Court of Appeals of Texas, Fourth District, San Antonio
the 225th Judicial District Court, Bexar County, Texas Trial
Court No. 2015PA01289 Honorable Charles E. Montemayor, Judge
Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice.
C. Martinez, Justice
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
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.
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,
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.
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.
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).
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).
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.
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 ...