in the Interest of A.J.M., a Child

• Court: Court of Appeals of Texas
• Decided: March 28, 2018
• Docket: 04-17-00680-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-17-00680-CV

IN THE INTEREST OF A.J.M., a Child

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02783 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

Delivered and Filed: March 28, 2018

AFFIRMED

Appellant-father, A.M., appeals the trial court’s order terminating his parental rights to the

child A.J.M. 1 A.M. challenges the legal and factual sufficiency of the trial court’s findings

supporting termination of his parental rights. We affirm the trial court’s order.

BACKGROUND

On December 12, 2016, the Texas Department of Family and Protective Services (“the

Department”) filed its original petition for protection of a child, for conservatorship, and for

termination of parental rights. The only child named in the petition was A.J.M., who was born on

June 9, 2016. The petition alleged that A.M. was A.J.M.’s alleged father and sought to terminate

1 To protect the identity of minor children in an appeal from an order terminating parental rights, parents and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-17-00680-CV

A.M.’s parental rights on multiple grounds, relying on both sections 161.002 and 161.001 of the

Texas Family Code.

On October 5, 2017, the case proceeded to a bench trial. According to the termination

order, A.M. appeared via teleconference and was represented by appointed counsel. The only

witness to testify at trial was Department caseworker Ammie Martinez. According to Martinez’s

testimony, the Department became involved in this matter because it received allegations of

physical neglect and neglectful supervision against A.J.M.’s mother, V.L. Martinez testified V.L.

was not caring for A.J.M. or her siblings, who were the subject of a separate suit. Martinez further

testified A.M. was incarcerated in state prison, serving a twenty-eight year sentence for human

trafficking and drug offenses, for the pendency of this case.

The Department created a family service plan and communicated the plan to A.J.M.’s

parents. Neither parent successfully completed the service plan. To Martinez’s knowledge, A.M.

had not engaged in any form of services while in prison. Nor had A.M. seen A.J.M. or had any

form of contact with the child during the case. Martinez offered her opinion that termination of

both parents’ parental rights was in A.J.M.’s best interests because neither parent had taken the

opportunity to participate in services or met the goals outlined in the service plan. Prior to trial,

V.L. signed a document voluntarily relinquishing her parental rights, and the document was filed

in the trial court. With regard to the termination of A.M.’s parental rights, Martinez pointed out

A.M. was incarcerated and not able to meet A.J.M.’s needs and A.J.M. would be an adult when

A.M. was released from incarceration.

On October 5, 2017, the trial court signed an order terminating both parents’ parental rights.

A.M.’s parental rights were terminated based on sections 161.002 and 161.001 of the Texas Family

Code. According to the termination order, the trial court found by clear and convincing evidence

that A.M., after having waived service of process or being served with citation in this suit, did not -2- 04-17-00680-CV

respond by filing a counterclaim for paternity or for voluntary paternity to be adjudicated under

chapter 160 of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.002. Alternatively, the

trial court found by clear and convincing evidence that A.M. (1) constructively abandoned A.J.M.

and (2) knowingly engaged in criminal conduct that has resulted in his conviction of an offense

and confinement or imprisonment and inability to care for A.J.M. for not less than two years from

the date of filing the petition. See id. § 161.001(b)(1)(N), (Q). Finally, the trial court found by

clear and convincing evidence that termination of A.M.’s parental rights was in A.J.M.’s best

interest. See id. § 161.001(b)(2). Only A.M. appeals.

SUFFICIENCY OF THE EVIDENCE

In three issues, A.M. contends the evidence is both legally and factually insufficient to

support the trial court’s findings in favor of terminating his parental rights to A.J.M. A.M. first

contends the evidence is insufficient to support the trial court’s finding in Paragraph 7.1 of the

termination order relating to the termination of an alleged biological father’s parental rights. In

the alternative, A.M. contends the evidence is insufficient to support the trial court’s findings in

Paragraph 7.2 of the termination order that A.M. constructively abandoned A.J.M. and knowingly

engaged in criminal conduct that resulted in his conviction and incarceration. A.M. also contends

the evidence is insufficient to support the trial court’s finding that termination of his parental rights

is in A.J.M.’s best interest.

Burden of Proof and Standard of Review

Under section 161.001 of the Texas Family Code, parental rights may be terminated only

upon proof, by clear and convincing evidence, that the parent has committed an act prohibited by

section 161.001(b)(1) of the Texas Family Code, and that termination is in the best interest of the

child. See id. § 161.001. Under section 161.002(b)(1) of the Texas Family Code, “The rights of

an alleged father may be terminated if … after being served with citation, he does not respond by -3- 04-17-00680-CV

timely filing an admission of paternity or a counterclaim for paternity under Chapter 160.” See id.

§ 161.002(b)(1). “However, if the alleged father files an admission of paternity, his rights may

only be terminated if the Department proves by clear and convincing evidence one of the grounds

for termination in Section 161.001(b)(1) and that termination is in the child[’s] best interest.” In

the Interest of U.B., No. 04–12–00687–CV, 2013 WL 441890, at *1 (Tex. App.—San Antonio

Feb. 6, 2013, no pet.) (mem. op.). “‘Clear and convincing evidence’ means the measure or degree

of proof that 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.

We evaluate the legal and factual sufficiency of the evidence to support the trial court’s

findings under the standard of review established by the Texas Supreme Court in In re J.F.C. See

In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under this standard, “[t]he trial court is the sole

judge of the weight and credibility of the evidence, including the testimony of the Department’s

witnesses.” In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio

Jan. 30, 2017, no pet.) (mem. op.).

Failure to Admit Paternity

In his first issue, A.M. contends the evidence is legally and factually insufficient to support

the trial court’s finding pursuant to Family Code section 161.002. In his brief, A.M. judicially

admits he “is the alleged biological father of A.J.M. He is not a ‘legal’ father to A.J.M.” See R.H.

v. Tex. Dep’t of Family & Protective Servs., No. 08-12-00364-CV, 2013 WL 1281775, at *6 (Tex.

App.—El Paso March 28, 2013, no pet.) (mem. op.) (observing appellant judicially admitted in his

brief that he was an alleged father and argued that the evidence was factually and legally

insufficient to support the statutory predicate for termination under section 161.002(b)(1)).

However, A.M. argues “[t]he evidence adduced at trial was entirely devoid of any evidence

suggesting ‘after being served with citation, A.M. did not respond by timely filing an admission -4- 04-17-00680-CV

of paternity or a counterclaim for paternity under Chapter 160.’” Specifically, A.M. complains

that, although Martinez testified a Certificate of Paternity Registry Search was on file with the trial

court, no such document is included in the appellate record.

We note A.M. is correct that a Certificate of Paternity Registry Search is not included in

the appellate record. However, “[t]here are no formalities that must be observed when filing an

admission of paternity or for such an admission to be effective.” See U.B., 2013 WL 441890, at

*2. In In re K.E.S., the court determined that the father had admitted paternity because he made

statements to the Department acknowledging that he was the father and had “completely

cooperated when asked to take a paternity test, the results of which were offered by [the

Department] and admitted without objection by Father.” In re K.E.S., No. 02–11–00420–CV,

2012 WL 4121127, at *3 (Tex. App.—Fort Worth Sept. 20, 2012, pet. denied.) (mem. op.).

In contrast, the court in In re D.T. affirmed termination based on section 161.002(b)(1),

observing that the father had not written to the trial court claiming paternity and had not appeared

at trial to testify. In re D.T., No. 02–13–00331–CV, 2014 WL 261408, at *2 (Tex. App.–Fort

Worth Jan. 23, 2014, no pet.) (mem. op.). The court also noted, “[t]here is no indication in the

record that [the alleged father] offered to take a paternity test or made any effort outside of a single

visit with [the child].” Id.

Similarly, in In re J.L.W., the court affirmed termination based on section 161.002(b)(1).

In re J.L.W., No. 08–09–00295–CV, 2010 WL 5541187, at *6 (Tex. App.—El Paso Dec. 29, 2010,

no pet.) (mem. op.). The court observed, “although [the alleged father] expressed a willingness to

undergo genetic testing, and despite both the trial court’s order that testing be performed and the

Department’s attempts to assist [him] in being tested, [he] never submitted to testing.” Id.

It is undisputed A.M. is not listed on A.J.M.’s birth certificate. Further, the record does

not reflect that A.M. filed an admission of paternity or otherwise claimed paternity by writing to -5- 04-17-00680-CV

the trial court about being A.J.M.’s father. Although A.M. appeared at trial via teleconference, he

did not testify that he was A.J.M.’s father or perform any other act that would have prevented the

summary termination of his parental rights under section 161.002. Cf. In re K.W., No. 02–09–

00041–CV, 2010 WL 144394, at *3 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.) (mem. op.)

(stating that there are no formalities that must be observed for an admission of paternity to be

effective). There is no indication in the record that A.M. offered to take a paternity test; rather,

the record reflects that A.M.’s name was on the birth certificate of only one of the siblings, and

A.M. refused to participate in paternity testing for the other siblings. Cf. In re K.E.S., 2012 WL

4121127, at *3 (stating that father admitted paternity under section 161.002 when, although he did

not file a counterclaim of paternity or for voluntary paternity under chapter 160, he responded to

the Department’s letter acknowledging that he believed the child to be his and cooperated when

asked to take a paternity test, which was admitted without objection at trial, allowing the issue to

be tried by consent).

Given that A.M. made no representation of paternity in the trial court that he is A.M.’s

father, or otherwise admitted paternity, we conclude the trial court had legally and factually

sufficient evidence to support the determination made in Paragraph 7.1 of the termination order

that under section 161.002(b)(1) that A.M. “did not respond by timely filing an admission of

paternity or by filing a counterclaim for paternity or for voluntary paternity to be adjudicated under

chapter 160.” Therefore, we affirm the termination of A.M.’s parental rights as to the child A.J.M.

under section 161.002 without reaching his section 161.001 statutory predicate or best interest

issues. See R.H., 2013 WL 1281775, at *6-7 (indicating that once the appellate court determined

the trial court was authorized to terminate the alleged father’s rights pursuant to section

161.002(b)(1), it was irrelevant whether the trial court’s findings regarding the section 161.001

-6- 04-17-00680-CV

statutory predicate findings were appropriate and also holding that section 161.002(b)(1) does not

require the Department to prove that termination is in the child’s best interest).

CONCLUSION

The State’s motion to show cause on authority to appeal and to show whether the appeal is

frivolous is denied. Based on the foregoing reasons, the trial court’s order terminating the parental

rights of A.M. as to the child A.J.M. is affirmed.

Irene Rios, Justice

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