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In re M.I.A.

Court of Appeals of Texas, Fourth District, San Antonio

October 9, 2019

IN THE INTEREST OF M.I.A., a Minor Child

          From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-02030 Honorable Cynthia Marie Chapa, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

          OPINION

          Beth Watkins, Justice

         Appellant M.I.A., a minor child acting through his attorney and guardian ad litem, appeals the portions of the trial court's order: (a) denying the petition filed by the Texas Department of Family and Protective Services ("the Department") to terminate the parental rights of M.I.A.'s biological father, appellee M.A.O. ("Father"); and (b) awarding visitation to M.I.A.'s paternal grandmother O.O. ("Grandmother"). We affirm the trial court's order.

         Background

         In August of 2014, Father started a long-distance relationship with M.I.A.'s biological mother, Y.A. ("Mother"). Although they lived in different cities, Father sent Mother money and did "as much as he [could]" to help her provide for her two children from prior relationships, E.L. and I.C. During their six-month relationship, Mother became pregnant with M.I.A. When Mother told Father she was pregnant, he told her he wanted to be part of the child's life and asked her to contact him if she needed anything. During her pregnancy, Mother began dating another man, Marcos. Father did not send Mother money or other support during her pregnancy because she told him "that she had someone in her life and she didn't want [Father] in it."

         A few weeks after M.I.A. was born, Father wanted to meet his son, but Mother refused to arrange a visit because of her relationship with Marcos. Mother did not ask Father to send financial support for M.I.A. because "having a relationship with Marcos, [she] thought that everything was going to be okay and [she] didn't need anyone else's help." She also testified that she was afraid to put Father's name on M.I.A.'s birth certificate, get in touch with him, or ask him for money because Marcos was possessive of her and abused her. As a result, M.I.A., who was three years old at the time of trial, has never met Father. While Mother testified that the lack of contact between Father and M.I.A. was her decision, she also stated that she believed Father could be a good parent to M.I.A.

         Mother and Marcos later had a child, A.R., and in August of 2016, Child Protective Services ("CPS") received a referral of possible physical abuse of A.R. During that investigation, CPS discovered that Mother, Marcos, E.L., I.C., M.I.A., and A.R. were living in a dirty, mildewed room that did not have adequate sleeping arrangements for the children. CPS received a second referral in August of 2017, when Mother gave birth to a fifth child, O.R., who was born brain dead. When O.R. was released from the hospital, CPS removed her from Mother and Marcos's custody based on concerns that their home was unsafe for her and they could not handle her complex medical needs.

         CPS tried to help Mother and Marcos obtain services that would allow them to retain custody of Mother's four other children, including M.I.A. Those attempts failed, and CPS eventually removed all the children and placed them in foster homes.[1] It is undisputed that Father did not do anything that contributed to the children's removal from Mother and Marcos's home.

         The CPS caseworker who removed the children searched child support and criminal records for M.I.A.'s father, but she did not find Father because Mother had provided Father's nickname instead of his legal name. On September 7, 2017, the Department filed a petition to terminate the rights of all five children's biological parents, and the petition identified Father by the nickname Mother had given the caseworker. In March of 2018, after the Department was appointed temporary managing conservator of the children, the CPS caseworker who was assigned to the matter found Father on Facebook. At that time, Father was incarcerated.

         When Father was released on probation in May of 2018, he contacted the caseworker and attended at least one court hearing regarding the children. In June of 2018, the caseworker showed Father a service plan that ordered him to contact a therapist, undergo a psychosocial evaluation and random drug testing, and take a parenting class. Father signed the service plan, but he testified that it was not explained to him at that time and he did not receive a copy of it until the day he testified at trial. The caseworker testified that she explained the service plan's requirements to Father and he did not satisfy them. She also testified that she did not set up any services for him because he was about to go back to jail. Nevertheless, she agreed that he made attempts to "meet the spirit" of what she told him to do.

         Father went back to jail in July of 2018. Between his release in May and his re-incarceration in July, he did not seek the court's permission to have visits with M.I.A., but he called the caseworker to ask how M.I.A. was doing, and he underwent a DNA test so he could be adjudicated as M.I.A.'s father. He also asked the caseworker to consider Grandmother as a possible placement for M.I.A. CPS did not perform a case study on Grandmother because "she did not want to have all four children placed with her."

