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In re S.R.M.

Court of Appeals of Texas, Fourth District, San Antonio

August 2, 2017

IN THE INTEREST OF S.R.M., a Child

         From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2015PA01289 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice

         J.M. appeals the trial court's order terminating his parental rights to S.R.M., contending the evidence is legally and factually insufficient to support the termination of the parent-child relationship pursuant to section 161.001(b)(2) of the Texas Family Code. We affirm the trial court's order.

         Background

         S.R.M. tested positive for heroin at her birth in March 2015. At the time, J.M. and S.R.M.'s mother were living in a motel and had no permanent residence. On June 22, 2015, the Texas Department of Family and Protective Services filed an "Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship and Order Setting Hearing." S.R.M. was initially placed in a foster home and then moved to live with a relative.

         The Department prepared a family service plan for J.M. and filed it with the court. The service plan provided for J.M.'s visitation with S.R.M. three times a month so long as the conditions of the family service plan were met. The service plan required J.M. to periodically submit to a urinalysis for drug testing, but he failed to report. At the beginning of the case, J.M. tested positive for cocaine, methamphetamines, and amphetamines.

         J.M. has a lengthy criminal history, including arrests for burglary of a habitation, evading arrest, felony possession of a firearm, assault causing bodily injury, theft of property, possession of a controlled substance, fraud, evading detention, and failure to identify as a fugitive. At the time of trial on November 9, 2016, J.M. was in jail for theft and had been confined since June 2016. While there is nothing in the record clearly stating whether he had been in jail prior to June 2016, there is testimony that J.M. was in jail, out on bond, and then arrested again in June 2016. At the time of trial, J.M. was awaiting his criminal trial set for December 5, 2016, at which time J.M. believed he would be released. J.M. testified that upon his release he would be able to provide S.R.M. with a place to live and obtain the finances to support her because he could live with his mother and would have a job waiting for him.

         J.M. stopped financially providing for S.R.M. once she was placed with a foster family, stating he was not aware he needed to pay anything to support his child. J.M. testified that he could not complete the services stated in the family service plan because he was in jail. The Department caseworker testified that J.M. could have completed the services in a few months' time, before he went to jail, or while he was serving his time in jail.

         At the conclusion of the bench trial, the trial court found that J.M.'s parental rights to S.R.M. should be terminated pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (N), (O), and (P), and that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (N), (O), (P); id. at § 161.001(b)(2) (West Supp. 2016).

         Standard of Review

         A trial court may terminate an individual's parental rights, severing the parent-child relationship, only upon a showing, by clear and convincing evidence, that one or more statutory grounds for termination exists, and the termination is in the best interest of the child. Id. at § 161.001(b)(1), (2) (West Supp. 2016); In re J.F.C., 96 S.W.3d 256, 263 (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 (West 2014). This heightened standard stems from the permanency and unalterable changes that termination of a parent-child relationship causes both the parent and child. In re D.M., 452 S.W.3d 462, 469 (Tex. App.-San Antonio 2014, no pet.). The natural rights between a parent and their child is of constitutional dimension and the termination of this right is "complete, final, and irrevocable." In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). Consequently, termination proceedings are strictly scrutinized and "involuntary termination statutes are strictly construed in favor of the parent." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

         When reviewing a legal insufficiency claim, a court looks 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.F.C., 96 S.W.3d at 266. To give appropriate deference, "a reviewing court must assume that the factfinder resolved disputed facts in favor of its findings if a reasonable factfinder could do so." Id. Further, a reviewing court should disregard "all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. As such, a reviewing court considers "evidence favorable to termination if a reasonable factfinder could, " and disregards "contrary evidence unless a reasonable factfinder could not." In re D.M., 452 S.W.3d at 469. Evidence is legally insufficient if the reviewing court determines "no reasonable factfinder could form a belief or conviction that the matter that must be proven is true." In re J.F.C., 96 S.W.3d at 266.

         When reviewing a factual insufficiency claim, a court gives deference to the factfinder's findings. In re D.M., 452 S.W.3d at 469. Meaning, we give "due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266. The reviewing court considers and weighs all the evidence, only setting aside the judgment "if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust." Trevino v. Dep't of Protective & Regulatory Servs., 893 S.W.2d 243, 251 (Tex. App.-Austin 1995, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). "[T]he reviewing court must ...


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