In the Interest of A.F.M., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 4, 2024
• Docket: 04-24-00405-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-24-00405-CV

IN THE INTEREST OF A.F.M., a Child

From the 456th District Court, Guadalupe County, Texas Trial Court No. 23-1600-CV-E Honorable Thomas Nathaniel Stuckey, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Delivered and Filed: December 4, 2024

AFFIRMED AS MODIFIED

Appellant Father appeals the trial court’s order terminating his parental rights to his child,

A.F.M. 1 In his sole issue, Father challenges the sufficiency of the evidence supporting termination

of his parental rights under subsection 161.001(b)(1)(D) of the Texas Family Code. We modify

the trial court’s order to strike the statutory ground (D) finding and affirm the termination order as

modified.

1 To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as “Father” and “Mother” and we refer to children using their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). We also refer to A.F.M. as “the child.” The trial court order terminates Mother’s and Father’s parental rights to the child, but only Father appeals the trial court’s order. 04-24-00405-CV

BACKGROUND

The Department became involved in the underlying case when it learned Mother was

physically abusing A.F.M. On June 26, 2023, the Department filed a petition seeking termination

of Father’s parental rights. The trial court held a bench trial on May 15, 2024 and June 5, 2024.

The trial court heard testimony from Father and the Department’s caseworker, Sarah Kennedy. 2

On June 10, 2024, the trial court signed an order terminating Father’s parental rights to

A.F.M. The trial court terminated Father’s parental rights based on statutory grounds (D), (N),

and (O) in subsection 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN.

§§ 161.001(b)(1)(D), (N), (O). The trial court also found it was in the child’s best interest to

terminate Father’s parental rights. See id. § 161.001(b)(2). Father appeals.

STATUTORY REQUIREMENTS AND STANDARD OF REVIEW

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 child.

TEX. FAM. CODE ANN. § 161.001(b). 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.

When reviewing the sufficiency of the evidence, we apply well-established standards of

review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)

(conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)

(conducting a legal sufficiency review).

2 The caseworker is employed by SJRC Texas Belong, a community-based care provider contracted by the Department. Nevertheless, we refer to Sarah Kennedy as the Department’s caseworker because SJRC Texas Belong is a contractor on behalf of the Department.

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“In reviewing the legal sufficiency of the evidence to support the termination of parental

rights, we must ‘look at all 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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.—San Antonio

Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

“[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding

if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “A corollary to this requirement

is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible.” Id.

“In reviewing the factual sufficiency of the evidence to support the termination of parental

rights, we ‘must give due consideration to evidence that the factfinder could reasonably have found

to be clear and convincing.’” J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266).

“A [reviewing court] should consider whether disputed evidence is such that a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding.” J.F.C.,

96 S.W.3d at 266. “The [reviewing] court must hold the evidence to be factually insufficient if, in

light of the entire record, the disputed evidence contrary to the judgment is so significant that a

reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate

finding.” In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.—San Antonio

Feb. 15, 2017, no pet.) (mem. op.).

Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and

the weight to be given their testimony. In re J.F.-G., 627 S.W.3d 304, 312, 317 (Tex. 2021). 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

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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 factual determinations and judgment

regarding credibility. J.F.-G., 627 S.W.3d at 312; see also In re R.R.A., 687 S.W.3d 269, 279 n.50

(Tex. 2024) (“Reviewing courts, however, must defer to the factfinder’s judgment as to the

credibility of the witnesses and the weight to give their testimony, including reasonable and logical

inferences from the evidence.”).

STATUTORY GROUNDS FOR TERMINATION

In his sole issue, Father argues there is insufficient evidence to support the trial court’s

finding under subsection 161.001(b)(1)(D) of the Texas Family Code.

Only one predicate ground finding under subsection 161.001(b)(1) is necessary to support

a termination judgment when there is also a finding that termination is in the child’s best interest.

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Because Father does not challenge the trial court’s

findings under statutory grounds (N) and (O), we may affirm on those grounds alone. Id.; In re

I.E.P., No. 04-24-00255-CV, 2024 WL 3802517, at *2 (Tex. App.—San Antonio Aug. 14, 2024,

no pet.). However, because findings under either subsections 161.001(b)(1)(D) or (E) have

consequences for termination of parental rights as to other children, termination on these grounds

implicate significant due process concerns for parents. See TEX. FAM. CODE ANN.

