in the Interest of D.T., a Child ( 2015 )


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  •                                          IN THE
    TENTH COURT OF APPEALS
    No. 10-14-00386-CV
    IN THE INTEREST OF D.T., A CHILD
    From the 85th District Court
    Brazos County, Texas
    Trial Court No. 13-002641-CV-85
    MEMORANDUM OPINION
    Raising one issue, Appellant M.T. (alias Max), the father of D.T., appeals the trial
    court’s termination of his parental rights after a bench trial.1 We will affirm.
    In a proceeding to terminate the parent-child relationship brought under section
    161.001, the Department must establish by clear and convincing evidence two elements:
    (1) one or more acts or omissions enumerated under subsection (1) of section 161.001,
    termed a predicate violation; and (2) that termination is in the best interest of the child.
    TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014); Swate v. Swate, 
    72 S.W.3d 763
    , 766 (Tex.
    App.—Waco 2002, pet. denied).                  The factfinder must find that both elements are
    1   The parental rights of D.T.’s mother, C.O., (alias Carla) were also terminated, but she has not appealed.
    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); 
    Swate, 72 S.W.3d at 766
    . “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. Texas
    Dept. of Prot. & Reg. Servs., 
    962 S.W.2d 253
    , 256 (Tex. App.—Waco 1998, no pet.).
    The trial court found the following predicate violations as grounds for
    termination: (1) Max knowingly placed or knowingly allowed the child to remain in
    conditions or surroundings that endangered the child’s physical or emotional well-being
    (Family Code subsection 161.001(1)(D)); (2) Max engaged in conduct or knowingly placed
    the child with persons who engaged in conduct that endangered the child’s physical or
    emotional well-being (Family Code subsection 161.001(1)(E)); (3) Max has been convicted
    for being criminally responsible for the death or serious injury of a child under Section
    22.04 of the Penal Code (injury to a child) (Family Code subsection 161.001(1)(L)(ix)); and
    (4) Max failed to comply with provisions of a court order specifically establishing actions
    necessary for the parent to obtain return of the child (Family Code subsection
    161.001(1)(O)). The trial court also found that termination of Max’s parental rights was
    in D.T.’s best interest.
    In his sole issue, Max asserts that the evidence is legally and factually insufficient
    to support the trial court’s best-interest finding. Both legal and factual sufficiency
    reviews in termination cases must take into consideration whether the evidence is such
    that a factfinder could reasonably form a firm belief or conviction about the truth of the
    In the Interest of D.T., a Child                                                         Page 2
    matter on which the petitioner bears the burden of proof. In re J.F.C., 
    96 S.W.3d 256
    , 264-
    68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 
    89 S.W.3d 17
    , 25 (Tex. 2002)
    (discussing factual sufficiency review).
    In a legal sufficiency review, a 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. To give appropriate deference to the factfinder’s conclusions and the
    role of a court conducting a legal sufficiency review, looking at the evidence
    in the light most favorable to the judgment means that a reviewing court
    must assume that the factfinder resolved disputed facts in favor of its
    finding if a reasonable factfinder could do so. A corollary to this
    requirement is that a court should disregard all evidence that a reasonable
    factfinder could have disbelieved or found to have been incredible.
    
    J.F.C., 96 S.W.3d at 266
    .
    In a factual sufficiency review, a court of appeals must give due consideration to
    evidence that the factfinder could reasonably have found to be clear and convincing. 
    Id. [T]he inquiry
    must be “whether the evidence is such that a factfinder could
    reasonably form a firm belief or conviction about the truth of the State’s
    allegations.” A court of appeals should consider whether disputed
    evidence is such that a reasonable factfinder could not have resolved that
    disputed evidence in favor of its finding. 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. at 266-67
    (footnotes and citations omitted); see 
    C.H., 89 S.W.2d at 25
    .
    In determining the best interest of a child, a number of factors have been
    considered, including (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
    In the Interest of D.T., a Child                                                             Page 3
    programs available to assist these individuals; (6) the plans for the child by these
    individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
    indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
    the acts or omissions of the parent. 
    Holley, 544 S.W.2d at 371-72
    . This list is not
    exhaustive, but simply indicates factors that have been or could be pertinent. 
    Id. The Holley
    factors focus on the best interest of the child, not the best interest of the parent.
    Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 
    907 S.W.2d 81
    , 86 (Tex. App.—Dallas 1995, no
    writ). The goal of establishing a stable permanent home for a child is a compelling state
    interest. 
    Id. at 87.
    The need for permanence is a paramount consideration for a child’s
    present and future physical and emotional needs. In re S.H.A., 
    728 S.W.2d 73
    , 92 (Tex.
    App.—Dallas 1987, writ ref’d n.r.e.) (en banc).
    Briefly, we note that Max’s criminal history includes a conviction and prison
    sentence for injury to a child (injuring and killing the two-year-old daughter of his now-
    deceased wife while that child was in his care) and an earlier conviction for aggravated
    assault. He has an extensive history of drug abuse and several failed attempts at drug
    rehabilitation, though at the time of trial he had been sober for approximately two years
    and was living at a halfway house (a “sober-living home”) with over a dozen other men.
