in the Interest of S. R.- M. C. ( 2015 )

Opinion issued November 17, 2015.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00556-CV
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IN THE INTEREST OF S.R.-M.C.
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2010-08247J
MEMORANDUM OPINION
In this accelerated appeal, appellant RAC, Sr. (“RAC”) challenges the trial
court’s decree terminating his parental rights to his minor child, SR-MC. In two
issues, RAC argues that the evidence was legally and factually insufficient to
support (1) the termination of his rights under Texas Family Code section
161.001(1)(N), and (2) the finding that termination of RAC’s parental rights was in
the best interest of the child under Texas Family Code section 161.001(2). See TEX.
FAM. CODE ANN. § 161.001(1), (2) (West 2014). We affirm.
BACKGROUND
In June 2012, the Department of Family and Protective Services [“the
Department”] was named the sole managing conservator of four-year-old SR-MC
and her 17-year-old sister EW. The decree removed the girls’ mother as managing
conservator and limited her rights as possessory conservator. Appellant, RAC, was
named as the alleged father of SR-MC, but his paternity had not yet been
established.
In October 2013, a Family Service Plan was entered for RAC. The plan
required RAC, among other things, to (1) “maintain a positive support system that
is safe, crime-free, drug/alcohol free, and will not inflict abuse or neglect on his
children, (2) “attend, actively participate in, and successfully complete parenting
classes that last at least 4-6 weeks in length[,]” (3) “submit to a DNA test upon
request[,]” (4) provide his current caseworker with any and all sources of income
for himself and his children by the 15th of each month[,]” and “maintain stable
employment for at least 5 months[,] (5) “participate in and give[] truthful
information in all PPT/PC meetings, court hearings, and other planning sessions
regarding his children[,]” and (5) “maintain stable and safe housing for a minimum
of six months consecutively[.]”
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RAC did submit to DNA testing, and, on September 12, 2014, he was
formally adjudicated as SR-MC’s father.
At trial, the Department’s caseworker, Jamelle Gibbs, testified about RAC’s
involvement with the child as follows:
[Department’s counsel]: Okay. Now, I want to focus on respondent
father, [RAC]. Do you know where [RAC] is currently living?
[Gibbs]: I do.
[Department’s counsel]: Where is that?
[Gibbs]: He lives in Indianapolis, [Indiana].
[Department’s counsel]: Okay. And did the Agency create a new
Family Plan of Service for Mr. Cannon as well?
[Gibbs]: Yes.
[Department’s counsel]: And what efforts did the Agency make to get
the Family Plan of Service to [RAC]?
[Gibbs]: I mailed it to [RAC] and I also went over it with him on the
telephone.
[Department’s counsel]: And based on that conversation, did he
understand the services that he was being requested to do?
[Gibbs]: Yes.
[Department’s counsel]: Okay. As of today, what services has [RAC]
completed?
[Gibbs]: He gave a DNA sample.
....
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[Department’s counsel]: And do you believe that he has successfully
completed the Family Plan of Service that was ordered in 2013.
[Gibbs]: He has not.
[Department’s counsel]: Okay. While this case has been pending, has
[RAC] ever visited with [SR-MC]?
[Gibbs]: He has not.
[Department’s counsel]: Has he ever reached out to the Agency to set
up visitation?
[Gibbs]: No.
[Department’s counsel]: Has he reached out to the Agency to try to
have phone contact with her?
[Gibbs]: No.
[Department’s counsel]: Has he ever financially provided for [SR-
MC]?
[Gibbs]: No.
[Department’s counsel]: Has [RAC] ever sent her any letters, gifts,
support of any kind, clothes?
[Gibbs]: No.
[Department’s counsel]: Do you believe that he has abandoned her?
[Gibbs]: I do.
[Department’s counsel]: And have you ever had discussions with
[RAC] regarding whether he wanted to, in fact, parent his child?
....
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[Gibbs]: He stated that he was not able to parent his child. He wasn’t
stable. He had a job, but he wasn’t working much and he wasn’t
being paid much and that, if possible, maybe one of his sisters could
get [SR-MC].
[Department’s counsel]: . . . . Do you have any evidence that [RAC] is
currently employed?
[Gibbs]: No.
[Department’s counsel]: So, do you have any evidence that he can
financially support his child at this time?
[Gibbs]: I do not.
