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In re O.B.

Court of Appeals of Texas, Fourth District, San Antonio

March 28, 2018

IN THE INTEREST OF O.B. Jr., E.D.C., D.R.C., E.H.C., and T.M.C., Children

          From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02169 Honorable H. Paul Canales, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         Appellant M.G. appeals the trial court's order terminating her parental rights to her children O.B. Jr., E.D.C., D.R.C., E.H.C., and T.M.C.[1] M.G. asserts the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating her parental rights is in her children's best interests.

         Having reviewed the evidence, we conclude it is legally and factually sufficient to support the findings, and we affirm the trial court's order.

         Background[2]

         In December 2015, the Department of Family and Protective Services received a report that M.G.'s newborn child tested positive at birth for marijuana. The Department offered M.G. services to help her parent her six children, but she did not take advantage of the services. In the ensuing months, the Department received several more reports regarding M.G. The reports included domestic violence in the home, unsanitary home conditions, and drug abuse. In May 2016, M.G. tested positive for methamphetamines, and she continued to resist receiving services.

         In September 2016, M.G. was stopped by a police officer while driving with her children, and she was detained for outstanding warrants. When no suitable family members could be located to take the children, the Department took them and sought their removal. The Department initiated a service plan for M.G., but she did not complete the plan. On November 14, 2017, after a bench trial, the trial court terminated M.G.'s parental rights to five of her children, and she appeals.

         Evidence Required to Terminate Parental Rights

         If the Department moves to terminate a parent's rights to a child, the Department must prove by clear and convincing evidence that the parent's acts or omissions met one or more of the grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code, and terminating the parent's rights is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2017); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The same evidence used to prove the parent's acts or omissions under section 161.001(b)(1) may be used in determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.); see also Tex. Fam. Code Ann. § 161.001(b). The trial court may consider a parent's past deliberate conduct to infer future conduct in a similar situation. D.M., 452 S.W.3d at 472.

         Standards of Review

         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, '" the evidence is legally sufficient. See id. (quoting 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." C.H., 89 S.W.3d at 25; accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 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 H.R.M., 209 S.W.3d at 108.

         Bases for Termination

         A. M.G.'s Course of Parental Conduct

         The trial court found by clear and convincing evidence that M.G. failed to comply with her court-ordered service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(O).[3] On appeal, M.G. does not challenge the trial court's statutory ground finding.

         B. Best Interests of the Children

         Instead, M.G. challenges the sufficiency of the evidence supporting the trial court's finding that terminating her parental rights is in her children's best interests. See id. § 161.001(b)(2). We briefly review the law pertaining to determining the best interests of the children.

         1. Statutory Factors

         The Texas legislature codified certain factors courts are to use in determining the best interest of a child:

(1) the child's age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm ...

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