Court of Appeals of Texas, Fourth District, San Antonio
the 131st Judicial District Court, Bexar County, Texas Trial
Court No. 2016-PA-00474 Honorable Richard Garcia, Judge
Sitting: Karen Angelini, Justice, Marialyn Barnard, 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,
E.J.M. 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 E.J.M.'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 E.J.M.
and Procedural Background
February 18, 2016, the Texas Department of Family and
Protective Services received a referral for alleged physical
abuse of twelve-year-old E.J.M., by her mother. After
speaking to the child at school, the caseworker made an
unannounced home visit on March 3, 2016. E.J.M.'s mother,
and several other adults living in the residence, tested
positive for methamphetamines and amphetamines.
March 4, 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 E.J.M. The trial court
ordered Dad to comply with each requirement set out in the
Department's service plan during the pendency of the
suit. Dad was granted visitation with E.J.M.
seventeen months, and several permanency hearings, the case
was called for trial on August 18, 2017. Following a hearing,
the trial court took the matter under
advisement; and, on August 29, 2017, the trial court
signed the Order of Termination in which the trial court
terminated Dad's parental rights pursuant to Texas Family
Code sections 161.001(b)(1)(N) and (O). See Tex.
Fam. Code Ann. § 161.001(b)(1)(N), (O). The trial court
made further findings that termination of Dad's parental
rights was in E.J.M.'s best interest pursuant to section
161.001(b)(2). See id. § 161.001(b)(2). The
trial court named the Department as E.J.M.'s permanent
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
E.J.M.'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
Boone, a private practice therapist, testified that she
received a referral for Dad's individual counseling in
March of 2017. Dad failed to appear for the first scheduled
appointment on April 27, 2017. After rescheduling the
appointment, Boone conducted her initial evaluation on May
11, 2017. Boone testified her initial assessment raised five
areas in which Dad required assistance: general parenting,
parenting his teenaged daughter, meeting his teenaged
daughter's needs, addressing specific issues with which
his daughter was dealing, and potential domestic violence
testified Dad's visitation with E.J.M., prior to the
Department's removal, consisted of weekends and summers
when her mother allowed it. At the conclusion of the
appointment, Dad scheduled a second appointment for May 25,
2017. Dad failed to either show for the appointment or
reschedule for a later date.
testified that E.J.M. was in the Department's custody
following an incident when E.J.M.'s mother grabbed
E.J.M.'s neck and tried to restrain her. Dad acknowledged
the Department's previous attempts to place E.J.M. in his
care were unsuccessful because he failed to complete the
required parenting classes.
acknowledged receiving the service plan in April of 2016. He
completed the psychological and the parenting classes, but
conceded that he missed six or seven of the parent-child
visitations. He did not agree with the Department's
assertion that he missed forty-three visitations with E.J.M.
In trying to explain his failure to make his visitation the
week before the hearing, Dad explained that the Department
required him to call or text his caseworker the day before a
visitation. Dad testified that he called and texted his
caseworker the day before the visitation, but that she never
returned his call.
acknowledged he was currently on probation for possession of
a controlled substance, stemming from an arrest in 2012. He
also acknowledged being on a prior probation, but he could
not recall the underlying charge or arrest from which the
his testimony, Dad testified that his disabilities made it
difficult for him to attend counseling or his visitations. He
suffered from high blood pressure and diabetes. Due to
complications of the diabetes, Dad's right leg was
amputated below the knee and the toes on his left leg were
amputated. "[I]t's harder for me to-it's more
time consuming for me to-it's not just wake up in the
morning and get ready. It's wake up in the morning and
it's a process." He continued,
I'm on the bus and I've got an amputated leg and
amputated toes. So, it's like I've got to rest, like,
every ten, 15 minutes. Sometimes I'll miss the bus. Like,
it's hard for me to just, like-I don't expect people
to understand what I'm going through because, if they are
not missing a limb or something, they are not going to
questioned about his failure to attend the counseling
appointments, Dad testified his failure to attend was due to
"medical stuff, appointments, and then just forgetting
cross-examination, Dad was adamant that he was clean. He
contended his failure to take the drug tests ordered by the
caseworker was either a question of logistics or that he
never received the call. Dad testified regarding his attempts
to "clean up [his] life" following his 2012 arrest.
He explained that he was staying away from
"everybody" and "trying to get [his] life back
on track." "I'm hurt. I'm sick. I'm
trying to just keep up with my doctors, keep up with my
family." Dad testified regarding his success in the
methadone program and that he had "been clean" for
over a year and a half. As evidence of his success, he
explained the clinic even allowed him weekly
"take-homes." He explained that the program
requires daily attendance at the clinic, and a negative drug
test, to receive the methadone dose. Once the participant has
proven clean for four months, the participant is dispensed a
weeks' worth of methadone and drug testing is reduced
Castillo-Nunez, a licensed professional counselor, testified
that he and Dad met on two occasions, once in July and once
in August of 2017. In Castillo-Nunez's opinion, Dad needs
assistance addressing E.J.M.'s mental health history. Dad
lacks knowledge and understanding of E.J.M.'s depression
and self-mutilation and he needs to be educated on why she
cuts herself. Castillo-Nunoz further opined that Dad is
personally having issues with depression and stress hindering
his ability to understand the problems with which his
Lipsey, the Department's conservatorship worker for
E.J.M., testified that she received the case following a
referral for physical abuse and neglectful supervision by
E.J.M.'s mother. The Department attempted to place E.J.M.
with Dad, but was unable to ensure a safe and suitable home.
Since June of 2016, E.J.M. has been at ...