in the Interest of D.B.T. ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00919-CV
IN THE INTEREST OF D.B.T.
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02726
Honorable Michael E. Mery, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: April 29, 2015
REVERSED AND RENDERED
Ruben appeals the trial court’s termination of his parental rights to D.B.T. 1 He argues the
trial court improperly granted a trial amendment to add a ground for termination and the evidence
is legally and factually insufficient to support the trial court’s finding that termination is in D.B.T.’s
best interest. We reverse and render judgment.
BACKGROUND
Six years after D.B.T. was born, Ruben moved to California in 2008, where he lives with
his wife and two of his other children. D.B.T. continued to reside in Texas with Adriana (his
mother) and Jose (the father of his siblings).
1
To protect the identity of the minor child, we refer to the child’s parents and grandparents by their first names and
to the child by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
04-14-00919-CV
In 2013, the Department of Family and Protective Services sought to remove D.B.T. and
his siblings from their home due to Jose’s drug abuse and violence against Adriana. The
Department filed a petition seeking termination of Jose and Adriana’s parental rights to the
children; it also sought to terminate Ruben’s parental rights to D.B.T. under § 161.001(1)(D) and
(E) of the Family Code. The trial court granted the Department’s request for temporary managing
conservatorship of the three children, who were thereafter placed with their maternal grandparents.
The case proceeded to a bench trial, and the Department admitted it had no evidence of the
grounds pled to terminate Ruben’s parental rights, but requested and was granted a trial
amendment to terminate Ruben’s rights under § 161.001(1)(O). The trial court found Ruben
violated § 161.001(1)(O) of the Family Code and that termination was in D.B.T.’s best interest.
Ruben now appeals the trial court’s judgment terminating his parental rights.
D.B.T.’S BEST INTEREST
Ruben contends the evidence is legally and factually insufficient to support the trial court’s
finding that termination of his parental rights is in D.B.T.’s best interest.
Standard of Review & Applicable Law
A judgment terminating parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014). To determine whether this heightened
burden of proof was met, we employ a heightened standard of review to determine whether 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). “This standard guards the constitutional
interests implicated by termination, while retaining the deference an appellate court must have for
the factfinder’s role.” In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.).
We do not reweigh issues of witness credibility but defer to the factfinder’s reasonable
determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
-2-
04-14-00919-CV
A legal sufficiency review requires us to examine 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 256, 266 (Tex. 2002). We assume
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have
done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found
incredible. Id. But we may not simply disregard undisputed facts that do not support the finding;
to do so would not comport with the heightened burden of proof by clear and convincing evidence.
Id.
When conducting a factual sufficiency review, we evaluate “whether disputed evidence is
such that a reasonable factfinder could not have resolved that disputed evidence in favor of its
finding.” Id. The evidence is factually insufficient “[i]f, 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.” Id.
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court
has set out some factors relevant to the determination:
• the desires of the child;
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of
the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-
child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor
must be proved to find that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.
-3-
04-14-00919-CV
Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest—especially when undisputed evidence
shows that the parental relationship endangered the child’s safety. Id. “Evidence that the parent
has committed the acts or omissions prescribed by section 161.001 may also be probative in
determining the child’s best interest; but the mere fact that an act or omission occurred in the past
does not ipso facto prove that termination is currently in the child’s best interest.” In re O.N.H.,
401 S.W.3d at 684 (internal citation omitted).
Evidence
The evidence at trial primarily concerned Adriana’s and Jose’s relationships with their
respective children. Few of the witnesses testified about Ruben’s relationship with D.B.T., and the
testimony was relatively brief.
Adriana testified that soon after D.B.T. was born, Ruben was ordered to pay child support
and he continued to pay child support “sporadically.” She explained D.B.T. knew who Ruben was,
but D.B.T. did not refer to him or Jose as “dad.”
Enedina, D.B.T.’s maternal step-grandmother with whom D.B.T. and his siblings were
placed, testified she contacted Ruben because D.B.T. expressed interest “all the time” in
establishing a relationship with him. When asked whether she thought it would be in D.B.T.’s best
interest to have Ruben in D.B.T.’s life she responded, “Not for him to live with him but -- or for
just mere curiosity. He wants to know his father.”
Payden Sharkey, a caseworker for the Department, testified he mailed Ruben a service
plan, and they had a few conversations over the phone. He testified Ruben and his wife and
children live in California. According to Sharkey, Ruben “said that he has had no contact due to
[Adriana] not allowing him contact. And she has verbalized that with me, too.” Sharkey testified
Ruben inquired about D.B.T.’s safety and whether he was placed in a good environment. He also
-4-
04-14-00919-CV
testified he discussed the possibility of Ruben visiting D.B.T., but told Ruben he did not believe it
was in D.B.T.’s best interest at the time. Sharkey stated Ruben sent an “in-home parenting kit” to
D.B.T.’s maternal grandmother. When asked whether he believed Ruben missed a lot of D.B.T.’s
life, Sharkey responded, “All of it. He’s actually told me that he only spent maybe a couple of
months, and we’re talking less than six which is testified to.”
During Sharkey’s testimony, the trial court admitted into evidence Ruben’s family service
plan as of December 2013. The plan indicated Ruben was ordered to participate in and complete a
parenting course, keep in contact with Sharkey, and pay child support.
On cross-examination, Sharkey testified about the family service plan, stating Ruben paid
$6,200 in child support in 2014 and made several payments in 2013. He also testified that although
he was unaware of whether Ruben actually received the family service plan, he discussed the plan
with Ruben and asked him to comply by finding a parenting course in California. Sharkey
explained a caseworker was not assigned to assist Ruben in California.
