Court of Appeals of Texas, Fourth District, San Antonio
the 288th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-PA-01392 Honorable Peter A. Sakai, Judge
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini,
Justice Patricia O. Alvarez, Justice
PATRICIA O. ALVAREZ, JUSTICE
an accelerated appeal of the trial court's order
terminating Appellant Dad's parental rights to his child,
I.C.G. In his appeal, Dad contends 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 I.C.G.'s best interest.
See Tex. Fam. Code Ann. § 161.001(b)(2) (West
Supp. 2016). Because we conclude the evidence is legally and
factually sufficient to support the trial court's
finding, we affirm the trial court's order terminating
Dad's parental rights to I.C.G.
and Procedural Background
21, 2016, the Texas Department of Family and Protective
Services received a referral for alleged physical abuse of
one-year-old I.C.G., by her father. Dad was arrested for
continuous violence on a family member and aggravated assault
with a deadly weapon. Mom was observed to have a black right
eye, bruises on both arms, both legs, and on her back.
Mom refused to engage in a safety plan with the Department,
on June 27, 2016, the Department filed its Original Petition
for Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship.
Following an emergency order, the Department was named
temporary managing conservator of I.C.G. I.C.G. was placed in
the home of her maternal grandparents. The trial court
ordered Dad to comply with each requirement set out in the
Department's service plan; Dad remained incarcerated
throughout the pendency of the case.
eleven months, and several permanency hearings, the trial
court called the case for a final hearing on June 2, 2017.
After considering the testimony of several witnesses, and the
complete record, the trial court orally pronounced the
termination of Dad's parental rights pursuant to Texas
Family Code section 161.001(b)(1)(N) and (O), see
Tex. Fam. Code Ann. § 161.001(b)(1) (N), (O),
made further findings that termination of Dad's parental
rights was in I.C.G.'s best interest pursuant to section
161.001(b)(2), see id. § 161.001(b)(2). The
trial court named the Department as I.C.G.'s permanent
written termination order, however, signed on July 11, 2017,
provides the statutory basis for termination of Dad's
parental rights was only pursuant to Texas Family Code
section 161.001(b)(1)(O), see Tex. Fam. Code Ann.
§ 161.001(b)(1)(O). "When there is an inconsistency
between a written judgment and an oral pronouncement of
judgment, the written judgment controls." In re
L.G.R., 498 S.W.3d 195, 206 (Tex. App.-Houston [14th
Dist.] 2016, pet. denied). Thus, for purposes of statutory
violations under section 161.001(b)(1), this court is limited
to considering the trial court's finding on Dad's
failure to comply with the court-ordered service plan,
see Tex. Fam. Code Ann. § 161.001(b)(1)(O), and
not the trial court's oral pronouncement regarding
Dad's constructive abandonment of I.C.G., see
id. § 161.001(b)(1)(N).
sole issue on appeal, Dad contends the evidence is legally
and factually insufficient to support the trial court's
finding that termination of his parental rights is in
I.C.G.'s best interest.
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 (West 2014); J.F.C., 96 S.W.3d at 264.
is a strong presumption that the best interest of the child
is served by keeping the child with [her] 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 of the
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). This court must
assume "the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so. 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 incredible."
J.F.C., 96 S.W.3d at 266.
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.
Elicited during the Termination Hearing
only Dad appeals the termination of his parental rights, we
limit our recitation of the facts accordingly.
Rodriguez, the Department's caseworker since August of
2016, testified the Department placed eighteen-month-old
I.C.G. with her maternal grandparents on June 24, 2016. The
only medical intervention required was speech therapy, which
I.C.G. received and to which she was responding well.
Rodriguez averred that the Department's plan was for
adoption with the maternal grandparents.
cross-examination, Dad's attorney asked several questions
regarding why Rodriguez had no direct contact with Dad.
Rodriguez explained that Dad sent her a letter in October of
2016 requesting the Department allow his mother to act as his
power of attorney and requested that Rodriguez contact his
mother. Rodriguez testified that she remained in contact with
the paternal grandmother through the entire proceeding; the
paternal grandmother provided proof of Dad's completion
of some parenting classes, a domestic violence class, and a
chemical dependency class. Rodriguez testified that she also
spoke to Dad's probation officer and a correctional
officer during Dad's incarceration.
opined the Department was seeking termination based on
Dad's failure to complete the service plan, specifically
his lack of providing a safe and stable environment. Dad had
been incarcerated, or in a lock-down facility, since June of
2016. Almost a year had passed since Dad had contact with
I.C.G. Rodriguez explained that the paternal grandmother
requested visitation with I.C.G., and Rodriguez arranged for
visitation. Yet, neither the paternal grandmother nor Dad
ever requested Rodriguez arrange visitation or contact
between Dad and I.C.G. or any additional services for Dad.
maternal grandmother testified that I.C.G. was doing
"fabulous." Although I.C.G. is still in speech
therapy, her speech is vastly improved. The maternal
grandmother explained that I.C.G. has three siblings, ages
seventeen, fourteen, and twelve years, previously adopted by
the maternal grandparents. The siblings adore I.C.G. and she
maternal grandmother testified that neither parent can
protect I.C.G. at this point. Neither parent has provided any
support for I.C.G. and neither has written her letters. The
maternal grandmother testified that she has personally
witnessed the results of Dad's violence. Yet, she makes a
point of taking I.C.G. to see the paternal grandparents
approximately once a month and agreed to continue the
relationship if the trial court opted to terminate ...