In re A.W.

444 S.W.3d 690, 2014 Tex. App. LEXIS 9359, 2014 WL 4291481
CourtCourt of Appeals of Texas
DecidedAugust 21, 2014
DocketNo. 05-14-00686-CV
StatusPublished
Cited by14 cases

This text of 444 S.W.3d 690 (In re A.W.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.W., 444 S.W.3d 690, 2014 Tex. App. LEXIS 9359, 2014 WL 4291481 (Tex. Ct. App. 2014).

Opinion

OPINION

Opinion by Justice O’NEILL.

A jury terminated the parental rights of Laura Traylor (“Mother”). On appeal, Mother argues the evidence is legally and factually insufficient to support the jury’s finding that termination is in the best interest of her two children. We affirm the trial court’s judgment.

Background

Mother’s daughter, A.W., was born on August 7, 2002, and her son, J.W., was born on February 13, 2004.1 Jimmy Walker was the children’s father. Father has an extensive criminal record. He has been convicted four times for assault bodily injury against women, two of which were against Mother, evading arrest, theft, and interfering with an emergency call. The [692]*692dates of these offenses range from 1987 to 2004. The record also indicates Father is a registered sex offender.2

Mother was convicted in 1999 for forgery by possession of a check with intent to pass. She also spent 180 days in jail for possession of methamphetamine in 2009.

Prior to the August 1, 2012 incident that started the removal process in this case, Father served seven years in jail for injury to a child. In that case, Father engaged in a physical altercation with Mother’s older son, who was not Father’s biological son.

On August 1, 2012, eight months after Father’s release from jail for his injury to a child conviction, Officer Daniel Malouf received a “call-out” to a duplex that started as a 911 hang up. Before Officer Mal-ouf reached the duplex, he encountered a young girl running from the duplex asking for help. Officer Malouf then observed Father walk out of the house, say “Oh, shit,” and walk back inside.

Mother and J.W. came out of the house, and Mother showed Officer Malouf where Father bit her and hit her face. Mother explained the disagreement started over Father’s discipline of J.W., which escalated into a verbal argument. When Mother tried to call the police, Father slapped her and hit the phone out of her hand. J.W. reported Father scratched and kicked him in the stomach during the argument. Officer Malouf arrested Father.

An affidavit filed on September 28, 2012 by Kamesha Hughes,' a caseworker -with Dallas County Child Protective Services (“CPS”), stated Mother “believes her daughter blew things out of proportion by calling the police on August 1, 2012.” Mother also stated she did not believe Father kicked J.W. because “she looked at his stomach and didn’t see any bruises,” and her son “has a habit of lying ... and will sometimes ‘act retarded’ and is sometimes difficult to handle.”

On September 28, 2012, CPS filed its original petition for protection of A.W. and J.W. and for termination of parental rights as to both Mother and Father. Prior to Mother’s jury trial, Father voluntarily relinquished his parental rights to both children, despite Mother’s initial pleas for him not to do so.

Mother’s case then proceeded to trial in February 2014. After hearing evidence from numerous witnesses, including Mother, the jury determined Mother violated sections 161.001(1)(D), (E), and (O) as to both children. See Tex. Fam.Code Ann. § 161.001(1)(D), (E), (O) (West 2014). The jury also found that termination was in the best interest of both children. Tex. Fam.Code Ann. § 161.001(2) (West 2014). This appeal followed.

Standard of Review

A trial court may terminate the parent-child relationship if the fact-finder determines (1) a parent committed one or more of the enumerated statutory acts in section 161.001(1) of the family code, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001(1), (2) (West 2014). Both elements must be established; termination may not be based solely on the best interest of the child. In re M.C.T., 250 S.W.3d 161, 168 (Tex.App.-Fort Worth 2008, no pet.).

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.Code Ann. [693]*693§ 161.001. “Clear and convincing evidence” is the “measure or degree 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. See In re M.V., 343 S.W.3d 543, 546 (Tex.App.-Dallas 2011, no pet.).

On appeal, we apply a standard of review that reflects this burden of proof. Id. When reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the finding to determine whether the fact-finder could reasonably have formed a firm belief or conviction the finding was true. Id. In doing so, we assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could and disregard all evidence that a reasonable fact-finder could have disbelieved or found to be incredible. Id.

In conducting a factual sufficiency review, we must give due deference to any evidence the fact-finder could reasonably have found to be clear and convincing. Id.; see also In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). We consider whether the disputed evidence is such that a reasonable fact-finder could not have resolved the disputed evidence in favor of its finding. In re M.V., 343 S.W.3d át 546. If the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

When deciding whether termination is in the best interest of a child, the following factors are considered: (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 to promote the best interest of the child; (6) the plans for the child by those individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that 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). These factors are not exhaustive, and some factors may be inapplicable to some cases. See In re C.H., 89 S.W.3d 17, 27 (Tex.2002). Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, presence of scant evidence relevant to each factor will not support such a finding. Id. On appeal, Mother focuses exclusively on the first six

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444 S.W.3d 690, 2014 Tex. App. LEXIS 9359, 2014 WL 4291481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aw-texapp-2014.