Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00263-CV
IN THE INTEREST OF X.E.R., a Child
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2017PA02538 Honorable Laura Salinas, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice
Delivered and Filed: October 31, 2018
AFFIRMED
Appellees filed suit to terminate appellant H.F.R., Jr.’s parental rights to his daughter,
X.E.R., and for appellees to adopt X.E.R. Appellees are the sister and brother-in-law of X.E.R.’s
biological mother. The trial court signed an order terminating appellant’s parental rights and a
separate order was signed granting the adoption. Appellant now challenges the order of
termination, arguing the evidence is legally and factually insufficient to support the trial court’s
finding that termination was in the child’s best interest. We affirm the trial court’s order.
BACKGROUND
Appellee K.S. is the older sister of K.D., who gave birth to a child, X.E.R, at the age of 18.
After the child’s birth, K.D. and X.E.R. lived with K.S., her husband, J.S., and their two children.
K.D. decided she wanted her sister and brother-in-law to raise the child, and filed an affidavit of 04-18-00263-CV
relinquishment. Thereafter, K.S. and J.S. filed a petition to terminate appellant’s parental rights.
At the time of trial, appellant was incarcerated. Appellant had a history of criminal behavior. In
2003 or 2004, he was convicted of felony possession with intent to distribute methamphetamine
and placed on probation. While on probation he sexually assaulted a 14-year-old; he was convicted
of the offense, his probation was revoked, and he was sentenced to eight years’ confinement. After
he was released from prison, appellant met K.D. In 2015, he was arrested for possession with
intent to distribute methamphetamine and he was convicted of the offense in 2016. He is currently
serving a 25-year sentence.
K.D. testified that appellant is her ex-boyfriend. She met appellant when she was 18 and
became pregnant soon thereafter. Appellant was violent toward her on at least 40-50 occasions
and threatened to kill her several times. He was also destructive, and once punched a hole through
her windshield and broke a door off her car. Because of this physical violence, K.D. sought and
was granted a protective order prohibiting appellant from contacting her. During their relationship,
she witnessed appellant use and sell drugs, specifically methamphetamines. She stated that
appellant has seen their daughter twice: on August 27, 2015 when she was born and at a doctor’s
appointment approximately two weeks later; at no other time did he try to see her or have contact
with her. Appellant was “on the run” for several months, and during that time he violated the
protective order by coming to the home where K.D. and X.E.R. were living during the night.
Appellant threatened to take the child and flee to Mexico. K.D. filed five police reports alleging
appellant violated the protective order.
K.D. testified that she struggles with post-traumatic stress disorder stemming from the time
she spent with appellant and suffers from other mental illnesses. She does not think she and
appellant can give X.E.R. the life she deserves. K.D. moved into her sister’s home with X.E.R.
the day after X.E.R. was born. X.E.R. came under the sole care of K.S. and J.S. in January of
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2017. K.D. stated that X.E.R. is flourishing in their care and that she is loved unconditionally and
given everything she deserves. Appellant has not provided any financial support to X.E.R. since
her birth. No one in appellant’s family has offered to care for X.E.R. K.D. stated appellant had a
short fuse and she feared he would mistreat X.E.R. or even kill her if allowed to have possession
of her.
K.S. testified that X.E.R. initially suffered from some developmental delays, but is now
caught up. K.S. is a stay-at-home mom and has two sons, ages two and three.
Appellant testified he is serving a 25-year sentence and that at least 22 years remain on his
sentence if not paroled. He is eligible for parole in November 2018 and already has two jobs lined
up. He admitted that his being paroled in November was not guaranteed. He further testified he
has completed anger management and parenting classes while in prison.
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
In a private proceeding to terminate the parent-child relationship brought under section
161.001, the petitioner must establish by clear and convincing evidence two elements: (1) a
predicate violation, i.e., one or more acts or omissions enumerated under subsection (b)(1) of
section 161.001; and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001(b)(1), (2).
The factfinder must find that both elements are established by clear and convincing
evidence, and proof of one element does not relieve the petitioner of the burden of proving the
other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). “Clear and convincing evidence” is
defined as “that measure or degree of proof which 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.” Spangler v.
