in the Interest of J.D.J.Jr. and D.J. ( 2015 )

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
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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
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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
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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.
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We affirm the trial court’s order.
Patricia O. Alvarez, Justice
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