in the Interest of B.M.D.B., J.J.B., K.M.B., and V.D.C ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00393-CV
IN THE INTEREST OF B.M.D.B., J.J.B., K.M.B., and V.D.C.
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01408
Honorable Richard Garcia, Associate Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 9, 2015
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
Jane appeals the trial court’s termination of her parental rights to her four children,
B.M.D.B., J.J.B., K.M.B., and V.D.C. 1 She argues there is legally and factually insufficient
evidence to support the trial court’s findings of grounds for termination and that termination is in
the children’s best interest. We reverse the trial court’s termination of Jane’s parental rights and
render judgment denying the Department of Family and Protective Services’ request to terminate
Jane’s parental rights. We affirm the remainder of the trial court’s judgment.
1
To protect the identity of the minor children, we refer to the children’s parents and relatives by either using their first
names or pseudonyms and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX.
R. APP. P. 9.8(b)(2).
04-15-00393-CV
BACKGROUND
In June 2014, the Department of Family and Protective Services filed a petition for
termination of Jane’s parental rights and for conservatorship of the children. The case proceeded
to a bench trial on April 20, 2015, and Jane and the father of B.M.D.B., J.J.B., and K.M.B. appeared
through counsel, but were not present. The trial court proceeded over Jane’s attorney’s
announcement of “not ready.”
Three witnesses testified for the Department. Johnny testified he was V.D.C.’s father and
V.D.C. had been living with him for the ten months prior to trial. He stated that until recently, his
mother was the primary decision maker for V.D.C. but “everything is going great” and V.D.C. was
doing very well in school. Johnny stated he would continue providing for V.D.C. to the best of his
ability. He agreed “[t]o the fullest” that Jane’s parental rights to V.D.C. should be terminated, but
he did not provide a reason.
Rachel Grier, the CPS caseworker from January 2015 until the time of trial, agreed Johnny
should be named V.D.C.’s managing conservator. She testified Jane “was given a service plan”
but did not complete it. Grier stated Jane completed “[a] parenting course, and then several courses
that weren’t on her family plan.” She also stated Jane “had drug issues and she abandoned the
children.” When asked whether she had made “attempts to try to communicate with [Jane],” Grier
responded, “No.” When asked whether she had any communication with Jane while she was
assigned to the case, Grier responded, “No.” Grier explained that Jane was incarcerated and that
she called TDCJ twice to get Jane’s information. Grier stated, however, that the Department
received two letters from Jane during her incarceration, and one letter was addressed to the
caseworker who had previously been assigned to the case and the other letter was addressed to
Grier. Grier could not recall the dates when Jane wrote to the Department. Grier testified that she
believed Jane was not allowed visitation with the children because she was incarcerated.
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The Department then asked for a “recess” to “make some efforts to get ahold of the mother
in this case.” Six weeks later, trial resumed and Jane’s counsel again announced “not ready.” The
trial proceeded and the Department called Grier to continue testifying.
Grier testified Jane was “picked up on a parole violation” on May 21, 2014, and released
from TDCJ on April 1, 2015. During the recess, Grier sent Jane a text message and visited her last
known address, which Grier received from Jane’s parole officer. Grier stated she did not have any
telephone conversations with Jane, but Grier did call and leave messages. Grier testified Jane called
her back from a friend’s home phone and stated her friend’s number was not a good contact number
to reach her, and she would call Grier back in an hour, but did not. Grier testified Jane’s friend
confirmed the number at which Grier was sending text messages to Jane was a good number to
text her, but stated Jane was unable to send text messages from Jane’s phone. Grier confirmed Jane
“always had a good number to . . . reach someone at the Department.”
Grier stated she did not inform Jane that the Department wanted to place V.D.C. with
Johnny. When asked, “[D]o you have any information on whether or not [Jane] can care for her
children?” Grier responded, “I do not have any new information on [Jane].” Grier also stated she
had no information about Jane’s parenting ability and believed Jane did not understand her
children’s needs but admitted “I don’t have information to prove that.” When asked whether Grier
had any information about whether Jane could financially support her children, Grier responded,
“No, I don’t.”
Grier testified she believed termination of Jane’s parental rights was in the children’s best
interest. She explained the basis for her opinion was that “[Jane] did not offer her children a stable
and safe environment,” “the children . . . described some of that time and it was very stressful for
them. [Jane has] not demonstrated in the past that she can be an appropriate mother to her
children.” When asked about why the time was stressful for the children, Grier responded, “Drug
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use, violence in the home, instability, just the general neighborhood,” but gave no details. She
explained that in January, when she was assigned to this case, the children were “still talking about
all those things” and her “impression” was that, prior to living with Johnny’s sister, Brandy, the
children “were exposed long-term to those things.” Grier also stated Jane made “zero efforts” to
contact the Department despite having the Department’s information, and “we have reached out
to her to even see her children.”
