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E.H. v. Texas Department of Family And Protective Services

Court of Appeals of Texas, Third District, Austin

January 31, 2014

E.H., Appellant
v.
Texas Department of Family and Protective Services, Appellee

FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY NO. 12-15167, HONORABLE BENTON ESKEW, JUDGE PRESIDING

Before Justices Puryear, Rose, and Goodwin

MEMORANDUM OPINION

Jeff Rose, Justice

A jury found by clear and convincing evidence that the parent-child relationship between E.H. and his five children should be terminated. On appeal, E.H. challenges the legal and factual sufficiency of the evidence supporting the jury's finding that termination is in the children's best interests. We will affirm the judgment.

BACKGROUND

This appeal concerns E.H.'s parental rights to five children—girls born in December 1999 and August 2002, and boys born in March 2004, October 2005, and June 2007. The children were removed from the parents in April 2012 after one of the boys told school officials that their youngest brother had been eaten by wolves. The report proved false, but apparently triggered a chain of events that led the children's mother to disappear with the children for several days. During that time, they missed school and their personal hygiene was substandard. The Department's investigation revealed reports of domestic violence and drug abuse by the parents. The children were placed with a relative so that the parents could focus on resolving their problems, which included financial and emotional stresses from losing their home and belongings in a forest fire. The parents complied with some aspects of the service plan, but repeatedly tested positive for drug use, which curtailed their visitation with the children.

There was uncontroverted testimony that the children were anxious, emotional, and verbally and physically abusive when they were taken into foster care. Their first placement requested that they be reassigned because they were hurting her physically. The boys tended to refer to women and girls with derogatory language. After three placements in five months, the children settled in with their fourth foster placement for the year prior to the trial. Four of the children reportedly thrived in this home, but the younger girl was removed to a residential treatment center for her emotional issues. The undisputed reports are that the children now are less anxious, less verbally and physically abusive, and doing much better in school.

The trial court extended the year-long period for compliance with the service plan by the maximum six months. Not long before trial, the children's mother disappeared.[1] E.H. found an intensive outpatient drug rehabilitation program that seemed to be helping him in the final weeks before trial, but he had relapsed three times after beginning treatment there including twenty-four days before his testimony at trial.

A jury found that both parents had committed several of the actions justifying termination[2] and that termination was in the children's best interests, and the trial court terminated the parental rights of both parents to these children. See Tex. Fam. Code § 161.001. The children's mother does not appeal the termination of her rights.

STANDARD OF REVIEW

The best interest of the child is assessed using a non-exhaustive list of factors. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). These factors include (1) the child's wishes, (2) his emotional and physical needs now and in the future, (3) emotional or physical danger to the child now and in the future, (4) the parenting abilities of the parties seeking custody, (5) programs available to help those parties, (6) plans for the child by the parties seeking custody, (7) the stability of the proposed placement, (8) the acts or omissions of the parent which indicate that the existing parent-child relationship is not proper, and (9) any excuses for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). There is a strong presumption that a parent should be appointed managing conservator unless that appointment is not in the child's best interest and would significantly impair the child's physical health or emotional development. See Lewelling v. Lewelling, 796 S.W.2d 164, 166-67 (Tex. 1990); Harris v. Texas Dep't of Family & Protective Servs., 228 S.W.3d 819, 821 (Tex. App.—Austin 2007, no pet.); see also Tex. Fam. Code § 153.131(a).

The Department need not prove all nine of these factors favor termination. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). While no one factor is controlling, the analysis of a single factor may be adequate in a particular situation to support a finding that termination is in the children's best interests. Spurck v. Texas Dep't of Family & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).

We review the legal sufficiency of the evidence in a termination case by considering all of the evidence in the light most favorable to the factfinder's determination and will uphold a finding if a reasonable factfinder could have formed a firm conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the jury resolved disputed facts in favor of its finding if it could reasonably do so. Id. An appellate court should disregard evidence a reasonable factfinder could have disbelieved or found incredible. Id.

When reviewing the factual sufficiency of the evidence in a parental termination case, we view all of the evidence in a neutral light and determine whether a reasonable factfinder could form a firm belief or conviction that a given finding was true. In re C.H., 89 S.W.3d at 18-19. We assume that the jury resolved disputed facts in favor of its finding if a reasonable jury could do so, and we disregard evidence that a reasonable jury could have disbelieved or found incredible. J.F.C., 96 S.W.3d at 266. Evidence is ...


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