Tex. Dep’t of Protective & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco 1998, no pet.).
In this case, the trial court found clear and convincing evidence of one predicate ground to
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terminate appellant’s parental rights and also found termination of his parental rights was in the
best interest of the child. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(Q), (2).
We evaluate the legal and factual sufficiency of the evidence to support the trial court’s
findings under the standard of review established by the Texas Supreme Court in In re J.F.C., 96
S.W.3d 256, 266-67 (Tex. 2002). Under this standard, the trial court is the sole judge of the weight
and credibility of the evidence. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
BEST INTEREST FINDING
In determining the best interest of a child, courts apply the non-exhaustive Holley factors
to shape their analysis. Holley, 544 S.W.2d at 371-72. Those factors include: (1) the desires of
the child; (2) the present and future emotional and physical needs of the child; (3) the present and
future emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of
the home of the parent and the individuals seeking custody; (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. Id. The foregoing factors are not exhaustive, and
“[t]he absence of evidence about some of [the factors] would not preclude a factfinder from
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00263-CV
IN THE INTEREST OF X.E.R., a Child
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2017PA02538 Honorable Laura Salinas, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice
Delivered and Filed: October 31, 2018
AFFIRMED
Appellees filed suit to terminate appellant H.F.R., Jr.’s parental rights to his daughter,
X.E.R., and for appellees to adopt X.E.R. Appellees are the sister and brother-in-law of X.E.R.’s
biological mother. The trial court signed an order terminating appellant’s parental rights and a
separate order was signed granting the adoption. Appellant now challenges the order of
termination, arguing the evidence is legally and factually insufficient to support the trial court’s
finding that termination was in the child’s best interest. We affirm the trial court’s order.
BACKGROUND
Appellee K.S. is the older sister of K.D., who gave birth to a child, X.E.R, at the age of 18.
After the child’s birth, K.D. and X.E.R. lived with K.S., her husband, J.S., and their two children.
K.D. decided she wanted her sister and brother-in-law to raise the child, and filed an affidavit of 04-18-00263-CV
relinquishment. Thereafter, K.S. and J.S. filed a petition to terminate appellant’s parental rights.
At the time of trial, appellant was incarcerated. Appellant had a history of criminal behavior. In
2003 or 2004, he was convicted of felony possession with intent to distribute methamphetamine
and placed on probation. While on probation he sexually assaulted a 14-year-old; he was convicted
of the offense, his probation was revoked, and he was sentenced to eight years’ confinement. After
he was released from prison, appellant met K.D. In 2015, he was arrested for possession with
intent to distribute methamphetamine and he was convicted of the offense in 2016. He is currently
serving a 25-year sentence.
K.D. testified that appellant is her ex-boyfriend. She met appellant when she was 18 and
became pregnant soon thereafter. Appellant was violent toward her on at least 40-50 occasions
and threatened to kill her several times. He was also destructive, and once punched a hole through
her windshield and broke a door off her car. Because of this physical violence, K.D. sought and
was granted a protective order prohibiting appellant from contacting her. During their relationship,
she witnessed appellant use and sell drugs, specifically methamphetamines. She stated that
appellant has seen their daughter twice: on August 27, 2015 when she was born and at a doctor’s
appointment approximately two weeks later; at no other time did he try to see her or have contact
with her. Appellant was “on the run” for several months, and during that time he violated the
protective order by coming to the home where K.D. and X.E.R. were living during the night.
Appellant threatened to take the child and flee to Mexico. K.D. filed five police reports alleging
appellant violated the protective order.
K.D. testified that she struggles with post-traumatic stress disorder stemming from the time
she spent with appellant and suffers from other mental illnesses. She does not think she and
appellant can give X.E.R. the life she deserves. K.D. moved into her sister’s home with X.E.R.
the day after X.E.R. was born. X.E.R. came under the sole care of K.S. and J.S. in January of
-2- 04-18-00263-CV
2017. K.D. stated that X.E.R. is flourishing in their care and that she is loved unconditionally and
given everything she deserves. Appellant has not provided any financial support to X.E.R. since
her birth. No one in appellant’s family has offered to care for X.E.R. K.D. stated appellant had a
short fuse and she feared he would mistreat X.E.R. or even kill her if allowed to have possession
of her.
