in the Interest of J.D.J.Jr. and D.J.

• Court: Court of Appeals of Texas
• Decided: March 23, 2015
• Docket: 04-14-00691-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00691-CV

IN THE INTEREST OF J.D.J. Jr. and D.R.J., Children

From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2013-PA-01185 Honorable Michael E. Mery, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice

Delivered and Filed: March 18, 2015

AFFIRMED

J.D.J. appeals the trial court’s order terminating his parental rights to his children J.D.J. Jr.

and D.R.J. In his only issue, J.D.J. asserts the evidence was neither legally nor factually sufficient

for the trial court to find by clear and convincing evidence that terminating his parental rights was

in his children’s best interests. We conclude the evidence is both legally and factually sufficient;

we affirm the trial court’s order.

BACKGROUND

In May 2013, the Department of Family and Protective Services received information from

an anonymous call to the San Antonio Police Department alleging neglect of nineteen-month old

J.D.J. Jr. and five-month old D.R.J. Upon investigating, the Department found the parents were

homeless and unemployed, the children were dirty and in need of food and clothing. The older 04-14-00691-CV

child had possible sunburn, and had blisters and abrasions on his feet. The younger child had

apparent difficulty breathing, but the parents had not filled a prescription for the child’s upper

respiratory infection because they had been too busy. The mother stated she was rationing food to

the children because they sold all their food stamps so the father could buy alcohol. The

Department subsequently petitioned to remove J.D.J.’s children from him and their mother M.M.

The trial court granted the petition, issued a protective order, and the children were removed from

J.D.J. and M.M. After several permanency hearings and a bench trial on the merits, the trial court

terminated J.D.J.’s parental rights to his children based on subparagraphs (D), (E), and (O) of

Family Code section 161.001(1), see TEX. FAM. CODE ANN. § 161.001(1) (West 2014), and

because it was in the children’s best interests, see id. § 161.001(2). 1

STANDARD OF REVIEW

An order terminating parental rights must be supported by clear and convincing evidence

that (1) the parent has committed one of the grounds for involuntary termination as listed in section

161.001(1) of the Family Code, and (2) terminating the parent’s rights is in the best interest of the

child. Id. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).

A. Legal Sufficiency

When a clear and convincing evidence standard applies, a legal sufficiency review requires

a court to “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.F.C., 96 S.W.3d at 266; accord In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). If the court

“determines [a] reasonable factfinder could form a firm belief or conviction that the matter that

1 The trial court also terminated M.M.’s parental rights to her children, but she did not appeal the trial court’s order.

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must be proven is true,” the evidence is legally sufficient. See In re J.L., 163 S.W.3d at 85; In re

J.F.C., 96 S.W.3d at 266.

B. Factual Sufficiency

Under a clear and convincing standard, evidence is factually sufficient if “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); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San

Antonio 2004, no pet.). We must consider “whether disputed evidence is such that a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96

S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.

GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

J.D.J. does not challenge the trial court’s findings that he committed three of the statutory

grounds for involuntary termination of his parental rights. See TEX. FAM. CODE ANN.

§ 161.001(1); In re J.F.C., 96 S.W.3d at 261. Instead, he contends the evidence was neither legally

nor factually sufficient for the court to find by clear and convincing evidence that terminating his

parental rights was in his children’s best interests. See TEX. FAM. CODE ANN. § 161.001(2); In re

J.F.C., 96 S.W.3d at 261.

BEST INTERESTS OF THE CHILDREN

A trial court may terminate a parent’s rights to a child if it finds, inter alia, such

“termination is in the best interest of the child.” TEX. FAM. CODE ANN. § 161.001(2); accord In

re J.F.C., 96 S.W.3d at 261.

A. Holley Factors

The factors a court uses to ascertain the best interest of the child may include the following:

(B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future;

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(D) the parental abilities of the individuals seeking custody; ... (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent- child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); accord In re E.N.C., 384 S.W.3d 796, 807

(Tex. 2012) (reciting the Holley factors).

B. Holley Factors Evidence

Applying the applicable standards of review for sufficiency of the evidence, we examine

all the evidence, see In re J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d

802, 807 (Tex. 2005) (crediting or disregarding evidence), and recite below that which especially

pertains to the Holley factors, see Holley, 544 S.W.2d at 371–72. At trial, J.D.J. and the

Department examined several witnesses and the court heard from the children’s attorney ad litem.

1. M.M., Mother

M.M. testified as follows. She and J.D.J. do not have jobs. They do not have any kind of

support system in San Antonio. They have been living on the street for more than one year, and

they do not have a secure and stable place to live. She is still afraid of J.D.J. because, in past

incidents, he pulled a knife on her, or threatened to kill her, or sent her a letter saying “I hate you.”

She is afraid J.D.J. or his friends will kill her and the children.

2. Jennifer Hillin, Caseworker

Jennifer Hillin, the Department caseworker from June 2013 to July 2014, testified to the

following. She tried repeatedly to get J.D.J. to secure safe housing for M.M. and the children but

J.D.J. refused to do so. She was also concerned about domestic violence by J.D.J. because of

M.M.’s outcries. M.M. described past incidents where J.D.J. had hit her, or attempted to choke

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her, or held a knife to her throat, or waived a gun in her face. M.M. also told her J.D.J. threatened

to kill her and the children.

