Court of Appeals of Texas, Fourth District, San Antonio
the 285th Judicial District Court, Bexar County, Texas Trial
Court No. 2016PA00835 Honorable Richard Garcia, Judge
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard,
Justice Rebeca C. Martinez, Justice
MARIALYN BARNARD, JUSTICE
an accelerated appeal from the trial court's order
terminating appellant father's ("Father")
parental rights to his child, K.L.P. On appeal, Father argues
the evidence is legally and factually insufficient to support
the trial court's finding that termination was in the
best interest of his child. We affirm the trial court's
order of termination.
Texas Department of Family and Protective Services ("the
Department") initially became involved in the underlying
matter after it received a referral alleging two children,
K.L.P. and J.R.P., were being exposed to domestic violence
and drug use. The referral further alleged the mother of the
children threatened to commit suicide in front of the
children. At the time, K.L.P. was four-years-old and J.R.P.
was ten-months-old. Both children were living with their
mother and J.R.P.'s father. K.L.P.'s father - Father
- was incarcerated.
Department ultimately removed the children from the home and
placed them with their maternal grandmother. Thereafter, it
petitioned to become the temporary managing conservator of
both children, seeking to terminate each of the parents'
parental rights. The Department prepared service plans for
all three of the parents. After failing to comply with
several of the provisions of the service plans, both the
mother and J.R.P's father executed voluntary
relinquishments of their parental rights.
termination hearing was subsequently held before the trial
court. Neither the mother nor J.R.P.'s father were
present; however, each of them were represented by counsel.
K.L.P.' father - Father, who was incarcerated at the time
- participated telephonically. He was also represented by
counsel. The trial court heard testimony from two Department
caseworkers, who were involved in the case, Father, and the
children's maternal grandmother. After the hearing, the
trial court ordered that all three of the parents'
parental rights be terminated. Specifically, the trial court
found Father: (1) engaged in conduct or knowingly placed
K.L.P. with persons engaged in conduct endangering
K.L.P.'s physical or emotional well-being.; (2)
constructively abandoned K.L.P.; and (3) failed to comply
with the provisions of a court order that specifically
established the actions necessary for him to obtain the
return of K.L.P. See Tex. Fam. Code Ann. §
161.001(b)(1)(E), (N), (O) (West Supp. 2015). The trial court
further found termination of Father's parental rights
would be in K.L.P.'s best interest. See id.
§ 161.001(b)(2). Accordingly, the trial court rendered
an order terminating Father's parental rights.
Thereafter, Father perfected this appeal.
appeal, Father does not challenge the evidence with regard to
the trial court's findings under section 161.001(b)(1) of
the Texas Family Code ("the Code"). See
id. § 161.001(b)(1)(E), (N), (O). Rather, Father
argues the evidence is legally and factually insufficient to
support the trial court's finding that termination was in
the best interest of his child. See id. §
parent's right to his child may be terminated by a court
only if the court finds by clear and convincing evidence that
the parent committed an act prohibited by section
161.001(b)(1) of the Code and termination is in the best
interest of his child. Tex. Fam. Code. Ann. §
161.001(b); In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009); In re B.R., 456 S.W.3d 612, 615 (Tex.
App.-San Antonio 2015, no pet.). 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." Tex. Fam. Code Ann. § 101.007 (West
2014); see J.O.A., 283 S.W.3d at 344; In re
E.A.G., 373 S.W.3d 129, 140 (Tex. App-San Antonio 2012,
pet. denied); B.R., 456 S.W.3d at 615. This heightened
standard of review is required by courts because termination
of a parent's rights to his child results in permanent
and severe changes for both the parent and child, implicating
due process concerns. In re A.B., 437 S.W.3d 498,
502 (Tex. 2015); In re D.M., 452 S.W.3d 462,
468–69 (Tex. App.-San Antonio 2014, no pet.);
E.A.G., 373 S.W.3d at 140. We must therefore
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.
A.B., 437 S.W.3d at 502; In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005).
reviewing a legal sufficiency challenge, we must view the
evidence in the light most favorable to the trial court's
findings and judgment, and resolve any disputed facts in
favor of the trial court's findings so long as a
reasonable fact finder could have done so. J.P.B.,
180 S.W.3d at 573. We also disregard all evidence a
reasonable fact finder could have disbelieved and consider
undisputed evidence even if such evidence is contrary to the
trial court's findings. Id. Stated differently,
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. We do not
weigh witness credibility issues "that depend on
appearance and demeanor" because such issues are within
the domain of the fact finder. Id. Even if
credibility issues are found in the appellate record, we must
defer to the fact finder's reasonable determinations.
reviewing the evidence for factual sufficiency, we give due
deference to the fact finder's findings and avoid
substituting the fact finder's judgment for our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
"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
[in the truth of its finding], then the evidence is factually
insufficient." Id. (quoting J.F.C., 96
S.W.3d at 266). And just as in a legal sufficiency review, we
may not weigh witness credibility issues, which are made by
the fact finder, in our review for factual sufficiency.
H.R.M., 209 S.W.3d at 109.
Interests - Substantive Law
best interest analysis, we consider the following
nonexclusive 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
3. the emotional and physical danger to the child now and in
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to
promote the best ...