Court of Appeals of Texas, Fourth District, San Antonio
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2016PA01890 Honorable Charles E. Montemayor, Judge
Sitting: Marialyn Barnard, Justice Patricia O. Alvarez,
Justice Luz Elena D. Chapa, Justice Delivered and
Patricia O. Alvarez, Justice
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.
and Procedural Background
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.
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.
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). See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (N), (O), (Q). 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
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.
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.
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.
Testimony Elicited during the Termination Hearing
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
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.
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.
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.
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.
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.
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 ...