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In re Z.M.M.

Court of Appeals of Texas, Fourth District, San Antonio

October 2, 2019


          From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00639 Honorable Richard Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice



         We 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.


         On 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.

         On May 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.

         Hill 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.

         Father 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.


         A 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).


         In his 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.

         Predicate Finding Under ...

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