







Affirmed and Opinion filed December 1, 2005








Affirmed and Opinion filed
December 1, 2005.
 
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-04-00795-CV
_______________
 
 
IN THE INTEREST OF J.C.B.
 
 
_________________________________________________
 
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 6920*RH99 
_________________________________________________
 
O P I N I O N
 
John
Lewis Blair (ABlair@) appeals the termination of his
parental rights on the ground that the evidence was factually insufficient[1]
to show that termination was in the best interest of the child (AJ.C.B.@). 
We affirm.
Background
and Procedural History




J.C.B.
was placed in foster care with Michael Bernstein and Linda Cerisano (the Afoster parents@) in1999, before his first birthday,
after he was discovered unattended and cold in a car while his mother was in a
bar.  Although CPS eventually placed him
with his paternal grandparents, Lester and Joann Linscombe (the ALinscombes@), the foster parents and their two
children remained in contact with J.C.B., visiting at least every two weeks.
When Mrs. Linscombe later became ill, the Linscombes voluntarily placed J.C.B.
back with the foster parents.  The foster
parents filed a petition to terminate the parental rights of J.C.B.=s mother, who later voluntarily
relinquished her rights.  The foster
parents also filed a petition to terminate Blair=s parental rights, and a jury trial
resulted in an order of termination in 2004.[2]  
Standard
of Review
A
decision to terminate parental rights must be supported by clear and convincing
evidence.  In re J.L., 163 S.W.3d
79, 84 (Tex. 2005).  In a factual
sufficiency review, the inquiry is whether: (1) the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of
the State=s allegations; and (2) the disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. 
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2004).  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 fact finder could not reasonably have
formed a firm belief or conviction, then the evidence is factually
insufficient. Id.   
Best
Interest of the Child




To
terminate parental rights, it must be found that: (1) the parent committed one
of the acts prohibited under section 161.001(1) of the Texas Family Code, and
(2) the termination of parental rights is in the child=s best interest.  Tex.
Fam. Code Ann. ' 161.001(1)-(2) (Vernon 2002); In re J.L., 163 S.W.3d
at 84.  Because Blair does not challenge
the jury finding that he committed prohibited acts, we review only whether
termination was in J.C.B.=s best interest.[3]  The jury charge in this case instructed the
jury as follows:[4]
You will be required to determine whether termination
of the parent-child relationship in this case would be in the best interest of
the child.  Some factors to consider in
determining the best interest of the child are-
1.         the desires of the child,
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 parenting ability 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 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.




During
trial, the jury heard testimony that: (1) Blair had a drinking problem; (2)
Blair spent two years in jail for driving while intoxicated; (3) according to
Blair=s first ex-wife, Audrey Morain (AMorain@), Blair had abused his
step-grandchild, was abusive towards her and her three children, introduced the
children to drugs and alcohol, admitted to sexually molesting the oldest
step-daughter, and persuaded his step-son to take responsibility for shooting a
pig (a felony), when, in fact, Blair had shot the pig;[5]
(4) within the past year, Blair had sent several sexually inappropriate letters
to his adult step-daughter (these letters were admitted into evidence); (5)
J.C.B. needed long-term therapy; (6) J.C.B. had been in foster care with the
foster parents for most of his life; the foster parents have a stable home
life, whereas Blair is living in a utility room at his sister=s house; (7) the foster parents have
stable, long-term jobs, whereas Blair was unemployed when he first got out of
jail, although he is now employed making $12.00 per hour; (8) Blair did not
provide any financial support for J.C.B. while he was in the Linscombes= or the foster parents= care until ordered to do so by the
court; (9) Mr. Linscombe, Blair=s step-father, testified that he believed termination was in
J.C.B.=s best interest (without specifying
why); (10) although Blair testified he wanted to get his own place for his
family, he had not saved any money to do so; (11) J.C.B. identified the foster
parents as his parents to the court-appointed counselor; (12) the
court-appointed counselor recommended that J.C.B. stay with the foster parents;
(13) the therapist, Toni Jo Lindstrom, was concerned about Blair=s parenting skills because, not only
did none of his three step children he raised turn out to be commendable
citizens, but Blair underestimated J.C.B.=s psychological history; and (14) the
supervised visitation coordinator had to talk twice to Blair because he was
getting too rough on the playground with J.C.B. and on a hot day Blair sprayed
water on J.C.B.




