Court of Appeals of Texas, Fourth District, San Antonio
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2016PA00172 Honorable Charles E. Montemayor, Judge
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Patricia O. Alvarez, Justice.
an accelerated appeal of the trial court's order
terminating Appellant C.S.'s parental rights to his
child, I.G. C.S. contends the evidence
does not support the trial court's termination based on
Texas Family Code subsections 161.001(1)(b)(D), (E), (N) and
(P). Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N),
(P) (West Supp. 2016). C.S. also contends the evidence is
neither legally nor factually sufficient for the trial court
to have found, by clear and convincing evidence, that
terminating his parental rights is in I.G.'s best
interest. See Tex. Fam. Code Ann. §
161.001(b)(2). Because we conclude the evidence is legally
and factually sufficient to support the trial court's
findings on both issues, we affirm the trial court's
order terminating C.S.'s parental rights.
and Procedural Background
was born on January 13, 2016. Based primarily on his
mother's incarceration, I.G. was placed with fictive kin
in Houston, Texas.
January 26, 2016, the Texas Department of Family and
Protective Services filed its Original Petition for
Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship.
several status hearings, on November 3, 2016, the matter was
called for trial. Following a hearing, the trial court
terminated I.G.'s mother's parental rights on several
grounds; she subsequently filed a voluntarily relinquishment
of her parental rights. The trial court also terminated
C.S.'s parental rights pursuant to Texas Family Code
Sections 161.001(b)(1) (D), (E), (N), and (P). See
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N),
(P). The trial court further found
termination of C.S.'s parental rights was in I.G.'s
best interest. This appeal ensued.
of the Evidence
Standards of Review
termination of parental rights involves fundamental
constitutional rights and divests the parent and child of all
legal rights, privileges, duties, and powers normally
existing between them, except for the child's right to
inherit from the parent." In re L.J.N., 329
S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.)
(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985)). As a result, appellate courts must strictly
scrutinize involuntary termination proceedings in favor of
the parent. Id. (citing In re D.S.P., 210
S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).
order terminating parental rights must be supported by clear
and convincing evidence that (1) the parent has committed one
of the grounds for involuntary termination as listed in
section 161.001(b)(1) of the Family Code, and (2) terminating
the parent's rights is in the best interest of the child.
See Tex. Fam. Code Ann. § 161.001; In re
J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). "'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; J.F.C., 96 S.W.3d at 264.
is a strong presumption that the best interest of the child
is served by keeping the child with its natural parent, and
the burden is on [the Department] to rebut that
presumption." In re D.R.A., 374 S.W.3d 528, 533
(Tex. App.-Houston [14th Dist.] 2012, no pet.). "The
same evidence of acts or omissions used to establish grounds
for termination under section 161.001[(b)](1) may be
probative in determining the best interest of the
clear and convincing evidence standard applies, a legal
sufficiency review requires a court to "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." In re J.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting J.F.C., 96 S.W.3d at 266). If the
court "determines that [a] reasonable factfinder could
form a firm belief or conviction that the matter that must be
proven is true, then that court must conclude that the
evidence is legally [sufficient]." See id.
(quoting J.F.C., 96 S.W.3d at 266). "[A]
reviewing court must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable
factfinder could do so." J.F.C., 96 S.W.3d at
266. "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
clear and convincing standard, evidence is factually
sufficient if "a factfinder could reasonably form a firm
belief or conviction about the truth of the State's
allegations." In re C.H., 89 S.W.3d 17, 25
(Tex. 2002); accord In re K.R.M., 147 S.W.3d 628,
630 (Tex. App.-San Antonio 2004, no pet.). We must consider
"whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in
favor of its finding." J.F.C., 96 S.W.3d at
266; accord C.H., 89 S.W.3d at 25. "If, in
light of the entire record, [unless] 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, . . . the
evidence is factually [sufficient]." J.F.C., 96
S.W.3d at 266.
Testimony Before the Trial Court
Taylor, the Department's caseworker, testified I.G. was
born on January 13, 2016. At the time of his birth,
I.G.'s mother was incarcerated and admitted pre-natal
drug use. The Department removed I.G. and he was placed with
fictive kin in Houston, Texas. After her release, I.G.'s
mother was unable to provide stable housing and failed to
comply with the Department's service plan. I.G. has
remained in the same placement since his release from the
hospital. The Department recommended termination of the
mother's parental rights, and during the hearing, the
mother represented that she would voluntarily relinquish her
I.G.'s father was not incarcerated at the time of his
birth, Taylor testified that she had a difficult time making
contact with him. She attempted to work with C.S., toward
completion of his service plan, for approximately four months
prior to his current incarceration. During that time, C.S.
was on bond for theft and possession of a firearm. Once the
DNA tests confirmed that C.S. was I.G.'s father, C.S.
complied with the Department's request that he complete a
drug assessment. C.S.'s drug test on March 30, 2016 was
positive for methamphetamines, amphetamines, and cocaine; his
second test in May of 2016 was positive for methamphetamines.
C.S.'s drug assessment recommended inpatient treatment.
However, before C.S. could be placed for such treatment, he
was arrested on June 27, 2016, and has remained incarcerated
since that time.
further testified there was a four-month timeframe in which
C.S. could participate in the Department's services, but
he chose not to. Although offered by the Department, C.S.
failed to complete the service plan's requirements for
therapy, psychological evaluation, and to provide proof of
stable housing and employment. During cross-examination,
Taylor acknowledged that C.S. completed his parenting class,
an anger management class, and attended Narcotics Anonymous
meetings while incarcerated.
further testified that termination of C.S.'s parental
rights was in I.G.'s best interest. C.S. was incarcerated
and could not currently provide for I.G.'s well-being.
C.S. had not provided any proof, that upon his release, he
would be able to provide stable housing or financially
support I.G. Finally, Taylor opined that I.G. was in a stable
placement, with loving foster parents who hoped to adopt I.G.
was incarcerated in the Texas Department of Criminal Justice
State Jail Facility- Dominguez Unit at the time of the
hearing and testified via telephone. C.S. testified that he
was released from custody in February of 2016 and then
rearrested in June of 2016. He was originally notified of
I.G.'s birth at the beginning of February, prior to his
release from Bexar County Jail. After DNA testing confirmed
that I.G. was his child, C.S. contacted the Department and he
participated in the drug assessment. C.S. explained that his
attorney instructed him that he would have to finalize the
pending charges before he could begin the inpatient
treatment. During his incarceration, C.S. asserted that he
participated in a number of classes: two parenting classes,
Narcotics Anonymous, Christians Against Substance Abuse,
Daily Choices, and Inter-peace.
explained that he originally did not believe I.G. was his
child. When contacted by the Department, however, he complied
with the requested DNA test. He does not feel like he has
been given a chance to play a part in I.G.'s life. C.S.
testified that I.G. was his first child, that he had taken
classes and learned that "this has had an impact on my
son's life, but through these classes I've learned
the tools of how to fix that." He explained that he
"just want[ed] to be a part of [his] son's
life." He testified he was granted an FI-2 parole and
was scheduled to be released on January 3, 2017. C.S. averred
he had a job waiting for him at Toyota and was willing to pay
child support upon his release.
cross-examination, the Department inquired further about the
drug tests. C.S. acknowledged that when he tested positive
for methamphetamines, amphetamines, and cocaine, he was using
drugs while on bond for his current criminal case. C.S. also