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In re T.H.

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

In the Interest of T.H. and G.J.A., Children

          From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02347 Honorable John D. Gabriel, Jr., Judge Presiding

          Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          KAREN ANGELINI, JUSTICE

         AFFIRMED

         This is an appeal from a judgment terminating parental rights. We affirm.

         Background

         On October 19, 2016, the Texas Department of Family and Protective Services filed a petition for the protection of T.H. and G.J.A. At the time, T.H. was three and a half years old and G.J.A. was almost two years old. The children's mother was Julie.[1] T.H.'s father was Mark. G.J.A.'s father was Greg. In its petition, the Department sought to terminate Julie, Mark, and Greg's parental rights. On November 7, 8, and 9, 2017, the trial court held a trial on the Department's termination petition. After considering the evidence, the trial court rendered judgment terminating Julie, Mark, and Greg's parental rights. The trial court terminated Mark's parental rights on the statutory grounds of constructive abandonment, failure to comply with court-ordered services, and engaging in criminal conduct that resulted in the parent's conviction and confinement. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (Q) (West Supp. 2017). The trial court terminated Greg's parental rights on the statutory grounds of constructive abandonment, failure to comply with court-ordered services, and use of a controlled substance. See id. § 161.001(b)(1)(N), (O), (P). The trial court also found that termination of parental rights was in the children's best interest. See id. § 161.001(b)(2). Mark and Greg appealed.

         Mark's Appeal

         In one issue, Mark argues the evidence was legally or factually insufficient to support the trial court's finding that termination of his parental rights was in T.H.'s best interest as required by section 161.001(2) of the Texas Family Code.

         Termination of parental rights under section 161.001 of the Texas Family Code requires proof by clear and convincing evidence of at least one of the grounds listed in section 161.001(b)(1)(A)-(U) and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2). 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).

         In reviewing the legal sufficiency of the evidence in a parental termination case, we consider all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a strong belief or conviction that its finding was true. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). "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." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible." Id. If we conclude that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude the evidence is legally insufficient. Id.

         When a parent challenges the factual sufficiency of the evidence on appeal, we look at all the evidence, including disputed or conflicting evidence. In the Interest of J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). 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 have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

         In evaluating the child's best interest, courts consider the factors articulated in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (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 individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. These factors are not all required and they are not exhaustive. In the Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2008). Some of them may not apply, while other factors that are not listed may be appropriate. See id.

         A best-interest analysis may consider direct and circumstantial evidence, subjective factors, and the totality of the evidence. In the Interest of E.D., 419 S.W.3d 615, 620 (Tex. App.- San Antonio 2013, pet. denied). The mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest. In the Interest of O.N.H., 401 S.W.3d 681, 684 (Tex. App.-San Antonio 2013, no pet.). However, a court can measure a parent's future conduct by his past conduct to determine if termination is in the child's best interest. Id. A parent's inability to maintain a lifestyle free from criminal activity is relevant to determining a child's best interest. In the Interest of A.G., No. 04-15-00549-CV, 2016 WL 413342, at *2 (Tex. App.-San Antonio 2016, pet. denied). Additionally, a parent's drug abuse reflects poor judgment and may be a factor to be considered in determining a child's best interest. Id.

         The trial evidence relevant to Mark and T.H. was as follows.

         1. Mark's Testimony

         Mark, who was in prison at the time of the trial, testified by telephone. Mark was serving a four-year sentence for a conviction for possession of a firearm by a felon. Mark said he had already served fifteen months and was in a program that put him on track to be released from prison around March or April 2018. Mark admitted he had been convicted of other crimes, including possession of a controlled substance (heroin) and family violence assault, and that he had been incarcerated for other crimes during T.H.'s life.

