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In re L.J.T.

Court of Appeals of Texas, Fourth District, San Antonio

February 28, 2018

IN THE INTEREST OF L.J.T., a Child

         From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA01890 Honorable Charles E. Montemayor, Judge Presiding[1]

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Delivered and

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         AFFIRMED

         This is an accelerated appeal of the trial court's order terminating Appellant Dad's parental rights to his child, L.J.T. 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 L.J.T.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2017). 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 L.J.T.

         Factual and Procedural Background

         On August 22, 2016, the Texas Department of Family and Protective Services received a referral concerning infant L.J.T., who was born with chronic lung disease, pulmonary hypertension, and feeding issues. The referral alleged that hospital staff worked with Mom for three months, but she was unable to care for and meet L.J.T.'s special medical needs. Among other things, L.J.T. required feeding through a gastrointestinal tube (G-tube) and an oxygen tank. At that time, Dad was incarcerated at the Bexar County Jail for an alleged assault on Mom.

         On August 29, 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 L.J.T. The trial court ordered both parents to comply with each of the requirements set out in the Department's service plan.

         After one year, and several permanency hearings, the case was called for trial on August 25, 2017. Following a hearing, the trial court terminated Dad's parental rights pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (N), (O), and (Q).[2] See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (Q).[3] The trial court made further findings that termination of Dad's parental rights was in L.J.T.'s best interest pursuant to section 161.001(b)(2). See id. § 161.001(b)(2). The trial court named the Department as L.J.T.'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 L.J.T.'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.

         Termination Hearing

         We limit our rendition of the facts to those pertaining to the trial court's determination of whether termination of Dad's parental rights was in L.J.T.'s best interest.

         A. Testimony Elicited during the Termination Hearing

         1. Denise Santos

         Denise Santos, a legal caseworker for the Department, testified that at the time of the hearing, L.J.T. was one-year-old. She was born with cocaine in her system and with relatively severe special medical needs. The hospital allowed Mom to room with L.J.T. so that Mom could be educated on the child's needs. After three months, however, Mom was unable to demonstrate the ability to care for L.J.T. and the child was taken into the Department's care pursuant to emergency orders.

         Santos further testified she had been in contact with Dad since the beginning of the case, and that Dad was provided with a service plan. Dad was imprisoned sporadically throughout the entire proceedings. He was incarcerated for assault, released, and then rearrested for a violation of his parole.

         Although Dad reported that he completed substance abuse, domestic violence, parenting, and anger management classes during his incarceration, Santos testified that Dad did not provide any certificates of completion. She further relayed that Dad had not demonstrated an ability to provide a safe, stable environment for L.J.T. and that she had not seen any positive improvement or attempts by Dad to abide by the rules prescribed by the court.

          Santos opined that she believed termination of Dad's parental rights is in L.J.T.'s best interest because Dad

has not demonstrated the ability to address all of the issues as to why the child came into care. He has not demonstrated that he can provide safe and stable housing for his child, a drug-free environment, a domestic violence free environment, or that he can meet any of her special needs, and he's also currently incarcerated.

         As for future plans, Santos testified the foster parents were willing to adopt L.J.T.; and, both the maternal grandmother and a paternal aunt were also being reviewed for possible placement should parental rights be terminated.

         Finally, Santos testified that L.J.T. is growing; she is more alert and receiving occupational, physical, and speech therapy. The doctors are working toward the proper healing of her G-tube and she is slowly gaining strength and becoming more mobile.

         2. Dad

         During his testimony, Dad admitted several arrests for assault and two arrests for possession of marijuana; he was adamant, however, that his current incarceration was a mistake. Dad testified that he took a class while he was incarcerated, four hours-per-day, for forty-five days, for domestic violence, parenting, and anger management. He testified that he did not receive a certificate. Dad claims he completed the class before he left, but when he asked for the certificate, the teacher was sick and no ...


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