TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00678-CV
Maximo Munoz Aguilar, Appellant
v.
Kimberly Lee Foy and Thompson Ray Foy, Jr., Appellees
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
NO. 07-043-A425, HONORABLE MARK J. SILVERSTONE, JUDGE PRESIDING
MEMORANDUM OPINION
After a bench trial, the trial court terminated Maximo Munoz Aguilar’s parental
rights to two children and established Kimberly Lee Foy and Thompson Ray Foy, Jr., as the
children’s adoptive parents. On appeal, Aguilar contends that the trial court erred by admitting
an expert opinion on the children’s best interests, arguing that the expert’s failure to investigate him
or his home fatally undermined the expert’s opinion. Aguilar also contends that the evidence was
legally and factually insufficient to support the findings that he placed or knowingly allowed the
children to remain in conditions or surroundings that endangered their physical or emotional well-
being, that he engaged in conduct or knowingly placed the minor children with persons who engaged
in conduct that endangered the children’s physical or emotional well-being, and that termination
was in the children’s best interest. We will affirm the judgment.
BACKGROUND
Maximo Aguilar and Angela Meissner had three children together, the older two
of whom are the subject of this case. The children were born in September 2003 and October 2004.
A third child, born in July 2006, is not the subject of this case.
Aguilar and Meissner have somewhat checkered legal records. Aguilar admitted to
a variety of arrests beginning in 1997 when he was sixteen years old and continuing through his
2006 arrest for possession of cocaine with intent to deliver.1 Meissner was arrested for driving while
intoxicated in 1999, forgery in 2001 (as a party), and forgery in 2006.
The attorney general filed suit in Bosque County in July 2005, seeking child support
from Aguilar after he and Meissner separated. The children were living with Meissner. Aguilar and
Meissner later had a third child, although they separated months before that child was born.
When Meissner and their newborn third child tested positive for cocaine in July 2006,
the Department of Family and Protective Services intervened. The Department let Meissner
designate where her children were placed, subject to review. Aguilar could not take the children
because he was incarcerated. The newborn went to live with Meissner’s mother, and the two older
children went to live with the Foys on July 7, 2006. Kim Foy is Meissner’s cousin. The older
children have lived with the Foys since. The Department formalized the placement with the Foys
in a Plan for Immediate and Short-Term Child Safety dated July 27, 2006, which was intended to
last three months.
1
Other arrests included minor in possession, assault, criminal trespass, organized criminal
activity, and fleeing police in 1999, failure to identify and aggravated assault in 2004, and assault
with family violence (against Meissner) in 2005.
2
Meissner did not finish the classes or make the changes that the Department
deemed necessary for her children’s safety. In a letter from the Department to Meissner dated
March 7, 2007, the Department stated that it was closing the case with the expectation that the
children would remain in their respective placements. The Department stated that the Foys and
Meissner’s mother agreed “to follow through with pursuing legal custody of the children.” The letter
did not mention Aguilar.
Meanwhile, Aguilar had been released from incarceration in August 2006. Aguilar
testified without contradiction that he completed the parenting and anger-management classes
prescribed by the Department. He testified that when he learned the case had been closed, he called
the Department to determine what that meant with respect to him. He testified that Department
employees told him he could go and pick up his children. Aguilar called and told the Foys that he
was coming to take the children.
Kim Foy testified that she did not know that Aguilar had or believed he had the
legal right to the children. When Aguilar arrived, the Foys called the police and Aguilar left without
the children. The Foys filed this suit on May 14, 2007 seeking to terminate his parental rights and
to adopt the children themselves. They obtained a temporary restraining order preventing Aguilar
from contacting the children. The restraining order was set to expire on June 12, 2007, but was
extended by agreement “until the next scheduled hearing date set for June 25, 2007 at 9:00 a.m.”
Aguilar agreed to abide by the restraints of the order “until further order of the Court at that time.”
There is no indication in the record that any further order was issued through the termination of
parental rights.
3
Although Aguilar had paid child support previously pursuant to the Bosque County
order,2 he stopped paying support shortly after the Foys filed this termination suit in
Williamson County. On August 28, 2008, the Bosque County court transferred jurisdiction over the
suit pending there involving the older children to Williamson County while retaining jurisdiction
over the suit involving the youngest child.
The Williamson County district court held its first hearing concerning the
termination of Aguilar’s parental rights in February 2009. The court heard testimony from Aguilar,
the children’s treating psychologist, and a counselor who conducted a home study on the Foys.
