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In re I.C.G.

Court of Appeals of Texas, Fourth District, San Antonio

January 3, 2018

IN THE INTEREST OF I.C.G., a Child

         From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-01392 Honorable Peter A. Sakai, Judge Presiding[1]

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          PATRICIA O. ALVAREZ, JUSTICE

         This is 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.

         Factual and Procedural Background

         On June 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.

         After 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.

         After 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), [2] and 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 managing conservator.

         The 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).

         In his 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.

         Standards of Review

         "Involuntary 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.)).

         An 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.

         "There 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 child." Id.

         A. Legal Sufficiency

         When a 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.

         B. Factual Sufficiency

         Under a 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

         Because only Dad appeals the termination of his parental rights, we limit our recitation of the facts accordingly.

         A. Norma Rodriguez

         Norma 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.

         On 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.

         Rodriguez 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.

         B. Maternal Grandmother

         I.C.G.'s 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 adores them.

         The 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 ...


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