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In re L.C.S.

Court of Appeals of Texas, Fourth District, San Antonio

September 6, 2017

IN THE INTEREST OF L.C.S., a Child

         From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00974 Honorable Charles E. Montemayor, Judge Presiding

          Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          MARIALYN BARNARD, JUSTICE

         This is 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 order.

         Background

         The 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 uncle.

         Subsequently, 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.

         Throughout 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.[1]

         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)(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. § 161.001(b)(2).

         Standard of Review

         A court 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).

         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 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.

         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.

         Applicable Law

         In a 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.

         We 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 ...

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