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In re K.C.

Court of Appeals of Texas, Tenth District

May 3, 2017

IN THE INTEREST OF K.C., A CHILD

         From the 66th District Court Hill County, Texas Trial Court No. 52259

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          MEMORANDUM OPINION

          REX D. DAVIS Justice.

         The trial court signed an order terminating the parental rights of B.W., the father of eight-year-old K.C., after a bench trial.[1] The trial court found that B.W. had violated Family Code subsections 161.001(b)(1)(E), (N), (O), and (Q) and that termination was in the child's best interest. In his sole issue, B.W. contends that the evidence is legally and factually insufficient to establish that terminating his parental rights was in the child's best interest. We will affirm.

         In a proceeding to terminate the parent-child relationship brought under section 161.001, the Department must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (b)(1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2016); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.-Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. "Clear and convincing evidence" is defined as "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." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).

         Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).

In a legal sufficiency review, a court should 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 finding was true. 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. 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.

J.F.C., 96 S.W.3d at 266.

         In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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.

Id. (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.

         The following evidence was presented at trial. B.W. was charged by indictment of the second-degree-felony offense of burglary of a habitation. The offense occurred on May 21, 2013. The indictment further charged B.W. as a habitual offender. The jury found B.W. guilty and assessed his punishment at life imprisonment. B.W.'s sentence was imposed on May 1, 2014. The trial court admitted into evidence a certified copy of the judgment of conviction. The trial court also admitted into evidence a certified copy of this Court's memorandum opinion, issued on October 29, 2015, affirming the judgment of conviction.

         Department of Family and Protective Services conservatorship worker Camie Staas testified that in November 2014, the Department received a referral, alleging that the children were being neglectfully supervised by their mother. The referral alleged that F.C. was arrested for criminal trespassing. She had taken the children to a vacant home with no electricity and was in the bathroom smoking marijuana with another person. One of the twins was found crying nonstop, he had a cough, and his diaper appeared that it needed to be changed.

         Staas stated that she spoke with F.C. in December 2014. According to Staas, F.C. stated that

she was on probation for a falsified report to a police officer and that she was there cleaning the residence and that the landlord shut the electricity off on her, telling her she had to leave within 15 minutes and that she did know that the gentleman . . . ...

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