Opinion
No. 04-17-00534-CV
11-22-2017
IN THE INTEREST OF A.J.A., A.-J.A., and J.J.A., Children
MEMORANDUM OPINION
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-01617
Honorable Richard Garcia, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Jesse appeals the trial court's termination of his parental rights to A.J.A. (born in 2010), A.-J.A. (born in 2012), and J.J.A. (born in 2014). In his sole issue, Jesse argues insufficient evidence supports the trial court's finding that termination of his parental rights is in the children's best interest. We affirm the trial court's judgment.
To protect the identity of minor children in an appeal from an order terminating parental rights, parents are referred to by their first names and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
BACKGROUND
In 2016, Jesse and the children's mother, Sara, were fighting outside of their house; Jesse was wielding a knife. The police arrested both Jesse and Sara that evening, and the Department of Family and Protective Services received a referral of neglectful supervision regarding the children. The Department opened a family-based case, and sent a caseworker to the house, apparently after Jesse was released from police custody. It took over fifteen minutes for Jesse to come to the door, and J.J.A. was standing in the window without a diaper and appeared to be covered in dirt. Jesse and Sara were drug tested; Sara tested positive for marijuana, and Jesse tested positive for methamphetamines, amphetamines, and marijuana.
The Department removed the children, who were placed with foster parents, and filed suit for conservatorship and to terminate Jesse's and Sara's parental rights. Both Jesse and Sara signed irrevocable affidavits of voluntary relinquishment of parental rights. The case proceeded to a bench trial at which Sara, Jesse, Department caseworker Kyle Buckley, and the children's therapist Yadira Puente testified. Sara and Jesse were both incarcerated at the time of trial. The trial court signed a final judgment terminating both Jesse's and Sara's parental rights. Only Jesse filed a notice of appeal.
STANDARD OF REVIEW
To terminate parental rights, a trial court must find at least one of the statutory grounds for termination and that termination of parental rights is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). A judgment terminating parental rights must be supported by clear and convincing evidence. Id. To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine whether a "factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable credibility determinations. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review under the heightened standard of review requires us to examine the evidence "in the light most favorable to the finding to determine whether a reasonable trier of fact 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). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction." Id.
THE BEST-INTEREST FINDING
Although the trial court found statutory grounds for terminating Jesse's parental rights, specifically that he executed an affidavit of voluntary relinquishment and failed to comply with court-ordered provisions of his family service plan, Jesse does not challenge the sufficiency of the evidence to support those findings. Jesse argues only there is legally and factually insufficient evidence to support the trial court's finding that termination of his parental rights is in the children's best interest. The best-interest determination is a wide-ranging inquiry, and factors relevant to that determination include:
• the desires of the child;
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; andHolley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest. Id. "Evidence that the parent has committed the acts or omissions prescribed by section 161.001 may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d at 684 (internal citation omitted). However, "[a] factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent." In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
• any excuse for the acts or omissions of the parent.
At trial, Jesse's attorney ad litem asked Jesse about his affidavit of voluntary relinquishment of parental rights. Jesse testified he had read, understood, and freely signed the affidavit. He further testified he understood the affidavit was irrevocable, "irrevocable" means "irreversible," and that he was "giving his rights to [his] kids to the Department." On cross-examination, Jesse stated, "There is a possibility I may be released [from jail] tomorrow." Jesse also testified:
Q Are you asking this Court to terminate your parental rights based on your relinquishment?He stated relinquishing his parental rights is "the best option right now, but not . . . forever."
A Am I asking? Yeah. Sure. Yeah.
Q You understand what you are doing, that you cannot change your mind in the future?
A Yeah.
Caseworker Buckley testified about the incidents resulting in the referral and the children's removal, specifically that Jesse wielded a knife while having an argument with Sara outside of their house and that he tested positive for methamphetamine, amphetamine, and marijuana. She testified that during the initial visit, the house was "very dirty." According to Buckley, Jesse stated he and Sara "were using meth together," they admitted to "fairly frequent" incidents of domestic violence, and the children made outcries about witnessing some of those incidents.
Jesse's brief refers to Kyle Buckley as "he" and "Mr. Buckley." The record reflects Kyle Buckley is female.
