Summary
deferring to trial court findings in parental termination
Summary of this case from In re N.G.Opinion
No. 04-17-00860-CV
04-25-2018
IN THE INTEREST OF B.M.M., a Child
MEMORANDUM OPINION
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-00506
Honorable Richard Garcia, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice AFFIRMED
This is an appeal from an order terminating appellant's parental rights to his child, B.M.M. In appellant's sole issue, he contends the evidence is legally and factually insufficient to support the trial court's finding that termination is in the child's best interest. We affirm the trial court's termination order.
BACKGROUND
Appellant is incarcerated for aggravated robbery. His projected release date is December 4, 2025. The Texas Department of Family and Protective Services caseworker testified that appellant has a lengthy criminal record and that all the offenses are "pretty serious in nature" and "very violent." Because of appellant's incarceration, he cannot provide stable housing, financial support, or meet any of B.M.M.'s physical and emotional needs. Moreover, the relationship between appellant and B.M.M. is very strained and neither have attempted, or have had, any contact with one another. However, the caseworker testified she has been able to establish contact with appellant and was able to send appellant his court-ordered service plan. Appellant signed his service plan and, although he was given the opportunity to participate in services offered by the prison, he has not participated in services or completed anything on his plan.
The caseworker further testified that B.M.M., who was then thirteen years old, was living with "fictive kin" Richard and Priscilla. According to the caseworker, Richard and Priscilla love B.M.M. as their own child, provide for all her emotional, physical, and financial needs, and want to adopt her. B.M.M. has also expressed a desire to be adopted by Richard and Priscilla.
At the conclusion of the trial, the trial court signed an order terminating appellant's parental rights. This appeal followed.
PREDICATE FINDINGS
Parental rights may be terminated only if the trial court finds by clear and convincing evidence that the parent has engaged in one or more of the predicate acts enumerated in section 161.001(b)(1) and that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2017). Clear and convincing evidence requires "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." Id. § 101.007 (West 2014). Here, the trial court concluded there was clear and convincing evidence that appellant had engaged in the following predicate acts: (1) constructively abandoned the child; (2) failed to comply with the provisions of a court order specifically establishing the actions necessary for appellant to obtain the return of the child; and (3) knowingly engaged in criminal conduct that had resulted in his conviction of an offense and his imprisonment, which led to his inability to care for the child for not less than two years from the date of filing the petition. Id. § 161.001(b)(1)(N), (O), (Q). Appellant does not challenge these predicate findings on appeal, but rather, he challenges the sufficiency of the evidence regarding the trial court's finding that termination was in the child's best interest.
BEST INTEREST
When reviewing whether termination is in the child's best interest, we are tasked with determining "whether the evidence is such that a fact finder could reasonably form a firm belief or conviction that termination was in the child's best interest." In re A.K., 487 S.W.3d 679, 685 (Tex. App.—San Antonio 2016, no pet.). With regard to appellant's legal sufficiency challenge, we view all the evidence in the light most favorable to the trial court's finding, meaning we "must assume that the [trial court] resolved disputed facts in favor of [termination] if a reasonable factfinder could do so" and "disregard[ed] all evidence that a reasonable factfinder could have disbelieved." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). Similarly, in a factual sufficiency review, we give "due deference" to the trial court's findings, "avoiding substituting our judgment" for that of the trial court. In re A.K., 487 S.W.3d at 685. "If, 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, then the evidence is factually insufficient." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (citing In re J.F.C., 96 S.W.3d at 266).
When evaluating whether termination is in the best interest of the child, there is a strong presumption that keeping a child with a parent serves the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, it is equally presumed that "the 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) (West Supp. 2017). In considering a parent's willingness and ability to provide the child with a safe environment, a court may consider the factors presented in section 263.307(b). See id. § 263.307(b).