On June 19, 2009, Meissner filed an Affidavit of Voluntary Relinquishment of Parental Rights
concerning the two children at issue in this case shortly before she was incarcerated in July 2009 for
committing theft by check. Meissner gave her deposition in late July 2009. When the hearing on
termination resumed and concluded in May 2010, the court admitted that deposition and heard
testimony from Kim Foy and Aguilar.
In her deposition, Meissner described her use of alcohol and drugs. She testified that,
in the period between 2001 and 2006, she drank as much beer as she could and used marijuana daily,
cocaine twice a week, and methamphetamine twice a month. She testified that Aguilar provided her
with cocaine and marijuana and did not mind her doing drugs as long as she did not do them around
the children. She testified that she would get high and leave home and Aguilar would confront her
when she returned because he wanted her to stay and make a home. She usually left the children in
2
A September 2006 order from the Bosque County court showed that in 2005-06 he had paid
$4,175.18 and owed $145.16 in child support, and that he had paid $250 in medical support and
owed another $50.
4
the care of Aguilar’s relatives, but once took one of the children with her during a week-long drug
foray. She testified that when she returned from that trip, Aguilar confronted her angrily and kicked
her while she was on the floor as one of their children watched. She testified that Aguilar did not
provide her drugs during her third pregnancy, although she believed that he knew second-hand that
she was using drugs while pregnant. She testified that she relinquished her parental rights because
the children are safe and happy with the Foys, which is what she wants.
Meissner also testified regarding Aguilar’s use of alcohol and drugs and his parenting
abilities. She testified that she first met Aguilar at a party where they did a line of cocaine together.
She testified that he had used illegal drugs recreationally on the weekends, but did not know whether
he was currently using drugs. She testified that Aguilar was a good father when he was not drunk,
and that he only drank when others were watching their children. Although she worried about the
possibility that he might be violent to others in front of the children, she did not fear that he
would harm the children. Meissner described Aguilar as a good parent who loved his kids and could
take care of them. Meissner also testified that her mother reports that Aguilar is good with their
third child during his visits. Meissner said her only concern about Aguilar having custody was that
the older children have not seen him in three years and do not know him. Assuming that there was
no risk of violence and that custody gradually transitioned, she had no problem with Aguilar getting
custody except for her fear that Aguilar would not allow the Foys or her to see the children again.
Aguilar’s testimony contradicted some of the characterization of his past and
emphasized the stability of his present. He denied supplying Meissner with drugs or knowing that
she used any illegal drug other than marijuana, pointing out that he was in jail when she tested
5
positive for cocaine at their third child’s birth. He also denied hitting Meissner, asserting that the
case charging that he hit her was dismissed. He read aloud a portion of the Department caseworker’s
July 2006 report stating that both parents’ legal issues put the children at risk of being unsupervised
while the parents “interact[ed] with illegal activities.” He denied telling a Department caseworker
that cocaine was his “drug of choice,” but admitted that he was convicted for possession of cocaine
on what he claimed was his first time to possess cocaine. He testified that he has neither drunk
alcohol nor used illegal drugs while on probation since 2006. He said that he completed the anger-
management and parenting classes prescribed by the Department. Aguilar denied threatening the
Foys when he went to get the children in 2007, and testified that he had nothing bad to say about
them because he did not know them. He is in good standing on probation and has had only clean
urinalyses while on probation. He testified that he sees their third child every other weekend, has
no restrictions on the nature of his visits, and is current on his child-support obligations for that
child. Aguilar testified that he had held the same job for four years and lived in the same house for
three years. His wife is a medical aide who is studying to be a nurse, and they have a son together
in addition to her two daughters.
Martha Pinto, a counselor, testified about the results of her home study examining
the propriety of the placement with the Foys in July, August, and November 2007. She met with
and observed the Foys and the children. Pinto had direct, age-appropriate interaction with the
children, who were then three and four years old. She also talked on the telephone with Kim Foy.
Pinto described the Foys’ home as “very comfortable, loving, respectful, a wonderful place for
children to be raised.” She testified that the Foys have a wonderful bond with the children, that they
6
have open communication and a good mix of nurture and structure, and that the children think of the
Foys as their parents. Pinto did not meet with the birth parents. Pinto did not inquire into Aguilar’s
suitability as a parent because she believed that inquiry was outside the scope of her responsibility
in this case. The trial court declined to consider paragraphs in her report concerning Aguilar, finding
that underlying information was not admissible. She testified that adoption by the Foys was in the
children’s best interests.
