Date: 04-09-2015

Case Style: In the Interest of E.L., M.R., and H.R., Children

Case Number: 13-14-00698-CV

Judge: Garza

Court: Texas Court of Appeals, Thirteenth Court of Appeal from 156th District Court of San Patricio County

Plaintiff's Attorney: Hon. Luisa P. Marrero and Hon. Desiree Lynn Voth for Texas Department of Family and Protective Services

Defendant's Attorney: Hon. Joel H. Thomas for R.R.

Description: Appellant, R.R., contends by seven issues that the evidence was insufficient to
support the trial court’s judgment involuntarily terminating his parental rights with respect
to M.R. and H.R.1 We affirm.
1 We refer to appellant and the children by their initials in accordance with rule of appellate
procedure 9.8. See TEX. R. APP. P. 9.8(b)(2) (providing that, in an appeal arising out of a case in which the
termination of parental rights was at issue, “the court must, in its opinion, use an alias to refer to a minor,
and if necessary to protect the minor’s identity, to the minor’s parent or other family member”).
2
I. BACKGROUND
On February 28, 2014, appellee, the Texas Department of Family and Protective
Services (the “Department”), filed a petition to terminate R.R.’s parental rights as to his
biological children M.R. and H.R., who were born on October 24, 2011, and January 2,
2013, respectively.2 The petition alleged that R.R. committed “one or more” of the acts
or omissions prohibited by Texas Family Code section 161.001(1) and that termination
was in the children’s best interest. See TEX. FAM. CODE ANN. § 161.001 (West, Westlaw
through 2013 3d C.S.). The petition stated that the Department was seeking a nonemergency
removal of the children “due to concerns of domestic violence between [the
children’s biological mother K.P.] and [R.R.], [K.P.]’s recent arrest for selling synthetic
mari[h]uana, and [K.P.]’s refusal to comply with the department.”
At trial on October 20, 2014, Mary Alice Martinez testified that she is a
conservatorship worker with the Department and that she received a report in October
2013 alleging “drug use and domestic violence” between R.R. and K.P. In February 2014,
Martinez received a second report that K.P. “had been arrested for selling synthetic
marihuana out of her car.” Martinez testified that “I believe one of the children was with
her in the car.” Martinez stated that the Department then filed the instant petition for
termination, and the children came into the conservatorship of the Department.
According to Martinez, the Department developed a family service plan for R.R.
and K.P. A “family group conference” was scheduled for both parents but R.R. did not
attend. Martinez testified:
2 The petition also sought to terminate the parental rights of K.P., the biological mother of M.R. and
H.R.; and J.L., the biological father of E.L., who is another child born to K.P. The judgment on appeal
terminated the parental rights of R.R. and J.L. but did not terminate the parental rights of K.P. Neither K.P.
nor J.L. are parties to this appeal.
3
On that day I called [R.R.] because I had given him the wrong time for the
group conference. And I spoke to him on the phone and he told me that he
would not be able to make it because he didn’t have a ride. I offered to pick
him up and bring him to the office, but he said he was busy and couldn’t
make it. We discussed the services that would be put in place for him. And
later I was unable to get hold—he was supposed to come in for a family
visit, and we were going to review the case at that time—I mean the Family
Plan of Service, but he had to cancel because he said he didn’t have a ride.
So the following day was the status hearing. He didn’t show up to the status
hearing, so I filed his Plan of Service without his signature.
Martinez stated that she sent the service plan to R.R. after he failed to appear at the
status hearing. When asked whether R.R. complied with the service plan, Martinez
testified: “He completed a drug assessment, and that was all that he did.”3 According to
Martinez, the service plan required R.R. to participate in and complete parenting classes
and a batterer’s intervention program, but he failed to do either. The service plan also
required him to participate in supervised family visits, but R.R. attended only one time, in
March 2014 at the Department’s office. Martinez stated that this was the last time R.R.
saw the children.
Martinez stated that R.R. was ordered to provide to the Department “proof of
housing and proof of working utilities,” but R.R. “never told me where he was living, and I
got the impression that he was living with friends, but I really don’t know where he lives,
and he never told me where he was living.” She later stated: “I don’t even know if he has
a home. As far as I know he doesn’t have a place of his own. I haven’t been able to
assess whether it’s safe or not.” Additionally, though R.R. was required to “comply with
drug testing,” he failed to appear for a drug test on August 15, 2014; and when he
appeared three days later, he “refused to comply with the hair follicle test.” Martinez
3 With respect to the drug assessment, Martinez stated that R.R. completed the assessment on
May 27, 2014; but when “the therapist came to his house to provide him with . . . substance abuse therapy,”
R.R. “never made himself available to the therapist, so she finally stopped coming around in July.”
