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In re B.M.M.

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

IN THE INTEREST OF B.M.M., a Child

          From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-00506 Honorable Richard Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice

          MEMORANDUM OPINION

          REBECA C. MARTINEZ, JUSTICE

         AFFIRMED

         This is an appeal from an order terminating appellant's parental rights to his child, B.M.M. In appellant's sole issue, he contends the evidence is legally and factually insufficient to support the trial court's finding that termination is in the child's best interest. We affirm the trial court's termination order.

         Background

         Appellant is incarcerated for aggravated robbery. His projected release date is December 4, 2025. The Texas Department of Family and Protective Services caseworker testified that appellant has a lengthy criminal record and that all the offenses are "pretty serious in nature" and "very violent." Because of appellant's incarceration, he cannot provide stable housing, financial support, or meet any of B.M.M.'s physical and emotional needs. Moreover, the relationship between appellant and B.M.M. is very strained and neither have attempted, or have had, any contact with one another. However, the caseworker testified she has been able to establish contact with appellant and was able to send appellant his court-ordered service plan. Appellant signed his service plan and, although he was given the opportunity to participate in services offered by the prison, he has not participated in services or completed anything on his plan.

         The caseworker further testified that B.M.M., who was then thirteen years old, was living with "fictive kin" Richard and Priscilla. According to the caseworker, Richard and Priscilla love B.M.M. as their own child, provide for all her emotional, physical, and financial needs, and want to adopt her. B.M.M. has also expressed a desire to be adopted by Richard and Priscilla.

         At the conclusion of the trial, the trial court signed an order terminating appellant's parental rights. This appeal followed.

         Predicate Findings

         Parental rights may be terminated only if the trial court finds by clear and convincing evidence that the parent has engaged in one or more of the predicate acts enumerated in section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2017). Clear and convincing evidence requires "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." Id. § 101.007 (West 2014). Here, the trial court concluded there was clear and convincing evidence that appellant had engaged in the following predicate acts: (1) constructively abandoned the child; (2) failed to comply with the provisions of a court order specifically establishing the actions necessary for appellant to obtain the return of the child; and (3) knowingly engaged in criminal conduct that had resulted in his conviction of an offense and his imprisonment, which led to his inability to care for the child for not less than two years from the date of filing the petition. Id. § 161.001(b)(1)(N), (O), (Q). Appellant does not challenge these predicate findings on appeal, but rather, he challenges the sufficiency of the evidence regarding the trial court's finding that termination was in the child's best interest.

         Best Interest

         When reviewing whether termination is in the child's best interest, we are tasked with determining "whether the evidence is such that a fact finder could reasonably form a firm belief or conviction that termination was in the child's best interest." In re A.K., 487 S.W.3d 679, 685 (Tex. App.-San Antonio 2016, no pet.). With regard to appellant's legal sufficiency challenge, we view all the evidence in the light most favorable to the trial court's finding, meaning we "must assume that the [trial court] resolved disputed facts in favor of [termination] if a reasonable factfinder could do so" and "disregard[ed] all evidence that a reasonable factfinder could have disbelieved." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). Similarly, in a factual sufficiency review, we give "due deference" to the trial court's findings, "avoiding substituting our judgment" for that of the trial court. In re A.K., 487 S.W.3d at 685. "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." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (citing In re J.F.C., 96 S.W.3d at 266).

         When evaluating whether termination is in the best interest of the child, there is a strong presumption that keeping a child with a parent serves the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, it is equally presumed that "the prompt and permanent placement of the child in a safe environment is . . . in the child's best interest." Tex. Fam. Code Ann. ยง 263.307(a) (West Supp. 2017). In considering a parent's willingness and ability to provide ...


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