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In re A.O.

Court of Appeals of Texas, Seventh District, Amarillo

March 3, 2017

IN THE INTEREST OF A.O., A CHILD

         On Appeal from the 320th District Court Potter County, Texas, Trial Court No. 86, 941-D, Honorable Carry Baker, Presiding.

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL JUSTICE.

         L.G., the father of A.O., [1] appeals from a final order terminating his parental rights to A.O. Through two issues, L.G. challenges the sufficiency of the evidence supporting termination. We will affirm the order of the trial court.

         Background

         A.O., a female child, was born in December 2014. In April 2015, A.O. was removed from the care of the man the Texas Department of Family and Protective Services believed to be her biological father[2] and his wife. A.O. was removed after an allegation of neglectful supervision of the child by the alleged father and an allegation, later confirmed by a drug screen, that his wife was using methamphetamine while caring for the child.[3] At that time, both A.O.'s mother and L.G., A.O.'s biological father, were incarcerated. The Department filed several pleadings, including an order for protection of a child in an emergency and an original petition for protection of a child. It later filed an amended petition seeking conservatorship and, in the alternative, termination of the parent-child relationship of A.O.'s mother and L.G to A.O. The Department alleged termination of L.G.'s parental rights to A.O. was proper under several grounds but, at the final hearing, proceeded only on the ground set forth in section 161.001(b)(1)(Q). See Tex. Fam. Code Ann. § 161.001(b)(1)(Q) (West 2016).

         At the final hearing held in the summer of 2016, L.G. appeared only through counsel.[4] At that time, A.O. had lived with her foster parents since her April 2015 removal. During the final hearing, a Department caseworker testified that in January 2016, she learned from A.O.'s mother that L.G. might be the father of A.O. The caseworker testified she notified L.G. who then had a release date of sometime in 2018. Paternity testing later showed L.G. to be the father of A.O. At the final hearing, the Department introduced, among its other evidence, proof of L.G.'s prior convictions and elicited testimony from the caseworker that those offenses were "assaultive in nature."

         After hearing the evidence presented, the trial court concluded clear and convincing evidence existed to support the termination of L.G.'s parental rights to A.O. under section 161.001(b)(1)(Q) and found by the same standard termination was in A.O.'s best interest. On appeal, appellant challenges both of the trial court's findings.

         Analysis

         The Constitution protects "[t]he fundamental liberty interest of natural parents in the care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. In re E. N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof which 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 2014); In re C.H., 89 S.W.3d at 25-26.

         The Texas Family Code permits a trial court to terminate parental rights if the Department proves by clear and convincing evidence that the parent committed an action prohibited under section 161.001(b)(1) and termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.-Amarillo 2005, no pet.). Thus, a termination order may be affirmed if it is supported by legally and factually sufficient evidence of any statutory ground on which the trial court relied for termination, and the best interest finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.-San Antonio 2012, pet. denied).

         Under the legal sufficiency analysis, we examine all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. However, we take into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, we must defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         Evaluation of the factual sufficiency of evidence supporting termination of parental rights requires "an exacting review of the entire record." In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual sufficiency review, we must give due consideration to the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. 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. Id. In doing so we consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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. In re J.F.C., 96 S.W.3d at 266.

         There is a strong 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). But prompt and permanent placement of a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The best interest analysis evaluates the best interest of the child, not that of the parent. In the Interest of A.C.B.,198 S.W.3d 294, 298 (Tex. App.-Amarillo 2006, no pet.). The following factors are among those the court may consider in determining the best interest of a child: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interests of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) ...


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