in the Interest of A.I.F., a Minor Child

• Court: Court of Appeals of Texas
• Decided: May 17, 2018
• Docket: 07-17-00464-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00464-CV

IN THE INTEREST OF A.I.F., A MINOR CHILD

On Appeal from the 100th District Court Childress County, Texas Trial Court No. 10215, Honorable Stuart Messer, Presiding

May 17, 2018

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

In this private termination case, appellant R.F. appeals the trial court’s final order

adjudicating his parentage and terminating his parental rights to A.I.F., a child born of his

relationship with appellee B.F.1 We will overrule each of appellant’s issues and affirm the

trial court’s final order.

1 To protect the child’s privacy, we will refer to the child’s mother as B.F. and to the child as A.I.F. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). Background

A.I.F. was born in June 2012. During final hearing testimony, appellant agreed

that he is the father of A.I.F., she is his daughter, and he did not want his parental rights

with A.I.F. terminated. At the time of A.I.F.’s birth, according to her mother’s testimony,

she and appellant were “in a relationship” and living together. She added they ceased

living together two to three months after A.I.F.’s birth. Appellant testified he and B.F.

separated when B.F. learned he had a daughter only six days younger than A.I.F.

In October 2012, B.F. filed a petition to adjudicate parentage. She alleged

appellant was the father of A.I.F. but that the man to whom she was then married was the

child’s presumed father. After a hearing later that month, the trial court rendered

temporary orders which, among other things, named appellant the father of A.I.F., granted

him visitation, and ordered that he make child support payments of $178 per month.

Appellant also was ordered to participate in a hair-follicle drug test.

B.F. testified that appellant never paid child support and has not financially

supported A.I.F. Appellant testified that while he did not pay child support, during periods

of visitation he provided diapers and “everything” A.I.F. needed. Appellant also did not

take the hair-follicle drug test and the court therefore suspended his visitation in

November 2012.

Appellant testified that in early January 2013 he was confined in the county jail for

a parole violation and while in custody was served with an indictment charging him with

forgery. According to the final hearing evidence, during 2013 he was out of jail most of

the time between March 26 and September 24 but paid no child support. On October 9,

2 2013, appellant was convicted of the forgery charge and sentenced to twenty years’

confinement in prison and a fine of $10,000. He remained continuously incarcerated to

the time of final hearing.

Appellant testified he has learned advanced computer skills in prison and is

studying for certification in Braille translation. He believes the skills he has learned will

qualify him, on release from prison, to earn enough income to pay child support for all his

children. He has three children in addition to A.I.F. His parents bring his three other

children to the prison for visitation. B.F. is on appellant’s visitation list and he testified to

a desire that she bring A.I.F. to visit.

B.F. amended her petition in February 2015 to seek termination of appellant’s

parental rights. She alleged three predicate acts under Family Code § 161.001(b)(1)2

and that termination was in the best interest of A.I.F. Final hearing was before the bench

in December 2017. Appellant appeared from prison by telephone. Following the hearing,

the trial court rendered a final order adjudicating appellant the father of A.I.F. and

terminating his parental rights to the child.

Analysis

By his first issue, appellant argues that because A.I.F. has a presumed father

genetic testing was required before appellant could be adjudicated the child’s father.

Without genetic testing, the argument continues, appellant’s parental rights were not

established and could not, therefore, have been terminated.

2 See TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (I), and (Q) (West Supp. 2017).

3 B.F. sought adjudication of appellant’s paternity in 2012. At the final hearing,

rather than contesting his paternity, or otherwise arguing that procedurally he could not

be adjudicated the father of A.I.F. until he and the presumed father were genetically

tested, he agreed in testimony that he is the child’s father and that she is his daughter.

