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In re J.H.

Court of Appeals of Texas, Seventh District, Amarillo

December 11, 2017

IN THE INTEREST OF J.H., A.H., J.H., L.H., AND H.H., CHILDREN

         On Appeal from the 320th District Court Potter County, Texas Trial Court No. 86, 090-D, Honorable Carry Baker, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Judy C. Parker Justice

         Appellants, B.P. (Mother) and R.H. (Father), appeal the trial court's order terminating their parental rights to their children J.H., A.H., J.H., L.H., and H.H.[1] We will affirm.

         Background

         Mother and Father are the parents of J.H., A.H., J.H., L.H., and H.H., who at the time of trial ranged in age from two to seven. In 2011, the Texas Department of Family and Protective Services removed Mother and Father's children[2] from the home due to Father's methamphetamine use and the "deplorable" conditions of the home. The children were returned to the home in 2012 after Mother and Father completed services.

         In October of 2014, the Department received a report of neglectful supervision, prompting another investigation into the couple's care of the children.[3] The Department investigated and found that the family's home had no running water, the children all slept on the floor, and the children were very dirty, having not been bathed in at least a week. Additionally, Father admitted to using methamphetamines and marijuana. The Department removed the children from the home. The Department was appointed the temporary managing conservator of the oldest four children on October 24, and of newborn J.H. on December 31.

         The Department developed two family service plans during the course of the case. Both plans required that Mother and Father maintain safe, stable housing; maintain stable, verified employment; follow therapy recommendations; and report address changes. The plans also prohibited the use of alcohol and drugs.

         In March of 2016, the Department facilitated a monitored return of the children. The monitored return was not completely successful, and in August of 2016, the Department sought to remove the children from the home again. The children remained in the home, but additional requirements were set forth for Mother and Father, including that they were to complete a budgeting class and refrain from consuming alcohol or smoking in the home. Additionally, Father was not to return to the home until he passed a drug screen. In January of 2017, the family (including Father) moved without notifying the Department. The Department sought re-removal, which the court authorized.

         The final hearing on the merits commenced on June 5, 2017, was recessed, and reconvened on July 19. After hearing the evidence, the trial court terminated Mother and Father's parental rights to the children, finding they had violated Texas Family Code § 161.001(b)(1)(D), (E), and (O), and that termination would be in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2016).[4] The trial court appointed the Department as the permanent managing conservator of the children. Mother and Father both appealed, challenging the legal and factual sufficiency of the evidence supporting the order of termination.

         Standard of Review

         The natural right between parents and their children is one of constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). However, while parental rights are of constitutional magnitude, they are not absolute. A child's emotional and physical interests must not be sacrificed merely to preserve the parent's rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

         Under Texas law, to terminate parental rights, it must be proven by clear and convincing evidence that a parent has committed one or more of the acts and/or omissions identified in section 161.001(b)(1) (referred to hereafter as "statutory predicate grounds") and that termination is in the child's best interest. See § 161.001(b). "'Clear and convincing evidence' means the measure or 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." § 101.007 (West 2014). Only one statutory predicate ground is required to support termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.-Amarillo 2009, pet. denied).

         In a legal sufficiency challenge, the reviewing court must credit evidence that supports the verdict if a reasonable factfinder could have done so, and disregard contrary evidence unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). However, the court should not disregard undisputed facts that do not support the verdict to determine whether there is clear and convincing evidence. Id. at 113. In cases that require clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true. Id. If it determines that no reasonable factfinder could form a firm belief or conviction that the matter to be proven is true, the reviewing court must conclude that the evidence is legally insufficient. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).

         In a factual sufficiency challenge, the reviewing court must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. at 266 (citing In re C.H. at 25). It must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. The reviewing court must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited ...


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