in the Interest of E.J.R., a Child , 503 S.W.3d 536 ( 2016 )

NUMBER 13-16-00302-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF E.J.R., A CHILD
On appeal from the 404th District Court
of Cameron County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Opinion by Justice Rodriguez
Appellant N.L.C. and appellee J.J.I. are the biological parents of E.J.R., a child.1
At N.L.C.’s request, J.J.I. signed an irrevocable affidavit relinquishing his parental rights,
and N.L.C. filed a petition seeking to terminate the parent-child relationship between J.J.I.
and E.J.R. However, J.J.I. appeared at the hearing on N.L.C.’s petition and testified that
he did not want to lose his rights as E.J.R.’s parent. The trial court denied N.L.C.’s
1 We will refer to the parties and to their child by their initials in order to protect the minor’s identity
and privacy. See TEX. R. APP. P. 9.8(b); TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2015
R.S.).
petition, allowing J.J.I. to retain his parental rights. By four issues on appeal, N.L.C.
contends that in view of J.J.I.’s affidavit, the trial court erred in denying her petition.2 We
affirm.
I. BACKGROUND
The following is undisputed. On October 23, 2013, N.L.C. gave birth to E.J.R. At
the time of the birth, N.L.C. was married to J.C., but N.L.C. suspected that J.J.I. was the
biological father. In November 2013, a DNA test confirmed that J.J.I. was the biological
father of E.J.R. J.J.I. was also married at the time of the conception and birth of E.J.R.,
but he subsequently divorced. J.J.I. is now remarried and has three other children. The
Attorney General brought a paternity suit against J.J.I., and in September 2014, J.J.I. was
adjudicated as the biological father of E.J.R. The trial court appointed N.L.C. as sole
managing conservator and J.J.I. as possessory conservator. The court implemented a
graduated visitation program for J.J.I., beginning with twenty periods of supervised
visitation until the child was at least two years of age.
On January 14, 2016, J.J.I. executed a document titled Father’s Affidavit for
Voluntary Relinquishment of Parental Rights, pursuant to the Texas Family Code (the
“Affidavit”). See TEX. FAM. CODE ANN. § 161.103 (West, Westlaw through 2015 R.S.).
In the Affidavit, J.J.I. attested, “I freely and voluntarily give and relinquish to N.L.C. all my
parental rights and duties” with respect to E.J.R. The Affidavit designated N.L.C. as
managing conservator, and it further stated that “[t]ermination of the parent-child
relationship is in the best interest of the child.” The Affidavit set out, in bold font, “This
2 J.J.I. did not file a brief in response to N.L.C.’s appeal.
2
affidavit is revocable only if the revocation is made before the eleventh day after the date
the affidavit is executed.”
On January 25, 2016, N.L.C. filed a petition seeking the termination of the parent-
child relationship between J.J.I. and N.L.C. Attached to the petition was J.J.I.’s Affidavit.
The trial court heard N.L.C.’s petition on May 2, 2016. J.J.I. appeared at the hearing and
testified pro se. He did not deny that he had validly executed the Affidavit under the
family code or claim that he had revoked the Affidavit. Instead, he testified that he loved
and had spent time with his daughter, but that N.L.C. had made supervised visitations so
difficult that he had reluctantly executed the Affidavit at N.L.C.’s request, believing it would
be better for E.J.R. to be adopted by N.L.C.’s husband J.C. He testified, however, that
this was a mistake and he wished to retain a role in his daughter’s life. J.J.I. stated that
he had brought many of his family members to meet E.J.R., including his mother and
three other children, and he showed the trial judge several photos of the time he spent
with E.J.R. He also admitted that he had been behind on child support obligations which
had accrued from E.J.R.’s birth until the 2014 order adjudicating paternity, but attested
that he completely caught up on his obligations once he was adjudicated as the father.
According to J.J.I., he had attempted to spend more time with E.J.R., but N.L.C. had taken
lengthy leaves of absence from Cameron County, had refused J.J.I.’s request for
unsupervised visits at his home, and had unilaterally discontinued supervised visitation
at the previous location—the home of N.L.C.’s parents—and insisted that J.J.I. pay to
arrange supervision at a different location.
For her part, N.L.C. testified that J.J.I. had been only minimally involved in E.J.R.’s
life; whereas the order adjudicating paternity had granted him the right to regular four-
3
hour visitations, she testified that he often visited E.J.R. for one to two hours. She
testified that after E.J.R. was born, J.J.I. had “stalled the court dates” for the attorney
general’s suit concerning paternity and child support obligations for nearly a year, and
that his primary concern was paying child support. Finally, counsel for N.L.C. argued
that it was N.L.C.’s right to refuse unsupervised visitations because J.J.I. had allegedly
not completed the number of supervised visits required under the 2014 order adjudicating
paternity.
At the conclusion of the hearing, the trial court denied N.L.C.’s petition for
termination. The trial court entered the following relevant findings of fact:
2. The court finds Respondent [J.J.I.] loves his child;
3. The court finds Respondent has been deprived from exercising his
right to see his child as granted to him in the court decree;
4. The court finds Respondent is frustrated with the inability to see and
visit his daughter;
5. The court finds Respondent testified in open court that he does not
want to relinquish his parental rights if he is allowed to see his child;
6. The court finds Respondent’s signing of the relinquishment of
parental rights was motivated by his inability to see his child and said
frustration led to his reluctant signing of the relinquishment and
termination of parental rights affidavit;
7. The court finds Respondent would not have shown up to the court
hearing had he wanted to terminate his parental rights;
8. The court finds the child will have two families who love the child—
her mom and her stepfather and her dad and his family;
9. The court finds it is in the best interest of the child to keep the child’s
father in the child’s life.
N.L.C. filed this appeal shortly before the trial court entered its finding and conclusions.
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II. LEGAL EFFECT OF AN IRREVOCABLE AFFIDAVIT OF RELINQUISHMENT
N.L.C.’s first, second, and fourth issues on appeal are related, and we take them
up together. By her first issue, N.L.C. argues that the trial court reversibly erred by
“setting aside” J.J.I.’s Affidavit. By her second issue, N.L.C. argues that an affidavit of
relinquishment is, standing alone and per se, clear and convincing evidence which
conclusively establishes that termination is in a child’s best interest. By her fourth issue,
N.L.C. argues that it was J.J.I.’s burden to satisfy the trial court that termination was
inappropriate and that in light of the Affidavit, J.J.I.’s evidence on this point was legally
and factually insufficient.
A. Standard of Review and Applicable Law
“A parent’s right to the companionship, care, custody, and management of [his]
children is a constitutional interest far more precious than any property right.” In re.
D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.) (quoting Santosky
v. Kramer, 455 U.S. 745, 758–59 (1982)) (internal quotations omitted). Because of the
fundamental rights at issue, due process requires that termination be supported by clear
and convincing evidence. In re. K.M.L., 443 S.W.3d 101, 112 (Tex. 2014); In re. L.J.N.,
329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.). Clear and convincing
evidence is “the measure or degree of 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.”
TEX. FAM. CODE ANN. § 101.007 (West, Westlaw through 2015 R.S.); In re. P.R.W., No.
13-15-00552-CV, __S.W.3d__, __, 2016 WL 2989160, at *3 (Tex. App.—Corpus Christi
May 17, 2016, no pet.).