         Mark testified that he knew he was T.H.'s father before the child was born. Mark was aware that T.H.'s mother, Julie, was incarcerated when T.H. was born. Shortly after he was born, T.H. went to live with his maternal grandmother, who had custody of T.H. until Julie was released from prison. Mark said that he had been in contact with T.H.'s grandmother and that she had sent him pictures of T.H. Although Mark knew T.H. was born about four years ago, he did not know the date or the month T.H. was born. Mark said that he had been able to spend time with T.H. after the child was born. Mark claimed that until T.H. was six months old he was there every weekend buying clothes and diapers for him and he would "pick him up occasionally." Mark said he had spent about a total of six months with T.H. until Julie was released from prison. Mark claimed that when Julie was released from prison she pushed him away. Additionally, Mark testified that he was not able to spend time with T.H. after he was six months old because Mark moved away from the city where T.H. was living to Corpus Christi, Texas. Mark said he was living in Corpus Christi when he was charged with a crime that resulted in him serving time in prison.

         In his testimony, Mark vacillated about whether he was in prison in October 2016, when T.H. first came into the Department's care. Mark initially testified that he was not in prison but "on the outside" when T.H. came into the Department's care. According to Mark, Julie and T.H.'s grandmother were lying to him and telling him that everything was "okay" with T.H. However, Mark later confirmed that he went to prison in August 2016 and that T.H. came into the Department's care in October 2016. Mark admitted that had he not been in prison, he could have potentially "been there" to care for T.H.

         Mark testified that the last time he had used an illegal substance was in "[m]aybe 2013." Mark said that the illegal substance was marijuana, not heroin. Despite a prior conviction for possession of heroin, Mark claimed that he did not use heroin. The heroin that resulted in his conviction had been left in his car by someone, but he did not know who that person was. Mark claimed he did not have a drug addiction from which he needed recovery.

         Mark acknowledged that he had received a family service plan from the Department. Mark said he did not sign the service plan because he felt it was outdated. Mark said that he had not performed any of the services in the service plan because he was incarcerated. Mark testified that he had inquired about services during his incarceration. Mark said he was put on a waiting list for some services while he was in jail, but he was transferred to prison before these services were made available to him. Mark said that no one from the Department had visited him while he was in prison and that he had written to the Department and told them he wanted to gain reunification with T.H. Mark said he was "willing to do any kind of programs or counseling, whatever it takes to gain reunification with" T.H. Mark said that he was participating in several programs while in prison: a program called CHANGES (Changing Habits and Achieving New Goals to Empower Success) and a GED class. Mark explained that CHANGES talks about family matters, drugs, everyday life, diseases, and "all kinds of life-changing experiences." The 210-hour program consists of seven modules and takes three to four and a half months to complete. Mark claimed that after completing the CHANGES program, he will be released on parole. Mark also said that he had requested two other classes, crime prevention and recovery, and that he was on waiting lists for these classes.

         Finally, Mark testified that he was the father of four other children in addition to T.H. However, Mark acknowledged that his parental rights to two of these children had already been terminated. Finally, Mark acknowledged that due to his own actions, he was presently unable to care for, support, and provide housing for T.H.

         2. The Caseworker's Testimony

         A Department caseworker testified that she had sent Mark the service plan in this case and he had acknowledged that he had received it. Mark returned the service plan to the caseworker, telling her that he was not going to sign it because he claimed it was outdated. The caseworker did not believe the service plan was outdated. The caseworker did not discuss the service plan with Mark in person because the prison where Mark was housed was outside of the region. Mark still had not completed the following services: parenting classes, a drug assessment, a psychosocial evaluation, individual counseling, random drug tests, safe and stable housing, and legal and stable employment. The caseworker acknowledged that it would be difficult for Mark to complete some of these services because of his incarceration. The caseworker did not know if Mark had addressed some of the items on the service plan while he was incarcerated because she did not receive proof of any of the classes Mark claimed to have taken while he was incarcerated.

         The caseworker also testified that terminating Mark's parental rights was in T.H.'s best interest because Mark had been incarcerated for the last year and he had a pattern of breaking the law and being incarcerated. Mark was first incarcerated for two years and then for four years. Furthermore, there was no parent-child bond between Mark and T.H.; T.H. did not know Mark. Mark had lost his parental rights to other children and his incarcerations appeared to be a factor there. The caseworker had received a letter from Mark stating that it was unfair that he had lost his parental rights to his other children and that he should have been given an opportunity because he was in jail. According to the caseworker, Mark could be incarcerated until 2020 on his current sentence and this would substantially affect his ability to care for T.H. in the future. The ...


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