in the Interest of R.R. and S.M.R., Children

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00268-CV

IN THE INTEREST OF R.R. AND S.M.R., Children

From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2015-PA-00858 Honorable Richard Garcia, Judge Presiding

Opinion by: Jason Pulliam, Justice

Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Jason Pulliam, Justice

Delivered and Filed: September 14, 2016

AFFIRMED

INTRODUCTION

In this accelerated appeal, Ruben R. appeals the trial court’s order terminating his parental

rights to his children, R.R. and S.M.R. 1 In his sole issue on appeal, Ruben R. asserts the evidence

is legally and factually insufficient to support the trial court’s finding that termination is in the

children’s best interest. We affirm the trial court’s order of termination.

1 To protect the identity of minor children, we refer to the children by their initials and to appellant as Ruben R. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). Although the trial court terminated both parents’ parental rights to R.R. and S.M.R., Ruben R., their father, is the only parent to appeal the trial court’s judgment. The termination proceedings also involved another child, A.A.V., who had a father other than Ruben R. This father does not appeal termination of his rights. Therefore, this court will only discuss the trial court’s judgment as it pertains to Ruben R. 04-17-00268-CV

BACKGROUND

This case began on April 23, 2015, when the subject children’s mother brought them to an

office of the Department of Family and Protective Services (“the Department”) and reported that

she was unable to care for them, did not have a place to go or live, and did not have family to

support or house her. The children’s mother asked that the Department take her children, R.R.,

S.M.R. and A.A.V. At the time, R.R. was five years old, S.M.R. was three years old, and A.A.V.

was nine months old. The Department confirmed that no shelters or facilities were able to take the

three children and their mother, so the Department took the children into their care. At the time

the children were taken into care of the Department, Ruben R. was incarcerated for transportation

of undocumented persons.

Following investigation, on April 27, 2015, the Department filed a petition for protection

of a child, for conservatorship, and for termination of parental rights. Following a hearing on May

19, 2015, the Department was designated the children’s temporary managing conservator. Ruben

R. was represented by counsel at the hearing but was not present or otherwise in attendance. The

court designated a family service plan under which Ruben R. was required to complete several

programs for reunification, including counseling, parenting classes and drug testing. Ruben R.

was not allowed visitation.

The trial court held several hearings, during which the goal of the service plan was

reunification. Ruben R. was released from jail on December 4, 2015; however, he was re-

incarcerated on February 26, 2016, due to failure to report to his parole officer, a parole violation.

The Department changed the service plan goal to termination of parental rights due to Ruben R.’s

re-incarceration. Trial was held on April 11, 2016.

Following presentation of evidence, the trial court terminated Ruben R.’s parental rights

and named the Department permanent managing conservator of the children. The trial court found -2- 04-17-00268-CV

Ruben R.: (1) constructively abandoned the children, pursuant to Family Code § 161.001(1)(N);

and (2) failed to comply with the court-ordered family service plan, pursuant to Family Code

§ 161.001(1)(O). See TEX. FAM. CODE ANN. § 161.001(1)(N) and (O) (West Supp. 2015). The

trial court also found termination of Ruben R.’s parental rights was in the best interest of the

children. See TEX. FAM. CODE ANN. § 161.001(2). Ruben R. perfected this appeal.

ANALYSIS

On appeal, Ruben R. challenges the sufficiency of the evidence to support the trial court’s

best-interest finding. Ruben R. contends the Department’s basis of the best-interest determination,

that is, the children needed to move forward with permanency and were thriving in the foster home,

was insufficient basis to establish that termination is in the children’s best interest.

Best Interest of the Child

Standard of Review

To terminate parental rights pursuant to Section 161.001 of the Family Code, the

Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);

and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(1), (2); In

the Interest of A.V., 113 S.W.3d 355, 362 (Tex. 2003). Both elements must be established, and

termination may not be based solely on the best interest of the child. Tex. Dep’t of Human Servs.

v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Because a parent’s right to the companionship, care,

custody, and management of children is a constitutional interest “far more precious than any

property right a judgment terminating parental rights must be supported by clear and convincing

evidence.” TEX. FAM. CODE ANN. § 161.206(a) (West 2014); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). “‘Clear and convincing evidence’ means 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.” TEX. FAM. CODE ANN. § 101.007 (West 2014). Due process demands -3- 04-17-00268-CV

this heightened standard because termination results in permanent, irrevocable changes for the

parent and child. Holick, 685 S.W.2d at 20; see In the Interest of J.A.J., 243 S.W.3d 611, 616

(Tex. 2007) (contrasting standards for termination and modification of conservatorship order).

Consequently, termination proceedings must be strictly scrutinized, and “involuntary

termination statutes are strictly construed in favor of the parent.” Holick, 685 S.W.2d at 20. To

determine if the heightened burden of proof was met, an appellate court must employ a heightened

standard of review—judging whether a “factfinder could reasonably form a firm belief or

conviction about the truth of the [Department’s] allegations.” In the Interest of 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. Id. at 25-26.

An appellate court must not reweigh issues of witness credibility but “‘must defer to the

[factfinder’s] determinations so long as those determinations are not themselves unreasonable.’”

In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting Sw. Bell Tel. Co. v. Garza, 164

S.W.3d 607, 625 (Tex. 2004)).

Sufficiency of the Evidence Review

Under the strict scrutiny implicit in termination cases and the necessity of clear and

convincing evidence, the traditional legal and factual standards of review are inadequate. In the

Interest of J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Instead, in conducting a legal sufficiency

review of termination of parental rights, an appellate court must view all of the evidence in the

light most favorable to the finding and determine whether a reasonable factfinder could have

formed a firm belief or conviction that its ultimate findings are true. See id. at 266. In viewing

the evidence in the light most favorable to the judgment, the appellate court “must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so,” and

“should disregard all evidence that a reasonable factfinder could have disbelieved or found to have -4- 04-17-00268-CV

been incredible.” Id. However, the appellate court may not simply disregard undisputed facts that

do not support the finding; to do so would not comport with the Department’s heightened burden

of proof by clear and convincing evidence. Id. If, after conducting its legal-sufficiency review of

all the evidence, a court determines no reasonable factfinder could form a firm belief or conviction

consistent with the final judgment, then the court must conclude the evidence is legally

insufficient. Id.

When reviewing a factual sufficiency challenge, the analysis is somewhat different in that

the appellate court must consider all of the evidence equally, including disputed and conflicting

evidence. In the Interest of J.F.C., 96 S.W.3d at 266. The appellate court must determine whether

the disputed evidence is such that a reasonable fact finder could have formed a firm conviction or

belief about the truth of the Department’s allegations. Id. In doing so, the appellate court must

assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could

do so and disregard all evidence that a reasonable factfinder could have disbelieved. Id. Finally,

in its analysis of this evidence the appellate court should consider whether disputed evidence is

such that a reasonable factfinder could not have resolved that disputed evidence in favor of its

finding. Id. The appellate 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 its finding. Id.; In the Interest

of A.S., 261 S.W.3d 76, 82 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

Best Interest Finding

There is a strong presumption that keeping a child with a parent is in the child’s best

interest. In the Interest of R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court

considers factors related to the best interest of the child, this presumption must be balanced with

consideration that “the prompt and permanent placement of the child in a safe environment is -5- 04-17-00268-CV

presumed to be in the child’s best interest.” TEX. FAM. CODE § 263.307(a) (West Supp. 2015). To

promote this balancing of presumption and consideration of the child’s best interest, in determining

whether a child’s parent is willing and able to provide the child with a safe environment, the court

should consider the non-exhaustive factors outlined in Holley v. Adams to shape their analysis of

the best interest of the child. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These

factors include, but are not limited to, (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 these individuals or by the agency seeking custody, (7) the stability of the home or

proposed placement, (8) the acts or omissions of the parent that 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. Id. at 372. In analyzing these factors, a court must focus on the best interest of the child,

not the best interest of the parent. In the Interest of D.M., 452 S.W.3d 462, 470 (Tex. App.—San

Antonio 2014, no pet.); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,

86 (Tex. App.—Dallas 1995, no writ).

Finally, evidence that proves one or more statutory grounds for termination may be

probative of both termination grounds and best interest; however, such evidence does not relieve

the Department of its burden to prove best interest. Holley, 544 S.W.2d at 370; see also In the

Interest of C.H., 89 S.W.3d at 28. A best-interest analysis may consider circumstantial evidence,

subjective factors and the totality of the evidence, as well as any direct evidence. In the Interest

of E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). A trier of fact may

measure a parent’s future conduct by their past conduct and may infer that past conduct

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endangering the well-being of a child may recur in the future if the child is returned to the parent.