When she questioned J.D.J. about M.M.’s outcries, he either evaded the questions, or

minimized or denied the allegations. J.D.J. did not complete the anger management or domestic

violence prevention classes she made available to him. He failed to secure stable and safe housing

for the children and failed to obtain stable employment. During supervised visits, when the

children left the room for extended periods of time, J.D.J. did not notice. J.D.J. also failed to

respond when the children needed to be fed or have their diapers changed. Although he had weekly

visits with the children, J.D.J.’s interactions with the children did not improve.

3. Selene Mendez, Caseworker

Selene Mendez, J.D.J.’s current Department caseworker, testified as follows. Since she

was assigned as the caseworker in July 2014, J.D.J. has “not done anything to change the situation

from whe[n] the children were removed.” J.D.J. has not met the children’s most basic needs such

as food and safe and stable housing. His disability applications have been denied four times, but

he is not looking for work. She believes that if the children were returned to J.D.J., they would be

in physical danger.

She noted the children are well-adjusted in their foster home. The foster home provides a

two-parent, safe, stable environment for the children, and the foster parents have demonstrated

their ability to provide for them. The children have bonded with their foster parents, and the foster

parents want to adopt the children.

4. Linda O’Reilly, CASA Volunteer

Linda O’Reilly, a CASA Volunteer, testified to the following. She worked on J.D.J.’s case

since it began in May 2013. She has not seen J.D.J. make any effort to provide stable housing or

a safe environment for the children. She is fearful that if the children are returned to J.D.J., they -5- 04-14-00691-CV

will have no routine or stability in their lives. Given her observations and interactions with J.D.J.

and the family for more than one year, she does not believe J.D.J. will change.

She has observed the children in their foster home, and they are thriving. She recommends

J.D.J.’s parental rights be terminated.

5. J.D.J., Father

J.D.J. testified that he loves his children and he wants them back. He insisted “They never

starved. We always had [them] fed.” He admitted he wrote M.M. a letter saying “I hate you,” but

only because M.M. was staying with a person he believed to be “a child molester.” He denied that

he ever (1) hit or choked M.M., (2) held a knife to her throat, or (3) threatened her with a gun. He

admitted he and M.M. slept outside an abandoned church the night before trial, and that for the

last twelve months, he has not had a stable home in which to live. He insisted he had recently

applied for “about 40 jobs” but no one would call him back because he was applying for disability

benefits. He asked the court for more time so he could arrange to provide for the children’s needs.

6. Laura Duran, Attorney Ad Litem for Children

As the attorney ad litem for the children, Laura Duran advised the court that she has seen

the children’s lack of bonding with J.D.J. and their “extremely bonded” relationship with their

foster parents. She noted J.D.J. has not improved in providing a safe home for his children, and

she opined that terminating J.D.J.’s parental rights would be in the children’s best interests.

C. Children’s Best Interests Finding

Here, the trial court was the sole judge of the weight and credibility of the evidence

including the testimony of each witness. See City of Keller, 168 S.W.3d at 819; In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006) (per curiam).

The trial court could have believed the testimony that, for more than one year, J.D.J. has

been unemployed, has lived on the street, and has not made any improvements in his employment -6- 04-14-00691-CV

or housing despite the Department’s and others’ repeated efforts to help him do so. See Holley,

544 S.W.2d at 372 (factors (B), (C), (H), (I)). It could have believed the witnesses’ testimony,

despite J.D.J.’s testimony to the contrary, that J.D.J. repeatedly committed acts of domestic

violence against M.M., threatened the children, failed to complete anger management or domestic

violence prevention courses, and the children would be in danger if placed back with him. See id.

(factors (B), (C), (H)). It could have believed J.D.J. failed to give appropriate attention and care

to the children during his visits with them, and that they have not bonded with him. See id. (factors

(B), (C), (H)).

The trial court could also have believed the testimony that the foster parents provided safe,

stable housing for the children, they demonstrated their ability to provide for the children, the

children were thriving in their care, the children were extremely bonded to their foster parents, and

the foster parents want to adopt the children. See id. (factors (B), (C), (D), (G)).

Reviewing the evidence under the two sufficiency standards, we conclude the trial court

could have formed a firm belief or conviction that terminating J.D.J.’s parental rights to his

children was in the children’s best interests. See In re J.F.C., 96 S.W.3d at 266 (citing In re C.H.,

89 S.W.3d at 25). Therefore, the evidence is legally and factually sufficient to support the trial

court’s order. See id.

CONCLUSION

The trial court found J.D.J. committed three statutory grounds supporting terminating his

parental rights, and terminating J.D.J.’s parental rights was in the children’s best interests. J.D.J.

appealed only the latter finding.

Having reviewed the evidence, we conclude it was legally and factually sufficient to

support the trial court’s finding by clear and convincing evidence that termination of J.D.J.’s

parental rights to J.D.J. Jr. and D.R.J. was in the children’s best interests. -7- 04-14-00691-CV

Patricia O. Alvarez, Justice

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