Before parental rights may be involuntarily terminated, the trier of fact must find
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two elements by clear and convincing evidence: (1) that the parent committed one of
the statutory acts found in section 161.001(1) of the family code, and (2) that termination
is in the children’s best interest. TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through
2015 R.S.); In re. E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The filing of an irrevocable
or unrevoked affidavit of relinquishment is one of the statutory acts that may serve as
grounds for involuntary termination under section 161.001(1). TEX. FAM. CODE ANN. §
161.001(1)(K); Vallejo v. Tex. Dep’t of Family & Protective Servs., 280 S.W.3d 917, 918–
19 (Tex. App.—Austin 2009, no pet.). As the petitioner, N.L.C. bore the burden to prove
the grounds for termination by clear and convincing evidence. See Burns v. Burns, 434
S.W.3d 223, 227 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
N.L.C. challenges the legal and factual sufficiency of the evidence supporting the
trial court’s decision. When “a party attacks the legal sufficiency of an adverse finding
on an issue on which she has the burden of proof, she must demonstrate on appeal that
the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); In re. A.L.D.H., 373
S.W.3d 187, 192 (Tex. App.—Amarillo 2012, pet. denied) (applying this standard to the
denial of a petition for parental termination). For a legal sufficiency challenge in a
parental termination suit, we review the entire record in the light most favorable to the
finding of the trier of fact, assuming that the trier of fact resolved disputed facts in favor of
its finding if a reasonable factfinder could do so. In re. A.L.D.H., 373 S.W.3d at 193; see
In re. J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We will sustain N.L.C.’s legal sufficiency
challenge and reverse the adverse finding only if, as a matter of law, N.L.C.’s evidence
conclusively establishes the “contrary proposition” to the adverse finding. See Dow
6
Chem., 46 S.W.3d at 241; see also In re. D.S.G., No. 13-10-00683-CV, 2011 WL
3366368, at *4 (Tex. App.—Corpus Christi Aug. 4, 2011, no pet.) (mem. op.).3
When a party attacks the factual sufficiency of an adverse finding on an issue on
which she has the burden of proof, she must demonstrate on appeal that the adverse
finding is against the great weight and preponderance of the evidence. Dow Chem., 46
S.W.3d at 242. The court of appeals must consider and weigh all of the evidence, and
we may set aside a verdict only if the evidence is so weak or if the finding is so against
the great weight and preponderance of the evidence that it is clearly wrong and unjust.
Id. For a factual sufficiency review in the context of a proceeding to terminate parental
rights, a reviewing court must consider the heightened burden of proof—clear and
convincing evidence—necessary to establish a ground for termination. Burns, 434
S.W.3d at 227 (citing In re. J.F.C., 96 S.W.3d at 264–66). “We examine the record in
this case in light of the high evidentiary burden that [N.L.C.] bore and our required
3 The “contrary proposition” which N.L.C. must establish is perhaps not subject to precise
formulation, but it is shaped by the petitioner’s burden in the trial court: where the petitioner introduces
clear and convincing evidence that a parent committed a statutory act under section 161.001 and that the
child’s best interest is served by termination, the trial court may order termination. See TEX. FAM. CODE
ANN. § 161.001 (West, Westlaw through 2015 R.S.); In re. E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The
“contrary proposition” is also shaped by the inverse of the ordinary appellate standard of review: where
the trier of fact orders that parental rights should be terminated, we review termination findings by asking
whether the evidence is such that the factfinder could reasonably form a firm belief or conviction about the
petitioner’s allegations concerning the two elements above. In re. C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Thus, the “contrary proposition” which N.L.C. must conclusively establish could be loosely stated
as: that any reasonable trier of fact would have unavoidably formed a firm belief that the parent had
committed an act listed in section 161.001 and that termination was in the best interest of the child, and
that the trier of fact would have ordered termination on the basis of this belief. See In re. A.L.D.H., 373
S.W.3d 187, 193 (Tex. App.—Amarillo 2012, pet. denied) (reviewing sufficiency by determining whether it
was “of such a character that it had to produce in the mind of the factfinder a firm belief or conviction that
termination was in the best interest of the child” (emphasis added)); see also Burns v. Burns, 434 S.W.3d
223, 227 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (same). The A.L.D.H. court derived its standard
from this Court’s holding in In the Interest of D.S.G., where we applied a similar standard to a legal
sufficiency review. See No. 13-10-00683-CV, 2011 WL 3366368, at *4 (Tex. App.—Corpus Christi Aug.
4, 2011, no pet.) (mem. op.).
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appellate deference to the trial court’s decision that the evidence did not meet it.” Id. at
228.
