Court of Appeals of Texas, Fourth District, San Antonio
IN THE INTEREST OF S.J.R.-Z., J.C.Z., A.R.Z., L.L.L., K.K.H., and J.G.H. III, Minor Children
the 166th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-PA-02211 Honorable Martha Tanner, Judge
on Motion for Rehearing
Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz
Elena D. Chapa, Justice
Patricia O. Alvarez, Justice
August 9, 2017, this court issued an opinion and judgment in
this appeal and the Texas Department of Family and Protective
Services filed a motion for rehearing. We grant the motion,
withdraw our previous opinion and substitute this opinion in
an accelerated appeal of the trial court's order
terminating Appellant Mom's parental rights to her
children, S.J.R.-Z., J.C.Z., A.R.Z., L.L.L., K.K.H., and
J.G.H. III, and Appellant Dad's parental rights to K.K.H.
and J.G.H. III. In both appeals, Mom and Dad contend (1) the
evidence does not support the trial court's termination
based on Texas Family Code subsections 161.001(1)(b)(D), (E),
and (O), See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (O) (West Supp. 2016), and (2) the
evidence is neither legally nor factually sufficient for the
trial court to have found by clear and convincing evidence
that terminating Dad's parental rights was in
K.K.H.'s and J.G.H. III's best interests, and that
terminating Mom's parental rights was in the best
interests of her children, see Tex. Fam. Code Ann.
§ 161.001(b)(2). We affirm the trial court's
August 10, 2015, the Texas Department of Family and
Protective Services received a referral for neglectful
supervision following the birth of J.G.H. III, who tested
positive for marijuana. Mom admitted drug usage while
pregnant. The Department attempted to work with Mom in Family
Based Safety Services; however, Mom provided false
information in an attempt to mislead the Department. On
October 1, 2015, following a home visit, the Department
determined the children's safety required removal based
on Mom's failure to comply with the safety plan.
October 20, 2015, the Department filed its Original Petition
for Protection of Children, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship.
Following an emergency order, the children were placed in the
temporary managing conservatorship of the Department. Mom and
Dad were ordered to comply with each requirement set out in
the Department's service plan during the pendency of the
suit. Both Mom and Dad were granted visitation with the
November 13, 2015, the Department filed individual family
service plans for Mom and Dad; the plans set forth the
services and classes required before the children could
return home to either Mom or Dad. After several status and
permanency hearings, on February 21, 2017, the trial court
called the matter for trial. Although Dad was not present for
the first day of the hearing, he testified during the second
a hearing, the trial court terminated Mom's and Dad's
parental rights based on the following:
(1) Mom: the trial court terminated Mom's
parental rights to S.J.R.-Z., J.C.Z., A.R.Z., L.L.L., K.K.H.,
and J.G.H. III pursuant to Texas Family Code Section
161.001(b)(1)(O), see id. § 161.001(b)(1)(O),
and the trial court further found termination of Mom's
parental rights was in the S.J.R.-Z.'s, J.C.Z.'s,
A.R.Z.'s, L.L.L.'s, K.K.H.'s, and J.G.H.
III's best interests, see id. §
(2) Dad: after being served with citation, Dad
failed to file an admission of paternity or counterclaim for
paternity under Chapter 160 of the Texas Family Code, see
id. § 161.002(b)(1); Dad failed to comply with
Texas Family Code Section 161.001(b)(1) (O), see id.
§ 161.001(b)(1)(O), and termination of Dad's
parental rights was in K.K.H.'s and J.G.H. III's best
interests, see id. § 161.001(b)(2).
first to the Department's contention that Dad's
failure to challenge an independent ground in support of the
trial court's ruling is dispositive of his appeal.
to Assert Paternity
the termination hearing, the trial court's order of
termination includes the trial court's finding that,
by clear and convincing evidence [ ], after having waived
service of process or being served with citation in this
suit, [Dad] did not respond by timely filing an admission of
paternity or by filing a counterclaim for paternity or for
voluntary paternity to be adjudicated under chapter 160 of
the Texas Family Code before the final hearing in this suit.
See Tex. Fam. Code Ann. § 161.002(b)(1);
Phillips v. Tex. Dep't of Protective & Regulatory
Servs., 25 S.W.3d 348, 357 (Tex. App.-Austin 2000, no
pet.) (section 161.002(b)(1) permits trial court to summarily
terminate alleged father's parental rights where he fails
to assert his paternity).
evidence is undisputed that Dad was not listed on either
K.K.H.'s or J.G.H. III's birth certificate, and he
never signed a statement acknowledging paternity of either
K.K.H. or J.G.H. III. The Department argues this court need
look no further than the trial court's determination
regarding Dad's failure to establish paternity.
court previously held, "[t]here are no formalities that
must be observed when filing an admission of paternity or for
such an admission to be effective." In re
J.L.A., No. 04-13-00857-CV, 2014 WL 1831097, at *2 (Tex.