Grier further testified the Department’s plans were to place the three older children with
Brandy. When asked whether Brandy had shown and demonstrated she can meet all of the
children’s basic needs and had shown a long-term commitment to the children, Grier stated, “Yes.”
However, Grier also stated that Brandy indicated she “could not financially support [the children],
that she was . . . struggling.” Grier testified B.M.D.B. and V.D.C. were “doing really well,” and
that all of the children “thrived” in their current location and were either doing well academically
or going to pass their current grade levels. Grier further testified Brandy told her Jane “had done
absolutely nothing to financially support these children.”
On cross-examination, Grier admitted she made no attempt to contact Jane when Jane was
in prison and when asked why she made no attempt to contact her, Grier stated, “I don’t have a
good answer for that. I just didn’t.” She stated the first time she attempted to contact Jane was after
trial had started. Grier also acknowledged she was aware Jane was prohibited by court order from
having visits with the children until further order from the court. Grier stated she attempted to call
Jane at Jane’s number “on an earlier date,” and that she texted Jane a “brief synopsis of her service
plan.” Grier admitted that both Johnny and Brandy “had some financial struggles throughout this
case.” When asked why, given Johnny’s and Brandy’s financial struggles, it was not in the
children’s best interest to require Jane to pay child support while the children were in Johnny and
Brandy’s care, Grier responded, “I don’t know that she would follow through and -- I don’t know.”
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A CASA advocate for the children testified Jane’s rights should be terminated, stating, “It
was my impression that [Jane] just dropped the children off at [Brandy]’s house and left them.”
The CASA advocate stated that in her single conversation with the children, they did not mention
any domestic violence or drug use. When asked whether the CASA advocate ever talked to the
children about her mother, she stated she had one conversation about Jane, and B.M.D.B. stated
she missed her mom. The CASA advocate testified she observed the children with Brandy and
concluded they love each other. She also testified the children were initially struggling when
removed from their mother, but when under Brandy’s care, they were doing much better. The
CASA advocate stated Brandy went to parent-teacher meetings and “she’s done everything for
[B.M.D.B., J.J.B., and K.M.B.] that she has done for her own three.” When asked whether she
knew whether Jane “would be able to do that,” she responded, “I don’t know.”
The CASA advocate also admitted to making no efforts to contact Jane. She stated, “I don’t
know what [Jane’s’] financial ability is, so I don’t know what kind of support she would be able
to give anybody.”
The trial court awarded the Department managing conservatorship of B.M.D.B., J.J.B., and
K.M.B, and Johnny C. managing conservatorship of V.D.C. The trial court also terminated Jane’s
rights to all four children. Jane appeals only the termination of her parental rights.
STANDARD OF REVIEW
Judgments terminating parental rights must be supported by clear and convincing evidence.
TEX. FAM. CODE ANN. § 161.001 (West 2014). To determine if this heightened burden of proof
was met, we employ a heightened standard of review—judging whether a “factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H.,
89 S.W.3d 17, 25 (Tex. 2002). This standard guards the constitutional interests implicated by
termination, while retaining the deference an appellate court must have for the factfinder’s role.
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Id. at 26. We are not to reweigh issues of witness credibility but “must defer to the [factfinder’s]
determinations so long as those determinations are not themselves unreasonable.” In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005).
Legal sufficiency review requires us to examine the evidence “in the light most favorable
to the finding.” In re J.F.B., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard
all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. But we
may not simply disregard undisputed facts that do not support the finding; to do so would not
comport with the State’s heightened burden of proof by clear and convincing evidence. Id. “A lack
of evidence does not constitute clear and convincing evidence.” In re E.N.C., 384 S.W.3d 796, 808
(Tex. 2012). Conclusory testimony, even if uncontradicted, is not clear and convincing evidence
that supports a best-interest finding. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio
2013, no pet.).
When conducting a factual sufficiency review, we evaluate “whether disputed evidence is
such that a reasonable factfinder could not have resolved that disputed evidence in favor of its
finding.” In re J.F.B., 96 S.W.3d at 266. We hold the evidence to be factually insufficient only if,
in the 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. Id.
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 E.W., — S.W.3d —, No. 06-15-00018-CV, 2015 WL 3918292, at *9 (Tex. App.—
Texarkana June 26, 2015, no pet.). There must be “the most solid and substantial reasons”
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justifying termination. See id. The best-interest determination is a wide-ranging inquiry, and the
Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of
the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-
child relationship is a proper one; and
• any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor
must be proved to find that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.
Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest—especially when undisputed evidence
shows that the parental relationship endangered the child’s safety. Id. “Evidence that the parent
has committed the acts or omissions prescribed by section 161.001 may also be probative in
determining the child’s best interest; but the mere fact that an act or omission occurred in the past
does not ipso facto prove that termination is currently in the child’s best interest.” In re O.N.H.,
401 S.W.3d at 684 (internal citation omitted). However, a factfinder may measure a parent’s future
conduct by his or her past conduct in making the best-interest determination. Id.
