# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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- CV IN THE INTEREST OF D .T.C.L. and B.J.K., Children From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2014

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- 00985 Honorable Charles E. Mo ntemayor, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: October 28, 2015
AFFIRMED L.W., who we will refer to as “Mother,” appeals the trial court’ s order terminating her parental rights to her children, D.L. and B.K

. In one issue, she challenges the legal and factual sufficiency of the evidence to support the finding that termination was in the best interest of the children. We affirm the trial court’ s order.
B ACKGROUND A bench trial was held on the matter on June 29, 2015. Warren Sheridan, the caseworker for the Texas Department of Family and Protective Services, testified that D.L. was removed from the home in April 2014 due to domestic violence between Mother and her paramour and due to drug use in the home. D.L. was two years old at the time of trial. B.K. was born on August 15,
2014 , and the Department was appointed her temporary managing conservator after that time.04

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- B.K. was ten months old at the time of trial. It was believed that Mother used drugs during her pregnancy with B.K. because Mother tested positive for methamphetamines three days after B.K.’s birth. According to Sheridan, the Department attem pted to get Mother into drug treatment as early as January 2014. Mother attended for a “stent” [sic] but decided to leave. Sheridan stated that, to this day, Mother has not addressed her issues with drug and alcohol abuse. Sheridan testified that plans of service were prepared for Mother. He further stated that Mother did not complete all of her services, including counseling, drug treatment, and domestic violence class. At the time of trial, both D.L. and B.K. were living with relatives who planned to adopt them if parental rights were terminated. Sheridan testified that Mother had not consistently visited either child. Specifically, she had visited D.L. only four times and B.K. only twice since January
201 5 . Sheridan stated that Mother did not have housing or a job, and was not able to provide a safe and stable environment for the children. He further stated that Mother continues to struggle with issues related to her mental and physical health. She tested positive for amphetamines and methamphetam ines one month prior to trial. Mother appeared telephonically at trial. She explained that her visits with the children had been sporadic due to illness and bad weather. She was ready for the children to be returned to her, and had rooms ready for each c hild. Mother testified that she was currently enrolled in a drug rehabilitation and detox program that offered a domestic violence course, and thus was optimistic that she could complete the requirements of her service plans if given more time. Mother co nceded that relapse is a part of recovery, and stated that she had used methamphetamines the day before trial.04

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- At the conclusion of the bench trial, the trial court terminated Mother’s parental rights pursuant to Texas Family Code sections 161.001(1)(N), ( O) 1 , and (P)

. See T EX
. F AM
. C ODE A NN
. § 161.001(1)(N), (O), (P) (West 2014 ). The trial court also found that termination of the parent

child relationship was in the best interest of the children. Mother now appeals, challenging only the finding that ter mination of the parent

- child relationship was in the best interest of the children. S TANDARD OF R EVIEW To terminate parental rights pursuant to section 161.001 of the Family Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1); and (2) that termination is in the best interest of the child. See id. § 161.001(1), (2) (West 2014 );
In re A. V. , 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. T EX
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. C ODE A NN . § 161.206(a) (West 2014 ); In re J.F.C. , 9 6 S.W.3d 256, 263 (Tex. 2002). “ ‘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 alleg ations sought to be established.” T EX
. F AM
. C ODE A NN . § 101.007 (West 2014 ). In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must “look at all the evidence in the light most favorable to the find ing to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C. , 9 6 S.W .3d at 266. “[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its fin ding if a reasonable factfinder could do so.” Id. “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.” Id.

1 As to D.L. only.04

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- In reviewing the factual sufficie ncy of the evidence to support the termination of parental rights, a court “must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” 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.
A PPLICABLE L AW There is a str ong presumption that keeping a child with a parent is in the child ’ s best interest. In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, “the prompt and permanent placement of the child in a safe environment is presumed to be in the child ’ s best interest.” T EX
. F AM
. C ODE A NN
. § 263.307(a) (West 2014)

. In determining whether a child’ s parent is willing and able to provide the child with a safe environment, the court should cons ider: (1) the child’ s age and physical and mental vulnerabilities; (2) the frequency and nature of out

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- 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 or other agency; (5) whether the child is fearful of living in or returning to the child’ s home; (6) the results of psychiatric, psychological, or developmental eval uations of the child, the child ’ s parents, other family members, or othe rs 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 othe rs who have access to the child’ s home; (8) whether there is a history of substanc e abuse by the child’ s family or othe rs who have access to the child’ s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willi ngness and ability of the child’ s family to seek out, accept, and complete counseling services

an d to cooperate with and f acilitate an appropriate agency’ s close supervision; (11) the willingness04

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- and ability of the ch ild’ s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’ s family d emonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id. § 263.307(b). Additionally, i n reviewing the sufficiency of the eviden ce to support the b est interest finding, we may apply the factors set out in Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1976). Those factors include , but are not limited to : (1) the desires of the child; (2) the present and future emotional and physical needs of the chil d; (3) the present and future emotional and 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 for the child held by the individuals 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. The foregoing factors are not exhaustive, and “[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief t hat termination is in the child’ s best interest.” In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002). Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or convictio n that termination is the child’ s best interest, especially if the evidence was undisputed t hat the parental re lationship endangered the child’ s safety. Id. Finally, evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that terminatio n is in the child’ s best interest. Id. at 28 (holding same evidence may be probative of both section 161.001(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). A best interest analysis may consider circumstantial evidence, subjective fac tors, and the totality of the evidence as well as the direct04

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- evidence. In re E.D. , 419 S.W.3d 615, 620 (Tex. App.

— S an Antonio 2013, pet. denied). In addition, the tri er of fact may measure a parent’ s future conduct b y his past conduct in determining whet her termination of parental rights is in the child’ s best interest. Id.
A NALYSIS Although Mother claims that very little credible evidence at trial was adduced concerning several of the section 263.307(b) factors and the Holley best interest factors, the Department was not requ ired to prove each and every factor. See In re C.H. , 89 S.W.3d at 27. No single Holley consideration is controlling, and the fact finder is not required to consider all of the factors. See Holley , 544 S.W.2d at 372; see also A.S. v. Tex. Dep’ t of Family & Protective Serv s . , 394 S.W.3d 703, 714 (Tex. App.

— E l Paso 2012, no pet.) (fact finder not required to consider all factors and undisputed evidence of a single factor may be sufficient to support findi ng that termination is in child’ s best interest). T he trial court heard testimony regarding Mother’s continued drug use, her inconsistent visitation with the children, and her failure to complete the court

- ordered family service plans. The Department caseworker testified that he was not confident that the children would be in a safe and stable home environment if returned to Mother. The trial court also heard testimony that the children’s needs are being met in their current placements. After reviewing the record before us , we c onclude the trial court could have formed a firm belief or convict ion that it was in the children’ s best interest that Mother’s parental rights be terminated. See In re J.F.C. , 96 S.W.3d at 266; In re C.H. , 89 S.W.3d at 25. C ONCLUSION We overrule Mother’s sole issue on appeal and affirm the order of the trial court.

Rebeca C. Martinez, Justice