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In re A.J.M.

Court of Appeals of Texas, Fourth District, San Antonio

March 28, 2018

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

          From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2015PA02126 Honorable Charles E. Montemayor, Judge Presiding [1]

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

         This is an accelerated appeal of the trial court's order terminating Appellant Dad's parental rights to his child, A.J.M.[2] 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.

         Factual and Procedural Background

         On 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.

         On 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.

         The 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), [3] 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 conservator.

         The 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.

         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 A.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 [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 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

         Because only Dad appeals the termination of his parental rights, we limit our recitation of the facts accordingly.

         On 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.

         The 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 near future."

         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 court.

         The 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 child.

         Martinez 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 almost eighteen-years-old.

         Basis for Trial Court's Termination

         A.Statutory Violations under the Texas ...


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