Court of Appeals of Texas, Fourth District, San Antonio
the 407th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-PA-00974 Honorable Charles E. Montemayor,
Bryan Marion, Chief Justice, Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
MARIALYN BARNARD, JUSTICE
an appeal from the trial court's order terminating
appellant mother's ("Mother") rights to her
child, L.C.S. On appeal, Mother contends the evidence is
legally and factually insufficient to support the trial
court's finding that termination is in the child's
best interest. We affirm the trial court's termination
record shows the Texas Department of Family and Protective
Services ("the Department") first became involved
with Mother based on allegations of domestic violence and
alcohol abuse. The Department investigated the allegations
and found Mother stabbed her paramour while L.C.S. was in the
home. After this incident, the Department removed L.C.S. from
Mother's care and placed her with a maternal aunt and
the Department filed its petition and the court held the
statutorily required status and permanency hearings. During
the case, the Department created a service plan for Mother,
which required, among other things, that she attend domestic
violence classes, complete a psychological assessment, engage
in individual counseling, attend parenting classes, and
maintain stable employment and housing. The trial court
ordered Mother to comply with each requirement set out in the
plan. The evidence shows Mother did not complete the
requirements of her service plan.
the case, Mother failed to attend some of the status and
permanency hearings. Additionally, due to Mother's lack
of attendance, the trial court reset the final hearing twice.
Ultimately, the matter moved to a final hearing, during which
the Department sought to terminate Mother's parental
rights. After considering the evidence, the trial court
terminated Mother's parental rights, finding she: (1)
engaged in conduct or knowingly placed L.C.S. with persons
who engaged in conduct that endangered L.C.S.'s physical
or emotional well-being; (2) constructively abandoned L.C.S.;
and (3) failed to comply with the provisions of a court order
that specifically established the actions necessary for her
to obtain the return of L.C.S. See Tex. Fam. Code
Ann. § 161.001(b)(1)(E), (N), (O) (West Supp. 2016).
Additionally, the trial court found termination of
Mother's parental rights was in the best interest of
L.C.S. See id. § 161.001(b)(2). Thereafter,
Mother perfected this appeal.
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)(E), (N), (O). Rather, she contends only
that the evidence is legally and factually insufficient to
support the trial court's finding that termination was in
her child's best interest. See id. §
may terminate a parent's right to her child 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 interest of the child. 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).
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.
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 have 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.
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.
best interest analysis, we consider the factors set forth by
the Texas Supreme Court in Holley v. Adams: (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 to promote
the best interest of the child; (6) the plans for the child
by these individuals; (7) the stability of the home or
proposed placement; (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 acts or omissions of
the parent. 544 S.W.3d 367, 371-72 (Tex. 1976). These factors
are not exhaustive and a court may consider other factors.
Id. at 372. Also, a court need not find evidence of
each and every factor to terminate the parent-child
relationship. C.H., 89 S.W.3d at 27. According to
the Texas Supreme Court, "the absence of evidence about
some of these considerations would not preclude a fact finder
from reasonably forming a strong conviction or belief that
termination is in the child's best interest, particularly
if the evidence were undisputed that the parental
relationship endangered the safety of the child."
Id. Furthermore, in conducting our review of the
trial court's termination, rather than focusing on the
parent's best interest, we will focus on whether
termination of the parent-child relationship is in the best
interest of the child. Id.
recognize courts indulge in the strong presumption that
maintaining the parent-child relationship is in a child's
best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam). However, promptly placing the child in a
safe environment is also presumed to be in his or her best
interest. Tex. Fam. Code Ann. § 263.307(a). Thus, in
addition to the Holley factors, a court should
consider the following factors in determining whether the
children's parent is willing and able to provide the
children with a safe environment:
(1)the child's age and physical and mental vulnerability;
(2)the frequency and nature of out-of-home placements;
(3)the magnitude, frequency, and circumstances of the harm to