Only on appeal does appellant complain that the trial court did not follow the proper

statutory procedure to adjudicate his parentage. Because his appellate complaint was

not presented to the trial court, it was waived. TEX. R. APP. P. 33.1(a). Further, we believe

under the doctrine of invited error appellant could not now complain of the trial court’s

adjudication of his parentage when at the final hearing he claimed to be A.I.F.’s father

and actively resisted B.F.’s effort to terminate his parental rights. See Naguib v. Naguib,

137 S.W.3d 367, 375 (Tex. App.—Dallas 2004, pet. denied) (“A party to a lawsuit cannot

ask something of a trial court and then complain on appeal that the trial court committed

error in granting that party’s request. This rule is grounded in even justice and dictated

by common sense. When the record on appeal conclusively establishes that the trial

court entered its judgment in full compliance with appellant’s request, all complaints by

appellant about the trial court’s action in so doing are foreclosed” (citations omitted)).

Moreover, under oath, in open court, appellant admitted parentage. Accordingly,

in the final order the trial court found and ordered that he is the father of A.I.F.3 See TEX.

FAM. CODE ANN. § 160.623 (West 2014) (in a proceeding to adjudicate paternity, the trial

3 Because this was a non-jury trial in which findings of fact and conclusions of law were neither requested nor filed we presume the trial court made the necessary findings to support its judgment. Timbercreek Canyon Prop. Owners Ass’n v. Fowler, No. 07-14- 00043-CV, 2015 Tex. App. LEXIS 8460, at *19 (Tex. App.—Amarillo Aug. 12, 2015, no pet.) (mem. op.). And we will affirm that judgment if it can be upheld on any legal theory finding support in the evidence. Id.; In re N.F.M., No. 05-15-01232-CV, 2016 Tex. App. LEXIS 11944, at *11 (Tex. App.—Dallas Nov. 3, 2016, no pet.) (mem. op.).

4 court shall render an order adjudicating the child to be the child of a man who admits

paternity “under penalty of perjury when making an appearance or during a hearing” and

if “there is no reason to question the admission”). This was not error. We overrule

appellant’s first issue.

Sufficiency of Evidence Supporting Predicate Ground and Best Interest Findings

Applicable Law

The Due Process Clause of the United States Constitution and section 161.001 of

the Texas Family Code require application of the heightened standard of clear and

convincing evidence in cases of involuntary termination of parental rights. In re E.N.C.,

384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear

and convincing evidence is that measure or degree of proof which 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 ANN. § 101.007 (West 2014); In re C.H., 89 S.W.3d

17, 25-26 (Tex. 2002).

Under the Family Code, a trial court may terminate parental rights if the petitioner

proves by clear and convincing evidence that the parent committed a predicate act

prohibited under section 161.001(b)(1) and termination is in the child’s best interest. TEX.

FAM. CODE ANN. § 161.001(b); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

When performing a legal sufficiency analysis we examine all the evidence in the

light most favorable to the challenged finding, assuming the “factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002). We disregard all contrary evidence the factfinder could have

5 reasonably disbelieved or found incredible. Id. However, we take into account

undisputed facts that do not support the finding, so as not to “skew the analysis of whether

there is clear and convincing evidence.” Id. If the record presents credibility issues, we

defer to the factfinder’s determinations provided they are not unreasonable. In re J.P.B.,

180 S.W.3d 570, 573 (Tex. 2005).

In a factual sufficiency review, a court of appeals gives due consideration to the

evidence the factfinder could reasonably have found to be clear and convincing. In re

C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.

Id. In doing so we consider whether disputed evidence is such that a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding. Id. 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. In re

J.F.C., 96 S.W.3d at 266.

Predicate Ground Finding

Through his second issue, appellant challenges the legal and factual sufficiency of

the evidence supporting the trial court’s predicate ground findings under Family Code

section 161.001(b)(1)(F), (I), and (Q). Appellant agrees that if he was properly

adjudicated to be the child’s father, sufficient evidence supports the trial court’s finding

against him under subsection (Q).

