REVERSE and RENDER; Opinion Filed March 6, 2020




                                           In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                        No. 05-19-01084-CV

                  IN THE INTEREST OF S.M.G., A MINOR CHILD

                    On Appeal from the 305th Judicial District Court
                                 Dallas County, Texas
                        Trial Court Cause No. JC-18-00695-X

                              MEMORANDUM OPINION
                         Before Justices Myers, Osborne, and Nowell
                                 Opinion by Justice Nowell
        Father appeals from a decree terminating his parental rights over his daughter,

S.M.G.1 In a single issue, he argues the evidence is legally and factually insufficient

to support the trial court’s finding that termination is in the best interest of the child.

The Texas Department of Family and Protective Services agrees the record does not

support a finding that termination is in S.M.G.’s best interest. Because the evidence

is legally insufficient to show termination of Father’s parental rights is in S.M.G.’s

best interests, we reverse the trial court’s decree of termination to the extent it


    1
     Father filed his notice of appeal on September 4, 2019. The appeal was delayed because the Court
questioned its jurisdiction and then abated the appeal so the trial court could appoint new appellate counsel
for Father. Father’s counsel filed his brief on February 18, 2020, and the Department filed its brief on
March 4, 2020.
terminates Father’s parental rights to S.M.G. and render judgment denying the

Department’s request to terminate Father’s parental rights to S.M.G.

             At the time the trial court conducted the prove-up hearing, S.M.G. had been

living with her paternal grandmother for approximately nine months; the

grandmother wanted to adopt S.M.G. The caseworker who testified at the hearing

stated S.M.G.’s parents wanted S.M.G. to remain with her grandmother. The

caseworker believed termination of parental rights was in S.M.G.’s best interest.

S.M.G.’s guardian ad litem also believed termination was in the child’s best interest.

In the decree of termination, the trial court found by clear and convincing evidence

that termination was in S.M.G.’s best interest.

             A trial court may terminate a parent’s rights if it finds by clear and convincing

evidence (i) one or more predicate acts or omissions defined in Family Code

§ 161.001(b)(1)(A)–(U)2 and (ii) that termination is in the child’s best interest. TEX.

FAM. CODE § 161.001(b). “Clear and convincing evidence” is the measure or degree

of proof that will produce in the factfinder’s mind a firm belief or conviction as to

the truth of the matter to be proved. Id. § 101.007.

             Our standards of review reflect the elevated standard of proof. In re N.T., 474

S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.). In both legal and factual




     2
          The trial court made a finding that Father committed an act prohibited by section 161.001(b)(1); Father does not challenge this finding on
appeal.

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sufficiency review, we consider all the evidence and defer to the factfinder’s

determinations as to witness credibility. Id.

      In a legal sufficiency review, we credit evidence that supports the verdict if a

reasonable factfinder could have done so, and we disregard contrary evidence unless

a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112

(Tex. 2014). However, we do not disregard undisputed facts that do not support the

verdict, because doing so could skew the analysis of whether there is clear and

convincing evidence. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Under the clear

and convincing evidence standard, “even evidence that does more than raise surmise

and suspicion will not suffice unless that evidence is capable of producing a firm

belief or conviction that the allegation is true.” In re K.M.L., 443 S.W.3d at 113. If

no reasonable factfinder could form a firm belief or conviction that the matter to be

proven is true, the evidence is legally insufficient. Id.

      In a factual sufficiency review, we likewise determine whether the factfinder

could reasonably form a firm belief or conviction about the truth of the State’s

allegations. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). “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.” Id.

at 503. We must undertake an exacting review of the entire record with a healthy

regard for the constitutional interests at stake. Id. However, our review “must not
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be so rigorous that the only factfindings that could withstand review are those

established beyond a reasonable doubt.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

      Although there is a strong presumption that maintaining the parent–child

relationship serves the child’s best interest, there is also a presumption that promptly

and permanently placing the child in a safe environment is in the child’s best interest.

In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied). The

supreme court has identified a nonexclusive list of factors that may be relevant to a

best-interest determination, depending on the facts: (i) the child’s desires, (ii) the

child’s current and future emotional and physical needs, (iii) current and future

emotional and physical dangers to the child, (iv) the parental abilities of those

seeking custody, (v) the programs available to help those individuals promote the

child’s best interest, (vi) those individuals’ plans for the child, (vii) the home’s or

proposed placement’s stability, (viii) the parent’s acts or omissions indicating that

the existing parent–child relationship is not a proper one, and (ix) any excuse for the

parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

An absence of evidence of some Holley factors does not preclude a finding that

termination is in the child’s best interest, particularly if undisputed evidence shows

that the parental relationship endangered the child’s safety. In re N.T., 474 S.W.3d

at 477. On the other hand, paltry evidence relevant to each Holley factor does not

suffice to support a finding that termination is in the child’s best interest. See In re

C.E.K., 214 S.W.3d 492, 498 (Tex. App.—Dallas 2006, no pet.).
                                          –4–
      The Family Code also identifies several additional factors relevant to a best

interest analysis. TEX. FAM. CODE § 263.307(a), (b). These include (i) whether there

is a history of abusive or assaultive conduct by the child’s family, (ii) whether there

is a history of substance abuse by the child’s family, (iii) whether the family is

willing and able to seek and complete counseling services, (iv) the parent’s

willingness and ability to effect positive personal changes within a reasonable period

of time, and (v) whether an adequate social support system consisting of extended

family and friends is available to the child. Id. § 263.307(b)(7), (8), (10), (11), (13).

      The Department concedes that none of the Holley or statutory factors were

directly addressed in the underlying record; as a result, the evidence is legally and

factually insufficient to show termination was in S.M.G.’s best interest. Having

reviewed the record, we agree. Therefore, we reverse the trial court’s decree of

termination to the extent it terminates Father’s parental rights to S.M.G. and render

judgment denying the Department’s request to terminate Father’s parental rights to

S.M.G.




                                             /Erin A. Nowell/
                                             ERIN A. NOWELL
                                             JUSTICE
191084F.P05




                                          –5–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

IN THE INTEREST OF S.M.G., A                   On Appeal from the 305th Judicial
MINOR CHILD,                                   District Court, Dallas County, Texas
                                               Trial Court Cause No.
No. 05-19-01084-CV                             JC-18-00695-X.
                                               Opinion delivered by Justice Nowell.
                                               Justices Myers and Osborne
                                               participating.

       In accordance with this Court’s opinion of this date, the trial court’s Decree
of Termination is REVERSED as to the termination of Martin Gustavo Gomez,
Jr.’s parental rights to his daughter, S.M.G., and judgment is RENDERED
denying the Texas Department of Family and Protective Services’s request to
terminate Martin Gustavo Gomez, Jr.’s parental rights to S.M.G.



Judgment entered this 6th day of March, 2020.




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