Court of Appeals of Texas, Fourth District, San Antonio
the 407th Judicial District Court, Bexar County, Texas Trial
Court No. 2015PA02126 Honorable Charles E. Montemayor, Judge
Sitting: Marialyn Barnard, Justice Patricia O. Alvarez,
Justice Irene Rios, Justice
Patricia O. Alvarez, Justice
an accelerated appeal of the trial court's order
terminating Appellant Dad's parental rights to his child,
A.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 A.J.M.'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 A.J.M.
and Procedural Background
August 11, 2015, the Texas Department of Family and
Protective Services received a referral alleging Mom, A.J.M.,
and Mom's seven-month-old son had been homeless, but were
currently living with relatives. The house was unsanitary and
insect infested; dog feces, needles, and trash covered the
floors. A loaded firearm was located in the couch cushions
and the residents were reportedly using methamphetamines,
cocaine, and marijuana in front of the children.
October 9, 2015, 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 A.J.M.
case was originally called for trial on March 21, 2017. It
was reset to June 2, 2017, and finally to September 28, 2017.
After considering the testimony and arguments of counsel, the
trial court orally pronounced the termination of Dad's
parental rights pursuant to Texas Family Code section
161.001(b)(1)(N) and (Q), see Tex. Fam. Code Ann.
§ 161.001(b)(1) (N), (Q),  and made further findings that
termination of Dad's parental rights was in A.J.M.'s
best interest pursuant to section 161.001(b)(2), see
id. § 161.001(b)(2). The trial court also made a
finding that Dad failed to legitimize paternity pursuant to
section 161.002. See id. § 161.002. The trial
court named the Department as A.J.M.'s permanent managing
written termination order, however, signed on September 28,
2017, provides the statutory basis for termination of
Dad's parental rights was only pursuant to Texas Family
Code sections 161.001(b)(1)(N) and (Q), see Tex.
Fam. Code Ann. § 161.001(b)(1)(N) and (Q). "When
there is an inconsistency between a written judgment and an
oral pronouncement of judgment, the written judgment
controls." In re L.G.R., 498 S.W.3d 195, 206
(Tex. App.-Houston [14th Dist.] 2016, pet. denied). Thus, for
purposes of statutory violations under chapter 161, this
court is limited to considering the trial court's finding
on Dad's constructive abandonment and knowingly engaging
in criminal conduct resulting in imprisonment reflecting or
indicating an inability to care for A.J.M., see Tex.
Fam. Code Ann. § 161.001(b)(1)(N), (Q), and not the
trial court's oral pronouncement regarding Dad's
failure to legitimate, see id. § 161.002.
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
A.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 [his] 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
only Dad appeals the termination of his parental rights, we
limit our recitation of the facts accordingly.
March 21, 2017, the trial court called the case for a final
hearing. Dad's attorney announced not ready and explained
that, although he arranged for his client to participate by
phone from prison, Dad did not want to participate. The court
clerk confirmed as follows:
I contacted the law library and I was informed that they did
secure the prisoner, but when they brought him out, he
requested that he did not want to participate in the hearing
at all, so they took him back.
matter was then reset to June 2, 2017. The caseworker
reported the children were doing well in the foster home.
They were gaining weight, attending therapy, and thriving.
Dad's attorney explained Dad's criminal conviction
was on appeal and they were expecting a decision "in the
final day of the hearing was September 28, 2017. At the
beginning of the hearing, Mom signed a relinquishment of her
parental rights and presented the affidavit to the trial
only witnesses called to testify was the Department's
caseworker, Amy Martinez. Martinez testified that A.J.M. was
three-and-a-half-years-old at the time of the hearing. Dad
had been incarcerated throughout the pendency of the entire
case for human-trafficking. He was serving a
twenty-eight-year sentence with an expected release date in
2029. Martinez's only contact with Dad was through
written correspondence. The father had not worked any
services, provided any certificates, or visited with the
believes terminating Dad's parental rights is in
A.J.M.'s best interest. Dad could not provide a safe and
stable home for him. The foster family, with whom A.J.M. was
living, was providing a safe home and was willing to adopt
him. By the time Dad is released from prison, A.J.M. would be
for Trial Court's Termination
A.Statutory Violations under the Texas ...