three. Mother was not permitted to have 

unsupervised contact with her children. At this visit, though, the Department learned 

that this requirement was being violated because Mother was living with Grandmother 

and the children. Other requirements for Mother’s FBSS case included parenting 

classes, counseling, and outpatient drug treatment. Mother had not begun any of these 

programs. Given the open FBSS case, the Department initiated an investigation 

regarding Mother.3 

The Department investigator described the home in which it found Child One 

(age 9), Two (age 4), and Three (age 3) as having empty prescription bottles on the 

floor and “trash everywhere.” According to the investigator, several of the adults who 

lived in the home either actively used drugs or had a significant history of drug abuse. 

 

2

The initial call regarding medical neglect was for J.J., who is not related to Mother or any of her 

children. J.J. lived at the home with his parents, along with Mother and her family. Neither J.J. nor his 

parents are parties to this appeal.

3

The Department opened a separate investigation for J.J.
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The Department learned that Mother was heavily under the influence of methadone, 

which she was prescribed to help her recover from a heroin addiction, and slept for 

most of the day. 

The children ran around barefoot and had dirt under their fingernails and on their 

hands and the bottoms of their feet. They did not appear to have been bathed “in days.” 

When the Department took Child One, Two, and Three to Driscoll Children’s Hospital for 

a physical evaluation, they learned that Child Two’s permanent teeth were at risk of 

rotting because of the condition of his baby teeth. The hospital advised that Child Two’s 

oral health issues needed “to be taken care of immediately,” especially because the 

child reported that his mouth hurt. Also, Child Three was cross-eyed and required 

medical attention. The hospital found that all three children were “physically neglected.” 

The Department removed Child One, Two, and Three from the home and scheduled an 

adversary hearing to determine custody two weeks later.

The day after her children were removed, Mother submitted to a drug test. She 

tested positive for methadone, for which she had a prescription, but also tested positive 

for cocaine and benzodiazepine. The Department organized visits between Mother and 

her three sons in the two weeks prior to the adversary hearing. Melissa Diaz, a

Department conservatorship worker, testified that Mother “would just sit there” in “a 

dazed state” during these visits. Diaz observed that Mother sat with “a blank stare” 

while her children played around her and that “she wouldn’t interact” with the children at 

all. In Diaz’s opinion, Mother abused methadone to the point where she did not even 

understand that the children were being removed from her care.
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After the adversary hearing, the children were placed in foster care until trial. 

Pending a final resolution, the Department established a conservatorship case for the 

family with the end-goal of reunification of the children with their mother. The 

conservatorship worker assigned to the case was Melissa Hernandez. Hernandez 

prepared a service plan for Mother which included random drug testing, individual 

counseling, parenting classes, substance abuse support groups, a drug assessment, 

and attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings. 

Mother was also required to pay $50 in child support total for her sons and to maintain 

steady employment. Mother only partially complied with the service plan. While she 

completed some parenting classes, attended some counseling sessions, and visited her 

children, she remained unemployed, only made one child support payment, and failed 

to provide a drug assessment or documentation showing attendance at AA or NA 

meetings. 

Most significantly, Mother failed to submit to all of the requested random drug 

tests required by the service plan. And on some of the occasions when she did submit 

to the testing, she tested positive for cocaine and benzodiazepine. At trial, the 

Department admitted drug tests showing that Mother tested positive for cocaine in 

March 2011, August 2011, March 2012, May 2012, twice in June 2012, and in October 

2012. In fact, her most recent hair follicle test showed that she had abused cocaine 

within the ninety day period before her trial.

The Department also expressed concern about the home where Mother currently 

lived. As a requirement for reunification, Mother was charged with providing “a safe and 

protective home environment with working utilities for her children.” Two and a half 
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months before trial, Hernandez visited the home where Mother intended for her children 

to live. Hernandez reported that there was still trash clutter on the floors, including 

broken glass and empty bottles of medication. The children’s room had one twin bed 

with mold on it, clothing and trash on the floor, and an empty bottle of Jack Daniel’s 

whiskey.

Mother testified. She stated that it was difficult for her to submit to the random 

drug testing because she lacked reliable transportation. She also denied using cocaine, 

and did not understand why her tests kept showing positive results. She admitted that 

sometimes she was drowsy around the children, but she attributed this condition to 

inappropriately dosed methadone, for which she had a prescription. Mother further 

denied that her home was not a clean and safe environment for her children, and 

adamantly denied that the bed she had for her children had mold on it. Mother also 

stated that she was unable to pay child support because she was assisting her mother 

with bills.

After considering the evidence, the trial court found that terminating Mother’s 

parental rights was in the children’s best interests and that Mother violated sections 

161.001(1) (D), (E), (F), (O), and (P) of the Texas Family Code. This appeal ensued.

II. APPLICABLE LAW AND STANDARD OF REVIEW

Parents' rights to "the companionship, care, custody and management" of their 

children are constitutional interests "far more precious than any property right." 

Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); see also In re E.R., 385 S.W.3d 552, 

554 (Tex. 2012). Due process requires the application of the clear and convincing 

evidence standard of proof in parental termination cases. In re J.F.C., 96 S.W.3d 256, 
6

263–64 (Tex. 2002); see TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011). "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. In re J.F.C., 96 S.W.3d at 264; In re C.H., 89 S.W.3d 17, 25 (Tex. 

2002).

In a legal sufficiency review in this context:

A court should 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. To give appropriate 

deference to the factfinder's conclusions and the role of a court conducting 

a legal sufficiency review, looking at the evidence in the light most 

favorable to the judgment means that a reviewing court must assume that 

the factfinder resolved disputed facts in favor of its finding if a reasonable 

factfinder could do so. A corollary to this requirement is that a court should 

disregard all evidence that a reasonable factfinder could have disbelieved 

or found to have been incredible. This does not mean that a court must 

disregard all evidence that does not support the finding. Disregarding 

undisputed facts that do not support the finding could skew the analysis of 

whether there is clear and convincing evidence.

In re J.F.C., 96 S.W.3d at 266.

In a factual sufficiency review, the reviewing court must give due consideration to 

evidence that the factfinder could reasonably have found to be clear and convincing. Id. 

at 267. The inquiry must be one that asks whether the evidence is such that a factfinder 

could reasonably form a firm belief or conviction about the truth of the State's 

allegations. Id. Therefore, 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.
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A trial court may order termination of parental rights upon finding by clear and 

convincing evidence that the parent has committed statutory violations enumerated in 

section 161.001(1)(A) through (T) of the family code, and that termination is in the best 

interest of the child. See TEX. FAM. CODE ANN. § 161.001(1), § 161.001(2) (West Supp. 

2011). The following non-exhaustive list is considered by courts in analyzing the best 

interests of a child: (1) desires of the child; (2) emotional and physical needs of the 

child now and in the future; (3) emotional and physical danger to the child now and in 

the future; (4) parental abilities of individuals seeking custody; (5) programs available to 

assist individuals to promote the best interest of the child; (6) plans for the child by 

these individuals or by the agency seeking custody; (7) stability of the home or 

proposed placement; (8) 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. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); W. B. 

v. Tex. Dep't of Protective & Regulatory Servs., 82 S.W.3d 739, 742 (Tex. App.—

Corpus Christi 2002, no pet.).

III. ANALYSIS

A. Best Interests of the Child

In her first issue, Mother argues that the evidence is insufficient to show that 

terminating her parental rights was in the best interests of Child One, Two, and Three. 

We review the evidence in light of the Holley factors. See Holley, 544 S.W.2d at 372. 

1. Desires of the Children

Even though none of the children testified at trial, Department employee 

Hernandez testified that all of the children missed their mother, especially when they 
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were first removed to foster care. Child One repeatedly expressed interest in going 

home, while Child Two and Child Three wanted to live with their grandmother. 

“Although a child’s love of his natural parents is a very important consideration in 

determining the best interests of the child, it cannot override or outweigh the 

overwhelming and undisputed evidence showing that the parents placed or allowed the 

child” to remain in unsafe conditions. In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—

Texarkana 2003, no pet.). At trial, Department employees testified regarding Mother’s 

ongoing drug use, failure to adhere to the conservatorship plan, lack of employment, 

and inability to provide a clean and safe home, among other concerns. Department 

employee Hernandez also expressed apprehension about releasing the children into 

Grandmother’s care because she openly violated the FBSS when she allowed 

unsupervised visitation with their mother. In light of the foregoing, the children’s desire 

to be with Mother or Grandmother did not appear to be in their best interests.

2. Emotional and Physical Needs of the Children 

Emotional and Physical Dangers to the Children

We address these factors together. We note that when the children were 

removed from the home, the CPS investigator reported that they had not been bathed in 

days and that they had dirt underneath their fingernails and on their hands and the 

bottoms of their feet. Driscoll Children’s Hospital reported that all of the children were 

“physically neglected.” Child Two had severe and painful dental health issues and Child 

Three needed treatment for his crossed eyes. The children were living in a trash-filled, 

dirty home with several adults who were drug addicts. Mother was frequently under the 

influence of drugs; when she was not asleep, she was still physically and mentally 

incapable of meeting her children’s basic needs. The extensive evidence regarding the 
9

children’s physical and medical neglect bolsters the trial court’s finding that it was in the 

children’s best interests to terminate Mother’s rights.

3. Parental Abilities of Individuals Seeking Custody4

A trial court may consider a parent’s history of drug use and irresponsible 

choices. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). Mother’s parenting 

abilities were compromised by her drug addictions. She repeatedly tested positive for 

cocaine and benzodiazepines, and although she had a prescription for methadone, it 

rendered her incapable of caring for her children. Child One, Two, and Three were 

living in a home filled with trash and empty prescription bottles on the floor. They were 

dirty. Child Two had severe dental problems, and Child Three had a problem with his 

eyes that needed medical attention. Diaz, a Department conservatorship worker, 

supervised Mother’s visits with her children before the adversary hearing and testified 

that Mother “would just sit there” in “a dazed state.” Diaz observed that Mother 

“wouldn’t interact” with her sons while they were playing. Instead, she just sat with “a 

blank stare.” In Diaz’s opinion, Mother abused methadone to the point where she did 

not even understand that the children were being removed from her care. Mother could 

not maintain steady employment. 

