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In re D.M.H.

Court of Appeals of Texas, Fourth District, San Antonio

June 19, 2019

IN THE INTEREST OF D.M.H., Jr., a Child

          From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2018PA00016 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice.

          MEMORANDUM OPINION

          Beth Watkins, Justice.

         S.C. appeals the trial court's order terminating her parental rights to D.M.H., Jr. The only issue presented on appeal is whether the evidence is legally and factually sufficient to support the trial court's finding that termination was in D.M.H., Jr.'s best interest. We affirm the trial court's order.

         Background

         On January 3, 2018, the Texas Department of Family and Protective Services filed a petition to terminate S.C.'s parental rights to D.M.H., Jr. On November 28, 2018, a bench trial was held. At the time of the trial, D.M.H., Jr. was sixteen months old. The trial court terminated S.C.'s parental rights, and she appeals.[1]

         Standard of Review and Statutory Requirements

         To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial court found clear and convincing evidence of the following two predicate grounds under subsection 161.001(b)(1) to terminate S.C.'s parental rights:

(1) S.C. constructively abandoned D.M.H., Jr. who had been in the permanent or temporary managing conservatorship of the Department for not less than six months and: (a) the Department made reasonable efforts to return D.M.H., Jr. to S.C.; (b) S.C. had not regularly visited or maintained significant contact with D.M.H., Jr.; and (c) S.C. demonstrated an inability to provide D.M.H., Jr. with a safe environment; and
(2) S.C. failed to comply with a court-ordered service plan.

         See Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O); see also In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (noting evidence that proves one or more statutory grounds for termination may be probative in proving termination is in the child's best interest). The trial court also found clear and convincing evidence that terminating S.C.'s parental rights was in D.M.H., Jr.'s best interest.

         We evaluate the legal and factual sufficiency of the evidence to support the trial court's findings under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under these standards, "[t]he trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.-San Antonio Jan. 30, 2017, no pet.) (mem. op.).

         Best Interest Finding

         In determining the best interest of a child, courts apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist those individuals to promote the best interest of the child; (6) the plans held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (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. The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re ...


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