B. Analysis
In her first issue, N.L.C. argues that the trial court erred by “setting aside” J.J.I.’s
irrevocable Affidavit. It is undisputed that the Affidavit met the minimum requirements
under section 161.103 and that J.J.I. did not attempt to revoke the Affidavit at any time,
let alone within the ten-day window provided by the Affidavit. She argues that the trial
court therefore erred in “setting aside” the Affidavit.
In support of her argument, N.L.C. first cites the rule that a party seeking to
overturn a termination order based on an unrevoked affidavit of relinquishment is limited
to pursuing a collateral or direct attack based on fraud, duress, or coercion in the
execution of the affidavit. TEX. FAM. CODE ANN. § 161.211(c) (West, Westlaw through
2015 R.S.); In re. M.A.W., 31 S.W.3d 372, 375–76 (Tex. App.—Corpus Christi 2000, no
pet.). We find this rule to be inapposite. By its terms, this rule deals with the limited
grounds for a direct or collateral attack on an order granting termination. Here, by
contrast, we review an order denying termination. This rule says nothing about the
permissible grounds of review for an order denying termination or any other question
related to this case.4
4 N.L.C. attempts to strengthen this argument by likening J.J.I.’s position to a direct or collateral
attack on an implied order of termination. She argues that when J.J.I. executed the Affidavit, the execution
had an immediate legal effect—vesting N.L.C. with an immediate right of possession—that was similar to
an automatic termination, which J.J.I. attacked at the hearing. See TEX. FAM. CODE ANN. § 161.104 (West,
Westlaw through 2015 R.S.) (recognizing that the execution of a relinquishment affidavit immediately
assigns certain rights to a party designated in the affidavit); see also Tex. Dep’t of Family Protective Servs.
v. Alts. in Motion, Inc., 210 S.W.3d 794, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
We are not persuaded by N.L.C.’s argument. The execution of an irrevocable affidavit does not
have the immediate effect of terminating the parent’s rights or of shifting the burden of proof to the parent
8
N.L.C. also cites the similar rule that once the proponent of an affidavit has
established that the affidavit was executed according to the terms of the Texas Family
Code, the affidavit itself “may be set aside only upon proof, by a preponderance of the
evidence, that the affidavit was executed as a result of coercion, duress, fraud, deception,
undue influence, or overreaching.” Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.—
Austin 2000, no pet.) (quoting In re. Bruno, 974 S.W.2d 401, 405 (Tex. App.—San Antonio
1998, no pet.)). This rule is also inapplicable. The record reveals that the trial court did
not set aside the Affidavit. The trial court did not strike the Affidavit, did not allow J.J.I.
to revoke or otherwise nullify the Affidavit, and did not take any other action which might
strip the Affidavit of its rightful force. The “irrevocability of the affidavit of relinquishment
merely prevents the parent from withdrawing the affidavit as a ground for terminating the
parent/child relationship.” Terrell v. Chambers, 630 S.W.2d 800, 803 (Tex. App.—Tyler
1982, writ ref’d n.r.e.) (citing Allred v. Harris Cnty. Child Welfare Unit, 615 S.W.2d 803
(Tex. Civ. App.—Houston [1st Dist.] 1980, no writ)); see also In re. J.L.J., 352 S.W.3d
536, 541–42 (Tex. App.—El Paso 2011, no pet.). The trial court did not allow J.J.I. to
withdraw the Affidavit as a potential ground for termination. See Terrell, 630 S.W.2d at
803.
Rather, the crux of N.L.C.’s first issue appears to be that the trial court effectively
“set aside” the Affidavit by not giving it conclusive effect on the issue of the child’s best
interest—an argument which is the main thrust of N.L.C.’s second issue. N.L.C. cites
resisting termination. In re. J.L.J., 352 S.W.3d 536, 542 (Tex. App.—El Paso 2011, no pet.); Vallejo v.
Tex. Dep’t of Family & Protective Servs., 280 S.W.3d 917, 920 (Tex. App.—Austin 2009, no pet.). J.J.I.’s
participation in the termination proceeding was not a direct or collateral attack on some implied or automatic
legal order of termination, and the rule cited by N.L.C. is inapplicable.
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several cases which, she argues, show that the Affidavit must be given conclusive effect.
