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In re Z.K.T.W.

Court of Appeals of Texas, Fourth District, San Antonio

December 11, 2019

IN THE INTEREST OF Z.K.T.W. AND Z.K.R.

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2018PA00921 Honorable Richard Garcia, Judge Presiding

          Rebeca C. Martinez, Justice Irene Rios, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice.

         Appellant Mother appeals the trial court's order terminating her parental rights to her sons, Zach and Zane.[1] The only issue presented by Mother is whether the evidence is legally and factually sufficient to support the trial court's finding that termination is in the children's best interest. We affirm the trial court's order.

         Background

         The Texas Department of Family and Protective Services (the "Department") initially became involved in the underlying case on April 26, 2018, when the Department received a report that the San Antonio Police Department placed Zane in the Children's Shelter after Father, with whom Zane was residing, was arrested for murder. Department investigator Hannah Adkison made contact with Mother but Mother did not retrieve Zane from the Children's Shelter within the arranged time frame. Later that day, Adkison went to the apartment where Mother was residing to determine whether Mother's living arrangements were safe for Zane. When asked about other children, Mother initially did not disclose Zach's existence. When questioned further, Mother admitted she had a second child but refused to disclose Zach's location. Eventually, Mother informed Adkison that Zach had been with a babysitter for a week. Mother provided the babysitter's first name and address but Adkison was not able to verify the information or locate Zach that day. Mother's removal history with the Department, which related to drug use, led to concerns of current drug use. However, Mother refused to submit to a drug test or take part in a safety plan, which ultimately led to the Department's removal of Zach from Mother's custody. On May 7, 2018, the Department filed an amended petition to terminate parental rights.

         The trial court held a bench trial on April 17, 2019 and May 31, 2019, at which Mother appeared in person and testified on her own behalf. The trial court also heard testimony from Adkison, Department caseworkers Crystal Jones and Mark Gomez, and Father. On June 13, 2019, the trial court signed an order terminating Mother's parental rights to both Zach and Zane.

         Standard of Review and Statutory Requirements

         To 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 children. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial court terminated Mother's parental rights on six predicate grounds.[2] The trial court also found termination of Mother's parental rights was in the best interest of the children.

         When reviewing the sufficiency of the evidence, we apply the well-established standards of review. See Tex. Fam. Code Ann. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency). Further, in a trial to the bench, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Health Tronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We therefore defer to the trial court's judgment regarding credibility determinations. Id. at 823-24.

         Best Interest of The Children

         When considering the best interest of the child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).

         In determining whether a child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Family Code section 263.307(b). See Tex. Fam. Code Ann. § 263.307(b). We also apply the Holley factors to our analysis.[3] See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. In analyzing these factors, the court must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).

         Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). "A trier of fact ...


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