Court of Appeals of Texas, Fourth District, San Antonio
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2017PA00639 Honorable Richard Garcia, Judge
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Patricia O. Alvarez, Justice
C. MARTINEZ, JUSTICE
consider this parental termination case upon remand from the
Texas Supreme Court. See In re Z.M.M., 577 S.W.3d
541 (Tex. 2019) (per curiam). Parental rights may be
terminated only upon proof by clear and convincing evidence
that (1) the parent has committed an act prohibited by
section 161.001(b)(1) of the Texas Family Code, and (2)
termination is in the best interest of the child.
See Tex. Fam. Code Ann. § 161.001(b)(1)-(2). In
our prior opinion, we considered only one predicate ground
for termination under section 161.001(b)(1) when the
appellant father ("Father") contested three
grounds. We now consider as grounds for termination the
statutory predicate under section 161.001(b)(1)(O), as we had
in our prior opinion, and the predicate under section
161.001(b)(1)(D), as the supreme court specifically
instructed us to do. We also consider the merits of section
161.001(d), as instructed, which alters our prior analysis
under 161.001(b)(1)(O). We hold the evidence is legally
insufficient to support the predicate finding under section
161.001(b)(1)(D), but the evidence is legally and factually
sufficient to support the trial court's determination
under section 161.001(b)(1)(O). We also hold, as we did in
our prior opinion, that the evidence is legally and factually
sufficient to support the trial court's finding that
termination is in the best interest of the child, Z.M.M. We
affirm the trial court's judgment.
March 28, 2017, the Texas Department of Family and Protective
Services (the "Department") filed a petition to
terminate Father's parental rights to Z.M.M., who was one
year old at the time. A bench trial was conducted on February
12, 2018. Department caseworker Eletheia Hill testified that
Z.M.M. lived with his mother prior to his removal and that
the Department removed Z.M.M. based on a referral alleging
drug use in the home. According to Hill, Z.M.M.'s mother
admitted to using methamphetamines and marijuana. Hill also
testified that Father claimed to know that Z.M.M.'s
mother was "using something" but that he took no
action because the mother kept Father away from Z.M.M.
16, 2017, the trial court ordered Father's compliance
with a family service plan. This plan required Father to
participate in a parenting class; obtain and submit proof of
housing; remain drug and alcohol free; and complete a drug
and alcohol assessment, as well as any recommended treatments
following the assessment. Hill testified that Father
completed his parenting class and his assessment but did not
complete recommended outpatient treatment for mild marijuana
addiction. Hill also testified that Father told her he
recently obtained housing, but that because Father would not
give her his address, she had been unable to confirm where he
was living. According to Hill, when she asked Father why he
was not completing the conditions of his service plan, Father
claimed that he did not want to take time off work and that
he did not have transportation. Hill testified that the
Department offered Father transportation and extra time to
complete his service plan.
believed it was in Z.M.M.'s best interest for
Father's parental rights to be terminated so that Z.M.M.
would have the opportunity to move forward with his foster
parents through formal adoption. According to Hill, the
foster parents and Z.M.M. are bonded; they provide Z.M.M.
with a safe and stable home; they have demonstrated that they
are able to take care of Z.M.M.; and Z.M.M. has lived with
them since April 2017, which is longer than the total amount
of time Father ever lived with Z.M.M. Hill also characterized
Father's visits with Z.M.M. as "off and on,"
with only two visits in the last five months.
also testified at the hearing. Father admitted to knowing
Z.M.M.'s mother was using drugs, but did not get involved
because Z.M.M.'s mother and her current boyfriend made it
difficult for him to see Z.M.M. Father also admitted to using
marijuana within six months of trial. Further, Father
testified that for a period of time he did not have a stable
job or a place to stay and he was living with friends.
According to Father, he had no relatives he could rely on for
support. Father testified that he was currently working in a
restaurant and was living with a friend. When asked at trial
what he wanted to happen with Z.M.M. that day, Father replied
he "would ask for an extension . . . just to get more
goals where I want to be with my son." Father admitted
that he did not have a stable home and would not be able to
presently provide Z.M.M. with one.
parent-child relationship may be terminated only if the trial
court finds by clear and convincing evidence one of the
predicate grounds enumerated in section 161.001(b)(1) of the
Family Code and that termination is in a child's best
interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2).
Clear and convincing evidence requires "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. We review the
legal and factual sufficiency of the evidence 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).
first issue, Father challenges the sufficiency of the
evidence supporting the trial court's predicate findings
under section 161.001(b)(1)(D), (N), and (O). See
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (N), (O). The
trial court concluded under these subsections that there was
clear and convincing evidence that Father: (1) had knowingly
placed or knowingly allowed Z.M.M. to remain in conditions or
surroundings which endanger his physical or emotional
well-being, see id. § 161.001(b)(1)(D); (2)
constructively abandoned Z.M.M., see id. §
161.001(b)(1)(N); and (3) failed to comply with the
provisions of a court order specifically establishing the
actions necessary for Father to obtain the return of Z.M.M.,
see id. § 161.001(b)(1)(O). Because termination
under section 161.001(b)(1)(D) may have implications for a
parent's parental rights to other children, the Texas
Supreme Court has instructed that we must address issues
raised on appeal challenging a trial court's finding
under subsection D. See In re N.G., 577 S.W.3d 230,
237 (Tex. 2019) (per curiam); In re Z.M.M., 577
S.W.3d at 543.
Finding Under ...