[Department’s counsel]: Do you have any evidence that he has a safe
and stable home?
[Gibbs]: I do not.
Gibbs further testified that the Department did not pursue placing [SR-MC] with
[RAC’s] sisters because one “failed her FBI background check” and the other was
“noncompliant.” Gibbs felt that [RAC] had abandoned [SR-MC] because “[i]t’s
been four years and he has shown absolutely no interest in her at all, whatsoever.”
Gibbs testified that, although the child was currently in a foster home, adoption
was not a possibility; if the court terminated the parents’ rights, “it [would] open
the pool to where she can actually be broadcast and obtain permanency.” It was
Gibbs’ opinion that “it is in [SR-MC’s] best interest for the Agency to be able to
reach out to the entire United States to find an adoptive placement for her.”
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At the end of the trial, the trial court stated that “Father’s parental rights are
terminated pursuant to Texas Family Code Section 161.001(N) and (O).” The trial
court subsequently entered a written order, which found the following grounds for
termination of RAC’s parental rights:
[RAC] constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of the Department
. . . for not less than six months and: (1) the Department ... has made
reasonable efforts to return the child to [him]; (2) the father has not
regularly visited or maintained significant contact with the child; and
(3) the father has demonstrated an inability to provide the child with a
safe environment, pursuant to § 161.001(1)(N), Texas Family Code;
[RAC] failed to comply with the provisions of a court order that
specifically established the actions necessary for [him] to obtain the
return of the child who has been in the permanent or temporary
managing conservatorship of the Department . . . for not less than nine
months as a result of the child’s removal from the parent under
Chapter 262 for the abuse or neglect of the child, pursuant to §
161.001(1)(O), Texas Family Code[.]
The trial court also found the Department had proved by clear and convincing
evidence that termination of RAC’s parental rights was in the child’s best interest.
This appeal followed.
SUFFICIENCY OF EVIDENCE TO SUPPORT TERMINATION OF
PARENTAL RIGHTS
In two issues on appeal, RAC contends that the evidence was legally and
factually insufficient to support (1) the termination of his rights under Texas
Family Code section 161.001(1)(N); and (2) the finding that termination of RAC’s
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parental rights was in the best interest of the child under Texas Family Code
section 161.001(2).
A. Standard of Review
In a case to terminate parental rights by the Department under section
161.001 of the Family Code, the Department must establish, by clear and
convincing evidence, that (1) the parent committed one or more of the enumerated
acts or omissions justifying termination, and (2) termination is in the best interest
of the child. TEX. FAM. CODE ANN. § 161.001 (West 2014). Clear and convincing
evidence is “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.” Id. § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex.
2002). “Only one predicate finding under section 161.001(1) is necessary to
support a judgment of termination 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).
In a legal sufficiency review in a parental-rights-termination case, the
appellate court should 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. We
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, disregarding all evidence that a reasonable
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factfinder could have disbelieved or found to have been incredible. Id. If, after
conducting a legal sufficiency review of the record, we determine that no
reasonable factfinder could form a firm belief or conviction that the matter that
must be proven is true, then we must conclude that the evidence is legally
insufficient. Id.
In a factual sufficiency review, the appellate standard for reviewing
termination findings is whether the evidence is such that 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). By focusing on whether a
reasonable factfinder could form a firm conviction or belief, the appellate court
maintains the required deference for the factfinder’s role. Id. at 26. “An appellate
court’s review must not be so rigorous that the only factfindings that could
withstand review are those established beyond a reasonable doubt.” Id. We should
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. “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id.
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B. Sufficiency of Predicate Findings
In his first issue on appeal, RAC’s brief challenges only the sufficiency of
the evidence to support termination of his parental rights under section
161.001(1)(N), relating to termination for constructive abandonment of the child.
He does not challenge the trial court’s findings relating to compliance with the
family service plan under section 161.001(1)(O).
Because RAC did not challenge both statutory predicate grounds for
termination, we need not review the merits of his evidentiary-sufficiency challenge
to the abandonment finding. The Department in this case pleaded two of the
statutory grounds, and the trial court found that both grounds supported
termination of the RAC’s parental rights. “Clear and convincing proof of any one
ground will support a judgment terminating parental rights, if similar proof also
exists that termination is in the child’s best interest.” In re S.M.R., 434 S.W.3d 576,
580 (Tex. 2014) (citing In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013)); see TEX.
