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In re A.M.

Court of Appeals of Texas, Sixth District, Texarkana

July 25, 2019

IN THE INTEREST OF A.M. AND A.M., CHILDREN

          Submitted date: July 22, 2019

          On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2018-869-DR

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          SCOTT E. STEVENS JUSTICE

         Six-year-old Adam[1] and his two-year-old sister, Amy, were removed from the care of their mother, Kim, because of suspected physical abuse. Eleven months later, a Gregg County district court terminated Kim's parental rights to the children and appointed their father, David, sole permanent managing conservator. On appeal, Kim contends that the evidence was factually insufficient to support the trial court's finding that termination of her parental rights was in the best interests of the children.

         Because we find that the evidence was factually sufficient to support the finding, we affirm the trial court's judgment.

         I. Standard of Review

         "The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). It is a fundamental right of parents to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof-clear and convincing evidence-is required at trial." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). We are therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500.

          To terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001 (Supp.); In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012). "Clear and convincing evidence" is that "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; see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.

         In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine "whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." Id. at 108 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). "If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266.

         Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.-Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).

         II. Background

         The Texas Department of Family and Protective Services (the Department) first opened a Family Based Safety Services (FBSS) case involving Adam and Amy when Adam was brought to school and appeared to be under the influence of some substance. A few months later, it became a conservatorship case[2] when Adam was found with cigarette burns on his body. Although it was undetermined who burned Adam, he and Amy were residing with Kim and her then boyfriend, Dwayne, at the time. In a Children's Advocacy Center (CAC) interview following this incident, Adam stated that he was afraid of Dwayne and that he hated his mother and Dwayne.

         During the FBSS case, both Kim and David tested positive for marihuana, and Amy tested positive for methamphetamine. Yet, throughout the conservatorship case, David tested negative on every drug test requested by the Department. Kim, on the contrary, submitted to an oral swab once during the conservatorship, which was positive for marihuana, and once to a urine analysis. When she was ...


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