in the Interest of Y.G.B., a Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00086-CV
IN THE INTEREST OF Y.G.B., a Child
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-00166
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: June 4, 2014
AFFIRMED
G.B. appeals the trial court’s order terminating his parental rights to his daughter, Y.G.B.
The sole issue raised on appeal is a challenge to the sufficiency of the evidence to support the trial
court’s finding that termination of G.B.’s parental rights was in Y.G.B.’s best interest. We affirm
the trial court’s order.
BACKGROUND
Y.G.B. was born on November 12, 2012. On November 27, 2012, the Texas Department
of Family and Protective Services received a referral for neglectful supervision of Y.G.B. by G.B.
and Y.G.B.’s mother, S.S. On December 31, 2012, the Department received a second referral for
neglectful supervision of Y.G.B., alleging that G.B. had: (1) taken Y.G.B. to a party where
marijuana and alcohol were present; (2) a history of getting drunk and passing out; and (3) a history
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of domestic violence when he drank. The Department began working with G.B. and S.S. on a
safety plan on January 4, 2013. On January 16, 2013, G.B. and S.S. broke the safety plan and
engaged in a physical altercation in Y.G.B.’s presence while G.B. and S.S. were consuming
alcohol. On January 17, 2013, G.B. and S.S. broke the safety plan a second time, and S.S. agreed
to voluntarily place Y.G.B. with The Children’s Shelter. On January 23, 2013, the Department
filed a petition for Y.G.B.’s protection and parental termination because The Children’s Shelter
could no longer care for Y.G.B.
On January 21, 2014, the case was called for trial. S.S. voluntarily relinquished her parental
rights, and the trial court terminated G.B.’s parental rights. G.B. appeals.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Family Code, the
Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);
and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(1),
(2) (West 2014); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is
the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C.,
96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means 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.” TEX. FAM. CODE ANN. § 101.007 (West 2014).
In reviewing the legal sufficiency of the evidence to support the termination of parental
rights, the court must “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. “[A] reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id.
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“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.” Id.
In reviewing the factual sufficiency of the evidence to support the termination of parental
rights, a court “must give due consideration to evidence that the factfinder could reasonably have
found to be clear and convincing.” Id. “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.
PREDICATE FINDINGS
G.B. does not challenge the sufficiency of the evidence to support the predicate findings,
which included findings that G.B. had:
(1) constructively abandoned [Y.G.B.] who ha[d] been in the permanent or
temporary managing conservatorship of the [Department] for not less than six
months and: (a) the [Department] ha[d] made reasonable efforts to return [Y.G.B.]
to [G.B.]; (b) [G.B.] ha[d] not regularly visited or maintained significant contact
with [Y.G.B.]; and (c) [G.B.] ha[d] demonstrated an inability to provide [Y.G.B.]
with a safe environment; and
(2) failed to comply with the provisions of a court order that specifically established
the actions necessary for [G.B.] to obtain the return of [Y.G.B.] who ha[d] been in
the permanent or temporary managing conservatorship of the [Department] for not
less than nine months as a result of [her] removal from [G.B.]
BEST INTEREST FINDING
In reviewing the sufficiency of the evidence to support the best interest finding, we apply
the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 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 for the child;
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(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).
Lenore Cisneros Salazar, the Department’s caseworker, testified that Y.G.B. is in a foster
home with a family willing to adopt her. Salazar testified that G.B. had failed to complete his
service plan and that the major concerns were substance abuse and domestic violence. Of the
plan’s requirements, G.B. had completed a parenting course and participated in a psychological
evaluation; however, G.B. had failed to complete individual therapy. Although G.B. had attended
one domestic violence session, he was asked to leave because he was not being honest and
forthcoming. G.B. also had missed two appointments for his drug and alcohol assessment and
provided no verification of his attendance of any NA or AA classes. Although the drug tests G.B.
had taken throughout the case were negative, one test was diluted, and G.B. failed to appear at
some scheduled tests. While the case was pending, two additional incidents of domestic violence
occurred between S.S. and G.B. Although G.B. had consistent visitation with Y.G.B. for a period
of time, G.B. had not visited with Y.G.B. in the four months prior to trial. Salazar received
information that G.B. had been incarcerated which G.B. denied. Salazar testified that termination
was in Y.G.B.’s best interest because no bond existed between Y.G.B. and G.B., G.B. had not been
able to provide or show verification of steady housing, and four other children had previously been
removed from G.B.’s custody.
G.B. testified that he was not allowed to attend the family violence class because he had
no pending criminal charges. G.B. admitted that he had been incarcerated for ten days while the
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termination case was pending for a misdemeanor charge of terroristic threats stemming from a
2012 incident. G.B. admitted the charge was a domestic violence crime. G.B.’s incarceration was
the result of an arrest warrant issued after he failed to appear at a court date, and a court date was
pending with regard to the criminal charge. G.B. stated that he did not inform the family violence
class of that charge. G.B. also testified that he had completed the drug and alcohol assessment and
had been attending the recommended classes twice a week. G.B. also testified that he was
attending NA classes. G.B. stated that he provided the class attendance information to Salazar;
however, he did not have any evidence of his attendance to present to the court. G.B. stated that
he is employed, and his employer had offered him a house in which to live. G.B. also stated that
he was not using drugs. G.B. testified that he left several messages for Salazar about engaging in
additional services; however, she never returned his phone calls.
Based on the foregoing evidence, the trial court could have found that G.B. had not engaged
in the necessary services to alleviate concerns regarding his substance abuse and domestic
violence. In addition, the trial court could have found that G.B. had a pending criminal charge for
a domestic violence crime and had engaged in domestic violence on two occasions while the case
was pending. Finally, the trial court could have found G.B. had no evidence of a stable home,
while Y.G.B.’s foster family was ready to adopt her. Accordingly, the trial court could have
formed a firm belief or conviction that it was in Y.G.B.’s best interest that G.B.’s parental rights
be terminated.
CONCLUSION
The order of the trial court is affirmed.
Catherine Stone, Chief Justice
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