App.-San Antonio May 7, 2014, no pet.) (mem. op.); accord
In re K.W., No. 02-09-00041-CV, 2010 WL 144394, at *3
(Tex. App.-Fort Worth Jan. 14, 2010, no pet.) (mem. op.).
"In fact, by appearing at trial and admitting that he is
the child's father, an alleged father triggers his right
to require the Department to prove one of the grounds for
termination under section 161.001(1) and that termination is
in the best interest of the child." J.L.A.,
2014 WL 1831097, at *2.
Dad appeared at trial and testified that he was K.K.H. and
J.G.H. III's father. In addition, Dad's trial counsel
maintained that Dad was K.K.H. and J.G.H. III's father,
and counsel advocated against termination of Dad's
parental rights. See id. (citing Toliver v.
Dep't of Family & Protective Servs., 217 S.W.3d
85, 105 (Tex. App.-Houston [1st Dist.] 2006, no pet.)
(holding the trial court erred in terminating parental rights
under section 161.002(b)(1), when the alleged father appeared
at trial, asserted paternity, and opposed the termination of
his parental rights)). Accordingly, we conclude that
Dad's appearance and participation in the trial court,
including his sworn admission that he was K.K.H. and J.G.H.
III's father, was sufficient to trigger his right to have
the Department prove one of the grounds for termination
listed in section 161.001(b)(1).
trial court's judgment sets forth the basis for
termination. In addition to the statutory findings pursuant
to Texas Family Code section 161.001(b)(1)(O) (failure to
complete the court-ordered service plan), see Tex.
Fam. Code Ann. § 161.001(b)(1)(O), and the trial
court's finding that termination of Dad's parental
rights was in K.K.H. and J.G.H. III's best interests,
see id. § 161.001(b)(2), the trial court also
found, by clear and convincing evidence, that Dad failed to
timely file an admission of paternity or counterclaim for
paternity under Chapter 160 of the Texas Family Code, see
id. § 161.002(b)(1). On appeal, Dad only challenges
the trial court's findings as to the statutory violations
of his failure to comply with the court-ordered service plan
and the trial court's best interests findings; Dad does
not raise an appellate challenge to the trial court's
finding that Dad failed to file an admission of paternity.
appellant must challenge all independent bases or grounds
that fully support a judgment or appealable order. See
Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470
S.W.3d 636, 650 (Tex. App.-Dallas 2015, no pet.); Britton
v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676,
681- 82 (Tex. App.-Houston [1st Dist.] 2002, no pet.);
see also In re N.L.D., 412 S.W.3d 810, 818 (Tex.
App.-Texarkana 2013, no pet.) (holding that when a parent
failed to challenge on appeal a ground for termination of
parental rights, the court could affirm on the unchallenged
ground without examining the sufficiency of evidence to
support challenged grounds); In re Elamex, S.A. de
C.V., 367 S.W.3d 879, 888 (Tex. App.-El Paso 2012, orig.
proceeding) ("If the appellant fails to challenge all
possible grounds, we must accept the validity of the
unchallenged independent grounds and affirm the adverse
ruling."). The requirement that an appellant challenge
each independent ground "is based on the premise that an
appellate court normally cannot alter an erroneous judgment
in favor of an appellant in a civil case who does not
challenge that error on appeal." Britton, 95
S.W.3d at 681.
failing to raise an appellate challenge to the trial
court's finding that Dad failed to file an admission of
paternity, Dad failed to challenge all of the independent
grounds listed in the termination order. Accordingly, this
court must accept this unchallenged finding as true and we
affirm the trial court's order as to Dad's
termination of his parental rights. See id.;
N.L.D., 412 S.W.3d at 818; Elamex, 367
S.W.3d at 888.
termination under Texas Family Code section 161.002(b)(1)
does not require proof that termination is in the best
interests of the children, see Tex. Fam. Code Ann.
§ 161.002(b)(1), we turn to the trial court's
involuntary termination of Mom's parental rights pursuant
to section 161.001(b)(1)(O) of the Texas Family Code, see
id. § 161.001(b)(1)(O).
of the Evidence
Standards of Review
termination of parental rights involves fundamental
constitutional rights and divests the parent and child of all
legal rights, privileges, duties, and powers normally
existing between them, except for the child's right to
inherit from the parent." In re L.J.N., 329
S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.)
