Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00505-CV
IN THE INTEREST OF A.S. III, a Child
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02152
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: November 12, 2014
AFFIRMED
This is an accelerated appeal from the trial court’s judgment terminating appellant’s
parental rights to his son, A.S, III. On appeal, appellant asserts the evidence is insufficient to
support a finding that termination is in A.S.’s best interest, and the evidence is insufficient to
support the appointment of the Texas Department of Family and Protective Services (“the
Department”) as managing conservator. We affirm.
BACKGROUND
Appellant is the father of eleven-month-old A.S. 1 A.S. was born on August 12, 2013, and
taken into care by the Department shortly after his birth because he tested positive for methadone
and showed signs of withdrawal. At some point in time, A.S. was placed in a foster-to-adopt home
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The mother’s parental rights also were terminated; however, she has not appealed.
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with one of his half-siblings who had been adopted by this same family a few years earlier. A.S.
has four half-siblings, one with whom he lives, two others who live with another foster family
about one block away, and a fourth who lives in Georgetown. Trial on the Department’s petition
to terminate commenced on July 7, 2014.
Appellant, who was incarcerated at the time of the termination hearing, had been ordered
to complete service plans. The Department’s caseworker, Jessica Franklin, stated she sent
appellant a copy of his plan, but he did not return it to her, and she had no record of appellant
completing his plans. She testified that appellant told her he had participated in some courses
while incarcerated, but he was unable to provide any certificates. Appellant is a registered sex
offender. Appellant was sentenced to a three-year sentence on November 5, 2012. Franklin said
that in the eleven months the case had been pending, appellant had not maintained regular contact
with his child, or had any visits with the child. She testified appellant had not demonstrated he
was able to care for or provide for his child on a long-term basis.
Franklin said she believed termination was in the child’s best interest because the child has
been “in that placement for a while,” his needs were being met, and he had bonded with his foster
parents. She said she received two letters from appellant over the past three months. She
responded to both, but has not heard from him since his second letter. Franklin stated that prior to
contacting her in the last three months, appellant had made no attempt to contact the Department.
Franklin admitted the letters indicated appellant was interested in his child and he asked her to
consider his mother as a placement. Franklin said she attempted to call appellant’s mother on three
occasions, but her calls were not returned.
The only other witness at the hearing was appellant. He said his discharge date was January
10, 2016, but it was possible he could be released on May 16, 2015. When asked what he wanted
to happen, appellant responded, “My first daughter got taken away from me and I don’t want this
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to happen to my son. I don’t care what his mom is doing, I just want my son, please.” When asked
who would care for A.S. while he was incarcerated, appellant said his (appellant’s) mother.
However, appellant said he spoke to his mother about taking A.S., and she refused. When he spoke
to his mother, she told him A.S. was placed “with [A.S.’s mother’s] older kids’ foster parents. I
don’t know who he’s placed with, but she was telling me that that’s how she knew that he was
somewhere.”
BEST INTEREST
A trial court may order termination of the parent-child relationship only if the court finds
by clear and convincing evidence one or more statutory grounds for termination and that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014);
§ 161.206(a). “‘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 § 101.007. We review the sufficiency of the evidence
to support the termination of parental rights under the well-established standards for legal and
factual sufficiency of the evidence. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). There is a
strong presumption 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). However, when the court considers factors related to the best
interest of the child, “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 § 263.307(a). In determining whether
a child’s parent is willing and able to provide the child with a safe environment, the court should
consider: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature
of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the
child; (4) whether the child has been the victim of repeated harm after the initial report and
intervention by the Department or other agency; (5) whether the child is fearful of living or
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returning to the child’s home; (6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or others who have access to
the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s
family or others who have access to the child’s home; (8) whether there is a history of substance
abuse by the child’s family or others who have access to the child’s home; (9) whether the
perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’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 child’s family to
effect positive environmental and personal changes within a reasonable period of time; (12)
whether the child’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 child. Id.
§ 263.307(b).
Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (1) the desires
of the child, (2) the emotional and physical needs of the child now and in the future, (3) the
emotional and physical danger to the child now and in the future, (4) the parental abilities of the
individuals seeking custody, (5) the programs available to assist these individuals to promote the
best interest of the child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent
that 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. Id.
Finally, evidence that proves one or more statutory grounds for termination may constitute
evidence illustrating that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28
(Tex. 2002) (holding same evidence may be probative of both section 161.001(1) grounds and best
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interest, but such evidence does not relieve the State of its burden to prove best interest). A best-
interest analysis may consider circumstantial evidence, subjective factors, and the totality of the
evidence as well as the direct evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio
2013, pet. denied). A trier of fact may measure a parent’s future conduct by his past conduct and
determine whether termination of parental rights is in the child’s best interest. Id.
There is very little evidence in this record on any of the above factors. However, we
conclude the evidence that does exist legally and factually supports the trial court’s best interest
finding. A.S. is in a foster home with a family that has already adopted one of his half-siblings
and that lives a short distance from another family that fosters two other half-siblings. Although
appellant testified he wants his son back, appellant did not state he had any support system other
than his mother who refused to take A.S. Appellant’s rights to a daughter had been previously
terminated. Appellant is a registered sex offender, for the offense of aggravated sexual assault of
a child. He did not state he had any employment or housing prospects once released from
incarceration except to speculate he may be released to a half-way house. Appellant had little to
no idea where his son was placed, except that A.S. was “with [A.S.’s mother’s] older kids’ foster
parents.” Franklin testified appellant told her he had “participated in some courses while he was
incarcerated,” but appellant did not testify he had attempted to begin, much less complete, any of
the requirements in his service plan. We must conclude this evidence is legally and factually
sufficient to support the trial court’s best interest finding.
APPOINTMENT OF DEPARTMENT AS MANAGING CONSERVATOR
In his last issue, appellant asserts the evidence is legally and factually insufficient to
support the Department’s appointment as managing conservator. “[T]he quantum of proof
required to support a termination decision differs from the level necessary to support a
conservatorship appointment.” In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Termination
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decisions must be supported by clear and convincing evidence. TEX. FAM. CODE § 161.001. “Due
process compels this heightened standard because terminating the parent-child relationship
imposes permanent, irrevocable consequences.” In re J.A.J., 243 S.W.3d at 616. “On the other
hand, a finding [such as the one in this case] that appointment of a parent as managing conservator
would significantly impair the child’s physical health or emotional development is governed by a
preponderance-of-the-evidence standard.” Id.; see TEX. FAM. CODE § 105.005. “These differing
proof standards, in turn, affect the method of appellate review, which is more stringent for
termination decisions than for those regarding conservatorship.” In re J.A.J., 243 S.W.3d at 616.
Conservatorship determinations are subject to review only for an abuse of discretion, and may be
reversed only if the decision is arbitrary and unreasonable. Id. In this case, based on our review
of the record, we cannot say the trial court abused its discretion in appointing the Department as
A.S.’s managing conservator.
CONCLUSION
For the reasons stated above, we overrule appellant’s issues on appeal and affirm the trial
court’s Order of Termination.
Sandee Bryan Marion, Justice
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