§§ 161.001(b)(1)(D), (E), (M); In re N.G., 577 S.W.3d 230, 234 (Tex. 2019). Therefore, when

challenged on appeal, due process requires us to review the trial court’s findings under subsections

161.001(b)(1)(D) and (E) of the Texas Family Code. See N.G., 577 S.W.3d at 235–36; see also

R.R.A., 687 S.W.3d at 279 (“Although termination under (P) is sufficient to reverse the judgment

of the court of appeals, we must also review termination under subsections (D) and (E) because a

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finding of termination under those grounds may justify termination of parental rights to other

children in subsection (M).”); In re J.W., 645 S.W.3d 726, 748 (Tex. 2022) (“[W]e may not bypass

Father’s evidentiary challenges to [s]ubsections (D) and (E) . . . because termination of a parent’s

rights under either can serve as a ground for termination of his rights to another child.”).

Here, the trial court found sufficient evidence to support termination of Father’s parental

rights under subsection (D). Subsection (D) allows for termination of parental rights if the parent

“knowingly placed or knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child[.]” TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D). To endanger a child under subsection (D) means to expose the child to loss

or injury or to jeopardize the child’s emotional or physical health. See J.W., 645 S.W.3d at 748;

In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). “Although

endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-

ideal family environment, it does not require that there be conduct directed at the child or that the

child actually suffer injury.” J.W., 645 S.W.3d at 748 (internal quotation marks and alterations

omitted).

Subsection (D) concerns the child’s living environment, rather than the conduct of the

parent, though parental conduct is certainly relevant to the child’s environment. In re J.T.G.,

121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Under Subsection (D), the trial court

examines “evidence related to the environment of the child[] to determine if the environment was

the source of endangerment to the [child’s] physical or emotional well-being.” Id. The child’s

“environment” encompasses the suitability of the child’s living conditions and the conduct of

parents or others in the home. S.R., 452 S.W.3d at 360. Inappropriate, abusive, or unlawful

conduct by a parent or other persons who live in the child’s home can create an environment that

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endangers the physical and emotional well-being of a child as required for termination under

subsection D. In re A.L.S., 660 S.W.3d 257, 271 (Tex. App.—San Antonio 2022, pet. denied). “A

parent need not know for certain that the child is in an endangering environment; awareness of

such a potential is sufficient.” In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.—San Antonio 2017,

no pet.) (alteration omitted). Subsection (D) permits termination based upon only a single act or

omission. Id. The time period relevant to a review of conduct and environment under statutory

ground (D) is prior to the child’s removal. In re J.R., 171 S.W.3d 558, 569 (Tex. App.—Houston

[14th Dist.] 2005, no pet.).

Here, the trial court heard testimony that Mother’s persistent physical and emotional abuse

exposed the child to an endangering environment. Mother and Father lived in Georgia until the

child was two years old. Sarah Kennedy, the Department’s caseworker, conceded Father did not

contribute directly to the endangering environment or otherwise harm the child. Thus, to meet its

burden under statutory ground (D), the Department had to prove by clear and convincing evidence

that Father knowingly allowed the child to remain in an endangering environment. See TEX. FAM.

CODE ANN. § 161.001(b)(1)(D). On appeal the Department claims it has met its burden because

Father knew Mother was a danger to the child and he left A.F.M. in Mother’s care. The record,

however, does not support the Department’s position.

It is undisputed that sometime after the child turned two, Mother moved from Georgia and

absconded with the child. Mother and the child then moved to several different states over the

next several years before moving to Texas. Father was on federal probation and could not leave

Georgia until 2016. When Father successfully completed his probation, he did not know where to

locate Mother and the child. Father testified he informed the agency managing child support in

Georgia that Mother absconded with the child; however, he was told the agency could not do

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anything because she is the mother of the child. Father, who remained in Georgia, testified that

he has not seen the child in over seven years.

Prior to Mother moving, Father testified he only visited Mother a few times and did not

know much about her. While he did state that he “noticed something just wasn’t right” with her,

he elaborated that she would “treat [her older] kids like she was in the military; just have the kids

cleaning up all the time and—it just wasn’t normal[.]” Father did not consider Mother’s behavior

alarming because she had just left the military, and he reasoned she was stern because of her

military experience. Father repeatedly testified that he never saw Mother abuse her children and

he did not know she was mistreating her children. Father later clarified when he said Mother “just

wasn’t right” that she was “just different[,]” not that he suspected Mother was abusing her children

or creating an endangering environment for A.F.M.