4
further stated that, though R.R. was ordered to stay in contact with her, she hasn’t talked
to him since July 19, 2014. She stated that, when R.R. did contact her, “[i]t was very
difficult to have a conversation with [him] because if I said something that he didn’t agree
with or the conversation was not going the way he wanted, he would start cussing and
yelling, and most of the time I would just end the conversation.”
According to Martinez, R.R. participated in one supervised visit with the children in
the beginning of March 2014. At the visit, R.R. brought the children shoes and toys.
When asked by R.R.’s counsel whether the visitation went “pretty well,” Martinez replied:
“It was okay, yes.” When asked whether the children were happy to see their father,
Martinez replied: “They were okay.” Martinez stated that, if R.R. wanted to have other
visits, he merely had to call her and set it up; she denied that he would not have been
able to set up additional visits because of his failure to comply with drug testing.
On cross-examination, Martinez conceded that K.P.’s mother advised the
Department that she never witnessed any violence between R.R. and K.P. Martinez
agreed that she was not aware of any “actual physical evidence” showing that R.R.
committed family violence; instead, the evidence of family violence came from K.P.’s
representations and from a protective order, issued in February of 2014, which required
R.R. to stay away from K.P. and the children.4 Martinez stated that the Department’s plan
for the children is to reunite them with their mother, K.P., though she conceded that there
is evidence that K.P. used drugs while with the children.5 She further conceded that,
4 A copy of the protective order was later admitted into evidence.
5 Martinez stated that the Department’s plan is to reunify the children with K.P. because:
she’s complied with all these services, and because the therapists have told me that they
have seen a change in [her], and from when she first started her services to now, and I’ve
seen a change in [her], what she’s telling me and how she feels about herself, how she
5
though R.R. refused a hair follicle test, he was willing to provide a urine sample for drug
testing.
Martinez acknowledged that, in July 2014, R.R. sent her a “text message about
[her] sister that had just passed away” which she found greatly offensive. She later
elaborated as follows:
I was at my—that day we were having my sister’s service, and I was
between the church and cemetery when he called. I picked up the phone
by mistake, and he started telling me that he wanted to relinquish his rights
and give his rights to his sister, because she shouldn’t be punished for him
not doing what he needed to do and he had some mental health issues.
And I said, I am at my sister’s funeral service, you need to call me on
Monday. And I hung up. He called me two more times; I didn’t answer.
Then he texted me and he said, Well, “F” you and your dead sister.
After that incident, Martinez decided that she would communicate with R.R. only through
his attorney or by mail.
Martinez testified that termination of R.R.’s parental rights was in the best interest
of the children for the following reasons:
I don’t know if [R.R.] is using drugs or not, but he has a history of drug use.
And so that is a concern, because we were never able to drug test him and
determine that he’s not using drugs. The other major concern that I have is
the safety of the children because of a domestic violence between them,
because of the recent—he continues to threaten [K.P.] even up until last
week with snapping her neck. And she doesn’t allow him to see the
children. So I think he’s a very dangerous person, I think—I’m not a
psychiatrist, but I feel like he’s unstable.
I’ve done this for a couple of years, and I don’t think I’ve ever met anybody
as angry and as dangerous or I’ve never felt that kind of danger before. I
know he’s very angry, and I don’t think I've ever met anybody that has that
kind of anger issues that he does. Like I said, he makes you feel
uncomfortable and the comments that he makes. I do believe that he is a
safety threat to the children, and especially to [K.P.].
R.R. testified at trial that he has lived with his aunt and uncle in Taft, Texas, for
feels about the children, how she feels about the mistakes she made. And I believe her.
6
“about six months.” He stated that he “ha[s] a two bedroom house for myself and the
kids,” but that since the children were removed, “[i]t’s just really depressing to stay by
myself” so “I like staying with my aunt and uncle.” In early 2014, he “was advised” by
Martinez that “there was a family whatever it was called” on or about March 26, 2014 and
“[he] told her [he] wasn’t able to attend.” He later described that he was in a car accident
on February 17 or 18, 2014, and that he was hospitalized for ten or eleven days after that.
He received notice of a protective order hearing while he was in the hospital.
When asked whether Martinez explained “what services would be required of you,”
R.R. replied: “She explained certain things that might be required.” When asked whether
he received a copy of his service plan, he replied: “I might have.” He agreed to do the
service plan “because [he] wanted to see [his] kids”; although he stated “I really had no
choice honestly.” R.R. agreed that he “did not work [his] service plan except for the drug
evaluation.” In particular, he conceded he did not attend a batterer’s intervention
program, nor did he participate in parenting classes. Later, the following colloquy
occurred:
Q. [attorney ad litem] So when I asked you about your service plan,
and your response is, I might have got a service
plan, you’ve been in court before, you knew
there was a service plan in place, correct?
A. [R.R.] I didn't agree with everything on that service
plan from the get-go. You can ask [Martinez]. I
spoke to the supervisor with C.P.S. that I didn’t
agree with that. I stated from the very beginning
I wasn’t going to go to batterer’s intervention.[6]
6 R.R. later elaborated as follows:
I understood as far as maybe the anger thing, but as far as the batterer’s, I don’t understand
why you would send someone to a class where they would need help in that. I might have
anger issues, but I wouldn’t hit women. Like why would you send someone that doesn’t
drink alcohol to an Alcoholics Anonymous meeting? They wouldn’t know what you’re
7
Q. Excuse me. But you did get a service plan.
A. I didn’t understand it, I didn’t understand it, put
it that way. That’s my final answer. I didn’t
understand the service plan.
Q. Well, did you bother to ask [Martinez] about the
service plan?
A. She wasn’t my first C.P.S. officer, I had like
three of them. So I really was confused at the
time. I even spoke to the supervisor about my
service plan. I spoke with several of them, yes,
ma’am, on my service plan.
Q. Then you understood.
A. I didn’t understand, because I didn’t agree with
them. I didn’t agree with them on the service
plan. I told them I didn’t agree with that
batterer’s intervention.
Q. Do you understand not agreeing and not
understanding are two separate things?
A. I didn’t understand it. I didn’t understand why
they wanted me to take something that I didn’t
feel I needed to take. Put it that way.
Q. Did you know that the service plan had been
adopted by the Court and made an order of the
Court?
A. I’m new to all this, ma’am, I'm not familiar with
C.P.S. I don't know y’all’s procedures. I don’t
know what kind of action you take as far as the
kids. I’m really not familiar with it.[7]
talking about because they don’t pertain to that.
So since I don’t hit women, why would you send me—maybe I was a bad parent
sometimes, but I didn’t hit women. I wasn’t going to agree to that. I felt if I took that class
I was going to show guilt on my behalf that I hit women, that that title would stick with me
the rest of my life. It’s a bad title.
7 R.R.’s lack of “familiarity” with court procedures was also evident from the following colloquy:
Q. [attorney ad litem] And you were ordered to attend the batterer’s intervention program,
were you not?
A. [R.R.] I didn’t agree with that. That was issued by the Judge, that doesn’t
8
R.R. stated that he served prison time for a drug offense “[m]any years ago.” He
stated: “I made a mistake when I was young, and I paid my debt to society. I’m what you
call a rehabilitated felon.” He had other drug charges filed against him as recently as
2011, but “[t]hat got thrown out the charge because they were false charges.” He agreed
that he has been off parole for the children’s entire lives. He further stated that he had a
second interview scheduled with a potential employer for a full-time, permanent job in
“tool maintenance.” He testified that he “would be able to pay child support” if his rights
were not terminated. R.R. denied telling Martinez that he was going to relinquish his
parental rights if his sister was awarded custody. He denied ever hitting K.P. or her
mother; making threats to K.P.; or driving past K.P.’s house and telling her it wasn’t a
good idea to leave the front glass door open.
When R.R.’s counsel inquired about his refusal to undergo hair follicle drug tests,
R.R. replied: “I didn't understand where they would get hair from. [Martinez has] known
I’ve been bald for many, many years. I don’t know, if they wanted to get it from my groin
area I would have let them. I have never been through that.” He further stated: “I believe
mean I was going to agree to that.
Q. If it’s issued by the Judge, isn’t that an order?
A. But you’ve got to understand my point of view.
Q. Please don’t interrupt me.
A. You’re interrupting me as well.
Q. Let me finish my question. . . . I’ll ask you one more time. Did you
understand you were supposed to do a batterer’s intervention
program?
A. I don’t understand your question. I’m apparently not answering it
right. I don’t want to upset anyone in the courtroom. I don’t want
to say anything wrong.
Q. Did you do a batterer’s intervention program?
A. No, ma’am.
9
that they asked for that because of the hair follicle you go back as far as you want, and I
thought that they might try to find something in the far past to try to hurt me to use against
me as far as this case.” According to R.R., “I even told [Martinez] if they want to take a
blood sample that’s fine, but I couldn’t submit a hair sample. I don’t have any hair.”
R.R. testified: “I believe [K.P.]’s a good mother, I believe I’m a good father, we’re
not compatible for each other, and it was affecting our children. I believe our time apart
has shown us that, and I believe we should move forward with their lives as far as that
goes.” He agreed with K.P.’s counsel that he has had no contact with the children in six
months, and that he has not paid any child support in the past six months.
K.P. testified that she is currently training to be employed at Best Western and
lives with her mother. She testified that R.R. has punched her in the face on multiple
occasions. According to K.P., in October 2013 R.R. punched her in the face while she
was holding her one-year-old baby, causing the baby’s head to hit the wall. She testified
that R.R. once placed his hand over her eldest son’s mouth to stop him from crying,
causing “a rather large scratch and a little bruising”; and another time, R.R. “h[e]ld [K.P.]
down in the bed with a knife to [her] neck” while she was holding her two-year-old son.
K.P. stated that she and R.R. used drugs together after the children were born, but she
denied using drugs while she was pregnant. She stated that she had a prescription for
Xanax but “started abusing it after my kids got taken.”
K.P. stated that the last time R.R. called or texted her was the previous week. She
testified:
He was telling me that he knew I was getting the children back, that he was
glad whatever, and then he started asking me if I was going to let him see
the children when I got them back. I said, We’ll let the Court decide when
you get to see your kids. And I guess that upset him. And he started telling
10
me if I didn’t let him see my two-year-old on his birthday on the 24th that I
wasn’t going to make it to court this Monday, that I had to remember that he
knew where my dad lived, he knows where my brother lives, he knows
where my family lives, my grandma he even said. He said—well, last time
after court he had also said he was going to snap my neck, he didn’t care
where he saw me at, he was going to snap my neck.
She stated that she does not approve of R.R. having supervised visits with the children,
because “I feel like there is a chance that if he were to see the kids that he could take off
with them, and then I wouldn’t see my kids anymore. That’s what I’m afraid of.”
According to K.P., R.R. once “told me that we should be careful leaving the door open
like that because it would be so much easier for him to snatch my kids.”
K.P. testified that she completed all of the services required by the Department.
According to K.P., in January or February 2014, R.R. took custody of H.R. “and he didn’t
give him back to me for two weeks I would say. Then he got into the car accident, left
him with a friend, and that’s how I got him back.” K.P. stated she reconciled with R.R. in
July 2014 but they were together “[n]ot even a month.” She stated that M.R. is fearful of
R.R. and “wants nothing to do with him.”
On cross-examination, K.P. testified that she pleaded guilty to intent to distribute
synthetic marihuana and received probation as part of a plea deal, but that she stopped
using synthetic marihuana in March 2014. She affirmed the truth of the statements she
made in an affidavit supporting her application for protective order, including statements
that, during their relationship, R.R. “h[e]ld [her] down and strangle[d] [her] to the point of
blacking out” on several occasions, and that he “call[ed] and text[ed] her repeatedly
saying he was going to kill [her] and knew where [her] family lives.” She stated that R.R.
had never been arrested for assaulting her because the police “told me it was a civil
matter.” When asked why her mother would report that no violence had occurred between
11
her and R.R., K.P. replied:
I’m sure [it] has to be for the same reasons I avoided C.P.S. for so long. I
was scared. I have never been involved with C.P.S. I was scared that my
children would get taken, which eventually they did because of my noncompliance
with them. And I’m sure the same reason my mom said she
hasn’t seen anything. My mom has seen several things. But we had our
own apartment for a short period of time where I was pregnant with our first
son together where he would do a lot of these things, and he would do a lot
of these things in Taft too.
When counsel asked K.P. what concerns she had regarding the safety of her children
should R.R.’s parental rights not be terminated, she replied: “That he might try to take
them from me.” She believed R.R.’s parental rights should be terminated because:
I just feel like he doesn’t—he hasn't done anything to deserve to see my
kids. He hasn’t complied with any of the services. He hasn’t done anything
to show he’s changed or to show that he’s trying to change. I feel like—I
feel like it’s taking a risk letting him be around my kids. I’m afraid he may
take off with them or that I’ll never see them again if he gets hold of them.
And who knows where he would go or what he would do.
The trial court found by clear and convincing evidence that termination of R.R.’s
parental rights was in the children’s best interest and that R.R.: (1) “knowingly placed or
knowingly allowed the child[ren] to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child[ren]”; (2) “engaged in conduct or
knowingly placed the child[ren] with persons who engaged in conduct which endangers
the physical or emotional well-being of the child[ren]”; (3) “failed to support the child[ren]
in accordance with [his] ability during a period of one year ending within six months of the
date of the filing of the petition”; (4) “voluntarily, and with knowledge of the pregnancy,
abandoned the mother of the child[ren] beginning at a time during her pregnancy with the
child[ren] and continuing through the birth, failed to provide adequate support or medical
care for the mother during the period of abandonment before the birth of the child[ren],
and remained apart from the child[ren] or failed to support the child[ren] since the birth”;
12
(5) “contumaciously refused to submit to a reasonable and lawful order of a court under
Subchapter D, Chapter 261, Texas Family Code”; and (6) “constructively abandoned the
child who has been in the permanent or temporary managing conservatorship of the
[Department] or an authorized agency for not less than six months . . . .” See TEX. FAM.
CODE ANN. § 161.001(1)(D), (1)(E), (1)(F), (1)(H), (1)(I), (1)(N), (2). The trial court
rendered judgment terminating R.R.’s parental rights, appointing K.P. possessory
conservator and allowing her supervised visitation with the children, and appointing the
Department as managing conservator.8 This accelerated appeal followed. See TEX. R.
APP. P. 28.4.9
II. DISCUSSION
A. Standard of Review and Applicable Law
Involuntary termination of parental rights involves 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. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—
Corpus Christi 2010, no pet.). “Termination of parental rights, the total and irrevocable
dissolution of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.”
In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly,
termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due
8 Prior to trial, R.R.’s counsel informed the trial court that he was advised that “the Department was
not interested in proceeding with termination” as to his client, but that the attorney ad litem for the children
“indicated she was interested in proceeding with termination.” The Department did not put on any evidence
at trial; instead, all of the witnesses that testified were called by the attorney ad litem. However, the
Department stated in closing argument that it believed R.R.’s parental rights should be terminated.
9 The Department submitted its appellate brief to this Court two days after it was due to be filed,
see TEX. R. APP. P. 38.6, and contemporaneously moved for leave to file the brief. We hereby grant the
motion and accept the brief.
13
process requires application of the “clear and convincing” standard of proof. Id. (citing
Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002)). This intermediate standard falls between the preponderance of the evidence
standard of civil proceedings and the reasonable doubt standard of criminal proceedings.
In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined
as 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, Westlaw through 2013 3d C.S.).
To terminate parental rights, the trier of fact must find that: (1) the parent
committed an act prohibited by subsection 161.001(1) of the Texas Family Code; and (2)
termination is in the best interest of the child. Id. § 161.001; see In re J.L., 163 S.W.3d
at 84.
R.R. does not specify whether he is challenging the legal sufficiency or factual
sufficiency of the evidence. In reviewing the legal sufficiency of evidence supporting
termination, we “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.” In re J.L., 163 S.W.3d at 85; In re L.J.N., 329 S.W.3d at 671.
We must assume that the fact finder resolved disputed facts in favor of its finding if it was
reasonable to do so and must disregard all evidence that a reasonable fact finder could
have disbelieved or found to be incredible. In re L.J.N., 329 S.W.3d at 671. We must
also consider undisputed evidence, if any, that does not support the finding. In re K.M.L.,
443 S.W.3d at 113; see In re J.F.C., 96 S.W.3d at 266 (“Disregarding undisputed facts
that do not support the finding could skew the analysis of whether there is clear and
14
convincing evidence.”).
When reviewing the factual sufficiency of the evidence supporting termination, we
determine “whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the [Department]’s allegations.” In re C.H., 89
S.W.3d 17, 25 (Tex. 2002). In conducting this review, we consider whether the disputed
evidence is such that a reasonable finder of fact could not have resolved the disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.
B. Findings Under Subsection 161.001(1)
By his sixth issue on appeal, R.R. argues that the evidence was insufficient to
support findings that: (1) he “constructively abandoned the child[ren] who ha[ve] been in
the permanent or temporary managing conservatorship of the [Department] or an
authorized agency for not less than six months”; (2) that the Department “has made
reasonable efforts to return the child[ren] to the parent”; and (3) that he “has not regularly
visited or maintained significant contact with the child[ren].” See TEX. FAM. CODE ANN.
