Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00649-CV
IN THE INTEREST OF B.G.M., I.G.M., and O.M.M., Children
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-01163
Honorable Richard Garcia, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: February 1, 2017
AFFIRMED
Appellant G.V.M. appeals the trial court’s order terminating his parental rights to his
children B.G.M., I.G.M., and O.M.M. 1 G.V.M. asserts the evidence is neither legally nor factually
sufficient for the trial court to have found by clear and convincing evidence that terminating his
parental rights is in his children’s best interests. Having reviewed the evidence, we conclude it is
legally and factually sufficient to support the findings, and we affirm the trial court’s order.
BACKGROUND
On May 19, 2016, the Department of Family and Protective Services received a referral
stating that on May 18, 2016, G.V.M. allegedly shot and killed the children’s mother and then shot
himself. G.V.M.’s children were at home at the time of the shooting and they heard the gunshots.
1
To protect the minors’ identities, we refer to the father and the children using aliases. See TEX. R. APP. P. 9.8.
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B.G.M., the oldest child, entered the parents’ bedroom. B.G.M. discovered both parents lying on
the floor, bleeding from gunshot wounds, and B.G.M. called the police. Both parents were taken
to the hospital. The mother was pronounced dead, but G.V.M. survived. G.V.M. was later arrested
and indicted for murder. The Department removed the children and placed them with G.V.M.’s
mother.
At the bench trial on September 21, 2016, G.V.M. appeared by video conference because
he was incarcerated, but he did not testify. After the attorneys examined the witnesses, the trial
court found that G.V.M. met two statutory grounds for termination and that termination of his
parental rights was in the children’s best interests. The trial court terminated G.V.M.’s parental
rights, and he appeals. G.V.M. does not challenge the trial court’s findings on the statutory
grounds. Instead, he asserts the evidence is neither legally nor factually sufficient to support the
trial court’s finding that terminating his parental rights was in his children’s best interests.
EVIDENCE REQUIRED TO TERMINATE PARENTAL RIGHTS
If the Department moves to terminate a parent’s rights to a child, the Department must
prove by clear and convincing evidence that the parent’s acts or omissions met one or more of the
grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code, and
terminating the parent’s rights is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001(b) (West Supp. 2015); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The same evidence
used to prove the parent’s acts or omissions under section 161.001(b)(1) may be used in
determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17,
28 (Tex. 2002) (“[T]he same evidence may be probative of both issues.”); In re D.M., 452 S.W.3d
462, 471 (Tex. App.—San Antonio 2014, no pet.); see also TEX. FAM. CODE ANN. § 161.001(b).
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STANDARDS OF REVIEW
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,’” the evidence is legally sufficient. See id. (quoting 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.” C.H., 89
S.W.3d at 25; accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 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 H.R.M., 209 S.W.3d at 108.
BASES FOR TERMINATION
A. G.V.M.’s Course of Parental Conduct
The trial court found by clear and convincing evidence that G.V.M.’s conduct was grounds
for termination under subparagraphs (D) and (E) of section 161.001(b)(1). See TEX. FAM. CODE
ANN. § 161.001(b)(1). On appeal, G.V.M. does not challenge the trial court’s statutory grounds
findings.
B. Best Interests of the Children
Instead, G.V.M. challenges the sufficiency of the evidence that terminating his parental
rights is in the children’s best interests. See id. § 161.001(b)(2). We briefly review the law
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pertaining to determining the best interest of the child. The factors a court uses to ascertain the
best interest of the child may include the following:
(A) the desires of the child;
(B) the emotional and physical needs of the child 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;
...
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-
child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors); see also TEX. FAM. CODE ANN.
§ 263.307(b) (West Supp. 2015) (listing statutory factors for “determining whether the child’s
parents are willing and able to provide the child with a safe environment”).
Applying each standard of review, we examine the evidence pertaining to the best interests
of the children. 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.
EVIDENCE OF BEST INTERESTS OF THE CHILDREN
At the one-day bench trial, G.V.M. was represented by counsel and appeared by video
conference. His counsel advised the court that G.V.M. “told me specifically that he did not want
to come in and participate today, he felt that that would be just agreeing to what the State’s
seeking.” The trial court then heard testimony from the Department’s investigator and caseworker,
and recommendations from the children’s guardian ad litem.
A. Marvin Farris’s Testimony
Marvin Farris, the Department’s investigator, testified to the following facts. He received
a referral on May 19, 2016, and he interviewed G.V.M., the children, and their paternal
grandmother.
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The children, two teenagers and one younger child, told Farris that their parents argued a
lot, and their mother was in the process of breaking up with their father—G.V.M. “There was a
lot of stress in their relationship . . . [and] there was a lot of turmoil in the house at that point in
their relationship.” On the evening of May 18, 2016, the children heard their parents arguing, and
then the children heard five or six gunshots. B.G.M., the oldest child, entered the parents’
bedroom, saw both parents lying on the floor and bleeding, and B.G.M. called the police. G.V.M.
was arrested and charged with murdering the children’s mother.