Dr. Joseph Achacoso, the children’s treating psychologist, also testified that adoption
by the Foys would be in the children’s best interests. He testified that, when he first saw the children
in January 2007, they acted out, had a lot of anxiety, and exhibited aggressive behavior. The older
child seemed agitated, and his play was unfocused and aggressive, while the younger child had
attachment issues and was “clingy.” Achacoso testified that these behaviors were more pronounced
after visits with Aguilar and Meissner. Achacoso testified that the Foys love and set good structure
for the children. He opined that returning the children to Aguilar would be detrimental to the
children and allowing him to have visitation rights could negatively affect them. Achacoso never
met Aguilar, and conceded that he would be better equipped to render an opinion about adoption if
he had interviewed Aguilar. He agreed that the children still exhibited troubling behaviors—for
instance, the older child’s hostility—but that they had improved during two years of therapy and
under the Foys’ care.
Kim Foy testified that Aguilar visited the children three times during the first year
they were in her custody and spoke with them on the phone a few times. She said the older child
last saw Aguilar on April 28, 2007, and the younger child last saw Aguilar on May 12, 2007. Foy
7
said that she had no notice from the Department that Aguilar had the right to take the children in
May 2007. The children last received child support payments from Aguilar in August 2007. She
testified that Aguilar had sent some Christmas presents through their grandmother and had sent
birthday presents, but not every year. She testified that the children were doing well in school and
had no physical or mental problems. She testified that, because the children had been with her
and her husband for almost four years when she testified in May 2010, letting Aguilar have any
relationship or visitation with them would disrupt their lives because they did not know him. Foy
testified that she considered the children to be her sons and that removing the children from their
home since July 2006 would not be in their best interests.
The Williamson County district court signed the decree terminating Aguilar’s
parental rights on September 15, 2010. Aguilar appealed and filed his brief on April 27, 2011. The
Foys filed their brief on October 19, 2011.
DISCUSSION
Aguilar raises seven issues on appeal. He challenges the trial court’s admission of
an expert opinion. He also challenges the legal and factual sufficiency of the evidence to support
the trial court’s findings of acts and omissions constituting two grounds for termination of his
parental rights and its finding that termination of his parental rights is in the children’s best interests.
Admission of evidence
Aguilar contends that the trial court erred by admitting the opinion of Achacoso, the
children’s treating psychologist, that the children’s best interests would be served if they were
8
adopted by the Foys. Aguilar argues that Achacoso’s failure to interview Aguilar or to talk to anyone
about him fatally undermined the foundation of Achacoso’s opinion regarding the best interests of
the children. See generally Tex. R. Evid. 702-05.
We review a trial court’s decision that a witness is qualified as an expert for an
abuse of discretion. See Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d
641, 649 (Tex. App.—Austin 2005, pet. denied) (citing Gammill v. Jack Williams Chevrolet,
Inc., 972 S.W.2d 713, 728 (Tex. 1998)). A trial court abuses its discretion when it rules on the
admissibility of evidence in an arbitrary or unreasonable manner or without reference to guiding
legal principles or rules. Id. at 649-50 (citing Carpenter v. Cimarron Hydrocarbons Corp.,
98 S.W.3d 682, 687 (Tex. 2002)). We must uphold a trial court’s evidentiary ruling if there is
any legitimate basis in the record to support it. Id. at 650 (citing Owens-Corning Fiberglas Corp.
v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).
The admissibility of an opinion regarding the children’s best interest is subject
to wider discretion than opinions based on “hard” science. See id. Texas Rule of Evidence 702
provides that a witness who qualifies as an expert because of knowledge, skill, experience, training,
or education may testify as an expert if scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or resolve an issue of fact. Id. The basis of
opinions regarding the children’s best interest will vary from case to case because the relevant facts
vary among cases. Id. (citing Chacon v. Chacon, 978 S.W.2d 633, 637-38 (Tex. App.—El Paso
1998, no pet.)). The Chacon court, reviewing a custody decision after a divorce, opined that a
9
social study is designed to be comparative in nature regarding the parenting abilities of litigants.
