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In re Z.B.

Court of Appeals of Texas, Tenth District

September 11, 2019

IN THE INTEREST OF Z.B. AND S.B., CHILDREN

          Before Chief Justice Gray, Justice Davis, and Justice Neill (Chief Justice Gray concurring with a note) [*]

          From the 12th District Court Walker County, Texas Trial Court No. 18-28762

          MEMORANDUM OPINION

          JOHN E. NEILL, JUSTICE.

         In two issues, appellant, C.B. Jr., challenges the trial court's order terminating his parental rights to his twins, Z.B. and S.B.[1] We affirm.

         I. Standard of Review

         In an involuntary termination proceeding brought under section 161.001 of the family code, the Department must establish: (1) at least one ground under subsection (1) of section 161.001(b); and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1)-(2) (West Supp. 2018); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. See Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

         Termination decisions must be supported by clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West Supp. 2018). Evidence is clear and convincing if it "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 (West 2019). Due process demands this heightened standard because termination results in permanent, irrevocable changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting the standards for termination and modification).

         In evaluating the evidence for legal sufficiency in parental-termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all contrary evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. In other words, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. Id. We cannot weigh witness-credibility issues that depend on the appearance and demeanor of the witnesses, for that is within the province of the factfinder. Id. at 573-74. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are reasonable. Id. at 573.

         In reviewing for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the factfinder's judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent committed the predicate ground alleged and that the termination of the parent-child relationship would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1); see In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.

         II. Analysis

         In his first and second issues, appellant challenges the sole predicate ground for termination under section 161.001(b)(1)(O) of the Family Code.[2] See Tex. Fam. Code Ann. § 161.001(b)(1)(O) (West Supp. 2018). Specifically, appellant contends, in his first issue, that the evidence was insufficient to establish the predicate ground for termination because the children were not removed for abuse or neglect. In his second issue, appellant asserts that the abuse or neglect predicate under section 161.001(b)(1)(O) cannot be based on risk alone, unless the Department identifies the specific risk and relates it to the current case.

         To terminate parental rights pursuant to subsection (b)(1)(O), the Department must show that: (1) the child was removed under chapter 262 of the Family Code for abuse or neglect; (2) the child has been in the managing conservatorship of the Department for at least nine months; and (3) the parent "failed to comply with the provision of a court order that specifically established the actions necessary for the parent to obtain the return of the child." Id. On appeal, both of appellant's issues concern only the first element of subsection (b)(1)(O) regarding the removal of the children for abuse or neglect. Because both issues relate to the same element, they will be addressed together.

         At the outset, we address appellant's contention that the abuse or neglect requirement under subsection (b)(1)(O) cannot be based on risk alone. The Texas Supreme Court has held that the language "abuse or neglect of the child," as used in subsection (b)(1)(O),

necessarily includes the risks or threats of the environment in which the child is placed. Part of that calculus includes the harm suffered or the danger faced by other children under the parent's care. If a parent has neglected, sexually abused, or otherwise endangered her child's physical health or safety, such that initial and continued removal are appropriate, the child has ...

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