in the Interest of G.S., a Child ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00390-CV
___________________________
IN THE INTEREST OF G.S., A CHILD
On Appeal from the 231st District Court
Tarrant County, Texas
Trial Court No. 231-601747-16
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
I. Background
This is a private termination-of-parental-rights case. Two days before G.S. was
born, pro se Appellant Father was convicted of aggravated robbery, a first-degree
felony, and sentenced to ten years’ confinement. After G.S. tested positive for
methamphetamine at his birth, his mother asked T.S. to take care of him because she
knew the Department of Family and Protective Services (DFPS) was likely to become
involved, and T.S. had previously adopted her older son, G.S.’s half-sibling, through
the foster system. Half a year later, Father sought a DNA test for a determination of
paternity, and he repeatedly asked that G.S. be placed with his brother.1
T.S. became G.S.’s sole managing conservator on October 16, 2017, pursuant
to an agreement with Father and G.S.’s birth mother. T.S. filed a petition to terminate
the parent–child relationship as to both parents on May 8, 2018.2 As to Father, T.S.
alleged, among other grounds, that he had abandoned G.S. or had knowingly engaged
in criminal conduct resulting in his conviction and confinement for not less than 2
years from the date the petition was filed and that termination of his parental rights
was in G.S.’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(A)–(C), (Q), (2).
1
Father’s brother also sought custody but lacked standing.
2
G.S.’s mother voluntarily relinquished her parental rights.
2
Father’s parental rights were terminated after a trial in which the trial court
found by clear and convincing evidence that he had voluntarily left the child alone or
in the possession of another not the parent and expressed an intent not to return; that
he had knowingly engaged in criminal conduct that resulted in his conviction of an
offense and confinement or imprisonment and inability to care for the child for not
less than two years from the date the petition was filed; and that termination of
Father’s parental rights to G.S. was in G.S.’s best interest. See id. § 161.001(b)(1) (A),
(Q), (2).
Father, who was incarcerated at the time of the termination trial and remains
incarcerated, argues on appeal that his due process rights were violated3 and that the
criminal conduct that resulted in his incarceration occurred before G.S. was
conceived; we interpret his argument as a challenge to the legal and factual sufficiency
of the evidence.4 He also argues that the trial court was biased against him.5 We
affirm.
3
Due process demands the heightened standard of clear and convincing
evidence because “[a] parental rights termination proceeding encumbers a value ‘far
more precious than any property right.’” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012)
(quoting Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982)); In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In re E.N.C., 384 S.W.3d 796, 802 (Tex.
2012).
4
Father raises a variety of arguments in the first 16 pages of his brief, cf. Tex. R.
App. P. 38.1(f), and he complains about deficiencies in the record. The remaining 254
pages of his brief are various “exhibits” attached by Father. To the extent these
exhibits are not also contained within the appellate record, we may not consider them.
Murphy v. Leveille, No. 02-08-00130-CV, 2009 WL 2619857, at *2 n.3 (Tex. App.—
3
II. Motion to Recuse
We review an order denying a motion to recuse for an abuse of discretion.
Tex. R. Civ. P. 18a(j)(1)(A). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles—that is, if its act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004). We cannot conclude that an abuse of discretion
occurred merely because we would have ruled differently in the same circumstances.
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
A motion to recuse must be verified, must assert one or more of the grounds
listed in Rule of Civil Procedure 18b, must not be based solely on the judge’s rulings
in the case, and must state facts, with detail and particularity, that are within the
affiant’s personal knowledge (although facts may be stated on information and belief
Fort Worth Aug. 26, 2009, no pet.) (per curiam) (mem. op.) (stating that the court
must hear and determine a case based on the record as filed and may not consider
documents attached as exhibits to briefs); see Tex. R. App. P. 34.1 (“The appellate
record consists of the clerk’s record and, if necessary to the appeal, the reporter’s
record.”); see also Tex. R. App. P. 34.5(a) (setting out required contents of the clerk’s
record “[u]nless the parties designate the filings in the appellate record by agreement
under Rule 34.2”), (b) (setting out how to request the inclusion of additional items in
the clerk’s record), (c) (setting out how to supplement the clerk’s record).
