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In re E.M.

Court of Appeals of Texas, Sixth District, Texarkana

November 21, 2017

IN THE INTEREST OF E.M., E.M., J.L., A.L., AND M.L., CHILDREN

          Submitted: November 20, 2017

         On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 16C1580-102

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Justice Moseley

         The Texas Department of Family and Protective Services (the Department) filed a petition to terminate Jason Lester's parental rights to his four children, Emily, Alice, Jane, and Mary.[1] The trial court terminated Lester's parental rights after finding that (1) he voluntarily left the children alone or in the possession of a non-parent for at least three months without providing adequate support for them or expressing an intent to return, (2) he knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, (3) he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being, and (4) termination of his parental rights was in the children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(1)(B), (D), (E), (b)(2) (West Supp. 2017).

         On appeal, Lester argues that the evidence is legally and factually insufficient to support the trial court's findings on the statutory grounds for terminating his parental rights.[2] Because we find that sufficient evidence supported the trial court's finding under Ground D, we affirm the trial court's judgment.

          I. Sufficient Evidence Supports Termination of Lester's Parental Rights

         A. Standard of Review

         "The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental right to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). We construe involuntary termination statutes strictly in favor of the parent. In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.- Texarkana 2007, pet. denied) (citing Holick, 685 S.W.2d at 20).

         In order to terminate parental rights, the trier of fact must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001 (West Supp. 2016); In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012). "Clear and convincing evidence" is that "degree of 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 In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.

         Despite the heightened burden of proof that is required to be met, in our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet). We assume the trial court resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.

         In our review of factual sufficiency, we consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine "whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C, 96 S.W.3d 256, 264, 266 (Tex. 2002). "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 a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. In our deliberations, we make "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)). Nevertheless, we maintain our deference for the role of the fact-finder. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The fact-finder is the sole arbiter of a witness' demeanor and credibility, and it may believe all, part, or none of a witness' testimony. H.R.M., 209 S.W.3d at 109.

         Although profound constitutional interests are at stake in a proceeding to terminate parental rights, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994) (citation omitted)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.-Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).

         B.The Evidence ...


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