6 Subsection (Q) provides a trial court may terminate a parent-child relationship on

a finding by clear and convincing evidence that a parent has knowingly engaged in

criminal conduct that resulted in the parent’s conviction for an offense and confinement

or imprisonment and inability to care for the child for not less than two years from the date

the petition was filed. TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). As noted, in its 2012

temporary order the court found appellant was the father of A.I.F. and ordered him to pay

child support. Appellant remained continuously incarcerated from late 2013 to the time

of final hearing. B.F.’s amended petition seeking termination under subsection (Q) was

filed on February 11, 2015, and the final hearing took place on December 4, 2017.

Appellant testified at the final hearing he would “see parole” in May or February but no

further evidence supported or corroborated this claim. Finally, appellant acknowledges

he did not present any evidence at the final hearing demonstrating how he would provide

or arrange to provide for the care of A.I.F. during his incarceration. “[W]hen the party

seeking termination has established that the incarcerated parent will remain in

confinement for the requisite period, the parent must then produce some evidence as to

how [he] would provide or arrange to provide care for the child during [his] incarceration.”

In re H.B.C., 482 S.W.3d 696, 702 (Tex. App.—Texarkana 2016, no pet.) (quotation

marks and citation omitted). We agree with appellant’s concession that legally and

factually sufficient evidence supports the trial court’s predicate ground finding under

subsection (Q). Because only one predicate finding under section 161.001(b)(1) is

necessary to support an order of termination when there is also a finding that termination

is in a child’s best interest, we need not address the sufficiency of the evidence supporting

the two other predicate grounds the court found. See In re A.V., 113 S.W.3d 355, 362

7 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.); TEX.

R. APP. P. 47.1. We overrule appellant’s second issue.

Best Interest Finding

Finally, appellant challenges the sufficiency of the evidence supporting the trial

court’s finding that termination of the parent-child relationship was in the best interest of

A.I.F.

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). The best interest analysis

evaluates the best interest of the child, not that of the parent. In re A.C.B., 198 S.W.3d

294, 298 (Tex. App.—Amarillo 2006, no pet.). Factors for consideration when

determining whether termination of parental rights is the best interest of the child include

those listed in Holley 4 and in Family Code section 153.131(b). See In re R.R., 209 S.W.3d

at 116 (citing Family Code Section 263.307 [“Factors in Determining Best Interest of

Child”] and Holley as providing factors for consideration “when determining whether

termination of parental rights is in the best interest of the child” and also referencing

Family Code section 153.131(b) which provides “a strong presumption that the best

interest of a child is served by keeping the child with a parent”).

4 The Holley factors are: (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 which 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. Holley, 544 S.W.2d at 371-72.

8 However, the Holley “listing is by no means exhaustive, but does indicate a number

of considerations which either have been or would appear to be pertinent.” Holley, 544

S.W.2d at 372. “The absence of evidence about some of these considerations would not

preclude a fact-finder from reasonably forming a strong conviction or belief that

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

the parental relationship endangered the safety of the child.” In re C.H., 89 S.W.3d at 27.

In some circumstances, evidence of even one Holley factor may be sufficient. Jordan v.

Dossey, 325 S.W.3d 700, 729 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing

In re C.H., 89 S.W.3d at 27). Unchallenged predicate ground findings are binding and

can support the best interest finding. In re K.M., No. 07-16-00120-CV, 2016 Tex. App.

LEXIS 6886, at *6 (Tex. App.—Amarillo Jun. 29, 2016, no pet.) (mem. op.); In re E.A.F.,

424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing In re

C.H., 89 S.W.3d at 28). The best interest determination may rely on direct and

circumstantial evidence, subjective factors, and the totality of the evidence. In re N.R.T.,

338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).

We have already noted appellant’s plans to obtain a job based on skills he learned

while in prison. He testified on release he expects to begin work in a paint and body shop

and live in a house his parents own. He indicated that people are willing to help him get

back on his feet.

