Court of Appeals of Texas, Fourth District, San Antonio
the 57th Judicial District Court, Bexar County, Texas Trial
Court No. 2018PA01283 Honorable Laura Salinas, Judge
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Luz Elena D. Chapa, Justice
BRYAN MARION, CHIEF JUSTICE
appeals the trial court's order terminating his parental
rights to T.N.R. The only issue presented on appeal is
whether the evidence is legally and factually sufficient to
support the trial court's finding that termination was in
T.N.R.'s best interest. We affirm the trial court's
13, 2018, the Texas Department of Family and Protective
Services filed a petition to terminate E.R.'s parental
rights to T.N.R. In addition to also seeking to terminate the
parental rights of T.N.R.'s mother to T.N.R., the
petition also sought to terminate the parental rights of
T.N.R.'s mother to eight of T.N.R.'s half-siblings as
well the fathers of her eight half-siblings. On June 17 and
18, 2019, a bench trial was held. The trial court terminated
E.R.'s parental rights, and he appeals.
of Review and Statutory Requirements
terminate parental rights pursuant to section 161.001 of the
Texas Family Code, the Department has the burden to prove by
clear and convincing evidence: (1) one of the predicate
grounds in subsection 161.001(b)(1); and (2) that termination
is in the best interest of the child. See Tex. Fam.
Code Ann. §§ 161.001, 161.206(a); In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the
trial court found clear and convincing evidence of the
following six predicate grounds under subsection
161.001(b)(1) to terminate E.R.'s parental rights: (1)
knowingly placed or knowingly allowed T.N.R. to remain in
conditions or surroundings which endangered her physical and
emotional well-being; (2) engaged in conduct or knowingly
placed T.N.R. with persons who engaged in conduct which
endangered her physical or emotional well-being; (3) was
convicted for being criminally responsible for the death or
serious injury of a child; (4) constructively abandoned
T.N.R.; (5) failed to comply with the provisions of a court
order establishing the actions necessary to obtain
T.N.R.'s return; (6) knowingly engaged in criminal
conduct that resulted in E.R.'s conviction of an offense
and confinement or imprisonment and inability to care for
T.N.R. for not less than two years from the date of the
filing of the petition. See Tex. Fam. Code Ann.
§§ 161.001(b)(1)(D), (E), (L), (N), (O), (Q);
see also In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)
(noting evidence that proves one or more statutory grounds
for termination may be probative in proving termination is in
the child's best interest). The trial court also found
clear and convincing evidence that terminating E.R.'s
parental rights was in T.N.R.'s best interest.
evaluate the legal and factual sufficiency of the evidence to
support the trial court's findings 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). Under these
standards, "[t]he trial court is the sole judge of the
weight and credibility of the evidence, including the
testimony of the Department's witnesses."
In re F.M., No. 04-16-00516-CV, 2017 WL
393610, at *4 (Tex. App.-San Antonio Jan. 30, 2017, no pet.)
determining the best interest of a child, courts apply the
non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976). Those factors include: (1) the desires of the
child; (2) the present and future emotional and physical
needs of the child; (3) the present and future emotional and
physical danger to the child; (4) the parental abilities of
the individuals seeking custody; (5) the programs available
to assist these individuals to promote the best interest of
the child; (6) the plans held by the individuals seeking
custody of the child; (7) the stability of the home of the
parent and the individuals seeking custody; (8) the acts or
omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Id.
The foregoing factors are not exhaustive, and "[t]he
absence of evidence about some of [the factors] would not
preclude a factfinder from reasonably forming a strong
conviction or belief that termination is in the child's
best interest." In re C.H., 89 S.W.3d at 27.
"A trier of fact may measure a parent's future
conduct by his past conduct [in] determin[ing] whether
termination of parental rights is in the child's best
interest." In re E.D., 419 S.W.3d 615, 620
(Tex. App.-San Antonio 2013, pet. denied).
argument section of his brief, E.R. relies exclusively on his
testimony to argue the trial court erred in finding that
termination of his parental rights was in T.N.R.'s best
interest. Under the applicable standards of review, however,
we consider all the evidence presented at trial, and we defer
to the trial court's assessment of the credibility of the
witnesses and the weight to be given to the evidence. See
In re J.F.C., 96 S.W.3d at 266-67; In re F.M.,
2017 WL 393610, at *4. Accordingly, the trial court could
have disbelieved E.R.'s testimony that is cited in the
argument section of his brief or given greater weight to
other testimony contrary to E.R.'s argument.
was twelve-years-old and pregnant at the time of her removal.
She alleged she had been sexually abused by E.R. and two
other male relatives. T.N.R.'s older half-sibling, S.E.,
also alleged she was sexually abused by E.R. on one occasion.
The removing worker for the Department and the
Department's investigator found the allegations credible,
and the investigating worker concluded there was "reason
to believe" the allegations. From this evidence, the
trial court could have found E.R. presented an emotional and
physical danger to T.N.R. especially given that T.N.R. does
not want any contact with E.R.
was incarcerated at the time of trial serving a ten-year
sentence for family violence assault - choking/strangulation
and a concurrent five-year sentence for injury to E.R.'s
ex-girlfriend's child. E.R. was incarcerated throughout
the pendency of the case and ...