978 S.W.2d at 638.
Achacoso plainly stated that his opinion that the children should remain with the
Foys was premised “[p]rimarily on the factor of having a stable environment for the children.” He
had treated the children for two years, beginning shortly after their last visit with their birth parents
and continuing weekly up to at least when Achacoso testified. He described the children’s initial
agitation, aggression, and attachment issues and how those issues had eased or evolved while
they lived with the Foys. He also met with the Foys regarding issues the children faced and observed
the Foys interacting with the children. He opined that the children have improved and have stability
with the Foys. Achacoso’s opinion regarding the propriety of returning the children to Aguilar or
allowing him visitation undisputedly and admittedly is not based on any investigation of Aguilar as
a parent. Achacoso admitted that his only source for family history is Kim Foy. Achacoso conceded
that he would be better equipped to render an opinion about adoption if he had personally
interviewed the birth mother and birth father.
We conclude that the trial court did not abuse its discretion by admitting Achacoso’s
opinion. We cannot say that Achacoso’s analysis was unreliable and inadmissible because he did
not interview the birth parents. He determined that the primary factor in promoting these children’s
best interests was stability in their environment and described why. His opinion that termination
of Aguilar’s parental rights served the children’s best interest is consistent with his emphasis
on the stability of the children’s placement with the Foys. Aguilar pointed out through cross-
examination potential flaws with Achacoso’s fact-gathering and analysis. Such weaknesses of
10
Achacoso’s opinion, if any, go to the weight accorded it by the court as factfinder and adjudicator.
The court did not abuse its discretion by admitting the opinion and evaluating its merit alongside
other evidence.
Termination
Aguilar contends that the evidence is legally and factually insufficient to support the
findings necessary to terminate his parental rights. Aguilar challenges the trial court’s findings that
he had done the following with respect to each of the two older children:
(D) knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child;
Tex. Fam. Code Ann. § 161.001(1) (West Supp. 2011). He also challenges the trial court’s finding
that termination was in the best interest of the two older children. See id. § 161.001(2).
Standard of review
Review of the sufficiency of evidence in parental-rights termination cases differs
from sufficiency reviews in most civil cases because the standard of proof is higher in termination
cases. Termination of parental rights under the Family Code requires proof by clear and convincing
evidence rather than a preponderance of the evidence. See id. § 161.001; Wetzel v. Wetzel,
715 S.W.2d 387, 389 (Tex. App.—Dallas 1986, no writ). Clear and convincing evidence is “proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
11
allegations sought to be established.” Id. § 101.007 (West 2008); In re J.F.C., 96 S.W.3d 256, 264
(Tex. 2002).
The supreme court recited the standard of review for legal and factual sufficiency
challenges in In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (citing J.F.C., 96 S.W.3d at 266).
When the legal sufficiency of the evidence is challenged:
[A] court should 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. To give appropriate deference to the factfinder’s
conclusions and the role of a court conducting a legal sufficiency review, looking
at the evidence in the light most favorable to the judgment means that a reviewing
court must assume that 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. This does not mean that a court must disregard all
evidence that does not support the finding. Disregarding undisputed facts that do not
support the finding could skew the analysis of whether there is clear and convincing
evidence. If, after conducting its legal sufficiency review of the record evidence, a
court determines that no 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 insufficient.
Id. at 344-45 (citing J.F.C., 96 S.W.3d at 266). The supreme court noted that appellate courts review
disputed or conflicting evidence only when the factual sufficiency of the evidence is challenged:
“If, in light of the entire record, the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction, then the evidence
is factually insufficient.” [J.F.C., 96 S.W.3d at 266]. The court of appeals should
further explain in its opinion “why it has concluded that a reasonable factfinder could
not have credited disputed evidence in favor of the finding.” Id. at 267.
12
J.O.A., 283 S.W.3d at 345. When conducting a factual sufficiency review, we review all of the
evidence in a neutral light. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Acts or omissions justifying termination
Legally and factually sufficient evidence supports the finding that Aguilar knowingly
placed the children with a person who endangered the children’s physical or emotional well-being
or knowingly allowed the children to remain in conditions or surroundings that endangered their
physical or emotional well-being. “Endanger” means to expose to loss or injury, or to jeopardize the
child’s emotional or physical health; it is not necessary that the conduct be directed at the child
or that the child actually suffers injury. See Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987). Aguilar left the older children in Meissner’s care when he went to work and to
prison. Despite the absence of evidence that she directly harmed the children, Meissner’s testimony
regarding her daily, weekly, and monthly consumption of alcohol and illegal drugs shows that her
caregiver status placed the children in danger on a daily basis. She testified that Aguilar knew of her
drug use and, therefore, the danger it presented to the children. While she typically did not take the
children with her on her drug forays, the week-long trip on which she took one of the children with
her illustrates that the children were in danger in her care. Aguilar confronted Meissner when she
returned with the child after the trip, and there was evidence that a physical altercation occurred in
front of at least one child. But there is no evidence that Aguilar removed the children from her care
thereafter or ensured that she would not be under the influence of drugs while responsible for the
children’s care and safety.