Criminal conduct, prior convictions, and incarceration affect a parent’s life and

capacity to effectively parent and may be considered by the trier of fact in making the best

interest determination. In re M.L.C., No. 04-17-00459-CV, 2017 Tex. App. LEXIS 12028,

at *11 (Tex. App.—San Antonio Dec. 27, 2017, pet. denied) (mem. op.). At the final

9 hearing, B.F. placed into evidence copies of judgments evidencing appellant’s five felony

convictions. The documents show that from 2005 through 2008, appellant was convicted

for the offenses of tampering with a witness, evading arrest with a vehicle, possession of

a controlled substance, and possession of a controlled substance with intent to deliver.

In a stipulation to evidence filed in the possession-with-intent-to-deliver case, appellant

swore that on November 2, 2007, he knowingly possessed with intent to deliver four

grams or more but less than 200 grams of methamphetamine. The two judgments from

2005 referenced appellant’s parole on an otherwise unidentified Ellis County case.

Finally, as noted, in October 2013, appellant was sentenced to twenty years’ confinement

and fined $10,000 for his forgery conviction.

Appellant has had two felony convictions for drug-related offenses and the

revocation of community supervision ground alleged in both those cases was his failure

to abstain from the use of narcotics or controlled substances. Although ordered in 2012

to submit to a hair follicle drug test, appellant did not. At the final hearing, appellant did

not explain how he intends to maintain sobriety and abstain from drug use once he is

released from prison. See In re J.R.Y., No. 07-15-00393-CV, 2016 Tex. App. LEXIS

3221, at *6 (Tex. App.—Amarillo Mar. 29, 2016, no pet.) (mem. op.) (noting a parent’s

drug use and drug-related conduct are considerations for the trier of fact in making the

best interest determination).

Even though under court order since 2012, appellant never paid child support. His

testimony explained that during the time he was not confined, he was “not working.” By

the time of the final hearing he hoped to soon be released from prison, once again on

10 parole, but nothing in the record showed, nor could it show, the certainty his hope would

be realized.

Aside from a brief period of court-ordered visitation shortly after A.I.F.’s birth, the

child has had no contact with her father. The record contains no indication she would

know appellant were they to meet. B.F. acknowledged she had not shown the child the

cards appellant had sent from prison, and appellant urged the court to recognize his

strong desire to develop a relationship with the child. There is more to parenthood,

however, than sending cards. Appellant’s choices to engage in repeated criminal

conduct, resulting in his current twenty-year sentence, and his choice to conceive A.I.F.

and another child at virtually the same time, gave the trial court good reason to conclude

appellant chose irresponsibility over the duties of parenthood.

There is evidence appellant is growing in maturity, has learned marketable

advanced computer and Braille skills while in prison, looks forward to working after his

release, and has intentions to pay child support. But, beyond sending cards and desiring

that B.F. bring A.I.F. to visit him, appellant offered no plan to develop a father-daughter

relationship where none now exists, or to assist with the care of A.I.F. He spoke not at

all of any intention to establish a productive and civil relationship with the child’s mother.

Given the entirety of the evidence the court heard, it was not required to accept appellant’s

expressions of a desire to be a father to A.I.F. At the bench trial, the trial judge as

factfinder was the sole judge of the credibility of the witnesses and the weight to be given

their testimony. See, e.g., In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet.

denied) (so stating).

11 After viewing all the evidence in the light most favorable to the best interest finding,

we conclude that the evidence was sufficiently clear and convincing that a reasonable

factfinder could have formed a firm belief or conviction that termination of the parent-child

relationship between appellant and A.I.F. was in the child’s best interest. We further

conclude that, viewed in light of the entire record, any disputed evidence could have been

reconciled in favor of the trial court’s finding or was not so significant as to preclude the

trial court from forming a firm belief or conviction that termination was in A.I.F.’s best

interest. We therefore find the evidence was legally and factually sufficient to support the

best interest finding.

Conclusion

Having resolved each of appellant’s appellate issues against him, we affirm the

final order of the trial court.

James T. Campbell Justice