5
Father also argues that he never voluntarily abandoned G.S. and that evidence
of his incarceration is insufficient to support a finding of child endangerment, but
based on our resolution below, we do not reach these arguments. See Tex. R. App. P.
47.1.
4
if the basis for that belief is specifically stated), that would be admissible in evidence,
and that, if proven, would be sufficient to justify recusal. Tex. R. Civ. P. 18a(a)(1)–(4).
Rule of Civil Procedure 18b states that a judge must recuse in any proceeding
in which: (1) the judge’s impartiality might reasonably be questioned; (2) the judge has
a personal bias or prejudice concerning the subject matter or a party; (3) the judge has
personal knowledge of disputed evidentiary facts concerning the proceeding; (4) the
judge or a lawyer with whom the judge previously practiced law has been a material
witness concerning the proceeding; (5) the judge participated as counsel, adviser, or
material witness in the matter in controversy, or expressed an opinion concerning the
merits of it, while acting as an attorney in government service; (6) the judge knows
that the judge, individually or as a fiduciary, or the judge’s spouse or minor child
residing in the judge’s household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding; (7) the judge or the judge’s
spouse, or a person within the third degree of relationship to either of them, or the
spouse of such a person is a party to the proceeding or an officer, director, or trustee
of a party; is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding; or is to the judge’s knowledge likely to be
a material witness in the proceeding; or (8) the judge or the judge’s spouse, or a
person within the first degree of relationship to either of them, or the spouse of such
a person, is acting as a lawyer in the proceeding. Tex. R. Civ. P. 18b(b). The standard
5
for recusal on an assertion of bias is whether a reasonable person in the community
would believe that the judge’s recusal is required, and when a request for recusal is
based on a trial judge’s alleged bias, the bias must be extrajudicial and not based on in-
court rulings. In re P.M., No. 02-14-00205-CV, 2014 WL 8097064, at *31 (Tex.
App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op. on reh’g).
As the United States Supreme Court has explained, “judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion,” and opinions that
a judge forms during a trial do not necessitate recusal “unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v. United States, 510
U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). “Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or partiality challenge,”
although “[t]hey may do so if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S. Ct.
at 1157. However, expressions of impatience, dissatisfaction, annoyance, and even
anger that are within the bounds of what imperfect men and women sometimes
display do not establish bias or partiality, and a judge’s ordinary efforts at courtroom
administration remain immune. Id. at 555–56, 114 S. Ct. at 1157. In Liteky, the
United States Supreme Court held that judicial rulings, routine trial administration
6
efforts, and ordinary admonishments—whether or not legally supportable—to
counsel and to witnesses that occur in the course of judicial proceedings and neither
(1) rely upon knowledge acquired outside such proceedings nor (2) display deep-
seated and unequivocal antagonism that would render fair judgment impossible are
inadequate grounds to support recusal. Id. at 556, 114 S. Ct. at 1158.
If a motion to recuse does not comply with the requirements of Rule of Civil
Procedure 18a, it may be denied without an oral hearing but must state the nature of
the noncompliance. Tex. R. Civ. P. 18a(g)(3)(A).
Father filed a motion to recuse on January 4, 2019. In his motion, he
complained, as he does on appeal, that the trial judge did not rule on or respond to
anything that he filed6 and that the trial judge was biased in favor of T.S. because he
6
In contrast to Father’s assertion that the trial court did not make any rulings in
his favor, the record affirmatively demonstrates that the trial court ruled in his favor
with regard to his request for a bench warrant so that he could participate in the
termination trial. The record also reflects that the trial court granted permission to
Father to participate in hearings by telephone and made arrangements for him to be
able to do so. And during the trial, the trial judge indicated that he was aware that
Father had been writing to the court, explaining,
THE COURT: All right. While I’m thinking about it, you were
the one that was writing me every week?
[Father]: Yes, sir.
THE COURT: You can’t write to me directly. So I can’t. It’s
called ex parte. So I never answered you. I just heard that you were
writing but I couldn’t. Just so you know[.]
....