In this line of cases, many of our sister courts have relied on Brown v. McLennan County
Children’s Protective Services in holding that an affidavit of relinquishment may, in itself,
serve as sufficient evidence on which the trial court can find that termination is in the best
interest of the child and order termination. See 627 S.W.2d 390, 394 (Tex. 1982); In re.
A.L.H., 468 S.W.3d 738, 741–42 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Lumbis
v. Tex. Dep’t of Protective & Regulatory Servs., 65 S.W.3d 844, 850 (Tex. App.—Austin
2002, pet. denied); In re. Bruno, 974 S.W.2d at 405; Ivy v. Edna Gladney Home, 783
S.W.2d 829, 832 (Tex. App.—Fort Worth 1990, no writ).5
However, even when these cases are taken to their fullest logical extent, they do
not compel the result which N.L.C. seeks to achieve here. These cases hold that an
affidavit of relinquishment may be a sufficient basis, in itself, to find the child’s best
interest; but these cases do not hold that such an affidavit, by necessity, requires the trial
court to order an involuntary termination, as N.L.C. argues. See In re. Morris,
__S.W.3d__, __, No. 14-16-00227-CV, 2016 WL 3457953, at *3 (Tex. App.—Houston
[14th Dist.] June 22, 2016, no. pet. h.); In re. K.D., 471 S.W.3d 147, 164 (Tex. App.—
Texarkana 2015, no pet.) (citing Vallejo, 280 S.W.3d at 918). The same evidence of
statutory acts or omissions under section 161.001(1) may be probative in determining the
best interest of the child, but proof of these acts or omissions does not relieve the
petitioner from showing the best interest of the child. In re. C.H., 89 S.W.3d 17, 28 (Tex.
2002); see Vallejo, 280 S.W.3d at 919–20. Put differently, while the execution of an
5 We assume for the purposes of this appeal, but need not decide, that these courts are correct.
But see In re. K.S.L., __S.W.3d__, __, No. 04-16-00020-CV, 2016 WL 3727952, at *2 (Tex. App.—San
Antonio July 6, 2016, no. pet. h.); In re. K.D., 471 S.W.3d 147, 164 (Tex. App.—Texarkana 2015, no pet.).
10
affidavit of relinquishment of parental rights is relevant to the inquiry whether termination
of parental rights is in the best interests of the child, such an affidavit “is not ipso facto
evidence that termination is in the child’s best interest.” In re. K.D., 471 S.W.3d at 164
(quoting In re. A.H., 414 S.W.3d 802, 806 (Tex. App.—San Antonio 2013, no pet.)); see
also Byrne v. Catholic Charities, Diocese of San Angelo, Inc., 710 S.W.2d 780, 782 (Tex.
App.—Austin 1986, no writ) (“This provision requires proof of both elements; the proof of
the first does not excuse proof of the second.”).
Even when an affidavit is irrevocable, public policy does not favor the conclusion
that an affidavit of relinquishment makes termination mandatory. See Vallejo, 280
S.W.3d at 921. “For instance, if termination would leave the child without financial
support from a financially capable but disinterested parent, public policy would not favor
letting the parent dispense with his obligation on the parent’s whim.” Id. Rather than
being compelled to oblige a parent’s desire for termination, the trial court may be better
guided by a “child’s need for stability” and the recognition that “a change in custody
usually disrupts the child’s living arrangements and the channels of a child’s affection,
and in effect alters the entire tenor of the child’s life.” In re. C.T., 491 S.W.3d 323, 328
(Tex. 2016) (orig. proceeding). Indeed, there is “a strong presumption that the best
interest of the child is served by preserving the parent-child relationship, and the burden
of proof rests upon the party seeking to deprive the parent of his or her parental rights.”
