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In re J.D.A.O.

Court of Appeals of Texas, Fourth District, San Antonio

April 12, 2017

In the Interest of J.D.A.O., D.E.O., A.R.O., and E.R.T., Children

         From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2015-PA-00648 Honorable Martha Tanner, Judge Presiding

          Sitting: Karen Angelini, Justice, Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Karen Angelini, Justice.

         This is an appeal from a judgment terminating parental rights and granting an adoption. The mother of the children, A.M.G., challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the children's best interest. Because we conclude the evidence is legally and factually sufficient to support the trial court's best interest finding, we affirm the trial court's judgment.

         Background

         On March 30, 2015, the Texas Department of Family and Protective Services filed an original petition for protection of the children, conservatorship, and termination of A.M.G.'s parental rights. The children who were the subject of the Department's petition were J.D.A.O., D.E.O., A.R.O., and E.R.T. The Department was appointed temporary managing conservator. During the pendency of this suit, the children were placed in multiple facilities and foster homes. One of these placements was with foster parents, A.E.K.S. and I.N.S.; however, the Department eventually removed the children from A.E.K.S. and I.N.S.'s home and placed them in another facility. On June 6, 2016, A.E.K.S. and I.N.S., filed a plea in intervention seeking to adopt the children.

         On September 19 and 20, 2016, the trial court held a bench trial on the petitions for termination and adoption. At the beginning of the trial, A.M.G. signed an affidavit relinquishing her parental rights. After hearing testimony from numerous witnesses, the trial court found that termination of A.M.G.'s parental rights was in the children's best interest and terminated A.M.G.'s parental rights on the ground that she had executed an unrevoked or irrevocable affidavit of relinquishment of parental rights. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (b)(2) (West Supp. 2016). The trial court also granted the adoption. A.M.G. appealed.[1]

         Applicable Law

         Termination of parental rights under section 161.001 of the Texas Family Code requires proof by clear and convincing evidence of at least one of the grounds listed in section 161.001(b)(1)(A)-(T) and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2). 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).

         In reviewing the legal sufficiency of the evidence in a parental termination case, we consider all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a strong belief or conviction that its finding was true. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. If we conclude that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude the evidence is legally insufficient. Id.

         When a parent challenges the factual sufficiency of the evidence on appeal, we look at all the evidence, including disputed or conflicting evidence. In the Interest of J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). 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 have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

         In evaluating the children's best interest, courts consider the factors articulated in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These 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 parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.

         Evidence proving acts or omissions under section 161.001(b)(1) of the Texas Family Code may be probative of the child's best interest. In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002). A best-interest analysis may consider direct and circumstantial evidence, subjective factors, and the totality of the evidence. In the Interest of E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied).

         There is a strong presumption that a child's best interest is served by keeping the child with a parent. In the Interest of R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, the 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 Supp. 2016). Section 263.307(b) lists factors courts consider in determining if a parent is willing and able to provide a child with a safe environment. These factors include: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of harm to the child has been identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id. § 263.307(b).

         In a series of cases, we have held that the Department is not relieved of its burden to prove best interest merely because a parent has executed a voluntary and irrevocable affidavit of relinquishment of parental rights. In the Interest of M.M., No. 04-16-00632-CV, 2017 WL 188097, at*2 (Tex. App.-San Antonio Jan. 18, 2017, pet. filed); In the Interest of K.S.L., 499 S.W.3d 109, 113 (Tex. App.-San Antonio 2016, pet. filed), and In the Interest of A.H., 414 S.W.3d 802, 806-07 (Tex. App.-San Antonio 2013, no pet.).

         In A.H., we held the evidence was legally insufficient to support the trial court's best interest finding when the only evidence of best interest was the conclusory testimony of a caseworker and the parent's affidavit of voluntary relinquishment of parental rights. A.H., 414 S.W.3d 806-07. We recognized that a parent's relinquishment affidavit is relevant to the best interest inquiry, but it is not ipso facto evidence that termination is in the child's best interest. Id. at 806. "To hold otherwise would subsume the requirement of proving best interest by clear and convincing evidence into the requirement of proving an act or omission listed in section 161.001 by clear and convincing evidence." Id.

         In K.S.L., no evidence was presented concerning the section 263.307 factors, the Holley factors, or other considerations relevant to the child's best interest. 499 S.W.3d at 112. Instead, the Department relied on the parents' affidavits of relinquishment of parental rights to support the trial court's best interest finding. Id. We held that the Department was not relieved of its burden to prove best interest merely because a parent has executed a voluntary and irrevocable affidavit of relinquishment of parental rights. Id. at 113. We reversed and rendered judgment denying the Department's petition for termination of parental rights. Id. at 114.

         Finally, in M.M., the only evidence of best interest was the testimony of a caseworker and the parent's affidavit of voluntary relinquishment of parental rights. 2017 WL 188097, at *2. There, the caseworker testified that the child was removed from the parent's care because of a neglectful supervision report, and that since her removal the child had been living in a safe environment and was doing well; that services were made available to the parent to assist her in maintaining her parental rights, but the parent was not able to comply with and complete those services; and that the Department was asking the court to terminate parental rights on the sole ground that the parent had relinquished her parental rights. Id. We concluded that, based on the paucity of evidence concerning the child's best interest, no reasonable trier of fact could have formed a strong belief or conviction that the trial court's best interest finding was true and, therefore, the evidence was legally insufficient to support the trial court's best interest finding. Id.

         Arguments Presented

         Here, A.M.G. argues that the evidence is legally and factually insufficient to support the trial court's best interest finding. A.M.G. asserts that the only testimony that had any bearing on best interest of the children with respect to the termination of her parental rights was her own testimony and the testimony of a caseworker, which she contends was merely conclusory and cannot support the trial court's best interest finding. A.M.G. suggests her case is similar to the situation presented in A.H., where the only evidence of best interest was the conclusory testimony of a caseworker and the parent's affidavit of voluntary relinquishment of parental rights.

         On the other hand, the Department argues that the relinquishment affidavit coupled with the other evidence presented in this case was legally and factually sufficient to support the trial court's best interest finding.[2] Similarly, the foster parents who intervened, A.E.K.S. and I.N.S., argue the evidence was legally and factually sufficient to support the trial court's finding.

         The ...


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