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In re S.A.

Court of Appeals of Texas, Fourth District, San Antonio

January 24, 2018

IN THE INTEREST OF S.A., a Child

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA02285 Honorable Richard Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, 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, S.A. On appeal, Mother does not contest the grounds upon which termination was granted. Rather, she contends only that the evidence is legally and factually insufficient to support the trial court's finding that termination was in the child'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 after the hospital contacted the Department to advise that S.A. was amphetamine-addicted at birth. Soon after the birth, the Department placed the infant with a paternal aunt and uncle. The Department filed a petition to terminate Mother's parental rights.[1]During the case, the Department created a service plan for Mother, which she signed in March 2017. Under the service plan, Mother was required to: (1) enroll in a family violence course for victims; (2) submit to a psychosocial assessment and meet with a therapist to discuss her issues, particularly her drug issues; (3) submit to random drug testing - only negative results entitled Mother to visitation with S.A.; (4) participate in a substance abuse program; and (5) complete parenting classes. According to the Department caseworker, Crystal Jones, the most important items on Mother's plan were completion of a substance abuse treatment program and domestic violence classes. The trial court ordered Mother to comply with each requirement set out in the plan. Once the Department determined reunification, the initial goal, was not possible, the matter moved to a final hearing, during which the Department presented evidence in support of terminating Mother's parental rights.

         At the hearing, the trial court heard testimony from Department caseworker Jones, the child's paternal aunt - J.G., and Mother. At the conclusion of the hearing, the trial court terminated Mother's rights. Thereafter, the trial court rendered a written order of termination finding that Mother: (1) engaged in conduct or knowingly placed S.A. with persons who engaged in conduct that endangered S.A.'s physical or emotional well-being; (2) constructively abandoned S.A.; (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of S.A.; and (4) used a controlled substance in a manner that endangered the health or safety of S.A. and failed to complete a court-ordered substance abuse program.[2] See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (N), (O), (P) (West Supp. 2017). The trial court further found termination of Mother's parental rights would be in S.A.'s best interest. See id. § 161.001(b)(2). Mother timely perfected this appeal.

         Analysis

         As noted above, 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)(E), (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 the child. See id. § 161.001(b)(2).

         Standard of Review

         A parent's right to her child may be terminated by a court only if the court 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 her 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 her child results in permanent and severe changes for both the parent and child, thus, 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 determination 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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