In re R.S.D.

Opinion by: SANDEE BRYAN MARION

Affirmed in part, and reversed in part.

From the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2012–PA–00894; Paul Canales, Judge Presiding. Joseph Kraemer Bohac, San Antonio, TX, for Appellant. Veronica Segovia, San Antonio, TX, A.D. Mack, Law Office of A.D. Mack, Sutherland Springs, TX, for Appellee.

Opinion by: SANDEE BRYAN MARION, Justice.

The trial court terminated appellant's parental rights on the grounds that appellant constructively abandoned her child; failed to comply with a court order that specifically established the actions necessary for her to obtain the child's return; and knowingly engaged in criminal conduct that resulted in her conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of the filing of the petition. Tex. Fam.Code Ann. § 161.001(1)(N), (O), (Q) (West 2014). The trial court also found that termination was in the child's best interest. Id. § 161.00(2). In this accelerated appeal from the trial court's termination order, appellant challenges the legal and factual sufficiency of the evidence in support of the trial court's findings, and she asserts she did not receive effective assistance of counsel at trial. Because we conclude there is insufficient evidence to support the trial court's best interest finding as to appellant, we address only that issue on appeal.

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). In determining whether termination of parental rights is in a child's best interest, courts 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.

Also, 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 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 her past conduct and determine whether termination of parental rights is in the child's best interest. Id.

With the Holley factors and these rules in mind, we review the evidence.

The child is too young to have stated his desires; however, his emotional and physical needs now and in the future were established through Gutierrez's testimony that the child is developing slowly, needs a lot of redirection from his caregiver, is in speech therapy, has a learning disorder, and has been diagnosed with ADHD.

There is no evidence in the record of any emotional or physical danger to the child now or in the future because Gutierrez said she had no opinion on whether appellant might be a danger to the child.

Although the child's father believed placing his son with his paternal aunt in California was in the child's best interest, and Gutierrez opined that termination was in the child's best interest because he needed a permanent home and his paternal aunt in California was willing to adopt him, nothing is known about the aunt or her home in California. Therefore, there is no evidence about the aunt's parental abilities, regarding the programs available to assist the aunt to promote the best interest of the child, the plans for the child by the aunt seeking custody, or the stability of the aunt's home. See In re A.H., 414 S.W.3d 802, 807 (Tex.App.-San Antonio 2013, no pet.) (holding that “conclusory testimony, such as the caseworker's, even if uncontradicted does not amount to more than a scintilla of evidence[, a]nd, ‘[a]lthough [a parent's] behavior may reasonably suggest that a child would be better off with a new family, the best interest standard does not permit termination merely because a child might be better off living elsewhere.’ ”).

The final Holley factors focus on the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and on any excuse for the acts or omissions of the parent. Other than the fact that appellant was incarcerated at the time of trial, with a projected release date in 2016 and the possibility of parole sooner, no other evidence was offered on whether appellant's relationship with her child was not a proper one. Other than the single admission by appellant that she used cocaine, no other evidence of any excuse for her acts or omissions was offered. And, appellant admitted she was wrong to use cocaine.

As noted above, the same evidence may be probative of both section 161.001(1) grounds and best interest, although such evidence does not relieve the State of its burden to prove best interest. In re C.H., 89 S.W.3d at 28. Although we do not review the evidence in support of the trial court's section 161.001(1) grounds, we note appellant's parental rights were terminated on the following grounds: she constructively abandoned her child for not less than six months; she failed to comply with all of the requirements of her service plan; and she knowingly engaged in criminal conduct that resulted in her conviction and confinement for not less than two years from the date of the State's petition to terminate.

The record reveals no past criminal history other than her current criminal conviction for possession of a controlled substance and the alleged prostitution charge that was dismissed. Also, “although we acknowledge the trial court is the sole judge of a witness's credibility, we may not disregard evidence that does not support the trial court's best interest finding.” In re E.D., 419 S.W.3d 615, 619 (Tex.App.-San Antonio 2013, pet. denied). While incarcerated, appellant finished her parenting class and domestic violence class, and attended NA classes monthly and underwent counseling. Appellant was in the “MATCH” program that would have allowed her visits with her son, and she is in a program called Supporting Books that allows her to read a story to her son on tape and then send him the tape recording. She has almost completed her GED, lacking only the math portion of the program. Gutierrez said some of the uncompleted services were available to appellant while she was incarcerated, but Gutierrez did not otherwise elaborate.

After reviewing all the evidence in the record, we conclude the State did not meet its burden to establish by clear and convincing evidence that termination of appellant's parental rights is in the child's best interest. Therefore, we reverse that portion of the trial court's judgment terminating appellant's parental rights and render judgment denying the State's petition for termination of appellant's parental rights. We affirm that portion of the trial court's judgment terminating the child's father's parental rights. Because appellant's challenge to the Department's Family Code section 153.131 conservatorship was not subsumed within her appeal of the termination order and was not challenged on appeal, we also affirm the trial court's appointment of the Department as the managing conservator of the child pursuant to section 153.131. See In re J.A.J., 243 S.W.3d 611, 617 (Tex.2007) (explaining procedure to be followed by a parent, the Department, and the trial court when a judgment terminating parental rights is reversed by the court of appeals but the Department's conservatorship pursuant to section 153.131 is affirmed). -------- Notes: