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In re A.M.S.

Court of Appeals of Texas, Fourth District, San Antonio

May 22, 2019

IN THE INTEREST OF A.M.S., K.R.S., R.R.S., A.S., R.I.S., E.R.S., J.A.S., and N.M.S., Children

          From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA01328 Honorable Renée Yanta, Judge Presiding [1]

          Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          Beth Watkins, Justice.

         AFFIRMED

         Appellant father ("Father") appeals from the trial court's order terminating his parental rights. On appeal, Father contends the evidence is legally and factually insufficient to support the trial court's finding that termination is in the children's best interests. We affirm.

         Background

         The Texas Department of Family and Protective Services ("the Department") became involved with the family in 2011 based on allegations of drug use by both parents. There was repeat involvement in 2014 - based on alleged drug use by Father - and 2016 - based on alleged domestic violence by Father and claims of attempted sexual assault. With regard to all three interactions, the Department instituted Family Based Services. In 2017, one of the children, thirteen-year-old K.R.S., called 911 from a neighbor's home, asserting Father was abusing Mother. This time, the Department removed the children - eight in all - who ranged in age from infant to teenager. The Department instituted a legal case, filing a petition seeking termination in the event reunification could not be attained. The Department prepared service plans for both parents.

         Ultimately, the Department moved to terminate Father's and Mother's parental rights on numerous grounds. At the September 2018 final hearing, the trial court received three days of testimony before terminating Father's parental rights on multiple grounds and finding termination to be in the children's best interests.[2] See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (F), (O), 161.001(b)(2). Father appealed.

         Analysis

         Father does not challenge the grounds upon which his parental rights were terminated. Instead, he only challenges the legal and factual sufficiency of the evidence supporting the trial court's best interest finding. See Tex. Fam. Code § 161.001(b)(2).

         Standard of Review

         Clear and convincing evidence must support a trial court's findings under section 161.001(b)(2) of the Texas Family Code ("the Code"). See id. § 161.001(b). "Clear and convincing evidence" is "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. Courts require this heightened standard because termination of parental rights implicates due process. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual sufficiency of the evidence, we apply well-established standards of review. See Tex. Fam. Code §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). These standards require that we determine whether the evidence is such that the trier of fact could reasonably form a firm belief or conviction that termination is in the child's best interest. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

         In conducting a sufficiency review, we may not weigh a witness's credibility because it depends on appearance and demeanor, and these are within the domain of the trier of fact. In re J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the fact finder's reasonable resolutions. Id.

         Best Interests

         Applicable Law

         In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). We recognize 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). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code § 263.307(a). Therefore, we also consider the best interest factors set forth in section 263.307(b) of the Code. Id. § 263.307(b).

         In conducting a best interest analysis, we consider direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.- San Antonio 2013, pet. denied). Additionally, a trier of fact may measure a parent's future conduct by his past conduct in determining whether termination is in the child's best interest. Id. Evidence of each Holley factor is not required before a court may find that termination is in a child's best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2012). Moreover, in conducting our review of a trial court's best interest determination, we focus on whether termination is in the best interest of the child, not the best interest of the parent. In re D.M., 452 S.W.3d 462, 468-69 (Tex. App.-San Antonio 2014, no pet.).

         A ...


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