In re. K.S., 448 S.W.3d 521, 536 (Tex. App.—Tyler 2014, pet. denied); see In re. R.R.,
209 S.W.3d 112, 116 (Tex. 2006) (per curiam).
With those rules in mind, we next address N.L.C.’s fourth issue, wherein she
challenges the legal and factual sufficiency of the evidence to support the trial court’s
11
finding. The Fourteenth Court of Appeals recently addressed a similar argument based
on similar facts, stating:
This court has recognized that an affidavit of relinquishment suffices as
evidence on which the trial court may make a finding that termination of the
relinquishing parent’s rights is in the child’s best interest. But, this court
has not held that an affidavit of relinquishment requires the trial court to find
that terminating the parent-child relationship would be in the child’s best
interest or that an affidavit of relinquishment by itself proves that fact as a
matter of law.
In re. Morris, __S.W.3d at __, 2016 WL 3457953, at *3 (internal citations omitted). The
Morris court ultimately found against the relator because, aside from a document relating
to relinquishment, the relator offered minimal evidence to show that termination was in
the child’s best interest. Id. at **3–4.
Similarly, here, N.L.C. offered only the Affidavit and her own testimony as to two
deficiencies in J.J.I.’s support of E.J.R.: that he did not use all of his allotted four hours
of visitation time and that he had, at first, resisted a lawsuit for paternity and child support.
She presented no other evidence to disturb the “strong presumption” that the father’s
support was in E.J.R.’s best interest, see In re. R.R., 209 S.W.3d at 116, such as evidence
that J.J.I. was a danger to E.J.R.’s health or emotional well-being, that E.J.R. desired a
termination, that J.J.I. was unable to responsibly fulfill his role as a parent, or that he had
committed any actions which made him an unsuitable parent. See Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976).
By contrast, J.J.I. testified that he loved E.J.R. and that he wanted to remain in
E.J.R.’s life. He testified that he was current on his child support obligations and had
brought each of his three children and his mother to meet E.J.R. J.J.I. further stated that
he had spent ample time with her and had relished it, and he offered several photos of
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the time he had spent with E.J.R., which the trial court reviewed. According to J.J.I., he
had attempted to spend more time with E.J.R., but he was rebuffed by N.L.C., who had
also impeded supervised visitations. As the ultimate judge of the credibility of the
evidence, the trial court entered much of the substance of this testimony into its findings
of fact and conclusions of law, supra, which were supported by the record. See Editorial
Caballero, S.A. de C.V. v. Playboy Enters., Inc., 359 S.W.3d 318, 329 (Tex. App.—
Corpus Christi 2012, pet. denied) (noting that in a Dow Chemical sufficiency review, the
factfinder is the “sole judge” of the evidence’s credibility).6
In summary: the trial court was not required to—and did not—set aside the
Affidavit in order to reach the question of whether termination was in E.J.R.’s best interest,
as N.L.C. contends in her first issue. See Terrell, 630 S.W.2d at 803; see also In re.
C.H., 89 S.W.3d at 28; In re. K.D., 471 S.W.3d at 164. Even without setting the Affidavit
aside, the trial court was not required to give conclusive effect to the Affidavit, as N.L.C.
contends in her second issue. See In re. Morris, __S.W.3d at __, 2016 WL 3457953, at
*3; In re. K.D., 471 S.W.3d at 164. As in Morris, this Affidavit was among the only
evidence which N.L.C. offered in support of her burden to show that E.J.R.’s best interests
were served by termination of J.J.I.’s parental rights, and J.J.I. responded with testimonial
and photographic evidence of his desire and ability to support E.J.R. See In re. Morris,
6 On a related front, N.L.C. also argues that the Affidavit qualifies under the doctrines of judicial
admission and judicial estoppel, which foreclosed J.J.I. from offering any evidence on E.J.R.’s best interest.
However, the record reveals that N.L.C. did not bring this argument before the trial court and that she
instead solicited J.J.I.’s evidence by prompting him during the hearing. Therefore, we will not consider this
argument on appeal. See TEX. R. APP. P. 33.1; In re. D.E.H., 301 S.W.3d 825, 828 (Tex. App.—Fort Worth
2009, pet. denied); see also Bhamani v. Citizens Enters., Inc., No. 11-13-00041-CV, 2015 WL 1779055, at
*7 (Tex. App.—Eastland Apr. 16, 2015, no pet.) (mem. op.) (applying rule 33.1 to hold that a judicial estoppel
issue was waived).
