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In re W.S.

Court of Appeals of Texas, Tenth District

March 28, 2018

IN THE INTEREST OF W.S., A CHILD

          From the County Court at Law Hill County, Texas Trial Court No. 53531

          Before Chief Justice Gray, [*] Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          REX D. DAVIS Justice

         The trial court terminated the parental rights of W.S.'s mother ("Mother") after a bench trial.[1] The trial court found that Mother had violated Family Code subsections 161.001(b)(1)(N), (O), and (P) and that termination was in W.S.'s best interest. In her sole issue, Mother contends that the evidence is legally and factually insufficient to establish that terminating her parental rights was in the child's best interest. We will affirm.

         Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).

In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that 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.

         In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, 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, then the evidence is factually insufficient.

Id. (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.

         We give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge "of the credibility of the witnesses and the weight to give their testimony." Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). The factfinder may choose to believe one witness and disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

         In a proceeding to terminate the parent-child relationship brought under Family Code section 161.001, the Department of Family and Protective Services must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (b)(1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2017); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.-Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. "Clear and convincing evidence" is defined as "that measure or degree of proof which 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." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). As noted, Mother does not challenge the trial court's finding that she violated subsections (N), (O), and (P).

         In determining the best interest of a child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist this individual; (6) the plans for the child by this individual; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive, but simply indicates factors that have been or could be pertinent. Id. at 372. A single factor may be adequate in a particular situation to support a finding that termination is in the best interest of a child. See In re B.H.R., 535 S.W.3d 114, 123 (Tex. App.-Texarkana 2017, no pet.); see also In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.-Waco 2001, no pet.), disapproved on other grounds by J.F.C., 96 S.W.3d at 267 n.39. We may also consider evidence supporting violation of one or more of the predicate acts in the best-interest analysis. In re A.M., 495 S.W.3d 573, 581 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) (citing C.H., 89 S.W.3d at 27-28).

         Melissa Wilson, the CPS investigator assigned to this case, testified that Mother came to the attention of CPS in Johnson County after her newborn tested positive for methamphetamine.[2] The CPS investigation regarding W.S. also involved allegations of methamphetamine use, as well as incidents of domestic violence at the home Mother and Father shared with W.S., Q.S. (Father's twelve-year-old son with "Stepmother"), and Father's father ("Grandfather"). Both W.S. and ...


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