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In re A.F.C.

Court of Appeals of Texas, Fourth District, San Antonio

July 26, 2017

IN THE INTEREST OF A.F.C., I.C.C., and A.R.H. Jr., Children

         From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2015PA01986 Honorable Charles E. Montemayor, Judge Presiding

          Marialyn Barnard, Rebeca C. Martinez, Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Marialyn Barnard, Justice.

         This is an appeal from the trial court's order terminating appellant mother's ("Mother") rights to her children, A.F.C., I.C.C., and A.R.H. Jr. On appeal, Mother contends the evidence is legally and factually insufficient to support the trial court's finding that termination is in the children's best interests. We affirm the trial court's termination order.

         Background

         The record shows the Texas Department of Family and Protective Services ("the Department") first became involved with Mother based on a referral alleging mental health concerns, domestic violence, and drug use. After Family Based Services proved unsuccessful, the Department filed its petition for termination of Mother's parental rights in the event reunification proved impossible. The Department removed the children from Mother's care. Upon removal, the Department placed the two girls, A.F.C. and I.C.C., in foster care, and placed A.R.H. Jr., a half-brother to the girls, with his paternal grandmother. At the time the petition was filed, A.F.C. and I.C.C. were six and five years old, respectively; A.R.H. Jr. was one.[1]

         The Department created a service plan for Mother which required, among other things, that she attend counseling, parenting courses, and an outpatient drug program. The trial court ordered Mother to comply with each requirement set out in the plan. Mother did not complete the requirements of her service plan. Despite the service plan requirements, Mother tested positive for methamphetamines on at least three occasions, and was discharged from a drug treatment program for noncompliance. Twice during this case, Mother was accused of assaulting her own mother, with whom she was living. She was twice incarcerated for the assaults and for a violation of probation.

         Throughout the case, the trial court held the statutorily-required status and permanency hearings. Ultimately, the matter moved to a final hearing, during which the Department sought to terminate Mother's parental rights.[2] After considering the evidence, the trial court terminated Mother's parental rights, finding she: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her children; and (4) used a controlled substance in a manner that endangered the health or safety of the children and either failed to complete a court-ordered substance abuse treatment program or after completing a court-ordered substance abuse treatment program, continued to abuse a controlled substance. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016). Additionally, the trial court found termination of Mother's parental rights was in the best interests of the children. See id. § 161.001(b)(2). Thereafter, Mother perfected this appeal.

         Analysis

         On appeal, Mother does not contest the trial court's findings under sections 161.001(b)(1) of the Texas Family Code ("the Code"). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P). Rather, she contends only that the evidence is legally and factually insufficient to support the trial court's finding that termination was in the children's best interests. See id. § 161.001(b)(2).

         Standard of Review

         A court may terminate a parent's rights to her children only if the court finds by clear and convincing evidence the parent violated a provision of section 161.001(1) and termination is in the best interests of the children. Id. § 161.001(1), (2). The Code defines "clear and convincing evidence" 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." Id. § 101.007. Courts require this heightened standard of review because the termination of parental rights results in permanent and unalterable changes for both parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Thus, when reviewing a termination order, 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. J.F.C., 96 S.W.3d at 267; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

         In addressing a legal sufficiency challenge in parental termination cases, the court views the evidence in the light most favorable to the trial court's findings and judgment, and any disputed facts are resolved in favor of the trial court's findings if a reasonable fact finder could have so resolved them. J.F.C., 96 S.W.3d at 267. The court must 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.

         In addressing the factual sufficiency challenge, we give due deference to the trier of fact's findings, avoiding substituting our own judgment for that of the fact finder. C.H., 89 S.W.3d at 27. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that fact finder could not reasonably have formed a firm belief or conviction[in the truth of the finding], then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266.

         In conducting a sufficiency review, we may not weigh a witness's credibility because it depends on appearance and demeanor, and these are within the domain of the trier of fact. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Even when such issues are found in the appellate record, we must defer to the fact finder's reasonable resolutions. Id.

         Applicabl ...


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