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In re P.B.

Court of Appeals of Texas, Tenth District

August 30, 2017

IN THE INTEREST OF P.B., A CHILD

         From the 74th District Court McLennan County, Texas Trial Court No. 2015-331-3

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          MEMORANDUM OPINION

          REX D. DAVIS Justice

         The trial court signed an order terminating the parental rights of M.B., the father of P.B., after a bench trial.[1] The trial court found that M.B. had violated Family Code subsections 161.001(b)(1)(D), (E), (N), and (O) and that termination was in the child's best interest. In his sole issue, M.B. contends that the evidence is factually insufficient to establish that terminating his parental rights was in the child's best interest. We will affirm.

         In a proceeding to terminate the parent-child relationship brought under section 161.001, the Department of Family and Protective Services must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (b)(1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2016); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.-Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. "Clear and convincing evidence" is defined as "that measure or degree of proof which 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." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).

         A factual sufficiency review in a termination case must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). A court of appeals must 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 256, 266 (Tex. 2002).

[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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, then the evidence is factually insufficient.

Id. (footnotes and citations omitted); see C.H., 89 S.W.3d at 25.

         We give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge when assessing the credibility and demeanor of witnesses. Id. at 109; see also In re S.M.R., No. 10-15-00093-CV, 2016 WL 7321302, at *7 (Tex. App.-Waco Dec. 14, 2016, pet. denied) (mem. op.) ("The [factfinder] is the sole judge of the credibility of the witnesses and the weight to be given their testimony. . . .").

         The following evidence was presented at trial: M.B. and B.V. share a child-P.B. B.V. also had a child from a previous relationship with T.R.-K.V. M.B. and B.V. cohabited with both P.B. and K.V. While B.V. worked, M.B. cared for P.B. M.B. also cared for K.V. when K.V. was not in school. Leigh Ann Romo, a supervisory investigator with the Department, testified that K.V. went to his teacher and showed her a scratch on his finger. Romo testified that when his teacher asked him how he got the scratch, K.V. said his "daddy" had "whooped" him. Monica Morante, an investigator with the

         Department, responded to the school with law enforcement after being notified of K.V.'s injuries. Morante testified that she interviewed K.V. and observed the extensive bruising to his body. The photographs of K.V., that were admitted as evidence at the bench trial, showed linear bruising on his face, back, buttocks, thighs, and arms, as well as the cut on his finger. Morante stated that while she attempted to observe K.V.'s injuries, he reported that they hurt.

         Morante further testified that she interviewed M.B. and B.V. about K.V.'s injuries, and both M.B. and B.V. acknowledged that M.B. spanked K.V. with a belt and may have caused the injuries to K.V. Morante testified that the decision was made at that time to seek to have the children removed from the home for their safety and to have them placed in foster care.

         Romo testified that after questioning by Morante and law enforcement, B.V. admitted that M.B. was abusive towards her. B.V. denied, however, that M.B. abused K.V. or P.B. When she testified, B.V. reiterated that M.B. had physically abused her. Romo stated that M.B. denied to investigators that he caused K.V.'s injuries. M.B. claimed that he only administered a spanking with a belt, although he may have missed K.V. a few times. M.B. also blamed K.V.'s injuries on B.V.'s mother.

         Romo testified that after the children were removed from the home, M.B. was arrested shortly thereafter and indicted for recklessly causing injury to a child. A judgment of conviction was admitted as evidence and indicated that M.B. entered a guilty plea to the charge against him and that he was sentenced to eighteen months' incarceration. M.B. was not released from custody until after serving his sentence.

         In determining the best interest of a child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive, but simply indicates factors that have been or could be pertinent. Id. at 372. Evidence establishing one of the predicate acts under § 161.001(b)(1) also may be relevant to determining the best interest of a child. In re A.M., 495 S.W.3d 573, 581 (Tex. App.- Houston [1st Dist.] 2016, pet. denied) (citing C.H., 89 S.W.3d at 27-28).

         The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ). The goal of establishing a stable, permanent home for a child is a compelling state interest. Id. at 87. The need for permanence is a paramount consideration for a child's present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (en banc).

         The Desires of the Child

         There is no evidence in the record of P.B.'s desires. P.B. was approximately one year old when he was removed from M.B.'s custody and too young to express his desires at the time of trial.

          The Emotional and Physical Needs of the Child Now and in the Future

          The Emotional and Physical Danger to the Child Now and in the Future

         M.B. argues that he is the appropriate person to see to P.B.'s emotional and physical needs because he is his father and loves him. M.B. believes that having P.B. and K.V. placed in the same foster home is a detriment to P.B.'s emotional and physical needs and constitutes a danger to him due to K.V.'s behavioral problems. K.V. has exhibited aggression towards P.B., and M.B. believes separation would prevent K.V. from abusing P.B. M.B. further argues that K.V.'s behavioral problems are keeping P.B. from being adopted. M.B. contends that returning P.B. to his custody would prevent P.B. from remaining in foster care until the age of majority. Finally, M.B. asserts that he has learned his lesson regarding the use of corporal punishment and will not be a danger to P.B.

         Evidence of past misconduct or neglect can be used to measure a parent's future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.-Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.-Waco 1992, no writ) ("Past is often prologue"); see also In re V.A., No. 13-06-00237-CV, 2007 WL 293023, at *5-6 (Tex. App.- Corpus Christi Feb. 1, 2007, no pet.) (mem. op.) (considering parent's past history of unstable housing, unstable employment, unstable relationships, mental health issues, and drug and alcohol usage). A parent's history, admissions, drug abuse, and inability to maintain a lifestyle free from arrests and incarcerations are relevant to the best-interest determination. In re D.M., 58 S.W.3d 801, 814 (Tex. App.-Fort Worth 2001, no pet.). A parent's engaging in criminal conduct endangers the emotional well-being of a child because of the parent's resulting incarceration. See Karl v. Tex. Dep't of Protective & Regulatory Servs., No. 03-03-00655-CV, 2004 WL 1573162, at *3-4 (Tex. App.-Austin Jul. 15, 2004, no pet.) (mem. op.); see also In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied) ("[C]onduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.").

         There is nothing in the record to indicate that P.B. was the victim of the type of abuse suffered by K.V. or B.V. "However, the manner in which a parent treats other children in the family can be considered in deciding whether that parent engaged in a course of conduct that endangered the physical or emotional well-being of a child." In re H.N.J., No. 10-10-00365-CV, 2011 WL 2937473, at *3 (Tex. App.-Waco Jul. 13, 2011, no pet.) (mem. op.) (citing Cervantes-Peterson v. Tex. Dep't of Family and Protective Servs., 221 S.W.3d 244, 253 (Tex. App.-Houston [1st Dist.] 2006, no pet.)). A number of courts of appeals, including this one, have also held that evidence of a parent's endangering conduct toward other children or family members is relevant to a determination of whether the parent engaged in behavior that endangered the child that is the subject of the suit. Id.; see, e.g., In re Baby Boy R, 191 S.W.3d 916, 925 (Tex. App.-Dallas 2006, pet. denied) (holding that a parent's guilty plea of aggravated sexual assault of his stepdaughter was evidence of conduct endangering to the well-being of his unborn child); In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.-Fort Worth 2003, pet. denied) (holding that abusive conduct toward other children "can be used to support a finding of endangerment even against a child who was not yet born"); In re D.L.N., 958 S.W.2d 934, 939 (Tex. App.-Waco 1997, pet. denied), disapproved of on other grounds by J.F.C., 96 S.W.3d at 267 n.39 a ...


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