The Department presented no evidence about the children’s desires and no evidence about
the children’s physical or emotional needs. The lack of evidence regarding these factors means
they do not weigh in favor of termination. See In re E.N.C., 384 S.W.3d at 808.
The only evidence about Jane’s parental ability was Grier’s testimony that she had no
information about Jane’s parenting ability, but believed Jane did not understand her children’s
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needs. Nevertheless, Grier admitted she did not “have information to prove that.” Grier’s testimony
is conclusory and was admittedly not based on any evidence. Thus, the lack of evidence regarding
this factor means the factor does not weigh in favor of termination. See id.
The Department sought to place B.M.D.B., J.J.B., and K.M.B. with Brandy. Grier testified
the children were “doing really well” in Brandy’s and Johnny’s care, but this too is conclusory
evidence. See In re E.N.C., 384 S.W.3d at 808; In re A.H., 414 S.W.3d at 807. Grier also testified
the children would pass their grade levels and their basic needs were being met, but acknowledged
Brandy expressed that she could not financially support B.M.D.B., J.J.B., and K.M.B., in addition
to her own three children. The record is devoid of any evidence of Jane’s financial situation or her
potential ability to pay child support to assist Brandy if Jane’s parental rights were not terminated.
There was evidence that Jane left her children with Brandy for several weeks, but the record
is silent as to the circumstances surrounding Jane’s decision to do so. There was evidence that Jane
was “picked up” for violating a condition of her parole and was incarcerated for less than a year
for an offense Grier “believed” was related to organized crime, but the record is also silent as to
the circumstances of Jane’s parole violation and the nature and severity of her offense.
There was evidence that Jane did not contact the Department after she was no longer
incarcerated, and Jane also did not show up for either day of trial. To the extent these facts weigh
in favor of the best-interest finding, there was also evidence that Jane wrote letters to the
Department while she was incarcerated, Grier made no attempt to contact Jane before trial had
started, and there was no evidence that the prior caseworker had made any attempt to respond to
Jane’s letter. When asked why she did not contact Jane, Grier stated, “I don’t have a good answer
for that. I just didn’t.”
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The Department argues Jane did not attempt to see her children after she was released from
prison. However, Grier admitted Jane was prohibited by court order from visiting her children, and
Grier did not have any contact with Jane until after trial had started.
The Department argues the evidence shows the children were “trapped in a home of
violence and drug abuse, causing them trauma for months to come.” The only evidence of this was
Grier’s testimony that there was “[d]rug use [and] violence in the home” and Jane had “drug
issues.” However, Grier gave no details about Jane’s “drug issues” or the “violence in the home.”
Grier did not testify whether the children were present during the violence, whether Jane was
involved in the violence in the home and if she was, whether she was the victim or the perpetrator,
and if she was not present, whether she had reason to know about the violence. These conclusory
and general allegations are “legally insufficient to support a best-interest finding in the first place.”
See In re E.N.C., 384 S.W.3d at 808; In re A.H., 414 S.W.3d at 807.
CONCLUSION
There are some facts that weigh in favor of the best-interest finding supporting termination
of Jane’s parental rights. For example, there was evidence that the children were thriving in their
placement with Brandy and they were passing their grade levels. There was also evidence that Jane
did not attend trial or contact the Department between the first and second day of trial and had
engaged in some criminal conduct. However, there was no evidence about the nature or severity
of that criminal conduct, and there was no evidence of most of the Holley factors. There was no
evidence that Jane endangered her children’s safety. The Department planned to keep the children
with Brandy, who could not financially support the children. On this record, because the
Department did not present “the most solid and substantial reasons” justifying termination, we
cannot say a reasonable trier of fact could have formed a firm belief or conviction that termination
of Jane’s parental rights was in the children’s best interest. In re E.W., 2015 WL 3918292, at *9;
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accord In re C.H., 89 S.W.3d at 25. We hold there was legally insufficient evidence supporting
the trial court’s best-interest finding. Because legally insufficient evidence supports the trial
court’s best-interest finding, we reverse the trial court’s judgment and render judgment denying
the Department’s request to terminate Jane’s parental rights. In re J.E.H., No. 04-12-00110-CV,
2012 WL 4579296, at *5 (Tex. App.—San Antonio Oct.3, 2012, no pet.) (mem. op.). 2 However,
Jane has not challenged the trial court’s orders regarding managing conservatorship of the children.
Thus, the remainder of the trial court’s judgment is affirmed.
Luz Elena D. Chapa, Justice
2
Based on our conclusion as to the best-interest finding, we need not consider Jane’s factual insufficiency issue or her
issues regarding the trial court’s findings of grounds for termination. See TEX. R. APP. P. 47.1.
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