G.V.M. admitted shooting the children’s mother—his wife—but stated that “his wife
pulled the gun on him and then he took it from her and shot her.”
When Farris met with the children shortly after the incident, “[t]hey were just pretty
lethargic. The only thing that I really could get them to express is how much they wanted to stay
with their paternal grandmother.” The children “call her ‘mom,’ not even ‘grandma,’” and they
“were very adamant about staying with their paternal grandmother.”
The children’s paternal grandmother—with whom they have been residing “pretty much
their entire life . . . did most of the day-to-day activities with the children.” The children were
doing well in her care, and the Department favored the grandmother adopting the children. With
the Department’s support, she was working with the Department to adopt the children.
B. Caseworker’s Testimony
Sergio Huerta, the Department caseworker for G.V.M., testified as follows. When Huerta
met with the children, they “appeared stable. But every time that I talked about their father or
asked them about their father, they would breakdown [sic] and they would start crying. They said
that they did not want to see him, they did not want to be involved with him.” Since the incident,
the children have not asked for contact of any kind with their father. Huerta testified the children
are happy with their grandmother, and they want to stay with her,
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The children are living with their grandmother in their parents’ home; the grandmother, the
parents, and the children lived in the same home before the incident. The children do not have
“issues” staying in the home. “That’s where they want to remain. That’s why we wanted them to
remain there.” The children are attending school, and all three are doing well.
The grandmother is having some financial difficulties providing for the children because
their mother’s income is no longer available. The Department has been working with the
grandmother to help her obtain available resources, and once the children are adopted, she will
receive more benefits and she will be able to fully support the children.
When Huerta spoke with G.V.M., G.V.M. said he wanted his mother to adopt the children.
G.V.M. said he wanted to “relinquish to his mother,” the children’s paternal grandmother. Huerta
told G.V.M. he would work with G.V.M.’s mother to help her adopt the children.
Huerta noted that even if G.V.M. is acquitted, G.V.M. will not be able to take care of the
emotional and physical needs of the children.
C. Guardian Ad Litem’s Recommendations
Attorney Mary E. Fuentes-Valdez, the children’s guardian ad litem, did not appear at trial;
she was represented by attorney Cecilia Garza. Without objection, the trial court asked Garza
about Fuentes-Valdez’s assessment of the children’s circumstances. Garza stated that Fuentes-
Valdez “believes that it is in the best interest [of the children] to completely sever [G.V.M.’s
parental rights] and that grandmother eventually should be able to adopt.”
G.V.M.’S PARENTAL RIGHTS
The trial court heard testimony that G.V.M. and the children’s mother argued a lot and
“[t]here was a lot of stress in their relationship.” G.V.M. had been arrested and indicted for
murdering the children’s mother while the children were present in the home, and that even if he
were acquitted, he could not provide for the children’s physical health and emotional development.
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See Holley, 544 S.W.2d at 372 (factors (B), (C), (H), (I)). The trial court could have believed that
if G.V.M. regained conservatorship of the children, G.V.M.’s conduct would again endanger the
children. See id. (factors (B), (C), (H)); see also TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (12).
The court could have reasoned that if G.V.M. was acquitted and the children were returned to
G.V.M.’s care, G.V.M. could not have provided for the physical and emotional needs of the
children or for their safety. See Holley, 544 S.W.2d at 372 (factors (B), (C), (H), (I)).
The court could also have believed the testimony that terminating G.V.M.’s parental rights
and allowing the children’s paternal grandmother to adopt the children was in the children’s best
interests. The children were adamant that they wanted to stay with their paternal grandmother.
She had been living with them for “pretty much their entire life” and she was the one who had
been taking care of “most of the day-to-day activities with [them].” See id. (factors (A), (B), (D),
(G)). The children called their grandmother “mom,” not “grandma,” and the trial court could have
reasoned that the children were strongly bonded to their grandmother as their primary caregiver
and as the one who filled the role of mother to them. See id. (factors (A), (B), (D)). The court
could have concluded that the children’s present and future physical and emotional needs and
safety would be best protected in the grandmother’s care. See id. (factors (A), (B), (C), (D), (G)).
Reviewing the evidence under the two standards, we conclude the trial court could have
formed a firm belief or conviction that terminating G.V.M.’s parental rights to the children was in
the children’s best interests. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 27; see also TEX.
FAM. CODE ANN. § 263.307(b)(1), (3), (12). Therefore, we conclude the evidence is legally and
factually sufficient to support the trial court’s order. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d
at 27.
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CONCLUSION
G.V.M. does not challenge the trial court’s findings that his course of conduct comprised
multiple bases to terminate his parental rights. Instead, he argues the evidence is neither legally
nor factually sufficient to support the trial court’s finding by clear and convincing evidence that
terminating his parental rights is in the children’s best interests.
Having examined the evidence under the applicable standards of review, we conclude the
evidence pertaining to the trial court’s findings is both legally and factually sufficient for the trial
court to have found by clear and convincing evidence that terminating G.V.M.’s parental rights to
the children was in the children’s best interests. Therefore, we affirm the trial court’s order.
Patricia O. Alvarez, Justice
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