§ 161.001(1)(N)(i), (ii).10
The evidence showed that R.R. visited with the children once while they were in
the Department’s custody, in March 2014. However, he admitted at trial that he had not
had any contact with the children within the past six months; and Martinez testified that,
10 Under part (N) of subsection 161.001(1), it must also be shown that “the parent has demonstrated
an inability to provide the child with a safe environment.” TEX. FAM. CODE ANN. § 161.001(1)(N)(iii) (West,
Westlaw through 2013 3d C.S.). However, R.R. does not argue on appeal that the evidence was insufficient
to support that element. Accordingly, we do not address the issue. See TEX. R. APP. P. 47.1.
15
despite R.R.’s failure to comply with drug testing, he could have had additional visits with
the children if he had merely called her to make the request. In any event, one visit in
eight months does not constitute “regular” visitation or “significant” contact with the
children. See id. § 161.001(N)(ii). Accordingly, the evidence supported the trial court’s
findings by clear and convincing evidence that R.R. “constructively abandoned the
child[ren] who ha[ve] been in the permanent or temporary managing conservatorship of
the [Department] or an authorized agency for not less than six months” and that he “has
not regularly visited or maintained significant contact with the child[ren].” Id.
R.R. further contends that the Department failed to “make reasonable efforts to
return the child[ren]” to him because (1) Martinez “intentionally chose not to communicate
with” him and (2) the Department “insist[ed] that [his] conduct was more dangerous or
harmful to the children than the conduct of [K.P.].” Martinez testified that R.R. was “very
difficult to have a conversation with” and that “he would start cussing and yelling” if “the
conversation was not going the way he wanted.” She further testified that R.R. called her
while she was at her sister’s funeral service and that, when she told him to call back the
following Monday, R.R. sent her a text message stating “Well, ‘F’ you and your dead
sister.” Martinez found the text greatly offensive, and she decided to thereafter
communicate with R.R. only through his attorney or by mail. We do not believe that
Martinez acted unreasonably in making this decision. Moreover, the evidence was
undisputed that the Department established service plans for both R.R. and K.P. with the
objective of returning the children to them, and that K.P. complied with each of the service
plan’s requirements but R.R. did not. Although R.R. equivocated about whether he was
provided with a copy of the service plan and whether he understood its terms, Martinez
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testified clearly that she sent a copy of the plan to him. The trial court could have
reasonably chosen to believe Martinez’s testimony and disbelieve that of R.R. See In re
J.F.C., 96 S.W.3d at 266; In re L.J.N., 329 S.W.3d at 671. We conclude that the evidence
was sufficient to allow the trial court to form a “firm belief or conviction” that the
Department “made reasonable efforts to return the child[ren]” to R.R. See id. §§ 101.007,
161.011(1)(N)(iii).11
R.R.’s first issue is overruled.12
C. Best Interest of the Children
By his seventh issue, R.R. argues that the evidence was insufficient to support the
finding that termination of his parental rights is in the children’s best interest.
There is a strong, though rebuttable, presumption that keeping a child with a parent
is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131 (West, Westlaw through
2013 3d C.S.); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In Holley v. Adams, the
Texas Supreme Court set forth several factors that courts consider in determining
whether termination is in the child’s best interest. See 544 S.W.2d 367, 372 (Tex. 1976).
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 parenting abilities of the parties seeking custody; (5) the
programs available to assist the parties seeking custody; (6) the plans for the child by the
11 We do not believe, as R.R. suggests, that evidence of K.P.’s misconduct has any bearing on
whether he constructively abandoned the children or whether the Department made reasonable efforts to
return the children to him. See TEX. FAM. CODE ANN. § 161.001(1)(N).
12 Because of our disposition of this issue, we do not address R.R.’s first through fifth issues, in
which he argues that the evidence was insufficient to support findings under parts (D), (E), (F), (H), and (I)
of family code subsection 161.001(1). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“Only one
predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is
also a finding that termination is in the child’s best interest.”); see also TEX. R. APP. P. 47.1.
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parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts
or omissions committed by the parent which may indicate that the existing parent-child
relationship is not proper; and (9) any excuse for the acts or omissions committed by the
parent. Id. The party seeking termination is not required to prove all nine factors; in some
cases, undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the best interest of the child. In re C.H., 89 S.W.3d at 25, 27. Moreover,
evidence that proves one or more statutory grounds for termination may constitute
evidence illustrating that termination is in a child’s best interest. Id. at 28.
As to the first factor, we note that, at the time of trial, M.R. was less than three
years old and H.R. was less than two years old. Although K.P. testified that M.R. “wants
nothing to do with [R.R.],” we find that both children are too young to have credibly stated
their desires. See In re R.S.D., 446 S.W.3d 816, 818, 820 (Tex. App.—San Antonio 2014,
no pet.) (finding that the child, who was “almost four years old” at the time of trial, was
“too young to have stated his desires”). Consideration of this factor therefore weighs
neither in favor of nor against termination.
As to the second factor, there was no evidence as to any emotional or physical
needs of the children, either now or in the future. See Holley, 544 S.W.2d at 372.
Consideration of this factor also weighs neither in favor of nor against termination.
Consideration of the third Holley factor weighs in favor of termination. A protective
order containing a finding of family violence by R.R. was part of the evidence considered
by the trial court. Additionally, K.P. testified that R.R. had been physically violent with her
in the past on multiple occasions. In particular, K.P. stated that R.R. once punched her
in the face while she was holding a baby, causing the baby’s head to hit the wall; and that
18
he once “h[e]ld [her] down in the bed with a knife to [her] neck” while she was holding her
two-year-old son. K.P. further testified that R.R. continues to verbally threaten her.
Martinez testified: “I’ve done this for a couple of years, and I don’t think I’ve ever met
anybody as angry and as dangerous or I’ve never felt that kind of danger before.” To the
extent R.R. disputed any of this testimony, the trial court was free to disbelieve it. See In
re J.F.C., 96 S.W.3d at 266; In re L.J.N., 329 S.W.3d at 671.
We observe that there was minimal evidence that R.R. engaged in violence that
was specifically directed at the children as opposed to K.P.13 Nevertheless, evidence that
R.R. was violent toward K.P. in the past supports an inference that he presents a danger
of violence in the future. See In re R.S.D., 446 S.W.3d at 820 (noting that “a trier of fact
may measure a parent’s future conduct by her past conduct” to determine whether
termination of parental rights is in the child’s best interest). This inference is further
supported by evidence that R.R.’s violence, though primarily directed at K.P., took place
in the presence of the children and occasionally caused the children to suffer injury. It is
also supported by R.R.’s admission that he failed to participate in a batterer’s intervention
class as the trial court had ordered.
As to the fourth factor, regarding parenting abilities, R.R. conceded that he failed
to participate in court-ordered parenting classes. Martinez testified that, out of all the
requirements set forth in the service plan, R.R. completed only a “drug assessment.”
Although there was no evidence that R.R. behaved inappropriately when he did visit the
children, it is apparent from R.R.’s failure to comply with the service plan that he was not
13 The only such evidence in the record was K.P.’s testimony that R.R. once put his hand over her
son’s mouth to stop him from crying, causing a “rather large scratch” and “a little bruising.”
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motivated or interested in learning to improve his parenting skills. See Wilson v. State,
116 S.W.3d 923, 930 (Tex. App.—Dallas 2003, no pet.) (noting in best interest analysis
that appellant “was not motivated to learn how to improve” her parenting skills); In re
W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.) (noting in best
interest analysis that appellant did not have the ability to “motivate herself to seek out
available resources”). Consideration of this factor weighs slightly in favor of termination.
Other than testimony establishing that R.R. was required by the service plan to
participate and complete parenting classes and a batterer’s intervention class, there was
no evidence regarding programs available to assist R.R. in parenting. Consideration of
the fifth Holley factor therefore weighs neither in favor nor against termination.
As to the sixth factor—the plans for the child by the parties seeking custody—R.R.
testified that he “ha[s] a two bedroom house for myself and the kids” but that he currently
does not stay at the house. He further testified that he believes “the kids should be with
their mother.” Martinez stated that the Department plans to eventually reunite the children
with K.P. There was no other evidence adduced as to the “plans for the child[ren]” of
K.P., R.R., or the Department. Consideration of this factor weighs neither in favor nor
against termination. See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (holding that
appellant’s “failure to articulate a plan for the children, beyond allowing the children to
return to the mother,” is “legally insufficient to weigh in favor of termination”).
