Court of Appeals of Texas, Twelfth District, Tyler
IN THE INTEREST OF A.B AND A.A.D., CHILDREN IN THE INTEREST OF A.D.B., A CHILD
FROM THE 145TH JUDICIAL DISTRICT COURT NACOGDOCHES COUNTY,
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
appeals the termination of his parental rights. In three
issues, he challenges the legal and factual sufficiency of
the evidence to support the trial court's termination
order. We affirm.
the father of A.B. and A.D.B. On December 15, 2014, the
Department of Family and Protective Services (the Department)
filed an original petition for protection of A.B. for
conservatorship, and for termination of R.B.'s parental
rights. On June 1, 2015, under a separate case
number, the Department filed an original petition for
protection of A.D.B. for conservatorship, and for termination
of R.B.'s parental rights. The Department was appointed
temporary managing conservator of the children, and R.B. was
appointed temporary possessory conservator with limited
rights and duties to the children.
cases were tried together. At the conclusion of the trial on
the merits, the trial court found, by clear and convincing
evidence, that R.B. had engaged in one or more of the acts or
omissions necessary to support termination of his parental
rights under subsections (D) and (E) of Texas Family Code
Section 161.001(b)(1). The trial court also found that
termination of the parent-child relationship between R.B.,
A.B., and A.D.B. was in the children's best interest.
Based on these findings, the trial court ordered that the
parent-child relationship between R.B., A.B., and A.D.B. be
terminated. The trial court also filed findings of fact and
conclusions of law. This appeal followed.
of Parental Rights
termination of parental rights embodies fundamental
constitutional rights. Vela v. Marywood, 17 S.W.3d
750, 759 (Tex. App.-Austin 2000), pet. denied per
curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J.,
911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied).
Because a termination action "permanently sunders"
the bonds between a parent and child, the proceedings must be
strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d
349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174,
179 (Tex. App.-El Paso 1998, no pet.).
161.001 of the family code permits a court to order
termination of parental rights if two elements are
established. Tex. Fam. Code Ann. § 161.001 (West Supp.
2016); In re J.M.T., 39 S.W.3d 234, 237 (Tex.
App.-Waco 1999, no pet.). First, the parent must have engaged
in any one of the acts or omissions itemized in the second
subsection of the statute. Tex. Fam. Code Ann. §
161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep't
of Protective & Regulatory Servs., 25 S.W.3d 213,
219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T.,
39 S.W.3d at 237. Second, termination must be in the best
interest of the child. Tex. Fam. Code Ann. §
161.001(b)(2) (West Supp. 2016); In re J.M.T., 39
S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not
alleviate the petitioner's burden of proving the other.
Tex. Fam. Code Ann. § 161.001; Wiley, 543
S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.
clear and convincing standard for termination of parental
rights is both constitutionally and statutorily mandated.
Tex. Fam. Code Ann. § 161.001; In re J.J., 911
S.W.2d at 439. 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." Tex. Fam.
Code Ann. § 101.007 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights.
In re J.M.T., 39 S.W.3d at 240.
confronted with both a legal and factual sufficiency
challenge, an appellate court must first review the legal
sufficiency of the evidence. Glover v. Tex. Gen. Indem.
Co., 619 S.W.2d 400, 401 (Tex. 1981); In re
M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must 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 findings
were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We must assume that the fact finder settled disputed
facts in favor of its finding if a reasonable fact finder
could do so and disregard all evidence that a reasonable fact
finder could have disbelieved or found incredible.
appropriate standard for reviewing a factual sufficiency
challenge to the termination findings is whether the evidence
is such that a fact finder could reasonably form a firm
belief or conviction about the truth of the petitioner's
allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this
standard, an appellate court considers all the evidence in
the record, both that in support of and contrary to the trial
court's findings. Id. at 27-29. Further, an
appellate court should consider whether disputed evidence is
such that a reasonable fact finder could not have reconciled
that disputed evidence in favor of its finding. In re
J.F.C., 96 S.W.3d at 266. The trier of fact is the
exclusive judge of the credibility of the witnesses and the
weight to be given their testimony. Nordstrom v.
Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st
Dist.] 1997, pet. denied).
appeal from a bench trial, the trial court's findings of
fact have the same weight as a jury verdict. Fulgham v.
Fischer, 349 S.W.3d 153, 157 (Tex. App.-Dallas 2011, no
pet.). Findings may be overturned only if they are so against
the great weight and preponderance of the evidence as to be
clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d
770, 772 (Tex. 1996). When the appellate record contains a
reporter's record as it does in this case, findings of
fact are not conclusive and are binding only if supported by
the evidence. Fulgham, 349 S.W.3d at 157. We review
a trial court's conclusions of law de novo. Quick v.
Plastic Sol. of Tex., Inc., 270 S.W.3d 173, 181 (Tex.
App.-El Paso 2008, no pet.). Erroneous conclusions of law are
not binding on the appellate court, but if the controlling
findings of fact will support a correct legal theory, are
supported by the evidence, and are sufficient to support the
judgment, the adoption of erroneous legal conclusions will
not mandate reversal. Id.
under Section 16.001(b)(1)(D) & (E)
first and second issues, R.B. contends the evidence is
legally and factually insufficient to terminate his parental
rights pursuant to subsections (D) and (E) of Texas Family
Code section 161.001(b)(1). We will review these two issues
together because both subsections share common facts and
matters of law.
court may order termination of the parent-child relationship
if the court finds by clear and convincing evidence that the
parent has knowingly placed or knowingly allowed the child to
remain in conditions or surroundings that endanger the
physical or emotional well-being of the child. Tex. Fam. Code
Ann. § 161.001(b)(1)(D) (West Supp. 2016). The court may
also order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has
engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangers the physical
or emotional well being of the child. Id. §
161.001(b)(1)(E) (West Supp. 2016). Both subsections (D) and
(E) of Section 161.001(b)(1) use the term "endanger,