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In re K.L.P.

Court of Appeals of Texas, Fourth District, San Antonio

September 13, 2017

IN THE INTEREST OF K.L.P., a Child

         From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA00835 Honorable Richard Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

          MEMORANDUM OPINION

          MARIALYN BARNARD, JUSTICE

         This is 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.

         Background

         The 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.

         The 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.

         A final 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.[1]

         Analysis

         On 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. § 161.001(b)(2).

         Standard of Review

         A 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).

         In 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. Id.

         In 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.

         Best Interests - Substantive Law

         In a 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 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 ...

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