13
Although Aguilar disputed some of Meissner’s testimony, the standards of review
requiring sufficient deference to the factfinder favor affirmance. Although the trial court did not
specify any particular endangering conduct, conditions, or surroundings near which Aguilar left
the children, Meissner’s drug use could support the findings—particularly in light of Aguilar’s
repeated arrests, some of which left the children in Meissner’s care. Under both the legal and factual
sufficiency standards of review, we must conclude that the record contains sufficient evidence to
support a choice to credit Meissner’s testimony over Aguilar’s testimony regarding his knowledge
of or role in her drug use that endangered the children. Meissner testified to extensive use of alcohol
and illegal drugs, Aguilar knew of at least one instance in which Meissner took a child along with
her during a week-long drug trip, and yet Aguilar allowed his children to stay with Meissner. We
conclude that legally and factually sufficient evidence supports the conclusion that Aguilar
knowingly allowed the children to remain in conditions or surroundings that endangered their
physical or emotional well-being, and knowingly placed the children with a person who engaged in
conduct that endangered their physical or emotional well-being.
Children’s best interest
Next we examine whether there is legally and factually sufficient evidence that
termination is in the children’s best interest. Factors commonly used in making best-interest findings
include: (1) the child’s desires; (2) the emotional and physical needs of the child 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 those individuals
to promote the best interest of the child; (6) the plans for the child by those individuals or by the
14
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. See Holley v. Adams, 544 S.W.2d
367, 372 (Tex. 1976); Leal v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 315,
321 (Tex. App.—Austin 2000, no pet.). The factors listed in Holley are not exhaustive, and other
appropriate factors may be considered. Holley, 544 S.W.2d at 372. No one factor is controlling, and
the facts of a case may mean that evidence of one factor is sufficient to support a finding that
termination is in a child’s best interests. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001,
no pet.). The absence of some factors does not prevent the jury from finding by clear and convincing
evidence that termination is in a child’s best interest. In re C.H., 89 S.W.3d at 27. The best-interest
standard does not permit termination merely because a child might be better off living elsewhere.
In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). The strong presumption
that a child’s best interest is served by keeping the child with his or her biological parents
disappears when confronted with evidence to the contrary. In re A.I.G., 135 S.W.3d 687, 692
(Tex. App.—San Antonio 2003, no pet.).
Viewed in the light most favorable to the verdict, the evidence is legally sufficient
to support termination. Aguilar was incarcerated when the Department intervened and had left his
children in the custody of someone he knew was regularly using illegal drugs. When the children
were removed, they had psychological issues such as separation anxiety and aggression. Those
issues have resolved or at least eased with therapy, time away from the unsettled conditions of their
early years, and time in the Foys’ more structured environment. Meissner testified that she feared
15
the possibility that Aguilar would be violent in the future around the children. Based on Meissner’s
testimony, he hurt her “several times” and at least once kicked her in one of their children’s presence,
which raises the possibility of emotional harm to the children from witnessing such violence.
Aguilar had a fairly extensive criminal past and a history of incarceration that his more recent
stability does not remove from consideration. He is still on probation, which introduces a risk of
instability not present with the Foys. His failure to pay child support or make any effort to establish
or enforce a right to contact the children through legal channels during the three-year course of this
lawsuit is cause for concern.3 Before the judgment, the children had lived with the Foys for more
than four years—more than three without visitation or monetary support from Aguilar. Evidence
of the Foys’ care for the children, the children’s bond with the Foys, and the children’s improvement
in the Foys’ care supported the argument by the children’s attorney ad litem for termination. This
evidence allowed a reasonable trier of fact to form a firm belief or conviction that termination was
in the children’s best interest.
When the evidence is considered neutrally on factual sufficiency review, we must take
into account the undisputed evidence of Aguilar’s parental abilities and reported reformation. Courts
have held that, in a termination suit, “acts done in the distant past, without showing a present
or future danger to a child, cannot be sufficient to terminate parental rights.” Wetzel, 715 S.W.2d
at 391 (citing Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex. 1966)). Courts have also held,
3
Other than the temporary restraining order that expired in June 2007, we are not cited to
any orders restricting Aguilar’s right to interact with the children or any petitions or motions to
establish visitation filed by Aguilar in either the Bosque County or the Williamson County
proceedings.
16
however, that in considering the best interest of the child, factfinders are not required to ignore a
long history of dependence and abusive behavior that abates as trial approaches. See In re M.G.D.,
108 S.W.3d 508, 513-14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (cited in Smith
v. Texas Dept. of Protective & Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005,
no pet.)). The M.G.D. court held that “evidence of a recent turnaround should be determinative only
if it is reasonable to conclude that rehabilitation, once begun, will surely continue.” Id.
The only evidence in the record regarding Aguilar’s current parenting abilities is his
and Meissner’s testimony that he is a good father who has stayed clear of crime, illegal drugs, and
alcohol since July 2006. Meissner testified that, when she was with him, Aguilar was a good father
“when he wasn’t drunk”—and even then he would only get drunk when others were watching the
children. Aguilar testified in 2010 that he had stayed in good standing on probation for almost
four years, kept the same job for four years, and lived in the same house for three years. He testified
that he is married with a new child and two step-children and that he completed all classes the
Department assigned to him when the children were first removed. He and Meissner testified that
he visits the younger child as scheduled. Aguilar testified that he is current on child support. The
only testimony as to his interaction with the younger child is that it is appropriate. Despite their past
conflict, Meissner described Aguilar as a good father who loves his kids. The evidence of Aguilar’s
behavior is unrebutted by any evidence from the Foys or their experts who did not interview or
investigate him.
The evidence of Aguilar’s apparent reformation, however, does not erase the
evidence of his criminal past or his assault on Meissner. Though Aguilar denied hitting Meissner,
17
the trial court could reasonably choose to credit her testimony that he hurt her on several
occasions—at least once in front of one of their children. The court could reasonably credit
Meissner’s expressed concern that he could have another violent outburst, placing the children in
danger of emotional injury at the least.
Even if the factfinder credited the testimony about Aguilar’s parenting abilities,
that evidence was not dispositive of the children’s best interest. Their treating psychologist testified
that his assessment of the children’s best interest was based primarily on providing them a stable
environment. Aguilar was incarcerated when Meissner designated the Foys to care for the children.
Aguilar saw the children three times in the next ten months, and did not see them again for three-
plus years while this case was pending in the trial court. During that time, Aguilar did not attempt
to see the children and did not pay child support for them. The record is devoid of motions or
other attempts to assert a right to visitation. There is no record of phone calls, letters, or emails to
the children from Aguilar. The only reported attempt to remain in contact with these children is
Aguilar’s sending of presents at Christmas and for some, but not all, three birthdays that passed
for each child during the time Aguilar was absent. Meanwhile, the children bonded with the
Foys and now consider the Foys to be their parents. At the time the judgment was signed, each
child had lived with the Foys for more than half his life (and that percentage has only grown
during this appeal). In contrast to their early years of instability with Aguilar and Meissner that the
children’s psychologist testified caused attachment issues and agitation, the children’s years with the
Foys have been a good mix of structure and nurture according to the evidence from the home-study
counselor and their treating psychologist. The undisputed evidence is that the Foys created a very
18
comfortable, loving, respectful, wonderful place for the children. That environment combined with
therapy had helped the children resolve some, but not all, of their psychological issues.
While no clear explanation for the duration of this case is apparent in the record, there
is no indication that anyone prolonged the case to gain an advantage. The evidence in the record
shows, however, that the duration of the case has allowed the Foys to demonstrate that the children
are doing well emotionally and physically in their care. During that time, the relationship between
the children and Aguilar has attenuated to such a degree that they consider the Foys to be their
parents. The children’s psychologist emphasized the importance of stability, and termination of
Aguilar’s parental rights facilitates stability of the placement that has allowed the children to
overcome the instability of their early years with Aguilar and Meissner.
Based on the record presented, the evidence is legally and factually sufficient to
permit the trial court to reasonably form a firm belief or conviction that termination of Aguilar’s
parental rights is in the children’s best interest.
CONCLUSION
Finding no error presented in the trial court’s admission of evidence or its findings
supporting the judgment, we affirm the judgment terminating Aguilar’s parental rights.
Jeff Rose, Justice
Before Justices Puryear, Rose and Goodwin
Affirmed
Filed: March 1, 2012
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