7
had ruled in her favor, noting particularly T.S.’s motion to consolidate that was ruled
on and granted “one (1) day after it was filed,”7 and because the trial judge had
allowed “presumed Ex Parte statements.” The trial judge declined to recuse and
referred the matter to the Presiding Judge of the Eighth Administrative Judicial
Region to decide the motion.
The presiding judge denied the motion on January 23, 2019, without a hearing,
stating that Father’s motion had failed to meet the requirements set forth in Texas
Rule of Civil Procedure 18a. In the order, the presiding judge explained that “[a]
recitation of adverse rulings and a conclusory statement that the adverse ruling
show[s] bias is legally insufficient to meet the requirements of a motion to recuse.”
See id. Because the denial of Father’s motion to recuse does not reflect an abuse of
discretion but rather demonstrates that the presiding judge followed the requirements
of the Texas Rules of Civil Procedure applicable to motions to recuse, we overrule
this issue. See Tex. R. Civ. P. 18a(j)(1)(A).
[Father]: I was just anxious, sir. I don’t want to lose rights to my
son.
7
On May 8, 2018, T.S. filed her original petition to terminate the parent–child
relationship in cause number 233-640398-18. On September 10, 2018, she filed a
motion to consolidate cause number 233-640398-18 into cause number 231-601747-
16, the earlier case involving a petition for the conservatorship of G.S., because the
lawsuits involved a common question of law or of fact and consolidation would help
avoid unnecessary expense and delay. The trial court granted the motion to
consolidate on September 11, 2018.
8
III. Termination of Parental Rights
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: (1) that the
parent’s actions satisfy at least one ground listed in Family Code Section
161.001(b)(1); and (2) that termination is in the child’s best interest. Tex. Fam. Code
Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Evidence is clear and convincing if it “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; E.N.C., 384 S.W.3d at 802.
A. Standards of Review
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that
the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. Id. We disregard all evidence that a reasonable
factfinder could have disbelieved, and we consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See id. The factfinder is the sole judge of the witnesses’
credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
9
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that T.S.
proved that Father’s rights should be terminated under Section 161.001(b)(1)(A) or
(Q) and that the termination of the parent–child relationship was in G.S.’s best
interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
If the factfinder reasonably could form such a firm conviction or belief, then the
evidence is factually sufficient. C.H., 89 S.W.3d at 18–19. But if a factfinder
reasonably could not—because the disputed evidence that could not reasonably
support the finding is too significant—then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
B. Family Code Section 161.001(b)(1)(Q)
Section 161.001(b)(1)(Q) provides that a trial court may terminate parental
rights if the parent knowingly engaged in criminal conduct that resulted in the parent’s
conviction and “confinement or imprisonment and inability to care for the child for
not less than two years from the date of filing the petition.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(Q). We read Subsection Q prospectively, focusing on the parent’s
future imprisonment and inability to care for the child, to ensure that the child will
10
not be neglected while the parent serves his sentence and is unable to provide for his
child during that time. In re A.V., 113 S.W.3d 355, 360–61 (Tex. 2003) (“By looking
at future imprisonment and inability to care for the child, [S]ubsection Q purports to
protect children whose parents will be incarcerated for periods exceeding two years
after termination proceedings begin.”). In some cases, neither the length of the
sentence nor the projected release date is dispositive of when the parent will in fact be
released from prison, and evidence of parole is relevant to this issue, but “[m]ere
introduction of parole-related evidence . . . does not prevent a factfinder from
forming a firm conviction or belief that the parent will remain incarcerated for at least
two years [because p]arole decisions are inherently speculative.” H.R.M., 209 S.W.3d
at 108–09 (noting that the jury considered the father’s testimony about the possibility
of parole as well as his criminal record of multiple convictions and sentences and his
twice having been already denied parole during his current incarceration).
Further, Subsection Q requires finding both that the parent is incarcerated and
that he is unable to care for the child for at least two years from the date the petition
was filed. Id. at 110. Absent evidence that a non-incarcerated parent (or other
person) has agreed to provide support for the child on the incarcerated parent’s behalf,
merely leaving a child with a non-incarcerated parent does not constitute the ability to
provide care. Id. In H.R.M., the evidence showed that the incarcerated father had not
financially provided for the child following his divorce from the child’s mother and
that no one had testified to a willingness to care for the child on the father’s behalf
11
during his incarceration; the court held that his obligations to care for the child were
not satisfied by merely allowing the child’s sole managing conservator to be the child’s
exclusive caregiver. Id.