The
foregoing evidence is unquestionably sufficient to support a finding that Blair
should not have full parental rights or even a managing conservatorship.  However, the ultimate question was whether it
was in J.C.B.=s best interest to potentially have
no relationship or contact whatever with his father (and only remaining
biological parent with parental rights), even on a supervised basis.  The only evidence that would support this
finding was that: (1) J.C.B. stated several times before, and on his way to,
scheduled visits that he did not want to go but wanted to stay home; (2) after
J.C.B. returned from his visits with Blair he would yell at his foster parents,
be very demanding and impatient, and would have nightmares; and (3) J.C.B.
would exhibit extremely odd behavior after visiting with Blair, such as once
excusing himself from the kitchen, going to the garage, and urinating on
various items, including boxes, toys, a laundry rack, and a cabinet.
On
the other hand, the evidence that termination was not in the child=s best interest included that: (1)
after being released from prison, Blair successfully completed parole, obtained
a good job, and is paying $200 per month in child support; (2) Blair complied
with all the requirements asked of him by children=s services and took a parenting class
and an alcohol treatment class; (3) Blair did not miss any visits with J.C.B.
scheduled at the childcare center; and (4) during the visits, J.C.B. appeared
to be happy with Blair and his interactions with J.C.B. were parental.[6]
In
addition, Blair=s probation officer, Bruce Foster, testified he conducted
numerous unannounced visits to Blair=s residence over time, spending over
eighty hours on the investigation, and never saw any signs of alcohol or
anything illegal.  When asked, Foster did
not recommend termination, but did recommend that custody remain with the
foster parents, with Blair receiving gradually increasing visitation with his
son.
Similarly,
the guardian ad litem, James Robertson, also did not recommend termination, but
instead recommended that Blair be the possessory conservator, with the foster
parents being managing conservators.  He
testified that he saw Blair and J.C.B. interact one time, that the interaction
was very good, and that J.C.B. wanted to keep a relationship with Blair.  Robertson had spent about ninety hours on the
case, doing an independent investigation and also relying on the reports,
statements, and information obtained from others.




Moreover,
much of Morain=s testimony was rebutted by the
testimony of two of her children, Stephanie and Raymond, who testified that
Blair did not introduce them to drugs or alcohol, and that Blair was not
physically abusive towards them.  Raymond
testified that, if anybody was physically abusive, it was Morain, and Stephanie
testified that Morain hit her inappropriately. 
Stephanie testified that Morain was not truthful at all, and described
her own relationship with Blair as very close, letting him watch her own
children.  Raymond stated that Blair did
not get him to take the blame for shooting the pig.  Further, Judith Mosqueda, Blair=s sister, also testified that Morain
was not truthful, and that Morain was never taken to the hospital for any
injuries due to fighting with Blair. 
Stephanie also confirmed that Morain did not go to the hospital after
fighting with Blair.
It
is apparent from our record that, despite his past, and his many significant
shortcomings, Blair has made a concerted effort to improve himself and to
maintain his relationship with J.C.B.  In
addition, although there are undoubtedly advantages to J.C.B. in being formally
adopted by the foster parents, our record does not address the possible effects
on him of completely severing the relationship that he has developed with his
father, and that much of the evidence indicated was beneficial to J.C.B.  Under these circumstances, the factual
sufficiency of the evidence supporting the best interest finding, particularly
under a clear and convincing evidence standard, is very close; but, depending
on his or her assessment of the weight and credibility of the respective items
of evidence, a reasonable factfinder could form a firm belief or conviction that
termination was in J.C.B.=s best interest. Accordingly, Blair=s sole point of error is overruled;
and the judgment of the trial court is affirmed.
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered
and Opinion filed December 1, 2005.
Panel consists of
Justices Fowler, Edelman, and Guzman.
 
 




[1]           Blair
does not challenge the legal sufficiency of the evidence.


[2]           Blair
then filed a notice of appeal within the prescribed time limit for an
accelerated appeal.  See  ex.
Fam. Code Ann. ' 109.002(a) (Vernon 2002); Tex. R. App. P. 26.1(b); In re K.A.F., 160 S.W.3d 923,
925 (Tex. 2005).  After Blair filed his
appeal on August 9, 2004, appellees had an additional fourteen days in which to
file their notice of appeal.  See Tex. R. App. P. 26.1(d).  They did not file a notice of appeal until
September 9, 2004; thus, it was untimely filed and is therefore dismissed. 


[3]           However,
evidence of acts or omissions under section 161.001(1) may also be probative of
the child=s best interest. 
See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).


[4]           This
charge comports with the Texas Pattern Jury charge regarding termination.  See Comm.
on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury ChargesBFamily PJC 218.1 (2003); see also Holley v. Adams,
544 S.W.2d 367, 371-72 (Tex. 1976).


[5]           J.C.B.
never testified at trial.  The foster mom
testified that she and her husband became foster parents after they had applied
to become foster/adoptive parents with the combined program.  The foster parents initiated the termination
of the parent-child relationship between J.C.B. and his biological
parents.  Thus, it appears that the
foster parents planned to adopt J.C.B. once the biological parents= rights were terminated.


[6]           However,
many of Blair=s improvements came about because he was instructed to
attend classes and programs, or ordered by the trial court to pay child
support, not due to his own initiative. 
Similarly, in spite of his long history of excessive drinking, Blair
does not attend AA because he doesn=t feel
there is a need to do so. 