Based on the evidence in the record, Mother’s parental abilities to emotionally, 

physically, or financially provide for her children were limited. This factor strongly 

supports the trial court’s best interest determination.

 

4

At the hearing, the evidence revealed that the father of Child One, Two, and Three was in 

Mexico and could not be located. His parental rights were also terminated, but he has not challenged this 

judgment.
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4. Programs Available to Assist Individuals

The Department, in both its FBSS and conservatorship cases with Mother,

offered her numerous programs to assist her as a parent and develop her caretaking 

skills. For example, the FBSS plan gave Mother information about parenting classes, 

individual counseling sessions, and outpatient drug treatment. And as part of the 

conservatorship plan, Mother had access to individual counseling, parenting classes, 

substance abuse support groups, and AA or NA meetings. Unfortunately, Mother failed 

to avail herself of these opportunities, even when the Department clarified that taking 

these steps would be necessary to be reunited with her children. Mother continued to 

abuse drugs and did not follow the FBSS or conservatorship plans. As this Court has 

previously held, “in particular, a parent’s drug use and failure to comply with a family 

service plan support a finding that termination is in the best interest of the child.” In re 

C.C., No. 13-07-00541-CV, 2009 Tex. App. LEXIS 2239, at *2 (Tex. App.—Corpus 

Christi Apr. 2, 2009, pet. denied) (mem. op.). 

5. Plans for the Children

Mother stated that she could provide a good home for her children. However, 

despite having a year from the time of the removal of her children to the time of the 

parental-termination trial, mother had failed to maintain steady employment. Mother 

claimed the locations where she worked only paid her in cash, so she could not verify a 

continuous job. She had only paid one month of child support, which was set at $50

total for all three children. In addition, according to Hernandez, Mother’s proposed 

home for her children had trash, broken glass, and empty prescription bottles strewn on 

the floor. The children’s room had one twin bed with mold growing on it, clothing and 
11

trash on the floor, and an empty bottle of Jack Daniel’s whiskey. The foregoing reasons 

further support why it was in the children’s best interests to terminate Mother’s parental 

rights.

6. Stability of the Home or Proposed Placement

As a requirement for reunification, Mother was charged with providing “a safe 

and protective home environment with working utilities for her children.” When 

Hernandez visited the home Mother had prepared for reunification with her children, he

found trash, broken glass, and empty bottles of medication on the floor. The children’s 

room had one twin bed with mold on it, although Mother refuted this during her 

testimony. Hernandez also reported that clothing, trash, and an empty bottle of Jack 

Daniel’s whiskey were in the children’s room. The condition of this home, combined 

with the fact that mother had not maintained steady employment, support the trial 

court’s finding that termination was in the children’s best interest. The proposed 

placement did not appear to be stable. 

7. Acts, Omissions, and Excuses of the Parent

During her testimony, Mother attributed her lethargy around her children to 

inappropriately dosed methadone. However, despite having a year to seek counseling 

and drug treatment that would enable her to appropriately parent her children, she did 

not do so. Further, she denied having used cocaine within a month of the trial, despite 

the fact that hair follicle and urinalysis tests showed otherwise. She failed to maintain a 

job, and did not pay child support. Mother’s actions (or, in this case, inactions) and 

continuous excuses for her behavior were not in her children’s best interests.
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8. Conclusion

Although a strong presumption exists that a child’s best interest is served by 

keeping them with their biological parents, this presumption disappears when 

confronted with evidence to the contrary. In re A.I.G., 135 S.W.3d 687, 692 (Tex. 

App.—San Antonio 2003, no pet.). In light of the clear and convincing evidence 

showing that termination of Mother’s parental rights was in the best interests of her 

children, we overrule this issue.

B. Section 161.001 of the Texas Family Code

By her second issue, Mother argues there is insufficient evidence to support 

termination of her parental rights under section 161.001(1)(D), (E), (F), (O), and (P). 

See TEX. FAM. CODE ANN. § 161.001(1)(D). This section states that a court may

terminate the parent-child relationship if the court finds by clear and convincing 

evidence that the parent has “knowingly placed or knowingly allowed the child to remain 

in condition or surroundings which endanger the physical or emotional well-being of the 

child.” Id. 

For all of the reasons outlined in the previous section, we hold that the evidence 

is sufficient to support the termination of Mother’s parental rights under section 

161.001(1)(D) of the Texas Family Code. See In re J.F.C., 96 S.W.3d at 266. Because 

only one statutory predicate ground is necessary to support the termination of parental 

rights when there is also a finding of best interest, as we previously found, we need not 

address Mother’s additional grounds regarding sections 161.001(1) (E), (F), (O), and 

(P). See In re A.V. and J.V., 113 S.W.3d 355, 361 (Tex. 2003); TEX. R. APP. P. 47.1.
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IV. CONCLUSION

Having overruled both of Mother’s issues, we affirm the trial court’s judgment. 

________________________

GINA BENAVIDES,

Justice

Delivered and filed the

28th day of March, 2013.