         The parties tried the Department's termination petition in a three-day bench trial. Both I.C.'s father and Marcos voluntarily relinquished their parental rights, and E.L.'s father was unknown, so the trial focused primarily on the Department's allegations against Mother and Father. The trial court heard testimony from the CPS caseworkers, one of E.L.'s teachers, a previous foster parent for I.C. and M.I.A., the children's current foster father, the assigned CASA volunteer, Mother, and Father. After the parties rested, the trial court orally rendered judgment terminating the parental rights of Mother, Marcos, I.C.'s father, and E.L.'s unknown father; denying the Department's petition to terminate Father's rights; appointing the Department as M.I.A.'s permanent managing conservator and Father as M.I.A.'s possessory conservator; and ordering visitation with M.I.A. for Grandmother. The final order specifies that the trial court found appointing Father possessory conservator was in M.I.A.'s best interest, and it grants Father "possession and access . . . as provided by this order." Attachment A to the final order specifies that Father's visits with M.I.A. will not begin until Father is released from jail, that those visits will be supervised by a therapist, and that they are "contingent on therapist availability and recommendation." The order also specifies that Grandmother's visits with M.I.A. will be supervised by a therapist and will take place in M.I.A.'s hometown, San Antonio.

         M.I.A., acting through his attorney and guardian ad litem, appealed the denial of the Department's petition to terminate Father's parental rights and the order granting visitation to Grandmother. Although the Department did not file a notice of appeal, it filed a brief in support of M.I.A.'s appeal.

          Analysis

         Father's Parental Rights

         M.I.A. argues that the trial court abused its discretion by refusing to terminate Father's parental rights because the evidence was legally and factually sufficient to support termination. Father responds that the applicable standard of review requires this court to defer to the factfinder's determinations if those determinations are reasonable.

         Standard of Review

         The involuntary termination of a natural parent's rights implicates fundamental constitutional rights and "divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). "As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent." Id.

         At trial, the Department had the burden to show, by clear and convincing evidence, both that a statutory ground existed to terminate Father's parental rights and that termination was in M.I.A.'s best interest. Tex. Fam. Code Ann. § 161.001; In re A.H., 414 S.W.3d 802, 806 (Tex. App.-San Antonio 2013, no pet.). Because the trial court determined the Department did not satisfy that burden, M.I.A.-who challenges the legal and factual sufficiency of an adverse finding-must demonstrate that the evidence establishes all vital facts in support of termination as a matter of law. See In re E.J.R., 503 S.W.3d 536, 541 (Tex. App.-Corpus Christi-Edinburg 2016, pet. denied) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) and In re A.L.D.H., 373 S.W.3d 187, 192 (Tex. App.-Amarillo 2012, pet. denied)). We will sustain a legal sufficiency challenge and reverse an adverse finding only if as a matter of law, the petitioner's evidence conclusively establishes the "contrary proposition" to the adverse finding. See In re E.J.R., 503 S.W.3d at 541. In other words, M.I.A. must conclusively establish that any reasonable trier of fact would have unavoidably formed a firm belief that Father had committed an act listed in section 161.001 and that termination was in the best interest of the child. See id.[2]

         Normally, when an appellant attacks the factual sufficiency of the evidence supporting the factfinder's resolution of an issue on which he had the burden of proof at trial, he must show that the finding was against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 241. However, our sister courts of appeals have held that this standard is not adequate in an appeal from the denial of a petition to terminate parental rights, where the burden of proof at trial was by clear and convincing evidence. In re A.S., No. 11-14-00154-CV, 2015 WL 582013, at *2 (Tex. App.-Eastland Feb. 5, 2015, no pet.); Burns v. Burns, 434 S.W.3d 223, 227-28 (Tex. App.-Houston [1st Dist.] 2014, no pet.); In re A.L.D.H., 373 S.W.3d at 192-93. Under those circumstances, we must review the entire record and "determine whether the trial court's failure to form a firm conviction or belief that a parent's rights must be terminated is contrary to the overwhelming weight of the evidence and clearly wrong." Burns, 434 S.W.3d at 227. In conducting this review, we may not reweigh the evidence or judge the credibility of the witnesses, and we must defer to the trial court's credibility determinations so long as they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). "'We examine the record in this case in light of the high evidentiary burden that [M.I.A.] bore and our required appellate deference to the trial court's decision that the evidence did not meet it.'" In re E.J.R., 503 S.W.3d at 542 (quoting Burns, 434 S.W.3d at 227).

         Applicable Law

         The trial court did not make any findings about whether Father had committed acts that constituted statutory grounds for termination. Tex. Fam. Code § 161.001. Instead, it found only that terminating Father's parental rights was not in M.I.A.'s best interest. See id. Because that issue is dispositive, we do not address M.I.A.'s arguments regarding statutory grounds for termination. Tex.R.App.P. 47.1.

         In deciding whether to terminate a parent-child relationship, there is a strong presumption that the child's best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption. See, e.g., In re R.S.-T., 522 S.W.3d 92, 97 (Tex. App.-San Antonio 2017, no pet.). A best interest finding does not require proof of any particular factors. In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.-San Antonio Apr. 29, 2015, no pet.). However, courts may apply the non-exhaustive list of factors the Supreme Court promulgated in Holley v. Adams. See id. Those factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist those individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex. 1976).[3]

         Legal ...


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