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In re M.L.C.

Court of Appeals of Texas, Fourth District, San Antonio

December 27, 2017

IN THE INTEREST OF M.L.C., a Child

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA02184 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          Marialyn Barnard, Justice

         This is an accelerated appeal from the trial court's order terminating appellant mother's ("Mother") parental rights to her child, M.L.C. On appeal, Mother does not challenge the grounds upon which her rights were terminated. Rather, she contends only that the evidence is legally and factually insufficient to support the trial court's finding that termination was in her son's best interest. We affirm the trial court's order of termination.

         Background

         The Texas Department of Family and Protective Services ("the Department") became involved with the family based on allegations of drug abuse and neglectful supervision. In September 2016, the Department removed M.L.C. from Mother and placed him in an emergency placement home. In January 2017, he was placed with a foster family. The Department subsequently filed a petition to terminate Mother and Father's parental rights.[1] In December 2016, the Department created a service plan for Mother. Pursuant to the service plan, Mother was required to, among other things: (1) engage in individual counseling; (2) complete a drug assessment and abide by recommendations made as a result of the assessment; (3) obtain a psycho-social assessment and abide by recommendations made as a result of the assessment; (4) attend classes on domestic violence and parenting, and provide proof of completion; (5) maintain stable employment and housing, and provide proof of same to the Department; (6) submit to random drug tests, including urinalysis and hair follicle screenings; and (7) participate in supervised parent-child visitation three times a month. The trial court ordered Mother to comply with each requirement set out in the plan. During the course of this matter, the trial court held the statutorily required status and permanency hearings, and ultimately, the matter moved to a final hearing, during which the Department sought to terminate Mother's parental rights.

         At the hearing, the trial court heard testimony from Bianca Guerrero, the last Department caseworker involved in the case, and Mother. At the conclusion of the hearing, the trial court terminated Mother's rights, finding she: (1) knowingly placed or allowed M.L.C. to remain in conditions or surroundings that endangered his physical or emotional well-being; (2) engaged in conduct or knowingly placed M.L.C. with people who engaged in conduct that endangered his physical or emotional well-being; (3) had her parental rights terminated with respect to another child because she knowingly placed or allowed that child to remain in conditions or surroundings that endangered his physical or emotional well-being, or engaged in conduct or knowingly placed that child with people who engaged in conduct that endangered his physical or emotional well-being; (4) constructively abandoned M.L.C.; (5) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of M.L.C.; and (6) used a controlled substance in a manner that endangered the health and safety of M.L.C., and failed to complete a court-ordered drug treatment program. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M), (N), (O), (P) (West Supp. 2016). The trial court further found termination of Mother's parental rights would be in M.L.C.'s best interest. See id. § 161.001(b)(2). Accordingly, the trial court rendered an order terminating Mother's parental rights. Thereafter, she perfected this appeal.

         Analysis

         On appeal, Mother 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)(D), (E), (M), (N), (O), (P). Rather, she merely challenges the legal and factual sufficiency of the evidence in support of the trial court's finding that termination was in the best interest of her son. See id. § 161.001(b)(2).

         Standard of Review

         A trial court may terminate a parent's right to a child only if it 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 the child. Id. § 161.001(b). "Clear and convincing evidence" is defined 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." Id. § 101.007. Courts require this heightened standard of review because termination of a parent's rights to a 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). When reviewing the legal and factual sufficiency of the evidence, we apply the well-established standards of review. See Tex. Fam. Code Ann. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). In sum, an appellate court must determine whether the evidence is such that the trier of fact could reasonably form a firm belief or conviction that termination was in the child's best interest. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

         In conducting a sufficiency review, we may not weigh a witness's credibility because it depends on appearance and demeanor, and these are within the domain of the trier of fact. J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the fact finder's reasonable resolutions. Id.

         Best Interests - Substantive Law

         In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). We recognize there is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a). Thus, to determine whether a child's parent is willing and able to provide the child with a safe environment, we also consider the factors set forth in section 263.307(b) of the Code. Id.

         Additionally, evidence that proves one or more statutory grounds for termination may be probative to prove termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2012) (holding same evidence may be probative of both section 161.001(1) grounds and best interest, but such evidence does not relieve State of burden to prove best interest). In conducting a best interest analysis, a court may consider in addition to direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). Finally, a ...


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