Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law, Val Verde County, Texas Trial Court
No. 3688CCL Honorable Sergio J. Gonzalez, Judge Presiding.
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Luz Elena D. Chapa, Justice.
Elena D. Chapa, Justice.
AND RENDERED IN PART AND REMANDED IN PART
J.R. appeals the trial
court's order that terminated his parental rights,
arguing legally and factually insufficient evidence supports
the trial court's order. We hold there is legally
insufficient evidence to support the finding that termination
of J.R.'s rights is in the child's best interest, and
we therefore reverse the part of the trial court's order
that terminated J.R.'s parental rights.
and Procedural Background
was born February 27, 2018 to J.R. and E.B. A month later,
the Department of Family and Protective Services filed an
original petition for conservatorship of A.L.R. and for
termination of her parents' rights. The affidavit filed
in support of the petition asserted that removal of A.L.R.
was sought because there was an open case in the Department
involving E.B.'s three other children. That case arose
out of the October 2017 death of another of E.B.'s
children, K.A. The affidavit stated allegations of abuse and
neglect had been made against E.B., J.R., and J.R.'s
parents as a result of the child's death and that J.R.
had been arrested and was in jail in connection with the
child's death. The Department sought A.L.R.'s removal
from E.B. because E.B. was living with J.R.'s parents,
and the Department was concerned the child should not be in
the adversary hearing held April 9, 2018, the trial court
appointed the Department A.L.R.'s temporary managing
conservator and the parents temporary possessory
conservators. The court allowed E.B. to have twice-monthly
supervised visitation with A.L.R.; however, the court ordered
that J.R. have no access or possession of the child. The
Department placed A.L.R. with E.B.'s mother and
step-father, who also had possession of E.B.'s other
three children, and A.L.R. remained in their care throughout
the case. No child support was ordered.
fall of 2018, the grand jury declined to indict J.R. on any
charges related to the death of K.A. However, J.R. had been
convicted in 2016 of burglary of a habitation and placed on
probation. In January 2018, while J.R. was in custody in
connection with K.A.'s death and before A.L.R. was born,
J.R.'s probation was revoked, and he was sentenced to
five years in prison. After J.R. was no-billed by the grand
jury, he was moved from Val Verde County and taken into state
custody to serve that sentence. J.R. was in prison at the
time of this trial in May 2019, and the undisputed evidence
was that he would be released by August 2019.
case was tried to the court on May 7, 2019. The only
witnesses were the Department's case worker, a Department
investigator, and J.R. The Department advised the court it
was no longer seeking termination of E.B.'s rights and
had reached a partial agreement with E.B. At the conclusion
of the trial, the court found that appointment of a parent or
both parents as A.L.R.'s managing conservator would not
be in her best interest because such an appointment would
significantly impair the child's physical and emotional
development. See Tex. Fam. Code § 153.131. The
court appointed E.B.'s mother as A.L.R.'s permanent
sole managing conservator and appointed E.B. a possessory
conservator. The court found by clear and convincing evidence
that termination of J.R.'s parental rights was authorized
by sections 161.001(b)(1) (C), (D), (E), (N), (O), and (Q) of
the Texas Family Code and that termination of his rights is
in A.L.R.'s best interest. See id. §
161.001. On appeal, J.R. challenges the legal and factual
sufficiency of each of the trial court's findings under
section 161.001(b)(1) and the trial court's finding that
termination of J.R.'s rights is in A.L.R.'s best
Ramos testified she had been A.L.R.'s Department
caseworker since April 2018, when the Department was
appointed A.L.R.'s temporary managing conservator. At the
time of trial, A.L.R. was fourteen months old and had lived
with her maternal grandparents since shortly after she was
born. Ramos testified that A.L.R.'s maternal grandmother
is protective of A.L.R. and is meeting all her needs. She
stated that A.L.R. is bonded to them and to her three
half-siblings who are also placed in the home. E.B. is the
possessory conservator of her three other children and she
visits at the home several times a week.
testified J.R., A.L.R.'s father, is in state prison, and
the Department introduced a copy of the judgment revoking
J.R.'s probation and sentencing him to five years in the
Texas Department of Criminal Justice - Institutional
Division. The judgment recites J.R. was placed on ten
years' probation in February 2016 for committing burglary
of a habitation in 2015, and that J.R. pled true to violating
a condition of his probation. The judgment does not state
what condition was violated. The January 18, 2018 judgment
revoked J.R.'s probation and reduced his sentence to five
years, with credit given for 197 days served. No further
evidence was presented regarding the circumstances
surrounding the original burglary offense or of the condition
of probation that J.R. violated. Ramos testified that J.R.
expected to be released from prison in August 2019.
Flood is a conservatorship worker for the Department; she was
previously an investigator and received the initial referral
in this case. Flood testified the initial referral was made
when A.L.R. was born because her mother, E.B., had an open
case involving her other three children. That case was opened
when another of E.B.'s children, K.A., died. When asked
about the circumstances of K.A.'s death, Flood testified
A. That he essentially he died in the home where [J.R.] and
his parents were present. He didn't die in the home. He
sustained injuries that then caused him to have to go into
the hospital and be admitted due to some extensive current
and previous injuries and he ended up unfortunately passing
due to those injuries sustained in that home while in the
care of [J.R.] and his parents.
Q. And what was the severity level of the injuries to that
A. He had some rib injuries. He had some head trauma. There
was some different level of bruising throughout his body.
There was a big knot on his forehead, some bruising on the
face, and at the end of all of that after trying to ...