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In re C.G.

Court of Appeals of Texas, Seventh District, Amarillo

May 14, 2018


          On Appeal from the 64th District Court Swisher County, Texas Trial Court No. A-12430-16-02, Honorable Robert W. Kinkaid, Jr., Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.



         Appellant, the father of C.G., [1] appeals the trial court's order terminating his parental rights to C.G. Through three issues, the father challenges the sufficiency of the evidence supporting termination. We will affirm.


         In early 2016, the Texas Department of Family and Protective Services filed pleadings that included an original petition for protection of two-year-old C.G., for conservatorship, and for termination in a suit affecting the parent-child relationship. The pleadings were filed after a Department family-based safety plan failed to resolve issues that arose from statements the child's mother made to her anger management counselor at MHMR. In March 2016, after a hearing, the trial court appointed the Department C.G.'s temporary managing conservator. The Department took C.G. into its possession, and placed him into foster care where he remained at the time of trial.

         After periodic hearings, the case was set for trial on March 15, 2017. That morning, C.G.'s mother executed a voluntarily relinquishment of her parental rights. Her parental rights were terminated on that basis, and she has not appealed.

         After the mother's relinquishment, and motions for continuance, a bench trial on the remaining issues in the case was held November 8, 2017. The Department called as witnesses a licensed professional counselor who had seen both the father and the mother; a therapist who had interviewed C.G.; the Department's investigator; the child's mother; the Department's caseworker; the Department's employee who monitored the father's visits with C.G.; and the father. In his case in chief, the father called his sister, and C.G.'s ad litem called Patience White.

         The trial court concluded the evidence clearly and convincingly supported the termination of the father's parental rights to C.G. under Family Code sections 161.001(b)(1)(D) and (E) and found by the same standard termination was in C.G.'s best interest. On appeal, the father challenges each of the trial court's findings.


         Standard of Review and Applicable Law

         The Constitution protects "[t]he fundamental liberty interest of natural parents in the care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. In re E. N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is 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. Tex. Fam. Code Ann. § 101.007 (West 2014); In re C.H., 89 S.W.3d at 25-26.

         The Texas Family Code permits a trial court to terminate parental rights if the Department proves by clear and convincing evidence that the parent committed an action prohibited under section 161.001(b)(1) and termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.- Amarillo 2005, no pet.). Thus, a termination order may be affirmed if it is supported by legally and factually sufficient evidence of any statutory ground on which the trial court relied for termination, and the best interest finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.-San Antonio 2012, pet. denied).

         Under the legal sufficiency analysis, we examine all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. However, we take into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, we must defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         Evaluation of the factual sufficiency of evidence supporting termination of parental rights requires "an exacting review of the entire record." In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual sufficiency review, we must give due consideration to the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. In doing so we consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. 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 J.F.C., 96 S.W.3d at 266.

         There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But prompt and permanent placement of a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2015). The best interest analysis evaluates the best interest of the child, not that of the parent. In the Interest of A.C.B.,198 S.W.3d 294, 298 (Tex. App.-Amarillo 2006, no pet.). The following factors are among those the court may consider in determining the best interest of a child: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interests of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. The Holley ...

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