    Right after Max was released from prison in 2009 and was on parole, he began a
    relationship with Carla, who was heavily involved in drugs. Carla already had a son,
    C.C., when she became pregnant with D.T. Max knew that Carla was using drugs while
    she was pregnant with D.T.
    In October 2013, the Department became involved because of a report of bruising
    In the Interest of D.T., a Child                                                      Page 4
    on C.C. At that time, Carla’s mother was caring for C.C. and D.T., who was six-months
    old; she had been caring for them since shortly after D.T.’s birth. Because Carla’s mother
    admitted to drug use, Carla had mental-health and drug issues, and there was domestic
    violence between Carla and her boyfriend at the time, the Department had the children
    removed to foster care. At the time of removal, Max had seen D.T. only two times; at his
    birth and one other time. He also knew that Carla’s mother was using drugs while she
    was caring for D.T. and C.C. At the first adversary hearing, Max did not oppose the
    Department’s continued temporary conservatorship of D.T.
    Max admitted at trial that he was not in a position to have custody of D.T. He said
    that he would not be comfortable raising D.T. by himself, and he is not allowed to be
    around children without a court order. He does believe, however, that it would benefit
    D.T. if he were given a voice in where D.T. ends up.
    Max contests the sufficiency of the evidence on only a few of the best-interest
    factors: the parental abilities of the individuals seeking custody; the plans for the child
    by these individuals; and the stability of the home. He asserts that the Department
    presented only “minimal” or “superficial” evidence about the foster family that the
    Department viewed as an adoptive placement for D.T., that the Department presented
    no evidence of possible alternatives if D.T.’s foster family proved unable or unwilling to
    adopt, and that there was evidence that Max was able to make decisions in D.T.’s best
    interest and would benefit D.T. if he were involved in finding a permanent placement.
    In response, the Department notes that there is no requirement that the
    Department’s plans for a child be definite before termination. 
    C.H., 89 S.W.3d at 28
    In the Interest of D.T., a Child                                                      Page 5
    (“[T]he lack of evidence about definitive plans for permanent placement and adoption
    cannot be the dispositive factor; otherwise, determinations regarding best interest would
    regularly be subject to reversal on the sole ground that an adoptive family has yet to
    be located.”); see also Spencer v. Tex. Dep’t of Fam. & Prot. Servs., No. 03-10-00498-CV, 
    2010 WL 5464110
    , at *3-4 (Tex. App.—Austin Dec. 31, 2010, no pet.) (mem. op.) (lack of
    evidence for permanent placement or adoption is not dispositive of the best interest
    consideration).
    The Department’s recommendation was that Max’s parental rights be terminated
    and that D.T. be adopted. Evangelic Sipp, a Department caseworker, testified that the
    Department’s goal is unrelated adoption (not by a relative) by foster parents who would
    also adopt C.C., D.T.’s half-brother. They have been in the same foster placement since
    April 2014, and D.T. is “doing good” in his placement. He is walking, running and
    learning words, and he is “definitely a happy baby.”
    D.T. and C.C. are the only children in the foster home, and D.T. has his own
    bedroom with nice pictures on the wall. D.T. has his own crib and a bookshelf with toys
    and books, and he has appropriate clothing. Sipp stated that the home appeared safe and
    appropriate for D.T.               The CASA volunteer described the home as nice and well-
    organized. D.T. is “very attached” to the foster parents; the CASA volunteer agreed that
    D.T. has bonded to the foster parents. The foster parents have indicated that they would
    like to adopt both boys. Sipp said that D.T. and C.C. are bonded and that it would not be
    in D.T.’s best interest to separate them.             The CASA volunteer agreed with the
    Department’s recommendations and goals.
    In the Interest of D.T., a Child                                                        Page 6
    Sipp testified that permanency is important to a child and that Max’s uncertain
    situation was harmful to D.T. Max testified that it would be in D.T.’s best interest if his
    rights were terminated and D.T. were adopted by his current foster parents and C.C. were
    able to stay with D.T. He had considered relinquishing his parental rights but had not
    done so because Carla had not and because the Department had not guaranteed that D.T.
    would remain with his current foster parents.
    Considering all the evidence in relation to the Holley factors in the light most
    favorable to the trial court’s best-interest finding, we hold that a reasonable factfinder
    could have formed a firm belief or conviction that termination of Max’s parental rights
    was in D.T.’s best interest. Viewing all the evidence in relation to the Holley factors, we
    hold that a reasonable factfinder could have reasonably formed a firm belief or conviction
    that termination was in D.T.’s best interest.     The evidence is legally and factually
    sufficient on the best-interest finding, and we overrule Max’s sole issue. The trial court’s
    order of termination is affirmed.
    REX D. DAVIS
    Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed May 7, 2015
    [CV06]
    In the Interest of D.T., a Child                                                      Page 7