When testifying about Jesse's family service plan, Buckley stated Jesse missed three appointments before completing a drug assessment, and Jesse enrolled in an outpatient drug rehabilitation program but never attended. Buckley also stated Jesse completed a parenting course and attended group therapy; but after Buckley arranged for individual therapy at Jesse's request, he stopped attending therapy altogether. Buckley testified Jesse was arrested twice during the pendency of the termination proceeding; once for burglary of a habitation and once for burglary of a building. Jesse participated in weekly visits with the children when he was not incarcerated, and would bring food and toys, but he provided no financial support.
Buckley further testified the children were in therapy. She expressed concern that A.-J.A. would "masturbate frequently" and to the point of injury; she had "really poor boundaries"; she and A.J.A. would often fight; and A.J.A. was physically aggressive, a picky eater, and had issues with his speech. Buckley stated the children improved in all of these regards when they were in foster care. According to Buckley, J.J.A.'s growth was within the normal, expected range. Buckley stated that although the foster parents were not willing to adopt the children, the foster parents were willing to keep them "as long as they need to." Buckley also testified Jesse's father wanted to adopt the children, but he had only recently obtained an apartment, a home study had not been conducted, and his criminal background included charges for family violence, driving while intoxicated, and possession of marijuana.
Yadira Puente, the children's therapist, testified A.-J.A. "made several outcries towards her father of playing a secret game, which involves both of them being nude and on top of each other." She testified the daughter had a bond with Jesse, but she did not believe the bond was healthy because of the outcries. According to Puente, A.-J.A. progressed when Jesse was attending visits, but regressed when he missed visits. Puente also testified A.J.A. has anger outbursts, but he has improved, and he made outcries of observing domestic violence between Jesse and Sara.
In his brief on appeal, Jesse argues, "The evidence at trial was [wholly] insufficient to support the court's finding that termination was in the best interests of the children." Jesse notes there is no evidence of the children's desires and the Department's plans for the children, but "[t]he absence of evidence about some of [the Holly factors does] not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child[ren]'s best interest." See In re J.M.L., No. 04-17-00183-CV, 2017 WL 3270345, at *5 (Tex. App.—San Antonio Aug. 2, 2017, no pet.) (mem. op.) (citing In re C.H., 89 S.W.3d at 27). Jesse also emphasizes he "appeared for every hearing in the case," but cites no authority supporting the suggestion that merely appearing for all of the hearings in a termination proceeding is evidence relevant to the factfinder's best-interest determination.
Citing to Buckley's testimony, Jesse asserts, "Even the department acknowledged the primary reason for non-compliance with his court ordered services was [Jesse]'s lack of transportation." And, without any citation to the record, Jesse asserts, "The only reason [Jesse] tendered a relinquishment to the court was because he was incarcerated on the day of trial . . . ." However, Buckley did not testify Jesse failed to complete his services due to his lack of transportation, only that inadequate transportation was Jesse's excuse. Furthermore, the record does not support Jesse's assertion that the "only reason" he signed an affidavit of relinquishment was because he was incarcerated. Jesse did not explain his reasons for signing the affidavit of relinquishment, and noted the possibility he could be released the day after trial in response to a question about when he would be released from jail.
Jesse's argument fails to take into account most of the evidence in the record, particularly his admission that terminating his parental rights is in the children's immediate best interest, his testimony that he knowingly and irreversibly relinquished his parental rights, and his request that the trial court terminate his parental rights. Jesse's argument also disregards the evidence of domestic violence, drug abuse, criminal activity, and sexual abuse of a child. This court routinely considers these types of facts as weighing in favor of the trial court's best-interest finding. See, e.g., id. (drug abuse); In re R.S.-T., 522 S.W.3d 92, 113-16 (Tex. App.—San Antonio 2017, no pet.) (drug abuse and domestic violence); In re S.J.J., No. 04-16-00744-CV, 2017 WL 1683713, at *5 (Tex. App.—San Antonio May 3, 2017, pet. denied) (mem. op.) (criminal history); In re S.P., No. 04-14-00680-CV, 2015 WL 1196957, at *2 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem. op.) (sexual abuse of a child). Jesse's position fails to take into account our standard of review, which requires us to consider the entire record of the trial. See In re R.S.-T., 522 S.W.3d at 98. The State argues the record overwhelmingly supports that termination is in the children's best interest. Having considered the entire record of the trial, we agree. We hold legally and factually sufficient evidence supports the trial court's best-interest finding. See In re J.F.C., 96 S.W.3d at 266.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice