Opinion
No. 04-17-00569-CV
01-03-2018
IN THE INTEREST OF E.J.M., a Child
MEMORANDUM OPINION
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00474
Honorable Richard Garcia, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
This proceeding arises out of Cause No. 2016-PA-00474, styled In the Interest of E.J.M., a Child, pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable Norma Gonzales presiding. The termination order in this matter was signed by associate judge, the Honorable Richard Garcia.
This is an accelerated appeal of the trial court's order terminating Appellant Dad's parental rights to his child, E.J.M. In his appeal, Dad contends the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating Dad's parental rights was in E.J.M.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016). Because we conclude the evidence is legally and factually sufficient to support the trial court's finding, we affirm the trial court's order terminating Dad's parental rights to E.J.M.
FACTUAL AND PROCEDURAL BACKGROUND
On February 18, 2016, the Texas Department of Family and Protective Services received a referral for alleged physical abuse of twelve-year-old E.J.M., by her mother. After speaking to the child at school, the caseworker made an unannounced home visit on March 3, 2016. E.J.M.'s mother, and several other adults living in the residence, tested positive for methamphetamines and amphetamines.
On March 4, 2016, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Following an emergency order, the Department was named temporary managing conservator of E.J.M. The trial court ordered Dad to comply with each requirement set out in the Department's service plan during the pendency of the suit. Dad was granted visitation with E.J.M.
After seventeen months, and several permanency hearings, the case was called for trial on August 18, 2017. Following a hearing, the trial court took the matter under advisement; and, on August 29, 2017, the trial court signed the Order of Termination in which the trial court terminated Dad's parental rights pursuant to Texas Family Code sections 161.001(b)(1)(N) and (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O). The trial court made further findings that termination of Dad's parental rights was in E.J.M.'s best interest pursuant to section 161.001(b)(2). See id. § 161.001(b)(2). The trial court named the Department as E.J.M.'s permanent managing conservator.
E.J.M.'s mother was also a party to the suit and filed a voluntary relinquishment of her parental rights; the trial court terminated the mother's parental rights as part of the judgment.
The pertinent sections of Texas Family Code section 161.001(b) are set forth below:
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O).
In his sole issue on appeal, Dad contends the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in E.J.M.'s best interest.
STANDARDS OF REVIEW
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).
An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'Clear and convincing evidence' means 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 2014); J.F.C., 96 S.W.3d at 264.
"There is a strong presumption that the best interest of the child is served by keeping the child with [her] natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest of the child." Id.
A. Legal Sufficiency
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "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." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally [sufficient]." See id. (quoting J.F.C., 96 S.W.3d at 266). This court must assume "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." J.F.C., 96 S.W.3d at 266.
B. Factual Sufficiency
Under a clear and convincing standard, evidence is factually sufficient if "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); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25. "If, in light of the entire record, [unless] 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, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.
TESTIMONY ELICITED DURING THE TERMINATION HEARING
A. Tricia Boone
Tricia Boone, a private practice therapist, testified that she received a referral for Dad's individual counseling in March of 2017. Dad failed to appear for the first scheduled appointment on April 27, 2017. After rescheduling the appointment, Boone conducted her initial evaluation on May 11, 2017. Boone testified her initial assessment raised five areas in which Dad required assistance: general parenting, parenting his teenaged daughter, meeting his teenaged daughter's needs, addressing specific issues with which his daughter was dealing, and potential domestic violence allegations.
Boone testified Dad's visitation with E.J.M., prior to the Department's removal, consisted of weekends and summers when her mother allowed it. At the conclusion of the appointment, Dad scheduled a second appointment for May 25, 2017. Dad failed to either show for the appointment or reschedule for a later date.
B. Dad
Dad testified that E.J.M. was in the Department's custody following an incident when E.J.M.'s mother grabbed E.J.M.'s neck and tried to restrain her. Dad acknowledged the Department's previous attempts to place E.J.M. in his care were unsuccessful because he failed to complete the required parenting classes.
Dad acknowledged receiving the service plan in April of 2016. He completed the psychological and the parenting classes, but conceded that he missed six or seven of the parent-child visitations. He did not agree with the Department's assertion that he missed forty-three visitations with E.J.M. In trying to explain his failure to make his visitation the week before the hearing, Dad explained that the Department required him to call or text his caseworker the day before a visitation. Dad testified that he called and texted his caseworker the day before the visitation, but that she never returned his call.
Dad acknowledged he was currently on probation for possession of a controlled substance, stemming from an arrest in 2012. He also acknowledged being on a prior probation, but he could not recall the underlying charge or arrest from which the probation stemmed.
During his testimony, Dad testified that his disabilities made it difficult for him to attend counseling or his visitations. He suffered from high blood pressure and diabetes. Due to complications of the diabetes, Dad's right leg was amputated below the knee and the toes on his left leg were amputated. "[I]t's harder for me to—it's more time consuming for me to—it's not just wake up in the morning and get ready. It's wake up in the morning and it's a process." He continued,
I'm on the bus and I've got an amputated leg and amputated toes. So, it's like I've got to rest, like, every ten, 15 minutes. Sometimes I'll miss the bus. Like, it's hard for me to just, like—I don't expect people to understand what I'm going through because, if they are not missing a limb or something, they are not going to understand.When questioned about his failure to attend the counseling appointments, Dad testified his failure to attend was due to "medical stuff, appointments, and then just forgetting about it."
During cross-examination, Dad was adamant that he was clean. He contended his failure to take the drug tests ordered by the caseworker was either a question of logistics or that he never received the call. Dad testified regarding his attempts to "clean up [his] life" following his 2012 arrest. He explained that he was staying away from "everybody" and "trying to get [his] life back on track." "I'm hurt. I'm sick. I'm trying to just keep up with my doctors, keep up with my family." Dad testified regarding his success in the methadone program and that he had "been clean" for over a year and a half. As evidence of his success, he explained the clinic even allowed him weekly "take-homes." He explained that the program requires daily attendance at the clinic, and a negative drug test, to receive the methadone dose. Once the participant has proven clean for four months, the participant is dispensed a weeks' worth of methadone and drug testing is reduced accordingly.
C. Carlos Castillo-Nunez
Carlos Castillo-Nunez, a licensed professional counselor, testified that he and Dad met on two occasions, once in July and once in August of 2017. In Castillo-Nunez's opinion, Dad needs assistance addressing E.J.M.'s mental health history. Dad lacks knowledge and understanding of E.J.M.'s depression and self-mutilation and he needs to be educated on why she cuts herself. Castillo-Nunoz further opined that Dad is personally having issues with depression and stress hindering his ability to understand the problems with which his daughter struggles.
D. Rachel Lipsey
Rachel Lipsey, the Department's conservatorship worker for E.J.M., testified that she received the case following a referral for physical abuse and neglectful supervision by E.J.M.'s mother. The Department attempted to place E.J.M. with Dad, but was unable to ensure a safe and suitable home. Since June of 2016, E.J.M. has been at Hill Country Youth Ranch and is doing well. The Department's plan is for unrelated adoption.
Lipsey testified she set up a service plan for Dad, including weekly visitation with E.J.M. Lipsey testified Dad attended only thirty-five out of seventy-six possible parent-child visits. Dad would visit, and then he would stop for a month or two at a time; and, then suddenly, he would start coming again. The unpredictable attendance was difficult on E.J.M. She would get very sad and depressed. As a result, the Department began requiring twenty-four-hour notice before visitation to protect E.J.M. In the four months leading up to the final hearing, Dad missed ten visits with E.J.M.
Pursuant to the service plan, parent-child visitations were contingent on negative drug tests. Lipsey testified that she attempted, on seventeen different occasions, to send Dad for drug testing; he complied only seven times. Of the seven tests, Dad was denied visitation after one of the drug tests. When questioned, Dad denied using illegal substance. Lipsey relayed, "his explanation was that the lab mixed up his specimen with somebody else's."
Lipsey also explained that she made several referrals for counseling, but Dad failed to follow through. Lipsey expressed concern that Dad lacked many parenting skills, especially understanding E.J.M. Lipsey was present for most of Dad's parent-child visits. She explained Dad would constantly be nodding off and falling asleep during visits. There were also concerns with food choices Dad made for E.J.M. She is prediabetic and he would bring inappropriate foods or snacks.
Lipsey opined that she believed termination was in E.J.M.'s best interest because Dad failed to demonstrate a willingness to complete the services offered as a condition of reunification with his child. Lipsey stressed E.J.M.'s need for permanency and Dad's inability to meet her needs at this time. She reiterated that Dad's unwillingness to participate has prevented the Department from even allowing unsupervised visits. In her opinion, Dad failed (1) to show an ability to meet E.J.M.'s physical and emotional needs or (2) express a willingness to maintain a bond with E.J.M.
E. Heidi Gildersleeve
Heidi Gildersleeve, E.J.M.'s assigned advocate from Child Advocates of San Antonio since May of 2016, saw E.J.M. at least once a month. Gildersleeve testified to sitting with E.J.M. on several occasions when Dad failed to show for visitations. They sat and waited and waited; E.J.M. would finally break down and cry and say that she was ready to leave. Gildersleeve testified that she believed termination was in E.J.M.'s best interest because E.J.M. was not receiving the emotional support she needed to navigate her teenage years. E.J.M. needed stable support, someone to be there. Gildersleeve explained that E.J.M. had been "cutting." She needed guidance and supervision. Dad made promises to E.J.M. that he either could not or simply did not plan to keep.
BASIS FOR TRIAL COURT'S TERMINATION
A. Statutory Violations under the Texas Family Code
The trial court found, by clear and convincing evidence, that Dad failed to comply with the provision of the court-ordered service plan and that such acts or omissions were grounds for termination under subparagraph (O) of section 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O). On appeal, Dad does not challenge the trial court's statutory grounds findings.
B. Best Interest of the Child
1. Arguments of the Parties
Dad contends the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in E.J.M.'s best interest. See id. § 161.001(b)(2).
The State counters that Dad's past drug use, his lack of interest in E.J.M.'s life, and his failure to complete his court-ordered service plan legally and factually support the trial court's best interest finding.
2. The Holley Factors and Texas Family Code section 263 .307(b)
Some factors used to ascertain the best interest of the child were set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
(1) the child's desires;
(2) the child's emotional and physical needs now and in the future;
(3) any 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 the individuals seeking custody to promote the best interest of the child;See also In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).
(6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and
(9) any excuse for the parent's acts or omissions.
The Holley Court warned that "[t]his listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent." Holley, 544 S.W.2d at 372; accord E.N.C., 389 S.W.3d at 807 (describing the Holley factors as nonexclusive). "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." C.H., 89 S.W.3d at 27. In fact, evidence of only one factor may be sufficient for a factfinder to reasonably form a firm belief or conviction that termination is in a child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. See id.
In addition to consideration of the Holley factors, courts remain mindful 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) (West Supp. 2016); In re B.R., 456 S.W.3d 612, 615 (Tex. App.—San Antonio 2015, no pet.). There is also a strong presumption that keeping children with a parent is in the children's best interests. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). In determining whether a parent is willing and able to provide the children with a safe environment, courts should consider the following statutory factors set out in section 263.307(b) of the Code, which include the following:
(1) the children's ages and physical and mental vulnerabilities;TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.) (citing In re A.S., No. 04-14-00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San Antonio Nov. 12, 2014, pet. denied) (mem. op.)); B.R., 456 S.W.3d at 616.
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the children;
(4) whether the children have been the victim of repeated harm after the initial report and intervention by the department;
(5) whether the children are fearful of living in or returning to the home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the children's parent, other family members, or others who have access to the home;
(7) whether there is a history of abusive or assaultive conduct by the children's family or others who have access to the home;
(8) whether there is a history of substance abuse by the children's family or others who have access to the home;
(9) whether the perpetrator of the harm to the children is identified;
(10) the willingness and ability of the children's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
(11) the willingness and ability of the children's family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the children's family demonstrates adequate parenting skills; . . . [and]
(13) whether an adequate social support system consisting of an extended family and friends is available to the children.
When determining the best interest of the child, a court "may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." B.R., 456 S.W.3d at 616 (citing In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)). A factfinder may also measure a parent's future conduct by his or her past conduct to aid in determining whether termination of the parent-child relationship is in the best interests of the children. Id. Finally, the grounds on which the trial court granted termination, pursuant to section 161.001 of the Code, "may also be probative in determining the child[ren]'s best interest[s]; 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[ren]'s best interest[s]." In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (citation omitted).
Applying each standard of review, we examine the evidence pertaining to the best interest of E.J.M. See TEX. FAM. CODE ANN. § 161.001(b)(2); E.N.C., 384 S.W.3d at 807; J.F.C., 96 S.W.3d at 284. We remain mindful that the trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (requiring appellate deference to the factfinder's findings); City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
a. Ages, Vulnerabilities, and Desires of the Child
E.J.M. was thirteen-years-old at the time of the hearing. Although she did not testify, the record indicates that the trial court spoke to the child in chambers. Both the caseworker and the CASA volunteer testified regarding the impact on E.J.M. every time Dad failed to show at a scheduled parent-child visitation. Throughout the pendency of the case, Dad failed to follow through on promises made to E.J.M., specifically the promise to appear for the parent-child visitations. E.J.M. is doing well in the Department's care; she is receiving the necessary support and counseling. See TEX. FAM. CODE ANN. § 263.307(b)(1), (13); Holley, 544 S.W.2d at 371-72.
b. Emotional and Physical Needs of the Child Now and in the Future, Emotional and Physical Danger to the Child Now and in the Future, and Willingness to Accept Services and Effect Positive Change
"The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." Dupree v. Tex. Dep't of Protective and Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995, no writ). This court considers a parent's conduct before and after the Department's removal of the child. See In re S.M.L.D., 150 S.W.3d 754, 758 (Tex. App.—Amarillo 2004, no pet.).
The testimony supports that this case began with a referral for physical abuse of E.J.M. E.J.M. was living in a home with multiple adults, almost all of whom tested positive for amphetamines and methamphetamines, and the Department moved for emergency removal the next day. At the time, the Department created a service plan for Dad. Yet, Dad failed to take the necessary parenting classes, or follow through with other services, for the Department to place E.J.M. in his home. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
Throughout the seventeen months the case remained on the court's docket, Dad placed blame on one thing or another as to why he failed to comply with the individual counseling, the required drug tests, and the parent-child visitations. Both counselors testified to Dad's inability to understand E.J.M.'s emotional and physical needs. Dad does not understand E.J.M.'s needs on the simplest level, such as proper diet for her prediabetic concerns, much less the more complicated concerns associated with her depression and self-mutilation. E.J.M. needs support and stability. She has already started showing signs of cutting and harming herself. Dad's failure to take the necessary steps to understand and support E.J.M. are evidence of his inability to provide for her emotional and physical needs now and in the future. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11), (12); Holley, 544 S.W.2d at 371-72.
Additionally, Dad's history of illegal drug use is problematic. Although Dad is adamant he is clean, he failed or refused to appear for ten drug tests ordered by the caseworker. His visits with E.J.M. were contingent on negative drug tests; however, Dad elected to refuse the test instead of visiting with E.J.M. Dad was inconsistent, at best, with his visitations and made excuses for times that he did not attend. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
c. Parenting Abilities and Services Available
A parent is expected to complete the service plan, and to "demonstrate an understanding of services." See TEX. FAM. CODE ANN. § 263.307(b)(10), (11); Holley, 544 S.W.2d at 371-72. The parent must show an ability to protect the child, develop healthy relationships, and make good decisions. The evidence indicates Dad was unable to learn from the limited services in which he did participate. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11); Holley, 544 S.W.2d at 371-72.
Dad was inconsistent in his visitations with E.J.M. As the caseworker and the CASA volunteer both testified, each missed visitation was highly traumatic for E.J.M. She would wait for Dad to arrive, and when he failed to show, she would become depressed and sad. When asked about his failure to attend, Dad blamed his disability and the caseworker. He failed to take responsibility for either his actions or how his actions affected E.J.M. See TEX. FAM. CODE ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
Dad bore the burden to show an ability to protect E.J.M., to develop healthy relationships, and to make good decisions. The evidence indicates Dad's failure to participate in the Department's services hindered his ability to learn how to protect and appropriately care for E.J.M. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
d. Stability of the Home or Proposed Placement
"The goal of establishing a stable, permanent home for a child is a compelling interest of the government." Dupree, 907 S.W.2d at 87. Dad was still living in his mother's home at the time of the hearing. His only source of income was his social security check. The Department inquired about placement with the maternal-grandmother, but the caseworker reported the maternal-grandmother was unable to care for E.J.M. See TEX. FAM. CODE ANN. § 263.307(b)(13); Holley, 544 S.W.2d at 371-72.
e. Any Excuse for the Acts or Omissions of the Parent
A parent's "'lack of education, training, or misfortune'" are properly considered under the Holley factors, but these factors do not negate all other evidence tending to show that termination is in the child's best interest. See In re S.H.A., 728 S.W.2d 73, 89-90 (Tex. App.—Dallas 1987, writ ref'd n.r.e.) (quoting In re Sneed, 592 S.W.2d 430, 431 (Tex. Civ. App.—Fort Worth 1979, no writ)). Dad provided excuses throughout the pendency of the case. When his drug test was positive, he reported the laboratory must have mixed up the samples. When he failed to provide the required twenty-four-hour notice prior to visitation, he asserted the caseworker failed to return his phone call and his text message. When he failed to attend numerous visitations, he blamed his physical disabilities for his inability to attend. During closing arguments, the Department explained as follows:
To me, I think the most significant testimony in this case is that [Dad] testified that he can't make his visits with his daughter because of his disability, but he made it to the methadone clinic every single day for a year and he makes it there every week for the last year, but he can't make his visits with his daughter. He missed more than half of those visits. [E.J.M.] is not his priority. That is what the testimony has shown.The trial court could have reasonably formed a firm belief or conviction that Dad was not excused for his acts or omissions exhibited during the case.
C. Trial Court's Determination That Termination of Dad's Parental Rights Was in the Child's Best Interest
The trial court's conclusions regarding Dad's termination under section 161.001(b)(1) are, in fact, probative in determining E.J.M.'s best interest. See C.H., 89 S.W.3d at 28 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest); O.N.H., 401 S.W.3d at 684.
The trial court heard from numerous witnesses and also reviewed several reports filed with the court during the pendency of the case. In making its determination, the trial court must determine the child's best interest; above all, the court must consider the child's placement in a safe environment. See TEX. FAM. CODE ANN. § 263.307(a); B.R., 456 S.W.3d at 615.
Reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, we conclude the trial court could have formed a firm belief or conviction that terminating Dad's parental rights to E.J.M. was in E.J.M.'s best interest. See J.L., 163 S.W.3d at 85; J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial court's order terminating Dad's parental rights. See J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108.
CONCLUSION
The trial court found Dad committed two statutory grounds supporting termination of his parental rights, see TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), and that termination of his parent's rights was in E.J.M.'s best interest, see id. § 161.001(b)(2).
Based on a review of the entire record, we conclude the evidence is legally and factually sufficient to support the trial court's finding, by clear and convincing evidence, that termination of Dad's parental rights to E.J.M. is in E.J.M.'s best interest. See id.
Accordingly, we overrule Dad's appellate issue regarding the trial court's termination of his parental rights.
Patricia O. Alvarez, Justice