Father testified he never saw Mother “discipline [her children] physically.” Father

expounded he never saw the children with physical marks, cuts, bruises, broken bones, or any other

indication that Mother was abusing them. Father also stated none of Mother’s children made

outcries of abuse to Father. While Father testified that he distanced himself from Mother because

she would harass him and cuss him out, he stated he never saw anything that would indicate she

was abusive towards the child. 3

Kennedy did not dispute Father’s testimony that he was unaware of Mother’s propensity

to abuse her children. Kennedy testified the Department was concerned that Father left the child

in Mother’s care even though he knew “how she was towards her older children.” However,

3 The Department also points out that Father said it was not safe for him to be around Mother and, if it was not safe for Father to be around Mother, the trial court could infer that Father knew it was not safe for A.F.M. to be in Mother’s care. However, Father’s testimony reflects that Father feared Mother may do something that would cause him to go to jail. Mother told Father that she played a role in getting the older kids’ father “locked up.” Father was on federal probation until 2016 and was concerned that Mother would take some sort of action that would jeopardize his freedom because “[s]he’s the type, she’ll come to the house, ring the doorbell and—no. I’m not safe with that.”

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Kennedy failed to elaborate what she meant by that statement and the Department did not present

any evidence that Father knew about Mother’s abusive behavior. Kennedy simply repeated Father

“knew how [Mother] was and . . . he blocked her [phone number] because of her harassment.”

When asked what Father knew about Mother’s propensity for violence or abuse of her children,

Kennedy again repeated that Father knew “how she was towards her older children.”

The only evidence proffered by the Department inferring Father may have been aware of

Mother’s abusive behavior came from the following exchange between the Department’s counsel

and Kennedy regarding Father’s alleged testimony in a prior undisclosed hearing:

Q: Now, Ms. Kennedy, do you recall [Father] providing sworn testimony to the Court that he was aware of the conditions that [A.F.M.] was living with [Mother]?

A: Yes.

Q: Okay. And did he provide a reason for why he never took action to remove [A.F.M.] from those dangerous conditions?

A. He had just stated that [Mother] kept [A.F.M.] from him.

First, Kennedy simply acknowledged that Father testified in some unknown hearing that

he was aware of the conditions that the child was subjected to while living with Mother. However,

Kennedy does not elaborate, and the Department does not ask what those conditions are. Then,

counsel asked why Father did not remove A.F.M. from the dangerous conditions, and Kennedy

responded Mother kept the child from Father. This conclusory testimony can hardly be clear and

convincing evidence that Father knowingly left the child in an endangering environment. In re

A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (“[C]onclusory testimony,

such as the caseworker’s, even if uncontradicted does not amount to more than a scintilla of

evidence.”). The only reference to dangerous conditions were counsel’s characterization, not

testimony from Kennedy. And, Kennedy never testified at trial—and the trial court never heard

any evidence elicited at trial—that Father was aware of Mother’s abusive behavior. Moreover, the

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Department presented no evidence that Father should have known that Mother was exposing the

child to harm prior to removal. Kennedy instead confirmed that Father never told her he was aware

of Mother’s abusive behavior.

In sum, Father’s testimony establishes that he was unaware the environment created by

Mother’s conduct would endanger the child. His testimony further establishes that, while Mother

may have at times harassed Father, he did not see anything that would indicate Mother was abusive

towards A.F.M. The Department failed to present any evidence disputing Father’s testimony. The

only evidence the Department presented was a vague reference to testimony outside of the trial

record and a vague reference that Father knew how Mother was towards her older children. The

trial court’s finding under statutory ground (D) did not hinge on credibility determinations in the

face of conflicting evidence; rather, the evidence was conclusively insufficient to justify

termination on that ground because there was no evidence that Father knew or should have known

that Mother’s conduct would create an endangering environment for the child. See J.W.,

645 S.W.3d at 750. On this record, we conclude that the Department’s evidence, even when

viewed in the light most favorable to the judgment, would not allow a reasonable factfinder to

form a firm belief or conviction that Father knowingly placed or knowingly allowed A.F.M. to

remain in conditions that endangered his physical or emotional well-being. See In re I.R.M.,

No. 04-21-00278-CV, 2021 WL 6053733, at *3 (Tex. App.—San Antonio Dec. 22, 2021, no pet.).

Accordingly, Father’s sole issue is sustained.

CONCLUSION

Although we sustain Father’s issue on statutory ground (D), Father did not challenge the

sufficiency of the evidence supporting grounds (N) and (O) and we must accept the validity of

those findings and affirm termination under those grounds. See A.V., 113 S.W.3d at 362; I.E.P.,

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2024 WL 3802517, at *2. Therefore, we modify the trial court’s termination order to delete the

subsection (D) finding and affirm the termination order as modified.

Irene Rios, Justice

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