In re Interest of J.F.-G.

• Decision Date: 23 March 2020
• Docket Number: No. 10-19-00356-CV,10-19-00356-CV
• Citation: 612 S.W.3d 373
• Parties: In the INTEREST OF J.F.-G., a Child
• Court: Texas Court of Appeals

612 S.W.3d 373

In the INTEREST OF J.F.-G., a Child

No. 10-19-00356-CV

Court of Appeals of Texas, Waco.

Opinion delivered and filed March 23, 2020

Maria Peña, Sheehy Lovelace & Mayfield PC, Waco, for Appellant.

Jonathan P. Sibley, Sibley Law Firm, Waco, for Real party in interest.

Spring R. Thummel, Thummel Law Firm PLLC, Waco, for Real party in interest.

Barry N. Johnson, McLennan County District Attorney, Sterling A. Harmon, McLennan County Asst. District, Waco, for Appellee.

Before Chief Justice Gray,^* Justice Davis, and Justice Neill

MEMORANDUM OPINION

REX D. DAVIS, Justice In two issues, Appellant D.F. ("Father") challenges the trial court's order terminating his rights to his child, J.F.-G. ("Julie").¹ We affirm.

I. Background

Father married M.G. ("Mother") shortly after Julie was born. Before Julie's second birthday, Father was convicted of robbery and sentenced to eight years’ incarceration in the Texas Department of Corrections, Institutional Division. Shortly after Father was incarcerated, Mother entered into a relationship with M.C. ("Boyfriend"), with whom she had three additional children.² The Department of Family and Protective Services (the "Department") investigated Mother and Boyfriend on five separate occasions. In 2017, the children were removed from Mother's custody and placed in foster care after Boyfriend was involved in a car accident that resulted in the death of his sixteen-year-old son and caused serious injuries to Julie. The Department determined that Mother had reason to believe that Boyfriend was under the influence of alcohol and/or drugs when she allowed Julie to get into the car with him. Boyfriend was arrested for intoxication manslaughter and was subsequently sentenced to a twenty-year term of incarceration. Prior to the disposition of that case, Boyfriend was on bond.

The children were returned to Mother on a monitored basis in May 2018. One of the requirements for the children's return was that they have no contact with Boyfriend. In August 2018, Department personnel observed Mother and Boyfriend together with the children in a vehicle. The children were again removed from Mother's custody and placed in foster care where they remain.

Father was paroled in March of 2019 to his mother's home in Tyler. Mother moved to Tyler to reside with Father within a week of his parole.

After a final hearing on September 4, 2019, the trial court ordered termination of the parental rights of Father, Mother, and Boyfriend to all of the children. The trial court determined that Father had violated § 161.001(b)(1)(E) of the Family Code and that termination was in Julie's best interest. Mother and Boyfriend did not appeal the trial court's termination order.

II. Issues

Father presents two issues with several subparts. In his first issue, Father contends that there is no evidence or the evidence is factually insufficient to prove that he violated § 161.001(b)(1)(E). Father contends that the Department failed to prove that he engaged in conduct or knowingly placed Julie with persons who engaged in conduct which endangered Julie's physical or emotional well-being. Specifically, Father argues that the Department presented no evidence that he had knowledge that placing Julie with Mother would place Julie in danger from her environment or from others. Father also asserts that there was no evidence that Boyfriend drove the children after the Department became involved. Finally, Father argues that the trial court erred in admitting hearsay testimony regarding statements Julie and one of her half-sisters made to the Department investigator.

In his second issue, Father argues that there is no, or factually insufficient, evidence to prove that termination is in Julie's best interest. Father argues that the Holley factors weigh in favor of not terminating his parental rights.

III. Burden of Proof at Trial

In a proceeding to terminate the parent-child relationship brought under § 161.001, the Department must establish by clear and convincing evidence two elements: (1) that one or more acts or omissions enumerated under § 161.001(b)(1), termed a predicate violation, were committed; and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2) ; Swate v. Swate , 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). Proof of one element does not relieve the Department of the burden of proving the other. In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014) (citing In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980) ); 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." In re G.M. , 596 S.W.2d at 847.

IV. Standard of Review

As noted, Father argues that there is no evidence and factually insufficient evidence to support termination of his parental rights. "Our traditional legal sufficiency—or ‘no evidence’—standard of review upholds a finding supported by ‘[a]nything more than a scintilla of evidence.’ " In re K.M.L. , 443 S.W.3d 101, 112 (Tex. 2014) (quoting Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & Contractors, Inc. , 960 S.W.2d 41, 48 (Tex. 1998) ). 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 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. (footnotes and citations omitted); see In re C.H. , 89 S.W.3d at 25.

When no findings of fact or conclusions of law are filed following a bench trial, the trial court's judgment implies all findings necessary to support it. See In re D.Z. , 583 S.W.3d 284, 295 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citing Pharo v. Chambers County , 922 S.W.2d 945, 948 (Tex. 1996) ); see also In re Marriage of Price , No. 10-14-00260-CV, 2015 WL 6119457, at *3 (Tex. App.—Waco Oct. 15, 2015, no pet.) (mem. op.). When a reporter's record is filed, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of the evidence issues. In re G.B. II , 357 S.W.3d 382, 385 n.1 (Tex. App.—Waco 2011, no pet.).

We give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge "of the credibility of the witnesses and the weight to give their testimony." Jordan v. Dossey , 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). The factfinder may choose to believe one witness and disbelieve another. City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005). Although a factfinder is free to disbelieve testimony, "in the absence of competent evidence to the contrary, it is not authorized to find that the opposite of the testimony is true." In re F.E.N. , 542 S.W.3d 752, 765 (Tex. App.—Houston [14th Dist.] 2018), pet. denied, 579 S.W.3d 74 (Tex. 2019) (per curiam), 579 S.W.3d 74 (Tex. 2019).

V. Discussion

A. Predicate Finding Under Subsection (E). Termination under § 161.001(b)(1)(E) requires clear and convincing evidence that the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). "Endanger" means to expose to loss or injury, to jeopardize. Tex. Dep't of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ; see also In re J.R. , 501 S.W.3d 738, 743 (Tex. App.—Waco 2016, no pet.). While "endanger" requires "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Boyd , 727 S.W.2d at 533.

When termination is based upon subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child's well-being was the direct result of the parent's or another's conduct, including acts, omissions, or failures to act. In re K.A.S. , 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet....