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T. L. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

November 6, 2019

T. L., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-17-007178, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          MEMORANDUM OPINION

          Thomas J. Baker, Justice

         T.L., herein "Thomas," appeals the trial court's decree terminating his parental rights to his daughter "Janet" who was ten years old at the time of the bench trial.[1] Thomas contends that the evidence was legally and factually insufficient to support the trial court's findings that five statutory grounds existed for terminating his rights and that termination was in Janet's best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (F), (N), (Q), (b)(2). We will affirm the trial court's decree.

         STANDARD OF REVIEW

         To terminate the parent-child relationship, the Family Code requires the factfinder to find by clear and convincing evidence that (1) the parent has engaged in conduct set out as a statutory ground for termination and (2) termination is in the child's best interest. Id. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing evidence is the level of 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." Tex. Fam. Code § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In reviewing the sufficiency of the evidence, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         When reviewing the legal sufficiency of the evidence in a termination case, we consider all the evidence in the light most favorable to the trial court's finding and determine whether a reasonable factfinder could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). This includes assuming that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so and disregarding all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.

         When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether a reasonable factfinder could have formed a firm belief or conviction that a given finding was true. See C.H., 89 S.W.3d at 18-19. We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable person could do so, and we disregard evidence that a reasonable factfinder could have disbelieved or found incredible. See J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable factfinder could not have resolved the disputed evidence in favor of its finding and if that disputed evidence is so significant that the factfinder could not reasonably have formed a firm belief or conviction that its finding was true. Id.

         FACTUAL SUMMARY

         The Department of Family and Protective Services removed Janet and her one-month-old brother from their mother's care on November 25, 2017, and filed a petition for parental rights' termination and/or managing conservatorship of the children.[2] The Department attached to its petition the affidavit of CPS investigator Anna Sallows, who averred that the Department removed the children because they were in "immediate danger" due to their mother's appearing with them at a restaurant late at night "disoriented and out of it," possibly due to drugs or a mental-health crisis. Unbeknownst to the Department, Thomas was incarcerated in Georgia when it removed the children from their mother's care and filed its petition.

         The bench trial occurred in May 2019, at which a Department caseworker, a Court Appointed Special Advocate (CASA) volunteer, and a CASA supervisor testified. Thomas also testified via telephone from prison and the children's attorney ad litem made representations to the court about their best interests. The trial court admitted two exhibits: Sallows's removal affidavit and a copy of the October 9, 2013 judgment of conviction from the Superior Court of Candler County, Georgia, sentencing Thomas to eight years' confinement in state prison for the felony offense of possession of cocaine and the misdemeanor offenses of possession of marijuana, fleeing from law enforcement, and driving without a license.

         Caseworker Shatalya Shield testified that the Department was unable to locate Thomas at the beginning of this case and conducted a diligent search for him. The trial court took judicial notice of the diligent-search reports the Department filed on November 28, 2017. Shield testified that the Department first discovered Thomas's whereabouts and mailing address in September 2018, when it learned that he was in Ware State Prison, Georgia, and that it sent him parenting packets and a family plan of service in October 2018. After receiving no response from Thomas, the Department resent him the information in February 2019 but again received no response. Shield testified that to her knowledge Thomas had never sent Janet any letters or gifts or inquired about her well-being or whereabouts.

         Shield testified that for some indeterminate period before this case, Janet had lived with Thomas and her paternal grandmother in Georgia. That period ended when Thomas and the paternal grandmother "ask[ed] mom to come get [Janet] because of [her] behavioral issues." She said that during the pendency of this case, Janet found her paternal family and father on Facebook and "reached out" to them on the site. Shield testified that Janet had expressed wanting to live with her foster parents since the beginning of the case until shortly before trial when, after speaking with her paternal grandmother over the phone, she expressed a new desire to live with her paternal grandmother.

         Shield explained that an ICPC (Interstate Compact on the Placement of Children) home study for Janet's paternal grandmother was pending in Georgia, but that the Department's current recommendation was that Janet and her brother be adopted by their foster family. She explained that she had concerns about separating Janet and her little brother, who were very bonded, and that the foster family was able and willing to adopt both children. She said that the foster family was willing to allow the children to have post-adoption contact with their biological families. Shield acknowledged that the paternal grandmother expressed a willingness to have ...


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