In February 2016, Father pleaded guilty to an aggravated robbery alleged to
have occurred on May 26, 2015, in exchange for ten years’ confinement. T.S. filed the
petition to terminate Father’s parental rights on May 8, 2018. Accordingly, to support
the termination of Father’s parental rights under Subsection Q, the evidence had to
show by clear and convincing evidence that Father would be confined and unable to
care for G.S. until at least May 8, 2020.
At the September 11, 2019 bench trial, the trial court admitted into evidence
Father’s offender information details from the Texas Department of Criminal Justice,
which showed that his maximum sentence date was July 23, 2025, and that he would
not be eligible for parole until July 23, 2020. G.S. was three years old at the time of
the trial; by July 23, 2025, G.S. would be nine years old.
T.S. testified that since receiving sole managing conservatorship of G.S. in
2017, she had received no financial support from Father or his extended family but
acknowledged that Father had once asked a friend to wire some money when G.S.
was an infant and that Father’s brother had brought formula for the child a couple of
times right after he was born. On cross-examination, T.S. agreed that she had not
asked for child support from Father.
12
Father testified that he wrote to G.S. every week, sent him gifts, and did
“everything [he] possibly” could from prison,8 but he also acknowledged that he was
not in a position to support the child, stating, “I can’t support him because I’m in
prison. I mean, I do what I can. I can have family help. I can have friends help
when I can, but . . . I can’t support him. I’m in prison right now.” Father listed his
job qualifications and prospects—a GED, experience doing HVAC work, a strong
work ethic, and college coursework—that he would use after he finished serving his
time, but he acknowledged that his record “reflect[ed] that [he] ha[d] a tendency to
make poor choices.”9 Father acknowledged that seven months was the longest period
he had not been incarcerated during his adult life, and he agreed that it was not in
G.S.’s best interest for G.S.’s life to be put on hold while waiting to see if Father
could make good decisions. Father’s brother acknowledged that Father was not
financially able to support G.S. while incarcerated.
8
T.S. acknowledged that Father wrote G.S. every week and sent him coloring
books for his birthday.
9
The trial court admitted into evidence Father’s prior convictions from 2002
onward. On October 9, 2002, Father pleaded guilty to a September 8, 2002 theft-of-
a-vehicle offense in exchange for 12 months’ confinement in state jail, to be served
concurrently with his six-month sentence for a February 1, 2002 theft-of-a-vehicle
offense and his twelve-month sentence for a February 14, 2002 evading-arrest-or-
detention-with-a-vehicle offense that occurred upon the revocation of his community
supervision. On March 10, 2004, Father pleaded guilty to a December 16, 2003
forgery offense and a December 16, 2003 tampering-with-governmental-record
(counterfeit driver’s license) offense in exchange for three years’ confinement. On
October 9, 2006, Father pleaded guilty to a March 20, 2006 delivery of a controlled
substance (methamphetamine) offense in exchange for 15 years’ confinement.
13
Viewed in the light most favorable to the trial court’s finding, we conclude that
a reasonable factfinder could have formed a firm belief or conviction that Father, who
pleaded guilty, knowingly engaged in the criminal conduct that resulted in his
conviction and confinement, that the duration of his confinement was for more than
two years from the date T.S. filed the petition, and that Father was unable to care for
G.S. during that time. See Tex. Fam. Code Ann. § 161.001(b)(1)(Q); J.P.B., 180
S.W.3d at 573. Accordingly, the evidence is legally sufficient to support the trial
court’s Subsection Q finding. And based on the evidence and giving due deference to
the factfinder’s findings, we conclude that the evidence is likewise factually sufficient
to support the trial court’s Subsection Q finding. See H.R.M., 209 S.W.3d at 108;
C.H., 89 S.W.3d at 18–19. We overrule this issue.
C. Best Interest
Although we generally presume 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), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development.
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is
sufficient to support a best-interest finding, we review the entire record. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child’s best interest may be
the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89
S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the
14
evidence in light of nonexclusive factors that the factfinder may apply in determining
the child’s best interest:
(A) the [child’s] desires . . . ;
(B) the [child’s] emotional and physical needs[,] . . . now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the [child’s]
best interest . . . ;
(F) the plans for the child by these individuals or[, if applicable,] by the
agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the [parent’s] acts or omissions . . . indicat[ing] that the existing parent–
child relationship is not a proper one; and
(I) any excuse for the [parent’s] acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R.,
402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider,
among other evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at
807. These factors are not exhaustive, and some listed factors may not apply to some
cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor
may be sufficient to support a finding that termination is in the child’s best interest.
Id. On the other hand, the presence of scant evidence relevant to each factor will not
support such a finding. Id.
15
T.S., who had worked for the same employer for 17 years, had taken care of
G.S. since his birth, and he had lived his entire life with her and his half-brother J.S. in
her two-bedroom, two-bathroom apartment. They saw T.S.’s parents at least once a
week, and the children called them “nana” and “papa.”
T.S. said that G.S. had been learning to recognize his name in preschool and
had been upset that his last name was different from hers and his brother’s. T.S.
stated that DFPS told her that she needed to obtain legal guardianship so that she
could make decisions for G.S., and she said that if the trial court approved the
termination, she planned to file a petition for adoption as soon as possible. She
wanted to adopt G.S. so that she could be his legal mother and give him the security
of a permanent family. She sought to terminate Father’s parental rights to G.S.
“based on what’s best for [G.S.]. What’s best for [G.S.] is to have a stable, legal
parent.”
T.S. stated that she believed in open adoption, so both children knew their
biological mother, and G.S. knew Father was his biological father. Father had met
G.S. twice, once right after G.S.’s first birthday and then a few months after that on
Father’s Day in 2017. T.S. had also set up a Facebook page for the children, to
update their biological families through photographs and to keep in contact with
them. During the past year, she had sent Father updates on G.S. when something
important happened, Father’s brother and sister-in-law had attended G.S.’s birthday
parties, and she believed it was in G.S.’s best interest to know Father’s family. She
16
had taken G.S. to visit Father twice but did not feel that continuing visits to the prison
would be in G.S.’s best interest.10
Father testified,
. . . I want my son to stay with [T.S.]. She’s a great mother to him.
She’s good to my son. He loves her, but I understand her fear of me
getting out of prison and trying to get him and come stay with me and
my poor choices could put fear in her, but that’s a bad decision of [G.S.],
but I have no intention of taking my son from her. He’s with her. He’s
with his half brother. He loves his brother. He loves her. Her family is
good to him. My family is good to him, but I don’t want to lose my
rights just because of a poor decision I made before he was ever even
conceived. You know, I mean, I’m in prison. I haven’t made the best
choices. That’s obvious. But I don’t feel like my rights have -- I don’t
feel like I’ve done anything to deserve that.
And during cross-examination, Father stated the following,
Q. Do you feel that [G.S.] is safe with [T.S.]?
A. Yes, ma’am.
Q. Do you feel that she provides stability for [G.S.]?
A. Yes, ma’am.
Q. Do you think [G.S.] is happy with [T.S.]?
A. Yes, ma’am.
Q. You think he’s healthy with [T.S.]?
A. Yes, ma’am.
The trial judge asked T.S. why she had taken the child to the prison, and she
10
explained that at the time she did not want Father to be a stranger to G.S. Since then,
however, she had realized that a prison was not the best environment for G.S. to see.
17
Q. And [T.S.] keeps you pretty well updated about [G.S.], doesn’t
she?
A. I would like it more frequently but, yes, she does.
Q. And other than not bringing [G.S.] to the prison every 90 days,
has [T.S.] done everything she said she would do?
A. Yes, ma’am.
Q. And can we agree that it’s in [G.S.’s] best interest for him to
have stability?
A. Yes, ma’am.
Q. And just to be clear, you do believe it’s in [G.S.’s] best interest
to be with [T.S.], correct?
