Court of Appeals of Texas, Fourth District, San Antonio
the 150th Judicial District Court, Bexar County, Texas Trial
Court No. 2014PA00345 Honorable Charles E. Montemayor, Judge
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard,
Justice Luz Elena D. Chapa, Justice
Marialyn Barnard, Justice
an accelerated appeal from a trial court's order
terminating appellant father's ("Father")
parental rights to his child, A.R.R. On appeal, Father argues
the evidence is legally and factually insufficient to support
the trial court's finding that termination of his
parental rights was in his child's best interest. We
affirm the trial court's order.
Texas Department of Family and Protective Services ("the
Department") became involved in the underlying matter
after A.R.R.'s mother drove into a concrete barrier,
severely injuring herself and her seven-year-old daughter,
J.S., who was riding in the front passenger seat. The police
determined that A.R.R.'s mother was driving while
intoxicated with a blood alcohol content three times the
legal limit. As a result of the accident, J.S. suffered deep
lacerations to her abdomen, and her arm was almost completely
severed; she currently has minimal use of her arm. At the
hospital, the mother discovered she was two months pregnant
with A.R.R. At that time, the mother had two children - one
of which was J.S. Both of these children are not Father's
children and are not the subject of this appeal.
A.R.R. was born, the Department created a service plan to
assist A.R.R.'s mother with her parenting abilities.
However, after she repeatedly failed to comply with the
service plan and continued to use alcohol, the trial court
initiated termination proceedings against the mother with
regard to her two children. When A.R.R. was born, the
Department amended its pleadings, adding A.R.R. to the
termination proceedings. At the first hearing, the trial
court rendered an order designating the Department as
temporary managing conservator of all the children, including
A.R.R., and designated Father as possessory conservator of
A.R.R. A.R.R.'s half-siblings were voluntarily placed
with relatives, and A.R.R. was placed in foster care. At four
months old, A.R.R. was placed with a foster family, where he
months that followed, the required statutory hearings were
conducted, and Father's instability and lack of support
system were noted. In its last
report, the Department recommended Father's parental
rights should be terminated, citing Father's inability to
hold consistent employment, establish a safe environment, and
maintain a support system for A.R.R. At the final hearing,
Father failed to appear due to work obligations, and the
trial court heard testimony from the Department caseworker.
The trial court ultimately found Father constructively
abandoned A.R.R. and failed to comply with the provisions of
a court order that set out actions necessary for him to
reunite with A.R.R., thereby violating sections
161.001(b)(1)(N) and (O) of the Texas
Code ("the Code"). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(N), (O) (West Supp. 2016). In addition,
the trial court found termination of Father's parental
rights was in the best interest of A.R.R. See id.
§ 161.001(b)(2). The trial court then rendered an order
terminating Father's parental rights. Thereafter, Father
perfected this appeal.
appeal, Father does not challenge the evidence with regard to
the trial court's findings under section 161.001(b)(1) of
the Texas Family Code ("the Code"). See
id. § 161.001(b)(1)(N), (O). Rather, Father
contends the evidence is legally and factually insufficient
to support the trial court's finding that termination was
in A.R.R.'s best interest. See id. §
the Code, the termination of parental rights requires the
application of a two pronged test under which there must be
clear and convincing evidence (1) the parent committed an act
prohibited by section 161.001(b)(1) of the Code and (2)
termination is in the best interest of the child.
Id. § 161.001(b)(1), (2); In re
J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re
B.R., 456 S.W.3d 612, 615 (Tex. App.-San Antonio 2015,
no pet.). "Clear and convincing evidence" is
defined as "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); see J.O.A.,
283 S.W.3d at 344; B.R., 456 S.W.3d at 615. Because
termination of parental rights implicates due process as it
results in permanent and unalterable changes for both parent
and child, courts use this heightened standard of review.
In re E.A.G., 373 S.W.3d 129, 140 (Tex. App.-San
Antonio 2012, pet. denied). Thus, we must determine whether
the evidence is such that a fact finder could reasonably form
a firm belief or conviction that termination was in the
child's best interest. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)).
considering a legal sufficiency challenge in termination
cases, we view the evidence in the light most favorable to
the trial court's findings and judgment, and resolve any
disputed facts in favor of that court's findings if a
reasonable fact finder could have so resolved them.
Id. We also disregard all evidence that a reasonable
fact finder could have disbelieved, and consider undisputed
evidence, even if such evidence is contrary to the trial
court's findings. Id. In other words, we
consider evidence favorable to termination if a reasonable
fact finder could, and we disregard contrary evidence unless
a reasonable fact finder could not. Id.
regard to a factual sufficiency review, we give due deference
to the trier of fact's findings, avoiding substituting
our judgment for the fact finder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006). "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 [in ...