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In re A.R.R.

Court of Appeals of Texas, Fourth District, San Antonio

June 28, 2017

IN THE INTEREST OF A.R.R., a Child

          From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2014PA00345 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          Marialyn Barnard, Justice

         This is 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.

         Background

         The 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.

         Before 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 currently remains.

         In the months that followed, the required statutory hearings were conducted, and Father's instability and lack of support system were noted.[1] 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

          Family 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.

         Analysis

         On 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. § 161.001(b)(2).

         Standard of Review

         Under 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)).

          In 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.

         With 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 ...


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