A. Yes.
Father testified that he had not had the opportunity to prove to himself that he
could be a good father and that he wanted that opportunity. He said that if his rights
were not terminated, then upon his release from prison he planned to get a job and
work out visitation and that he was willing to take random drug tests and pay child
support and “do what [he] need[ed] to do to show [T.S.] that [he] can be a good dad
to [G.S.]” so that he could work his way up to weekend visits, holiday visits, and
summer vacation. He said that he had no intention of taking G.S. away from T.S.
And he acknowledged during cross-examination that visiting a parent in jail was not in
18
G.S.’s best interest although that had been a point of contention between him and
T.S.11
Father’s brother testified that it was not in G.S.’s best interest to terminate
Father’s parental rights and that Father would be a good father to G.S. once he was
released from prison, but he agreed that T.S. was good for G.S.
A childcare worker who had known T.S. for ten years and who had taken care
of G.S. at daycare since he was three months old testified that T.S. was “an amazing
mom. She’s caring and loving. She puts her kids first.” She described G.S. and his
half-brother as happy, healthy, and clean, and she stated, “If I could have all my
parents be like [T.S.], it would be wonderful.” She said that G.S. would have a great
family and great support system if T.S. adopted him. Two photographs of G.S. with
his half-brother were admitted into evidence. Both photographs show happy, healthy
children, and in one of the photographs, G.S. is wearing a t-shirt that says “Best Little
Brother in the World.”
G.S.’s ad litem pointed out to the trial court that while Father testified that he
had no intention of taking G.S. away from T.S. at the present time, “any of this stuff
is open to modification at any time so when he says that, he may not right now have
an intention, but we do know that that door is always open.” She was concerned
As part of the October 16, 2017 agreed order between T.S. and G.S.’s
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biological parents, T.S. was supposed to bring G.S. to the correctional facility every
three months. In 2018, Father sued T.S. for breach of contract after she decided that
the visits were not in G.S.’s best interest.
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about stability for G.S., and so she supported termination of Father’s parental rights
because of T.S.’s “willingness to be open with parents, even after termination,” as she
had already shown with G.S.’s half-brother.
Given the child-centered focus of the best-interest determination, we conclude
that the evidence is legally and factually sufficient to support the trial court’s finding.
Although G.S. was only three years old, he was already cognizant of the fact that T.S.
and his half-brother had a different last name, and T.S. is the only parent that he had
ever known although he had also met his biological mother and had received gifts and
letters from Father. No one disputed that T.S.’s parenting abilities were excellent or
that her home was a stable and healthy one, and she had maintained G.S.’s connection
with his paternal biological family. Father’s principle argument for retaining his rights
was that he deserved the opportunity to prove that he could be a good parent,12 but
based on his criminal record and his earlier insistence on G.S.’s visiting the prison, the
trial court could have reasonably formed a firm belief or conviction that terminating
Father’s parental rights in order to provide G.S. with emotional and physical safety
and stability was in the child’s best interest.
As we have previously noted in termination-of-parental-rights cases, “[u]nder
our current statutory scheme, as between a parent and a child, only one may prevail:
12
Father’s closing argument was, “I don’t believe I’ve done anything to have my
rights terminated. You know, just based off of my poor choices in the past, doesn’t
mean I’m going to make poor choices in the future.”
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the child.” See In re J.P.-L., 592 S.W.3d 559, 562 (Tex. App.—Fort Worth 2019, pet.
denied) (citing Tex. Fam. Code Ann. § 153.002 (“The best interest of the child shall
always be the primary consideration of the court in determining the issues of
conservatorship and possession of and access to the child.” (emphasis added))); see also
In re K.C., No. 02-19-00293-CV, 2020 WL 370573, at *8 (Tex. App.—Fort Worth Jan.
23, 2020, no pet. h.) (mem. op.) (holding evidence sufficient to support best interest
finding when it showed that it would not be in the child’s best interest to deprive her
of a stable, loving, permanent family for several years “based on the mere possibility
that Father will be able to establish a healthy relationship with [her] from prison and
thereafter apply the skills he has learned upon his release, without subjecting her and
her potential adoptive family to undue fear that he will disrupt” her relationship with
them). Accordingly, because the evidence is legally and factually sufficient to support
the trial court’s best interest finding, we overrule this issue.
IV. Conclusion
Having overruled Father’s issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: March 19, 2020
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