In a best interest analysis, a court may also consider the non-exhaustive Holley factors, as well as any direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). A parent's current imprisonment is a factor a court may consider in evaluating whether termination is in the child's best interest, though it is not an automatic ground for parental termination. See In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.—Tyler 2003, no pet.) ("While incarceration is a factor in determining the best interest of a child, it is not dispositive."). Furthermore, the court may measure a parent's future conduct by his past conduct and determine that it is in the child's best interest to terminate the parent-child relationship. In re E.D., 419 S.W.3d at 620. Finally, evidence supporting the statutory predicate grounds for termination may also be used to support a finding that the best interest of the child warrants termination of the parent-child relationship. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
The factors are:
(1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
In the present case, appellant contends several of the Holley factors were insufficiently supported by the evidence. However, appellant's contention is misguided for we have never held that each Holley factor "must be prove[n] as a condition precedent to parental termination." Id. at 27; see also In re A.K., 487 S.W.3d at 686 (stating a court does not have "to find evidence of each [Holley] factor before terminating the parent-child relationship"). In fact, "the absence of evidence about some of these [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. Therefore, our inquiry is not whether the evidence sufficiently supports each individual Holley factor; rather, we review the evidence in its entirety to determine whether the trial court "could [have] reasonably form[ed] a firm conviction or belief that termination of the parent's rights would be in the child's best interest." Id. at 28.
At trial, the caseworker testified that B.M.M. was currently placed with fictive kin who provide for B.M.M.'s emotional, physical, and financial needs, and want to continue doing so by formally adopting her; they also ensure that B.M.M. attends therapy and takes her required medications. They have proven to be a stable home for B.M.M. and have demonstrated their ability to provide for B.M.M.'s emotional and physical needs now and in the future. See In re G.V., No. 14-02-00604-CV, 2003 WL 21230176, at *5 (Tex. App.—Houston [14th Dist.] May 29, 2003, pet. denied) (mem. op.) (noting the stability a proposed placement promises "weigh[s] heavily in the court's finding that termination is in the best interest" of the child). In addition, B.M.M. expressed a desire to be adopted by her foster parents.
Appellant is currently incarcerated for aggravated robbery and has a projected release date of December 4, 2025. Thus, he will continue to be in prison well past the time B.M.M. reaches the age of majority. See In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating a long-term incarceration weighs in favor of parental termination because it demonstrates an inability of the parent to provide a safe environment for the child); see also In re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting during a lengthy imprisonment, the parent is absent from the child's life and, thus, unable to support and provide for the child's physical and emotional needs); In re V.V., 349 S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc) ("The father's frequent incarceration leaves the child without a stable environment and without any reliable source for food, clothing, shelter, and emotional support."). Appellant, therefore, cannot provide for B.M.M.'s financial, emotional, and physical needs.
Moreover, the caseworker testified that because of appellant's lengthy criminal record of "very violent" offenses, the relationship between appellant and B.M.M. is strained and that throughout the duration of the case, there had been no contact between them. See In re V.V., 349 S.W.3d at 558 (noting the trial court "reasonably could have inferred that the father's consistent, [violent], criminal conduct would put a child in his custody in emotional and physical danger now or in the future"). The caseworker also testified that appellant has not participated in or completed any of the items on his service plan. See In re S.B., 207 S.W.3d 877, 888 (Tex. App.—Fort Worth 2006, no pet.) (holding a failure to comply with a service plan supports a finding that termination is in the best interest of the child).
Viewing the evidence in the light most favorable to the trial court's finding, we conclude the evidence is legally sufficient to support a firm belief or conviction that termination of appellant's parental rights was in B.M.M.'s best interest. See In re C.H., 89 S.W.3d at 28. Similarly, having given "due deference" to the trial court's finding, the disputed evidence is not so significant that the trial court could not have reasonably formed a firm belief or conviction that termination of appellant's parental rights was in the best interest of B.M.M. Thus, we conclude the trial court's best interest finding is supported by factually sufficient evidence. See In re H.R.M., 209 S.W.3d at 108; In re A.K., 487 S.W.3d at 685. Accordingly, we overrule appellant's sole issue on appeal and affirm the trial court's order of termination.
Rebeca C. Martinez, Justice