K.S. testified that X.E.R. initially suffered from some developmental delays, but is now
caught up. K.S. is a stay-at-home mom and has two sons, ages two and three.
Appellant testified he is serving a 25-year sentence and that at least 22 years remain on his
sentence if not paroled. He is eligible for parole in November 2018 and already has two jobs lined
up. He admitted that his being paroled in November was not guaranteed. He further testified he
has completed anger management and parenting classes while in prison.
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
In a private proceeding to terminate the parent-child relationship brought under section
161.001, the petitioner must establish by clear and convincing evidence two elements: (1) a
predicate violation, i.e., one or more acts or omissions enumerated under subsection (b)(1) of
section 161.001; and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001(b)(1), (2).
The factfinder must find that both elements are established by clear and convincing
evidence, and proof of one element does not relieve the petitioner of the burden of proving the
other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). “Clear and convincing evidence” is
defined as “that measure or degree of proof which 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.” Spangler v.
Tex. Dep’t of Protective & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco 1998, no pet.).
In this case, the trial court found clear and convincing evidence of one predicate ground to
-3- 04-18-00263-CV
terminate appellant’s parental rights and also found termination of his parental rights was in the
best interest of the child. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(Q), (2).
We evaluate the legal and factual sufficiency of the evidence to support the trial court’s
findings under the standard of review established by the Texas Supreme Court in In re J.F.C., 96
S.W.3d 256, 266-67 (Tex. 2002). Under this standard, the trial court is the sole judge of the weight
and credibility of the evidence. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
BEST INTEREST FINDING
In determining the best interest of a child, courts apply the non-exhaustive Holley factors
to shape their analysis. Holley, 544 S.W.2d at 371-72. Those factors include: (1) the desires of
the child; (2) the present and future emotional and physical needs of the child; (3) the present and
future emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of
the home of the parent and the individuals seeking custody; (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. Id. The foregoing factors are not exhaustive, and
“[t]he absence of evidence about some of [the 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 17, 27 (Tex. 2002). “A trier of fact may measure a parent’s future conduct by
his past conduct [in] determin[ing] whether termination of parental rights is in the child’s best
interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).
Here, there was evidence that appellant was incarcerated and serving a twenty-five-year
prison sentence. A parent’s imprisonment is not automatic grounds for termination. In re S.R.L.,
243 S.W.3d 232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.). It is, however, a factor to
-4- 04-18-00263-CV
be considered in determining the child’s best interest, in light of the expected length of the
imprisonment and whether appellant’s criminal conduct supports an inference he endangered the
child’s safety. In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). Appellant admitted he had a lengthy criminal history and that at least 22 years of his
sentence remained. In addition, there was evidence that appellant was physically violent toward
K.D. and was quick to anger; that he violated the restraining order on multiple occasions; that he
used drugs; that he has spent very little time with the child; that X.E.R. has been in appellees’ sole
care for over a year and has lived with them for the entirety of her life; and that X.E.R. was thriving
in the care of K.S. and J.S. and that her biological mother wanted her to be adopted by and raised
by K.S. and J.S. See, e.g., Holley, 544 S.W.2d at 371-72.
Viewing the evidence in the light most favorable to the trial court’s finding under
subsection 161.001(2), we conclude the trial court reasonably could have formed a firm belief or
conviction that termination of the parent-child relationship is in X.E.R.’s best interest. See J.F.C.,
96 S.W.3d at 266. Viewing all of the evidence, the disputed evidence is not so significant that a
reasonable factfinder could not have resolved that disputed evidence in favor of its finding. See
id. In light of the entire record, the trial court reasonably could form a firm belief or conviction
that termination is in X.E.R.’s best interest. See id. We thus conclude the evidence is legally and
factually sufficient to support the trial court’s finding that termination of appellant’s parental rights
was in the child’s best interest and we overrule appellant’s sole issue on appeal.
CONCLUSION
The order of the trial court is affirmed.
Rebeca C. Martinez, Justice
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