FAM. CODE ANN. § 161.001; In re A.V., 113 S.W.3d at 362; Toliver v. Tex. Dep’t of
Family & Protective Servs., 217 S.W.3d 85, 102–03 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (holding that court need not address appellant’s sufficiency
challenge to one section 161.001(1) finding in support of termination, because
appellant failed to challenge sufficiency of evidence supporting findings on three
other section 161.001(1) grounds); accord In re B.M., No. 14-13-00599-CV, 2013
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WL 6506659, at *5 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013, no pet.)
(mem. op.); In re N.L.D., 412 S.W.3d 810, 818 (Tex. App.—Texarkana 2013, no
pet.); In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.);
see also In re K.L.G., No. 14-09-00403-CV, 2009 WL 3295018, at *2 (Tex.
App.—Houston [14th Dist.] Oct. 15, 2009, no pet.) (mem. op.) (observing that
appellate court is bound by unchallenged predicate findings). Because one of the
trial court’s findings supporting termination is not challenged on appeal, we hold
that the trial court did not err in concluding that grounds for termination exist. See
In re M.S., No. 01-15-00451-CV, 2015 WL 5769993, at *4 (Tex. App.—Houston
[1st Dist.] Sept. 29, 2015, no pet.) (mem. op.) (declining to address sufficiency of
predicate finding when all predicate findings not challenged on appeal).
We overrule RAC’s first issue on appeal.
C. Best Interest of the Child
In his second issue, RAC argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of his parental
rights was in the SR-MC’s best interest.
1. Applicable Law
A strong presumption exists that a child’s best interest is served by
maintaining the parent-child relationship. In re A.A.A., 265 S.W.3d 507, 516 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied). In Holley v. Adams, 544 S.W.2d 367
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(Tex. 1976), the Texas Supreme Court provided a nonexclusive list of factors that
the factfinder in a termination case may use in determining the best interest of the
child. Id. at 371–72. These factors include: (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. These factors are not exhaustive, and the
Department need not prove all factors as a condition precedent to parental
termination. In re C.H., 89 S.W.3d at 27; Adams v. Tex. Dep’t of Family &
Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). Evidence establishing one of the predicate acts under section 161.001(1) also
may be relevant to determining the best interest of the child. See In re C.H., 89
S.W.3d at 28.
2. Analysis
Here, there was no evidence about the wants or desires of SR-MC.
Appellant himself admitted that he could not meet the needs of the child now, and
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he provided no evidence that he would be able to do so in the future. He also
admitted to Gibbs that he was unable to parent SR-MC because “he wasn’t stable,”
and “wasn’t working much.” Although he suggested two of his sisters as possible
placements for SR-MC, one of them did not pass her FBI background check and
the other was “noncompliant.” Although appellant claims to be the “non-offending
parent,” during all of the time that the child had been in the Department’s custody,
he had taken no steps to contact her, and he had never provided any support, either
financially or emotionally. And, even though he was given a family service plan,
appellant made no efforts to complete it other than taking a DNA test. This
evidence supports the court’s best interest finding. See In re C.H., 89 S.W.3d at
27–28; In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (stating that evidence
supporting finding under subsection O would also support the best interest
finding). Although appellant’s brief speculates that he may not have known how
to contact the child, there is no evidence in the record to support that assertion.
Finally, the caseworker testified that the termination of appellant’s parental rights
would be in the child’s best interest because then the Department could look
nationwide for a permanent adoptive family.
Viewing all the evidence in the light most favorable to the judgment, we
conclude that a factfinder could have formed a firm belief or conviction that
termination of RAC’s parental rights was in SR-MC’s best interest. See TEX. FAM.
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CODE ANN. § 161.001(2); J.F.C., 96 S.W.3d at 265–66. Viewing the same
evidence in a neutral light, the disputed evidence is not so significant as to prevent
a factfinder from forming a firm belief or conviction that termination of RAC’s
parental rights was in SR-MC’s best interest. See TEX. FAM. CODE ANN. §
161.001(2); J.F.C., 96 S.W.3d at 265–66. Accordingly, we hold that the evidence
is legally and factually sufficient to support the trial court’s finding that
termination of RAC’s parental rights was in SR-MC’s best interest.
We overrule point of error two.
CONCLUSION
We affirm the trial court’s order terminating RAC’s parental rights.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
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