(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985)). As a result, appellate courts must strictly
scrutinize involuntary termination proceedings in favor of
the parent. Id. (citing In re D.S.P., 210
S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).
order terminating parental rights must be supported by clear
and convincing evidence that (1) the parent has committed one
of the grounds for involuntary termination as listed in
section 161.001(b)(1) of the Family Code, and (2) terminating
the parent's rights is in the best interest of the child.
See Tex. Fam. Code Ann. § 161.001; In re
J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'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." Tex. Fam. Code Ann. §
101.007; J.F.C., 96 S.W.3d at 264.
is a strong presumption that the best interest[s] of the
[children are] served by keeping the child[ren] with [their]
natural parent, and the burden is on [the Department] to
rebut that presumption." In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no
pet.). "The same evidence of acts or omissions used to
establish grounds for termination under section
161.001[(b)](1) may be probative in determining the best
interest[s] of the child[ren]." Id.
clear and convincing evidence standard applies, a legal
sufficiency review requires a court to "look at all the
evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was
true." In re J.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting J.F.C., 96 S.W.3d at 266). If the
court "determines that [a] reasonable factfinder could
form a firm belief or conviction that the matter that must be
proven is true, then that court must conclude that the
evidence is legally [sufficient]." See id.
(quoting J.F.C., 96 S.W.3d at 266). "[A]
reviewing court must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable
factfinder could do so." J.F.C., 96 S.W.3d at
266. "A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been
clear and convincing standard, evidence is factually
sufficient if "a factfinder could reasonably form a firm
belief or conviction about the truth of the State's
allegations." In re C.H., 89 S.W.3d 17, 25
(Tex. 2002); accord In re K.R.M., 147 S.W.3d 628,
630 (Tex. App.-San Antonio 2004, no pet.). We must consider
"whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in
favor of its finding." J.F.C., 96 S.W.3d at
266; accord C.H., 89 S.W.3d at 25. "If, in
light of the entire record, [unless] 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, . . . the
evidence is factually [sufficient]." J.F.C., 96
S.W.3d at 266.
Testimony Elicited during the Termination Hearing
trial court terminated the parental rights of each of the
different fathers. We, therefore, limit the facts to the
necessary witnesses to Mom's involvement with the
Department Employees and Service Providers
Ramirez, an investigator for the Department, testified she
received the referral in August of 2015, for negligent
supervision; J.G.H. III was born with marijuana in his
system. At the time, Ramirez reported three major areas of
concern: Mom admitted using marijuana during her pregnancy,
Mom and Dad had a dispute and he tried to run her over with
his vehicle, and Mom's mental stability-"she did
tell me she felt overwhelmed with the children and
couldn't handle them all." Ramirez and the
Department implemented a safety plan wherein Mom's
friend, Abigail Gonzalez, would remain in the house with the
children. At the time of the removal, Mom's six-year-old
son, J.C.Z., was residing with the maternal grandmother. The
Department, however, subsequently removed the child for
negligent supervision related to grandmother's
Batteen was the original Department caseworker. Batteen
testified the family was very evasive. Her first visit to the
home, on October 15, 2015, occurred approximately five weeks
after J.G.H. III's birth. During the visit, Mom and Dad
both admitted marijuana use in the home. Mom described her
relationship with Dad as "contentious" and told
Batteen "[she] and Dad got into an argument outside and
he almost ran her over with a car." Mom further
"made admission of multiple personality and depression.
. . . [I]n September [of 2015] she was admitted for suicidal
asked about the state of the children, Batteen testified that
S.J.R.-Z. was at school at the time of her home visit.
Batteen testified the home was infested with bed bugs and the
children were covered in bug bites and head lice.
One-month-old J.G.H. III was in his swing, "he was not
buckled while he was in his swing and he was an infant and
had a bottle in his mouth. So he was unable to move his face
if-if he was choking." Fourteen-month-old K.K.H. was
carrying a bottle around the house and had a full diaper.
Batteen noted that K.K.H. appeared to have developmental
delays and was still unable to walk.
A.R.Z. and two-year-old L.L.L. were running around the home,
and also had full diapers. Mom acknowledged used of
methamphetamines, marijuana, and opiates during her pregnancy
with A.R.Z. and Batteen expressed concern regarding the
possibility of developmental delays.
testified about concerns for domestic violence, substance
abuse, mental health issues, and the physical care of the
children, resulting in the children's removal. K.K.H. and
J.G.H. III, the two youngest children, were placed with a
relative; the other three children were placed with their
maternal aunt. The safety plan for the two youngest children
only lasted for a couple of days; the relative dropped them
off at the Department stating she was unable to continue
caring for ...