In re L.G.D., 04-22-00330-CV

CourtCourt of Appeals of Texas
Writing for the CourtREBECA C. MARTINEZ, CHIEF JUSTICE
PartiesIN THE INTEREST OF L.G.D. and R.O.B., Children
Docket Number04-22-00330-CV
Decision Date23 November 2022

IN THE INTEREST OF L.G.D. and R.O.B., Children

No. 04-22-00330-CV

Court of Appeals of Texas, Fourth District, San Antonio

November 23, 2022


From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-00769 Honorable Charles E. Montemayor, Judge Presiding

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice

MEMORANDUM OPINION

REBECA C. MARTINEZ, CHIEF JUSTICE

This appeal arises from the trial court's order terminating the parental rights of appellants J.B., the biological father of R.O.B., and N.D., the biological mother of L.G.D. and R.O.B.[1] By one issue each, appellants argue that the evidence is legally and factually insufficient to support the trial court's finding that termination of their parental rights is in the best interest of the children. TEX. FAM. CODE ANN. § 161.001(b)(2). We affirm.

I. Background

In May 2021, the Texas Department of Family and Protective Services (hereinafter the "Department") initiated the underlying proceeding by filing a petition to terminate the parental

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rights of N.D. to her seven-year-old child, L.G.D. Two months later, the Department amended its petition to include a request to terminate the parental rights of N.D. and J.B. to their newborn child, R.O.B. Thereafter, the trial court signed a temporary order appointing the Department as the children's temporary managing conservators, and the children were removed from J.B. and N.D.'s custody. Both parents executed a family service plan. The plans were adopted and incorporated into a court order. Ultimately, the Department proceeded to a bench trial, at which Father appeared only through counsel. Kayla Bustamante, a Department case worker, and N.D. testified.

Bustamante recounted the requirements in N.D.'s family service plan and N.D.'s compliance. Of the family service plan requirements, N.D. completed parenting classes and a substance abuse assessment. However, N.D. fell short on other service plan requirements. Specifically, Bustamante testified that N.D. had "not been able to demonstrate sobriety" in that she failed to submit to three-months' worth of drug tests and had not completed individual counseling. N.D. also missed visits with the children from September 2021 through December 2021. According to Bustamante, N.D. moves back and forth between her mother's and father's homes. Bustamante opined that N.D. had not learned from the services that the Department afforded her and that termination was in the children's best interest, testifying:

I've told her multiple times that she needs to demonstrate that she's staying sober. And by doing so going to the drug tests, but she has not gone. Her counselor has concerns that she's not making any progress and sometimes appears under the influence during sessions. So I don't feel she's made any sufficient progress
. . . The children are in a safe stable home right now that's free of drug use, they're bonded to their caregiver. I spoke to [L.G.D.] and she tells me that she does not want to go back to her mother. She wants to stay with her current caregiver. I feel that [N.D.] hasn't addressed the reasons why we became involved and she cannot meet their needs at this time

Bustamante concluded her assessment of N.D. by noting that she had not provided any support to the children during the placement period.

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As with N.D., Bustamante had significant concerns regarding J.B.'s parenting abilities. He failed to avail himself of any of the services that the Department provided. Specifically, J.B. failed to complete a substance abuse assessment, random drug tests, a psychological evaluation, and parenting classes. J.B. lacked, according to Bustamante, a stable residence, and he was not responsive to her texts and phone calls. At the time of the April 2022 trial, J.B. had visited with R.O.B. only once since the case was initiated.

Bustamante testified that the Department received a referral after law enforcement detained J.B. and N.D. for operating a stolen vehicle, while L.G.D. rode in the backseat, that contained heroin and marijuana. After removal, the children were placed with the sister of L.G.D.'s deceased biological father, who resides in Sugarland, Texas and has acted as a foster mother since placement. Bustamante testified that L.G.D.'s biological aunt was a licensed foster parent with the Department and that she was ready, willing, and able to adopt both children. The children's placement with their foster mother was, according to Bustamante, meeting all of the children's needs. Bustamante further testified that she had no concerns regarding the foster mother and that adoption by the foster mother was in the children's best interest.

N.D. testified that she missed her drug tests because she lacks reliable transportation. N.D. argued against termination and placement of the children with the foster mother because L.G.D. would be separated from her sister, who resides in San Antonio, Texas.[2] N.D. acknowledged that she has unspecified "pending criminal matters," but she insisted that those charges would be dismissed.

At its conclusion, the trial court found by clear and convincing evidence that each parent had constructively abandoned the children who had been in the temporary managing

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conservatorship of the Department for not less than six months. Tex. Fam. Code Ann. § 161.001(b)(1)(N). The trial court also found by clear and convincing evidence that J.B. voluntarily left R.O.B. alone or in the possession of another without providing adequate support for R.O.B. and remained away for a period of at least six months. Id. § 161.001(b)(1)(C). The trial court signed a final judgment terminating the parental rights of appellants J.B. and N.D. Both parents appealed from the termination order.[3]

II. Discussion

A. Standard of Review

A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in a child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2). Clear and convincing evidence requires "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." Id. § 101.007.

We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). In

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reviewing the legal sufficiency of the evidence, we 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." Id. 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. In reviewing the factual sufficiency of the evidence, we "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.

B. Applicable Law: Best Interest

It is the burden of the party seeking termination to establish that termination is in the child's best interest. See id. In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).[4] The set of factors is not...

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