in the Interest of M.A.S.L. and K.J.L., Children ( 2018 )


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  •                               Fourth Court of Appeals
    San Antonio, Texas
    CONCURRING OPINION
    No. 04-18-00496-CV
    IN THE INTEREST OF M.A.S.L. and K.J.L., Children
    From the 45th Judicial District Court, Bexar County, Texas
    Trial Court No. 2017-PA-01773
    Honorable Charles E. Montemayor, Judge Presiding
    Opinion by: Luz Elena D. Chapa, Justice
    Concurring Opinion by: Sandee Bryan Marion, Chief Justice
    Sitting:          Sandee Bryan Marion, Chief Justice
    Marialyn Barnard, Justice
    Luz Elena D. Chapa, Justice
    Delivered and Filed: December 19, 2018
    I concur in the judgment but write separately because I would hold the evidence adduced
    at trial does not support the trial court’s finding that termination of Manuel’s parental rights would
    be in the children’s best interest.
    There is a strong presumption that keeping a child with a parent is in the child’s best
    interest. In re R.R., 
    209 S.W.3d 112
    , 116 (Tex. 2006). In addition, “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). In determining the best interest of a child, we consider the non-
    exhaustive Holley factors. Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976).
    In this case, the Department did not introduce any evidence demonstrating the Holley
    factors weigh in favor of a finding that termination of Manuel’s parental rights is in the children’s
    Concurring Opinion                                                                                    04-18-00496-CV
    best interest. There was no evidence regarding: (1) the desires of the children 1; (2) the present and
    future emotional and physical needs of the children; (3) any present and future physical danger to
    the children; (4) Manuel’s parental abilities; (5) the programs available to assist Manuel; (6) the
    stability of Manuel’s home; or (7) any acts or omissions by Manuel indicating his relationship with
    the children is improper. See 
    id. (listing factors).
    Manuel testified he plans to provide a stable home
    for the children after his release from incarceration, which he expected to be either the day of trial
    or the next day. The evidence demonstrates Manuel’s previous failure to provide a stable home
    was due to his incarceration.
    In fact, the only direct discussion of the children’s best interest took place during the
    examination of the third caseworker, who testified she believes it is in the children’s best interest
    to remain with Manuel’s sisters because K.J.L. stated she is ready to move to her aunt’s home to
    live with her brother, M.A.S.L. The caseworker also testified she believes it is in the children’s
    best interest not to be reunited with their parents because “they have a right to live in a drug free,
    criminal-free, violent-free [sic] environment and live in stable homes with families who can
    provide for their basic needs.” Manuel testified that following his release from incarceration, he
    would live with his grandmother and the children would be welcome to live there as well. Manuel
    testified he has plans to “better [him]self” and create a stable home for his children, and he testified
    he would avail himself of any programs available to him, including submitting to drug testing.
    There is no evidence in the record demonstrating Manuel cannot or is unwilling to provide a drug-
    free, criminal-free, violence-free, stable home for his children following his release from
    incarceration.
    1
    At the time of trial, two of Manuel’s sisters were separately fostering K.J.L. and M.A.S.L., and the sister fostering
    M.A.S.L. expressed a willingness to adopt both children. The third caseworker testified K.J.L. expressed a desire to
    live with her brother but did not indicate whether either child preferred to live with Manuel’s sisters rather than with
    Manuel.
    -2-
    Concurring Opinion                                                                     04-18-00496-CV
    For these reasons, I would hold the trial court’s judgment should be reversed because the
    evidence is factually and legally insufficient to support the trial court’s finding that termination of
    Manuel’s parental rights is in the children’s best interest.
    Sandee Bryan Marion, Chief Justice
    -3-
    

Document Info

Docket Number: 04-18-00496-CV

Filed Date: 12/19/2018

Precedential Status: Precedential

Modified Date: 12/20/2018