Sharkey admitted D.B.T. told him he wanted to get to know Ruben, and Sharkey initially
stated he believed it was in D.B.T.’s best interest to have a relationship with Ruben. However,
when asked again why he believed termination was in D.B.T.’s best interest, Sharkey responded
Because the child support that has been given is very few [sic]. It’s not consistent.
It’s also once he had the phone number in the past couple of weeks or week that he
has not made contact since then, to my knowledge. And I’ve been in contact with
the caregivers. It’s also that the -- that he does not want to be separated from his
siblings. His current siblings. And he’s already been subjected to enough. Enough
of all the other domestic violence, enough of everyone choosing their needs over
his. And that could hold true at this time for Mr. Torres.
Ruben testified he maintained a full-time job as a restaurant manager in California and he
is the primary caregiver for his two children, one of whom is autistic. He explained that although
he was at the hospital when D.B.T. was born, he did not believe D.B.T. was his child until his
paternity was established in a proceeding filed by the Attorney General. He admitted his previous
-5-
04-14-00919-CV
child support payments were sporadic, but testified he did the best he could when he struggled
financially.
Ruben also testified he wanted the opportunity to develop a relationship with D.B.T., was
ready and willing to have D.B.T. live with him, and would financially support D.B.T. if the trial
court found it was in D.B.T.’s best interest. Ruben testified he and Enedina agreed to “taking it
slow” in developing Ruben’s relationship with D.B.T, and they had discussed D.B.T. and Enedina
visiting him in California. Ruben also explained he did not reach out to D.B.T. because he was
told not to contact D.B.T. unless he went through the court and completed classes.
Ruben stated he did not attend parenting classes because he did not have any help in trying
to find classes, and the Department did not provide him with any resources or a list of classes. He
admitted on cross-examination that he has a computer with Internet access and could have found
parenting classes had he had the time and guidance. Ruben testified he called Sharkey for
assistance a few times, but they missed each other’s calls.
Analysis
It is undisputed that D.B.T. expressed his desire to develop and maintain a relationship
with his father, Ruben. The evidence also established D.B.T. was placed in the care of his maternal
grandparents, and removed from the dangers to which Jose (who was in prison at the time of trial)
and Adriana exposed him. Furthermore, Ruben testified the maternal grandmother’s plan for
D.B.T. was to have him gradually develop a relationship with Ruben. The State’s contention that
D.B.T. had bonded with his maternal grandparents, in light of their plans for D.B.T. and Ruben’s
desire to maintain his parental rights in the absence of custody, does not show how Ruben
maintaining parental rights would interfere with D.B.T.’s bond with his maternal grandparents or
their ability to meet D.B.T.’s needs.
-6-
04-14-00919-CV
The State argues the evidence that Ruben “sporadically” paid child support and, based on
Sharkey’s testimony, missed “all of [D.B.T.’s life]” are omissions supporting the trial court’s
finding that termination is in D.B.T.’s best interest. However, Sharkey admitted Ruben spent up
to six months in D.B.T.’s life and that Adriana interfered with Ruben’s contact with D.B.T.
thereafter. Sharkey also admitted telling Ruben not to contact D.B.T. because it was not in D.B.T.’s
best interest to do so. Furthermore, Sharkey admitted Ruben consistently paid child support after
the Department filed its petition in this case and Ruben explained his sporadic payment of child
support was due, at least in part, to his financial struggles.
Although we do not reach Ruben’s issue that the trial court improperly granted the
Department’s trial amendment, we note Ruben was brought into the suit on grounds the
Department admitted it had no evidence to support. It was only after the Department filed its
petition in this case that Ruben was ordered to complete a family service plan, one part of which
was to complete a parenting course. Ruben admitted he did not complete the court-ordered
parenting course, and his parental rights were terminated on that ground.
While a ground for termination might also be probative of a child’s best interest, it is not
in this case. When termination is based on a parent’s failure to complete a parenting course when
the child is removed from the parent because of that parent’s abuse or neglect, the failure to
complete the course might be significantly probative of a child’s best interest. See TEX. FAM. CODE
ANN. § 161.001(1)(O) (West 2014); In re O.N.H., 401 S.W.3d at 684. Here, however, the State
admittedly had no evidence that Ruben knew about Jose’s drug abuse or that D.B.T. was exposed
to domestic violence between Jose and Adrianna. The State presented no evidence about Ruben’s
parenting skills that would make his failure to complete a parenting course probative of D.B.T.’s
best interest.
-7-
04-14-00919-CV
CONCLUSION
The trial court’s best-interest finding is not supported by clear and convincing evidence.
The evidence established two compelling Holley factors in Ruben’s favor: Ruben and D.B.T.’s
clear desire to develop and maintain a father-son relationship and Enedina’s hope to develop a
bond between D.B.T. and Ruben. The State presented no evidence of Ruben’s parental abilities or
lack thereof, whether he would benefit from any programs, or how maintaining his parental rights
might negatively affect D.B.T.’s emotional and physical needs. The sole factors upon which the
State presented evidence was general testimony about Ruben’s sporadic child support payments
and not maintaining contact with D.B.T. On this record, the evidence is insufficient for a factfinder
to reasonably form a firm belief or conviction that termination of Ruben’s parental rights is in
D.B.T.’s best interest. Therefore, in the interest of justice, we reverse the trial court’s judgment
and render judgment denying the Department’s petition to terminate Ruben’s parental rights.
Luz Elena D. Chapa, Justice
-8-