With regard to the seventh Holley factor—the stability of the home or proposed
placement—Martinez testified that R.R. “never told me where he was living,” thereby
preventing her from assessing whether R.R.’s home is safe for the children. Martinez
testified that she has “seen a change” in K.P. since the Department became involved in
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terms of “how she feels about herself, how she feels about her children, how she feels
about the mistakes she made.” But she conceded that there was evidence that K.P. had,
in the past, used drugs while with the children. There was no testimony regarding the
stability or safety of K.P.’s home or the home in which the children currently live.
Consideration of this factor weighs slightly in favor of termination.
As to the eighth factor—acts or omissions which may indicate that the parent-child
relationship is not proper—as noted, K.P. testified that R.R. was violent with her in the
past, and that this violence affected the children. It was undisputed that R.R. failed to
comply with the court-ordered service plan and that he failed to visit with the children in
the six months prior to trial. Consideration of this factor weighs slightly in favor of
termination.
Finally, as to the ninth Holley factor, regarding any excuses for acts and omissions
committed by the parent, R.R. appeared to contend that he was hindered in completing
the required services because of his car accident in February 2014. However, this does
not explain why he failed to participate in any family visits since March 2014. R.R. also
claimed that he “didn’t understand the service plan”; but it is apparent from his testimony
that he knew the service plan contained certain requirements but simply disagreed that
they were appropriate. In any event, the trial court was free to disbelieve his testimony.
See In re J.F.C., 96 S.W.3d at 266; In re L.J.N., 329 S.W.3d at 671. Consideration of this
factor weighs in favor of termination.
Considering all the factors, and in light of the entire record, we find that a
reasonable trier of fact could have formed a “firm belief or conviction” that termination of
R.R.’s parental rights was in the best interest of M.R. and H.R. See TEX. FAM. CODE ANN.
21
§ 101.007. We note that the direct evidence supporting the best interest finding was not
overwhelming.14 K.P. testified repeatedly that she wanted R.R.’s parental rights to be
terminated because she was afraid that he may try to “take off with them” and she would
never see them again. However, if the trial court denied termination, it would still have
had the broad discretion to require that any access R.R. may have to the children be
supervised, see, e.g., In re N.L.D., 412 S.W.3d 810, 824 (Tex. App.—Texarkana 2013,
no pet.), which would have presumably minimized the risk of abduction. K.P.’s testimony
that she was afraid R.R. would “take off with” the children, therefore, does not indicate
that termination of his parental rights was in the best interest of the children. Moreover,
there was no evidence presented as to the condition of the children in their current
placement.
K.P. also testified that she does not believe R.R. has “done anything to deserve to
see my kids.” But termination of parental rights may not be based on a finding that the
parent is “undeserving” of parental rights. Instead, the inquiry focuses on the children—
termination must be in their best interest, regardless of what the parent may or may not
“deserve.” See id. § 161.001(2). And consideration of the children’s best interest must
take into account any potentially negative repercussions arising from termination—such
as the inability of the custodial parent to obtain child support—along with any potential
positive effects.
Nevertheless, there was ample circumstantial evidence supporting the best
interest finding. K.P. testified that R.R. was violent toward her on multiple occasions in
14 This could perhaps explain why, according to representations made by R.R.’s counsel, the
Department initially did not intend to seek termination of R.R.’s parental rights.
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the past, and that the violence affected the children. Martinez testified, from her own
experience, that R.R. is “very angry” and “dangerous.” There was scant evidence that
R.R. directed violence specifically toward the children, nor was there any other evidence
that R.R. was a bad parent. But the record is replete with evidence showing that R.R.
was a disinterested, absent parent. He made little effort to comply with the court-ordered
service plan and was uncooperative, at best, with the caseworker. He took advantage of
the opportunity to visit the children only once in the eight months since the Department
filed its petition. He refused to submit to a hair follicle drug test.15 Additionally, Martinez
opined that K.P. had complied with her service plan and had changed such that she no
longer presented a danger to the children.
We conclude, having reviewed the evidence in the light most favorable to the
finding as well as in a neutral light, that the evidence was both legally and factually
sufficient to support the trial court’s best interest finding. R.R.’s seventh issue is
overruled.
III.

Outcome: CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
9th day of April, 2015.
15 R.R. volunteered to undergo a urine analysis in lieu of the hair follicle test, but there was no
evidence that the Department was equipped to administer a urine analysis. The trial court could have
reasonably inferred that R.R.’s refusal to submit to the hair follicle test indicated that he was using drugs.
See In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (“The jury could reasonably
infer that appellant’s failure to complete the scheduled screenings indicated she was avoiding testing
because she was using drugs.”).

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