in the Interest of R.S.D. a Child, 2014 Tex. App. LEXIS 9860

Child taken into DFPS care April 2012; mother (appellant) incarcerated for possession of a controlled substance in April 2012 and had not seen the child for over a year at the June 2013 termination trial.
Trial court terminated mother's parental rights on grounds including constructive abandonment, failure to comply with the service plan, and criminal conviction with confinement of two or more years; it also found termination was in the child’s best interest.
Caseworker testified the child (nearly 4 at trial) has developmental delays, speech therapy needs, a learning disorder, and ADHD; paternal aunt in California was willing to adopt but the record lacked detail about her home.
Mother testified by phone: admitted a single cocaine use, completed parenting and domestic-violence classes, attended NA and counseling while incarcerated, was near completing her GED, participated in MATCH and Supporting Books programs, and expected possible parole review sooner than a 2016 projected release.
The father relinquished and did not appeal; appellant appealed only the sufficiency of the evidence for the best-interest finding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence supported termination as in child's best interest	State: child needs permanency; aunt available to adopt	Appellant: evidence insufficient—mother completed services in jail, maintained contact, near GED, and no proof aunt/home suitable	Reversed as to mother: insufficient clear-and-convincing evidence of best interest; termination of mother’s rights vacated
Whether court may rely on caseworker testimony and statutory grounds to prove best interest	State: statutory grounds and caseworker testimony support best interest	Appellant: caseworker testimony was conclusory; statutory grounds do not relieve burden to prove best interest	Court: statutory grounds may be probative but do not relieve burden; here evidence was inadequate
Whether appointment of DFPS as managing conservator was challenged	N/A: not raised by appellant on appeal	DFPS: conservatorship under §153.131 was separately established by trial court findings	Conservatorship appointment under §153.131 affirmed because appellant did not specifically challenge it on appeal
Scope of review limited to evidence admitted at hearing	State sought judicial notice of files; trial court did not rule	Appellant relied on trial record evidence; court noted limits on taking judicial notice of truth of record allegations	Court reviewed only admitted evidence and noted court cannot judicially notice truth of allegations in its files

In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (standard for clear-and-convincing review in parental-rights termination)
In re R.R., 209 S.W.3d 112 (Tex. 2006) (strong presumption that keeping child with parent is in child's best interest)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors for best-interest analysis)
In re C.H., 89 S.W.3d 17 (Tex. 2002) (same evidence may support statutory grounds and best interest but burden remains on State)
In re E.D., 419 S.W.3d 615 (Tex. App.—San Antonio 2013) (use of circumstantial evidence and review standards in best-interest analysis)
In re A.H., 414 S.W.3d 802 (Tex. App.—San Antonio 2013) (conclusory caseworker testimony insufficient to support best-interest finding)
In re J.A.J., 243 S.W.3d 611 (Tex. 2007) (when §153.131 findings are made, conservatorship appointment must be separately challenged on appeal)
In re J.E.H., 384 S.W.3d 864 (Tex. App.—San Antonio 2012) (limits on judicial notice of facts in court records)
In re D.N.C., 252 S.W.3d 317 (Tex. 2008) (conservatorship appointment under §161.207 is subsumed in termination appeal unless §153.131 used)