Id.; In the Interest of B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied). “As

a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the

physical and emotional well-being of a child.” In the Interest of D.J.H., 381 S.W.3d 606, 613

(Tex. App.—San Antonio 2012, no pet.) (quoting In the Interest of R.W., 129 S.W.3d 732, 739

(Tex. App.—Fort Worth 2004, pet. denied)).

The Evidence

To establish basis for termination and the best-interest finding, the Department relied upon

testimony of three witnesses: Ruben R.; Edward Gentry, the Department’s first caseworker when

it took possession of the children; and Mildred Hohensee, the Department’s caseworker once

temporary orders were granted.

Ruben R., who attended and testified via telephone conference, testified that he had not

complied with the service plan during his two and one-half month release from incarceration

because he “didn’t have time to” and because he had nowhere to live and was “trying to get things

together”. Ruben R. testified he saw the children once in December and once in January during

his release. At the time of trial, Ruben R. did not know yet how long he would remain incarcerated,

but it could be up to fifteen months. Ruben R. testified he didn’t necessarily want the children to

live with him, but just wanted to have some contact and “a relationship with the children because

I don’t want them later on to say that my dad left me, like their mother left them, you know,

because I’m not—I love them, you know.” Ruben R. testified he provided for and raised the

children prior to his incarceration on July 24, 2013, at which time they were three years old and

one and one-half years old.

Edward Gentry testified regarding the unusual circumstances in which the children came

into the Department’s care. Mr. Gentry testified he sent Ruben R. paperwork regarding removal -7- 04-17-00268-CV

of the children and how to contact the Department, and he had no contact with Ruben R. during

the time of his involvement.

Mildred Hohensee, the Department’s caseworker, testified that during the time of his

release, she gave Ruben R. some referrals to some programs required in his family service plan;

however, he did not attend any meetings. Ms. Hohensee stated Ruben R. told her he missed his

visitation with the children in February because he had not gone to see his parole officer. Ms.

Hohensee stated she believed termination was in the children’s best interest because “both of these

children are old enough to know what’s going on and they are very, very happy at the home they

are in and progressing very well. I just–I feel like with the instability, the inability to do what the

Court has required, it’s just not–it’s demonstrating to me the lack of desire within them. And I see

how happy they are at the foster home and how successful they are becoming.” She also stated it

would not be in the children’s best interest to have Ruben R.’s “parental rights tied up” during his

fifteen-month incarceration.

Ms. Hohensee then testified regarding the health and status of the children, indicating they

do not have any medical or mental concerns, are “on track, education wise”, have no

developmental delays, and are thriving in the foster home in which they are placed with their step-

brother A.A.V. and the family’s two sons. Ms. Hohensee testified the foster family wanted to

adopt the children and had taken care of S.M.R.’s medical needs when she received cancer

treatment on her eye.

Application

With the standard of review in mind, we review the evidence as it pertains to the Holley

factors. See Holley, 544 S.W.2d at 371-72. We also consider the acts or omissions found by the

trial court under section 161.001(b)(1) of the Code, as well as the circumstantial evidence, any

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subjective factors, and the totality of the evidence. See In re R.S.D., 446 S.W.3d 816, 820 (Tex.

App.—San Antonio 2014, no pet.).

1. Desires of the Child

At the time of trial, the children were six and four years’ old, and therefore unable to

express their desires regarding conservatorship. See Holley, 544 S.W.2d at 371-72. However, in

this regard, the trial court could consider testimony regarding their current placement and the time

spent with their biological family. See In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied).

Ms. Hohensee testified the children are bonded with their foster family and are happy and

content in the home. The evidence establishes that Ruben R. has had very limited contact with the

children since his incarceration on July 24, 2013. The evidence shows Ruben R. took no action

that would indicate his desire to maintain a parenting relationship with the children, but instead

stated he did not necessarily want the children to live with him, but just wants to have a relationship

with them. Ruben R. admitted he had two and one-half months to participate in programs to regain

custody of the children, but failed to do so.

2. Emotional & Physical Needs/Emotional & Physical Danger

As noted, the children were young at the time of trial, and therefore, their age rendered

them vulnerable if parental rights remained with a parent who is unable or unwilling to attend to

their needs. See Holley, 544 S.W.2d at 371-72; In re J.G.M., No. 04–15–00423–CV, 2015 WL

6163204, at *3 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem op.). The children’s need

for emotional and physical support will continue for many years. See Holley, 544 S.W.2d at 371-

72.

Ruben R. testified he is not necessarily interested in having the children live with him in a

family setting and admitted he did not pursue compliance with the family service plan during his -9- 04-17-00268-CV

release from incarceration. Moreover, at the time of trial, Ruben R. was incarcerated and faced up

to fifteen months incarceration due to his parole violation.

“As a general rule, conduct that subjects a child to a life of uncertainty and instability

endangers the physical and emotional well-being of a child.” In re D.J.H., 381 S.W.3d 606, 613

(Tex. App.—San Antonio 2012, no pet.) (quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.—

Fort Worth 2004, pet. denied)). Although incarceration by itself will not justify termination, a

parent’s recurrent criminal acts may constitute sufficient evidence of conduct that endangers a

child and a court may consider it in determining the best interest of the child. Id.; M.R., 243 S.W.3d

807, 821 (Tex. App.—Fort Worth, 2007, no pet.).

Under these facts, Ruben R.’s inability to maintain a lifestyle free from criminal activity

would place the children in emotional and physical danger. See M.R., 243 S.W.3d at 821 (holding

evidence of parent’s unstable lifestyle can support fact finder’s conclusion that termination is in

child’s best interest). The evidence of re-incarceration portends future instability and uncertainty

in his ability to attend to the children’s needs in the foreseeable future. See In the Interest of B.R.,

456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.) (holding a fact finder may judge

parent’s future conduct by past conduct in determining whether termination is in child’s best

interest).

3. Parenting Abilities/Available Programs

The evidence set out above is also relevant to Ruben R.’s inability and reluctance to

properly parent. Ruben R. did not participate in the family service plan programs during his release

despite having been advised that completion of services was necessary to obtain reunification with

his children. See C.H., 89 S.W.3d at 28 (holding proof of acts or omissions under section

161.001(b)(1) is probative of best interests); B.R., 456 S.W.3d at 615 (same). Ruben R. failed to

comply with the conditions of parole to remain out of jail. See Holley, 544 S.W.2d at 371-72. - 10 - 04-17-00268-CV

This evidence establishes that despite being referred to available programs during his

release, Ruben R. chose not to engage. See Holley, 544 S.W.2d at 371-72. Based on the evidence

showing Ruben R.’s failure to participate in the available programs and services, he has

demonstrated a lack of motivation to improve his parenting abilities or lifestyle choices. See In re

W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.) (holding trier of fact could

have formed firm belief that parent was not motived to improve parenting abilities given failure to

avail herself of programs provided).

4. Plans for Child by Those Seeking Custody/Stability of Home or Proposed Placement

Ms. Hohensee testified the children are currently in a “foster to adopt home” with their

half-brother A.A.V. She stated they have bonded with the family, and the foster parents have

expressed a desire to adopt all three children.

Ruben R.’s lack of stability is set forth in our discussion above. The evidence shows he is

currently incarcerated. Ruben R. admitted that at the time of trial he could not care for the children

and had no real desire to care for them other than to maintain a relationship with them. Ruben R.

did not offer any other family members that could be a potential home for the children.

5. Acts or Omissions Indicating Parent–Child Relationship Not Proper/Excuses

The evidence of acts or omissions by Ruben R. that indicate he had an improper

relationship with the children are those set forth above in our discussion of his acts that physically

and emotionally endangered the children—incarceration, lack of demonstration of parenting

abilities, as well as his failure to complete the service plan requirements during his release.

CONCLUSION

The evidence shows the relevant Holley factors weigh heavily in favor of a finding that

termination was in the children’s best interest. Accordingly, recognizing that in conducting a best

interest analysis, the trial court was permitted to (1) consider circumstantial evidence, subjective - 11 - 04-17-00268-CV

factors, and the totality of the evidence, in addition to the direct evidence presented, and (2) judge

Ruben R.’s future conduct by his past conduct, we hold the trial court did not err in finding

termination of Ruben R.’s parental rights would be in the children’s best interest. See B.R., 456

S.W.3d at 616. In other words, we hold the evidence is such that the trial court could have

reasonably formed a firm belief or conviction that termination was in the children’s best interest.

See J.P.B., 180 S.W.3d at 573.

Based on the foregoing, we hold the evidence is legally and factually sufficient to have

permitted the trial court, in its discretion, to find termination was in the children’s best interest.

Accordingly, we overrule Ruben R.’s sufficiency complaints, hold the trial court did not err by

terminating Ruben R.’s parental rights, and affirm the trial court’s termination order.

Jason Pulliam, Justice

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