In re S.N.

• Decision Date: 17 September 2008
• Docket Number: No. 10-08-00132-CV.,10-08-00132-CV.
• Citation: 272 S.W.3d 45
• Parties: In the Interest of S.N., A Child.
• Court: Texas Court of Appeals

272 S.W.3d 45

In the Interest of S.N., A Child.

No. 10-08-00132-CV.

Court of Appeals of Texas, Waco.

September 17, 2008.

Opinion Granting Rehearing November 5, 2008.

Stan Schwieger, Richard G. Ferguson, Waco, for relator.

John W. Segrest, McLennan County Dist. Atty., Waco, for respondent.

Charles L. Levy, Waco, for ad litem.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

The trial court terminated the parent-child relationship between S.N. and her parents following a bench trial. The parents argue that the evidence is legally and factually insufficient to support two of the predicate grounds for termination found by the court or the court's finding that termination is in the best interest of S.N. We will affirm.

Predicate Grounds

The decree recites affirmative findings on four predicate grounds for termination: (1) knowingly placing or allowing the child to remain in dangerous conditions or surroundings; (2) engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangered the child; (3) constructively abandoning the child; and (4) failing to comply with the provisions of a court order establishing the actions necessary for the return of the child. See TEX. FAM.CODE ANN. § 161.001(1)(D), (E), (N), (O) (Vernon Supp.2008).

S.N.'s mother "Nancy"¹ contends in her first two issues that the evidence is factually insufficient to prove a predicate ground for termination under subsection (D) or under subsection (E). "Charles" raises the same complaints in his sole issue but also contends that the evidence is legally insufficient to prove either of these grounds for termination.

The court found four predicate grounds for termination. Nancy and Charles challenge only two of those findings. A parental-rights termination decree must be based on a finding of at least one predicate ground and a finding that termination is in the best interest of the child. TEX. FAM.CODE ANN. § 161.001 (Vernon Supp.2008). If multiple predicate grounds are found by the trial court, we will affirm based on any one ground because only one is necessary for termination of parental rights. In re T.N.F., 205 S.W.3d 625, 629 (Tex.App.-Waco 2006, pet. denied). Therefore, to mount a successful challenge on appeal based on evidentiary insufficiency, a party must challenge each affirmative finding of a predicate ground for termination or at minimum challenge the best interest finding.

Here, because Nancy and Charles challenge only two of the court's four findings on predicate grounds for termination, we need not address their complaints regarding the sufficiency of the evidence to support the predicate grounds for termination.

Best Interest

Nancy and Charles contend that there is legally and factually insufficient evidence to support the court's finding that termination of the parent-child relationship is in the best interest of the child.

The applicable standards of review for parental-rights termination cases are settled.

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.

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); T.N.F., 205 S.W.3d at 630.

In conducting 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.

J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.2002)) (footnotes omitted); T.N.F., 205 S.W.3d at 630.

The primary factors to consider when evaluating whether termination is in the best interest of the child are the familiar Holley factors, which include:

(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 programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (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.

Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); T.N.F., 205 S.W.3d at 632.

These factors are not exhaustive and need not all be proved as a condition precedent to termination. C.H., 89 S.W.3d at 27; T.N.F., 205 S.W.3d at 632.

The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child. Other cases, however, will present more complex facts in which paltry evidence relevant to each consideration mentioned in Holley would not suffice to uphold the jury's finding that termination is required.

C.H., 89 S.W.3d at 27; accord T.N.F., 205 S.W.3d at 633.

For cases in which the Department or another government agency is the petitioner, section 263.307(a) of the Family Code provides that "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM.CODE ANN. § 263.307(a) (Vernon 2002). Subsection (b) then lists thirteen factors to consider in determining whether a parent is "willing and able to provide the child with a safe environment." Id. § 263.307(b) (Vernon 2002). We will likewise give consideration to these factors to the extent applicable. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); T.N.F., 205 S.W.3d at 633 & n. 3. We will address the best-interest finding separately for each parent.

Nancy

Nancy contends in her third issue that the evidence is factually insufficient to support the finding that termination of her parental rights is in S.N.'s best interest.

Desires of the Child: S.N. was sixteen months' old at the time of trial. Her attorney ad litem contends that S.N.'s actions are indicative of her desires. For example, counsel suggests that, because S.N. cried "uncontrollably" during Nancy's first visit (when S.N. was six months' old), this is evidence that she does not desire to have a permanent relationship with her mother. Counsel also suggests that, because S.N. refers to her foster parents² as "mommy" and "daddy," this is evidence that she prefers them over her biological parents.

We disagree with the ad litem's contention. Evidence that a parent is unable to console her infant child may be relevant to other of the Holley factors, such as the emotional and physical needs of the child and the parental abilities of the parent, but it is doubtful that such evidence is indicative of the infant's conscious, volitional desire to maintain a parent-child relationship or to permanently sever that relationship. It is likewise doubtful that evidence an infant or toddler refers to her foster parents as "mommy" and "daddy" is probative on this issue.

It has long been established in a custody proceeding, that the preference of the child as to its managing conservator, although not controlling, may be weighed along with other evidence in making that decision. However, it is equally well-established that before such testimony may be received, the child must be of a sufficiently mature age to judge for itself.

In re Marriage of D.M.B., 798 S.W.2d 399, 402 (Tex.App.-Amarillo 1990, no writ); see In re A.R., 236 S.W.3d 460, 480 (Tex.App.-Dallas 2007, no pet.) (court need not consider child's wishes in termination proceeding absent evidence that "child was sufficiently mature to express a parental preference"); Tiller v. Villasenor, 426 S.W.2d 257, 258 (Tex.Civ.App.-Houston [1st Dist.] 1968, no writ) (child's preference may be considered in custody dispute if child is "of sufficiently mature age"); Dunn v. Jackson, 231 S.W. 351, 353 (Tex. Comm'n App.1921, holding approved) ("The wishes of a child whose custody is in controversy may, if it be of a sufficiently mature age to judge for itself, be consulted and weighed with other testimony in determining the issue."); see also TEX. FAM. CODE ANN. §§ 153.008, 153.009 (Vernon Supp.2008).³ Contra In re D.J., 100 S.W.3d 658, 667 (Tex.App.-Dallas 2003, pet. denied) (referring to evidence child "cried `very hard' or screamed when held by Father and Father was unable to console [him]" as relevant to this issue while acknowledging child was "too young to verbally express his desires").

Thus, we hold that evidence of an infant's or toddler's conduct and statements like those...