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__S.W.3d at __, 2016 WL 3457953, at *3. We assume that the trier of fact, as the
ultimate judge of the credibility of this evidence, reasonably resolved these disputed facts
in favor of its finding. See In re. J.F.C., 96 S.W.3d at 266; In re. A.L.D.H., 373 S.W.3d
at 193; see also Editorial Caballero, 359 S.W.3d at 329. Viewing all of the record
evidence in the light most favorable to the trial court’s finding, we cannot conclude that
N.L.C. established, as a matter of law, the contrary proposition to the trial court’s finding
that termination was not warranted. See Dow Chem., 46 S.W.3d at 241; In re. A.L.D.H.,
373 S.W.3d at 192; see also In re. D.S.G., 2011 WL 3366368, at *4. Furthermore, in
light of the high evidentiary burden which N.L.C. bore, we conclude that N.L.C. has not
shown that the trial court’s finding was against the great weight and preponderance of the
evidence. See Dow Chem., 46 S.W.3d at 242; Burns, 434 S.W.3d at 228. We therefore
cannot sustain the legal and factual sufficiency challenges raised in N.L.C.’s fourth issue.
We overrule N.L.C.’s first, second, and fourth issues.
III. REVIEW OF HOLLEY FACTORS
By her third issue, N.L.C. contends that even if the trial court was not required to
give the Affidavit conclusive force as to E.J.R.’s best interest, the trial court committed
reversible error through the manner in which it reviewed the evidence concerning E.J.R.’s
best interest. N.L.C. argues that as part of its review, the trial court was required to
consider and apply the factors set out in Holley v. Adams. 544 S.W.2d at 371–72.7
7 The Holley factors 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, 371–72 (Tex. 1976).
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N.L.C. argues that because there is no indication that the trial court considered these
factors before determining E.J.R.’s best interest, the trial court reversibly erred. N.L.C.
relies upon In the Interest of K.S.L. as her sole support for this argument. See
__S.W.3d__, __, No. 04-16-00020-CV, 2016 WL 3727952, at *2 (Tex. App.—San Antonio
July 6, 2016, no. pet. h.).
However, contrary to N.L.C.’s interpretation, K.S.L. holds that in deciding whether
termination would be in the best interest of the child, the trial court “may apply the non-
exhaustive Holley factors to shape their analysis.” Id. (emphasis added). Consistent
with the use of the permissive word “may,” Texas courts “have held that a trial court does
not err in failing to separately consider the Holley factors when presented with an affidavit
of relinquishment.” In re. K.D., 471 S.W.3d at 162 (citing In re. A.G.C., 279 S.W.3d 441,
452 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Ivy, 783 S.W.2d at 833).
Furthermore, while the K.S.L. court did reverse an order of termination, the court
did not do so because the trial court failed to consider the Holley factors. Rather, the
K.S.L. court reversed the termination because the party pursuing termination had
presented little evidence related to the child’s best interest aside from an affidavit of
relinquishment—which resembles the situation here. See In re. K.S.L., __S.W.3d at __,
2016 WL 3727952, at *2. The court discussed Holley only to emphasize that the
proponent of termination had presented little evidence concerning the child’s best
interests, as those best interests are represented by Holley factors such as “the desires
of the child,” “the emotional and physical danger to the child now and in the future,” and
“the parental abilities of the individuals seeking custody.” See id. (citing Holley, 544 S.W.
at 371–72). Thus, to the extent that K.S.L. has any bearing on this case, it does not favor
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N.L.C.’s position on appeal. N.L.C. offers no other authority for the proposition that the
trial court was required to expressly analyze this case under the Holley factors, even as
it reached its determination against the backdrop of the “strong presumption” that the
father’s support was in E.J.R.’s best interest. See In re. R.R., 209 S.W.3d at 116.
We conclude that the trial court did not err by failing to expressly consider the
Holley factors in reaching its determination. See In re. K.D., 471 S.W.3d at 162. We
overrule N.L.C.’s third issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
29th day of September, 2016.
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