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In re E.J.M.

Court of Appeals of Texas, Fourth District, San Antonio

January 3, 2018

IN THE INTEREST OF E.J.M., a Child

         From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00474 Honorable Richard Garcia, Judge Presiding[1]

          Sitting: Karen Angelini, Justice, Marialyn Barnard, 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, 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.

         Factual and Procedural Background

         On 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.

         On 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.

         After 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;[2] 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).[3] 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 managing conservator.

         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 E.J.M.'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

         A. Tricia Boone

         Tricia 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 allegations.

         Boone 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.

         B. Dad

         Dad 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.

         Dad 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.

         Dad 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 probation stemmed.

         During 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 understand.

         When 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 about it."

         During 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 accordingly.

         C. Carlos Castillo-Nunez

         Carlos 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 daughter struggles.

         D. Rachel Lipsey

         Rachel 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 ...


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