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In re I.P.

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

IN THE INTEREST OF I.P., a Child

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02486 Honorable Charles E. Montemayor, Judge Presiding

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

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice.

         Appellant C.P. appeals the trial court's order terminating her parental rights to her child I.P.[1] C.P. 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 I.P.'s best interest.

         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]

         On September 14, 2016, the Department of Family and Protective Services received a report that C.P. was on probation for theft and had tested positive for methamphetamines. From that date, the Department tried to contact C.P. at least ten times to offer her Family-Based Safety Services including drug addiction treatment and rehabilitation services. In its investigation, the Department discovered that I.P., an elementary school student, was frequently tardy and had multiple unexcused absences. I.P. also had a long-term ear infection which was degrading his hearing, affecting his speech development, and causing I.P. to fall behind in school. Because of C.P.'s failure to engage in services or provide essential care for I.P., on November 3, 2016, the Department removed I.P. from C.P.'s home.

         In December 2016, the Department created a service plan for C.P., but she was "overwhelmed" by its requirements. The Department tailored a plan to help her meet her plan and probation obligations, but despite this accommodation, C.P. failed to comply with her service plan. C.P. continued using drugs. She tested positive for cocaine twice with the Department and twice with the probation office. On October 31, 2017, after a one-day bench trial, the trial court terminated C.P.'s parental rights to I.P., 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. C.P.'s Course of Parental Conduct

         The trial court found by clear and convincing evidence that C.P. constructively abandoned I.P., failed to comply with her court-ordered service plan, and used a controlled substance in a manner that endangered I.P.'s health and safety. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (P).[3] On appeal, C.P. does not challenge the trial court's statutory grounds findings.

         B. Best Interest of the Child

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

         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 to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department;
(5) whether the child is fearful of living in or returning to the child's home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home;
(7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;
(8) whether there is a history of substance abuse by the child's family or others who have access to the child's home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
(11) the willingness and ability of the child's family to effect positive environmental and personal changes within a ...

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