In re Interest of G.M.G.

• Decision Date: 19 June 2014
• Docket Number: No. 14–14–00107–CV.,14–14–00107–CV.
• Citation: 444 S.W.3d 46
• Parties: In the Interest of G.M.G., A Child.
• Court: Texas Court of Appeals

444 S.W.3d 46

In the Interest of G.M.G., A Child.

No. 14–14–00107–CV.

Court of Appeals of Texas, Houston (14th Dist.).

June 19, 2014.

William M. Thursland, Houston, for Appellant.

Robert J. Hazeltine–Shedd, Houston, for Appellee.

Panel consists of Justices CHRISTOPHER, JAMISON, and McCALLY.

OPINION

SHARON McCALLY, Justice.

In this appeal, appellant M.J.G. (the Father) appeals the termination of his parental rights to his son, G.M.G. (the Child). The Father brings two issues asserting (1) the trial court erred in granting a partial summary judgment on the predicate termination grounds, and (2) the evidence is legally and factually insufficient to support the court's finding that termination of his parental rights is in the Child's best interest. We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

The Child who is the subject of this proceeding was born September 5, 2011, and he was two years old at the time of trial. The record reflects that the Father had a history of violent and criminal behavior, including family violence, leading to the initiation of the underlying suit for protection of the Child. According to the record, the Father pled guilty to sexual assault of a child in 2001 and was placed on deferred adjudication probation for ten years. As a result of this offense, the Father is required to register as a sex offender pursuant to Chapter 62 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. art. 62.001 –.408. The record also reflects that the Father has a stalking conviction, a conviction for violating a protective order, and he pled guilty to a charge of burglary of a habitation.

The Child's mother (the Mother) reported that the Father physically abused her and threatened her children. The Father continued to threaten the Mother with violence after the Child was born. The Mother described the Father's threat to slit her throat and throw the Child into a river, made shortly before the Child was removed from the home. The Father intimidated the Mother's older son both psychologically and physically, causing him to cower in fear of the Father. In March of 2012, the Mother fled to San Antonio with the two children after the Father choked her until she was unconscious. She later returned to the home, however.

On July 27, 2012, the Texas Department of Family and Protective Services (the Department) filed its original petition for protection and conservatorship of the Child.¹ The Child was placed in the emergency temporary conservatorship of the Department based on a finding that there was a continuing danger to the Child. See Tex. Fam.Code § 262.104. After an adversary hearing, the court issued temporary orders continuing the Department's conservatorship.

Shortly after the Child was removed from the home, the Father moved out. He was arrested on September 28, 2012, and subsequently convicted and sentenced to two years in prison for failing to update his address as part of the requirements of his court-ordered sex-offender registration. The Father did not have any contact with the Child after his arrest.

During the pendency of the case, the Mother participated in domestic violence and individual counseling. The Department was satisfied with her progress and returned the Child to her care approximately a year before trial.

On August 30, 2012, the Department moved for a partial summary judgment on the predicate grounds for termination of the Father's parental rights pursuant to Sections 161.00l(1)(L) and 161.00l(l )(Q) of the Texas Family Code.² These sections provide in relevant part:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:

* * *

(vi) Section 22.011 (sexual assault);

* * *

(Q) knowingly engaged in criminal conduct that has resulted in the parent's:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition; Tex. Fam.Code §§ 161.001(1)(L)(vi) ; 161.001(1)(Q).

The Department provided copies of the Father's criminal records to support its motion. The Father filed a response to the Department's motion, challenging the sufficiency of the evidence to show that the Father was the same person as the criminal defendant named in the records attached to the Department's motion. On October 29, 2013, the Department supplemented its motion with additional identifying information. After reviewing the evidence and considering argument of counsel, on October 31, 2013, the court granted the Department's motion for partial summary judgment on both subsections L and Q.

The issue of whether termination of the Father's parental rights is in the best interest of the Child was tried to the court. On January 9, 2014, the trial court signed a final decree terminating the Father's parental rights to the Child. The Mother was appointed the Child's sole managing conservator. The Father then brought this appeal.

II. BURDEN OF PROOF AND STANDARDS OF REVIEW

Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985) ; In re D.R.A., 374 S.W.3d 528, 531 (Tex.App.-Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex.2002) (“Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.”).

Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by Section 161.001(1) of the Family Code ; and (2) termination is in the best interest of the child. Tex. Fam.Code § 161.001(1), (2) ; In re A.B., 437 S.W.3d 498, 505 (Tex.2014). Clear and convincing evidence is “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 § 101.007. Only one predicate finding under section 161.001 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).

A. Summary Judgment Standard

In a traditional summary judgment proceeding, the moving party carries the burden to show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We review summary judgments de novo. Raynor v. Moores Mach. Shop, LLC, 359 S.W.3d 905, 907 (Tex.App.-Houston [14th Dist.] 2012, no pet.); Dowell v. Dowell, 276 S.W.3d 17, 20 (Tex.App.-El Paso 2008, no pet.).

We take as true all evidence favorable to the nonmovant and resolve any doubt in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable fact finder could, and disregarding evidence contrary to the nonmovant unless a reasonable fact finder could not. Mann Frankfort, 289 S.W.3d at 848. If the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.

Gray v. Entis Mech. Servs., L.L.C., 343 S.W.3d 527, 529 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (citing M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) ).

B. Legal and Factual Sufficiency Standards

In reviewing the legal sufficiency of the evidence in a parental termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex.2009). We assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved. Id.

In reviewing termination findings for factual sufficiency of the evidence, we consider and weigh all of the evidence, including disputed or conflicting evidence. Id. at 345. “If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. In reviewing the evidence for factual sufficiency, we give due deference to the fact finder's findings and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to “second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex.2003) (explaining that in a termination case, an appellate court should not reweigh disputed evidence or evidence that depends on a witness's credibility).

III. PARTIAL SUMMARY JUDGMENT

The Department moved for...