Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF A.M. AND A.M., CHILDREN
Submitted date: July 22, 2019
Appeal from the 307th District Court Gregg County, Texas
Trial Court No. 2018-869-DR
Morriss, C.J., Burgess and Stevens, JJ.
E. STEVENS JUSTICE
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.
we find that the evidence was factually sufficient to support
the finding, we affirm the trial court's judgment.
Standard of Review
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.
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
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
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).
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
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.
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 ...