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

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- CV IN THE INTEREST OF L.R.R. , et al., Children From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2012

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- 02347 Honorable Solomon Casseb , III, Judge Presiding Opinion by: Catherine Stone, Chief Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice Delivered and Filed: September 24, 2014 AFFIRMED Barbara S. appeals the trial court’s order terminating her parental rights to her five children, contending: (1) the trial court did not have jurisdiction to enter the termination order; and (2) the evidence is insufficient to support the jury’s finding that termination of her parenta l rights is in the best interest of the children. We affirm the trial court’s order. M ANDATORY D ISMISSAL In general, a trial court must dismiss a suit in which the Texas Department of Family and Protective Services requests termination of parental rights if the court has not commenced a trial on the merits by the first Monday after the first anniversary of the date the court entered a temporary order appointing the Department as temporary managing conservator. T EX
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. § 263.401(a) (West 2014). Notwithstanding this general rule, the trial court may retain the04

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- CV suit on the court’s docket for an additional period not to exceed 180 days if the trial court enters an order in compliance with section 263.401(b), which order m ust include a new date on which the suit will be dismissed if the trial on the merits has not commenced. Id . at § 263.401(b). It is undisputed that the trial court entered an order in compliance with section 263.401(b) in the underlying cause which requi red the trial on the merits to commence by April 4, 2014, or the cause would be dismissed. In her first issue, Barbara S. contends the trial court should have dismissed the underlying cause because the trial court declared a mistrial in the underlying caus e and did not schedule a new trial date by April 4, 2014. The State responds that the trial court declared a mistrial only with regard to the father of the children and that Barbara S. did not file a motion requesting a dismissal. We agree with the State

. First, the record establishes that the mistrial was declared only with regard to the father’s parental rights; therefore, trial was timely commenced with regard to Barbara S.’s parental rights on April 2, 2014. Second, the statutory dismissal deadlines are not jurisdictional, and a party waives the right to a dismissal if the party fails to file a timely motion to dismiss. In re Dept. of Family & Protective Servs. , 273 S.W.3d 637, 642 (Tex. 2009); T EX
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. § 263.402(b) (West 2014). The recor d does not contain any motion to dismiss filed by Barbara S. Accordingly, because a trial on the merits was timely commenced with regard to Barbara S.’s parental rights, and alternatively she waived any right to a dismissal, her first issue is overruled. S UFFICIENCY OF E VIDENCE ON B EST I NTEREST F INDING In her second issue, Barbara S. challenges the sufficiency of the evidence to support the jury’s finding that termination of her parental rights is in the children’s best interest. Barbara S. does not chall enge the sufficiency of the evidence to support the predicate findings, which included findings that Barbara S. had: (1) knowingly placed or knowingly allowed the children to remain

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- CV in conditions or surroundings which endangered their physical or emotional well

- being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical and emotional well

- being; (3) constructively abandoned the children; and (4) failed to comply with the provisions of he r court

- ordered service plan. 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 T EX
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. § 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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. § 161.206(a) (West 2014); In re J.F.C. , 96 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 allegations sought to be established.” T EX
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. § 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 finding to determine whether a reasonabl e trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C. , 96 S.W.3d at 266. “[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. ” Id

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“ A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder coul d have disbelieved or found to have been incredible. ” Id

. In reviewing the factual sufficiency 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

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- CV factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id

. B EST I NTEREST F INDING In reviewing the sufficiency of the evidence to support the best interest finding, we apply the factors set out in Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1 976). Th ose factors include: (1) the desire s of the child; (2) the present and future emotional and physical needs of the child; (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 held by the individual s seeking custody for the child; ( 7 ) the stability of the home of the parent and the individuals seeking custody ; ( 8 ) the a cts 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 a cts or omissions of the parent. Id

. In her brief, Barbara S. first contends that “[n]o credible evidence at tr ial was adduced on even half of the Holley factors.” The Texas Supreme Court has, however, stated that “[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termin ation is in the child’s best interest.” In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002). Barbara S. next contends that the evidence established that she was a victim of domestic violence, and her actions were not responsible for the children’s removal. The evid ence at trial, however, was conflicting as to whether Barbara S. was the aggressor during certain domestic violence incidents. Moreover, the children were removed from the home based on their outcry of witnessing domestic violence between Barbara S. and t heir father. With regard to the Holley factors, testimony established that the children witnessed several incidents of domestic violence between Barbara S. and their father which was emotionally

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- CV damaging to them. At least one of the children also had witn essed Barbara S. intoxicated, and the record contains evidence that Barbara S. suffers from bipolar disorder, anxiety, and paranoia. Barbara S. also had received deferred adjudication for assaulting the children’s grandfather. Barbara S. did not complete her service plan, and she was not present for trial. Several witnesses testified that they were unsure of her location. The case worker testified that Barbara S. never maintained a stable home while the case was pending, and Barbara S. had not paid any support for her children despite a court order requiring her to pay child support. At the time of trial, the children had lived with their maternal grandmother for eighteen months and were excelling in school. The maternal grandmother had a stable home a nd was willing to adopt the children. Based on the foregoing evidence, the trial court could have formed a firm belief or conviction that it was in the children’s best interest that Barbara S.’s parental rights be terminated. C ONCLUSION The order of the tr ial court is affirmed. Catherine Stone, Chief Justice

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