in the Interest of A.S.L., a Child

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-09-00452-CV

IN THE INTEREST OF A.S.L., A CHILD

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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1 ----------

Appellant C.A. appeals the trial court’s order terminating his parental rights

to his child, A.S.L. (Adam).2 In one point, appellant contends that the evidence is

legally and factually insufficient to support the trial court’s findings under section

161.001(1) of the family code.3 We affirm.

1 See Tex. R. App. P. 47.4. 2 To protect the identity of the parties, we will identify them through initials and aliases. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008); Tex. R. App. P. 9.8(b). 3 See Tex. Fam. Code Ann. § 161.001(1) (Vernon Supp. 2010). Background Facts

Adam was born in May 2007 to D.C. (Mother) and appellant. Appellant

was not present at Adam’s birth, and Mother put appellee M.L.’s name on the

birth certificate because she was confused and ―wasn’t really sure‖ who the

father was. Mother had moved in to live with appellee approximately four months

prior to Adam’s birth.4 To resolve the doubts as to the identity of Adam’s father,

appellant and Mother completed DNA testing. The results of the test confirmed

that appellant is the biological father.5 Appellant saw Adam one to two times per

week for about three or four months after his birth, but then appellant stopped

seeing Adam awhile because appellant and Adam’s grandmother had an

argument.

In September 2008, appellant filed a pro se petition to establish parentage.

Later, appellant hired an attorney and appeared by counsel. In March 2009, the

trial court ordered up to three supervised visits per week for appellant. Although

appellant exercised this right once and saw Adam for the first time since 2007, he

failed to visit Adam at any other time during the pendency of the case. In July

2009, the trial court allowed appellant’s counsel to withdraw from representation.

Appellant did not retain substitute counsel and has continued pro se through the

end of trial and this appeal.

4 Mother and appellee have lived together off and on since 2000. 5 The parties also stipulated at trial that appellant is Adam’s father.

2 On July 1, 2009, appellee filed a counterpetition, in which he asked the trial

court to terminate appellant’s parent-child relationship with Adam and to name

appellee sole managing conservator. The trial court held a termination trial in

December 2009, at which time Adam was two and a half years old. The bench

trial, in which appellant, Mother, and appellee testified, lasted less than one day.

At the end of the trial, the court announced its decision to terminate appellant’s

parental rights.

In February 2010, the trial court entered an order that adjudicated

appellant as Adam’s biological father, terminated appellant’s parental rights, and

appointed Mother and appellee as joint managing conservators. The trial court

found that clear and convincing evidence established that appellant

(1) voluntarily left Adam alone or in the possession of another not the parent

without expressing an intent to return, without providing for the adequate support

of Adam, and remained away for a period of at least three months and (2) failed

to support Adam in accordance with his ability during a period of one year ending

within six months of the date of the filing of the termination petition. See Tex.

Fam. Code Ann. § 161.001(1)(B), (F). The court also found by clear and

convincing evidence that termination was in Adam’s best interest. See id.

§ 161.001(2).

3 Appellant filed a notice of appeal. The trial court declined to appoint

appellate counsel for appellant.6

Sufficiency of the Evidence to Support Termination

In his sole point, appellant challenges the termination of his parental rights,

complaining that the evidence is legally and factually insufficient to support the

trial court’s findings on the grounds of section 161.001(1), subsections (B) and

(F). Appellant does not contest the trial court’s finding that termination of the

parent-child relationship is in the best interest of the child.

A parent’s rights to ―the companionship, care, custody, and management‖

of his or her children are constitutional interests ―far more precious than any

property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights

are of constitutional magnitude, they are not absolute. Just as it is imperative for

6 Appellant’s brief asserts a complaint regarding his entitlement to counsel in the termination trial below. But although the trial court had the discretion and authority to appoint counsel, appellant was not entitled to counsel. See Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon 2008) (explaining that in a ―suit filed by a governmental entity in which termination of a parent-child relationship is requested,‖ the trial court shall appoint an attorney ad litem to represent the interests of an indigent parent who responds in opposition to the termination) (emphasis added); In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied) (―Because Tracy’s parental rights were terminated pursuant to a private termination suit, she possessed no mandatory statutory right to appointed counsel.‖), cert. denied, 130 S. Ct. 1281 (2010); see also In re C.M.R., No. 02- 07-00394-CV, 2008 WL 4963510, at *2 (Tex. App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.) (explaining that ―the appointment of counsel in a private termination is within the trial court’s sound discretion‖). Thus, to the extent appellant attempts to assert the complaint about not having counsel as a separate point, we overrule it.

4 courts to recognize the constitutional underpinnings of the parent-child

relationship, it is also essential that emotional and physical interests of the child

not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). In a termination case, the petitioner seeks not just to limit parental

rights but to erase them permanently—to divest the parent and child of all legal

rights, privileges, duties, and powers normally existing between them, except for

the child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008);

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize

termination proceedings and strictly construe involuntary termination statutes in

favor of the parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213,

233 (Tex. App.—Fort Worth 2009, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute. Tex. Fam. Code Ann. § 161.001(1); In

re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Termination decisions must be

supported by clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001,

.206(a). Evidence is clear and convincing if it ―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.‖ Id. § 101.007 (Vernon 2008). Due process demands this

heightened standard because termination results in permanent, irrevocable

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

5 In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that appellee proved the grounds for

termination. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all

the evidence in the light most favorable to the finding and judgment. Id. We

resolve any disputed facts in favor of the finding if a reasonable factfinder could

have done so. Id. We disregard all evidence that a reasonable factfinder could

have disbelieved. Id. We consider undisputed evidence even if it is contrary to

the finding. Id. That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573–

74. And even when credibility issues appear in the appellate record, we defer to

the factfinder’s determinations as long as they are not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the

entire record, a factfinder could reasonably form a firm conviction or belief that

appellant violated subsections (B) or (F) of section 161.001(1). See Tex. Fam.

Code Ann. § 161.001(1)(B), (F); In re C.H., 89 S.W.3d at 28. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

6 credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

Section 161.001(1)(F) allows involuntary termination where the parent has

failed to support the child in accordance with the parent’s ability during a period

of one year ending within six months of the date of the filing of the petition.

Tex. Fam. Code Ann. § 161.001(1)(F); see In re E.M.E., 234 S.W.3d 71, 72 (Tex.

App.—El Paso 2007, no pet.) (―The one-year period begins no earlier than

eighteen months before the petition to terminate is filed.‖). One year means

twelve consecutive months, and there must be proof the parent had the ability to

support during each month of the twelve-month period. E.M.E., 234 S.W.3d at

72; see In re L.J.N., 329 S.W.3d 667, 672 (Tex. App.—Corpus Christi 2010, no

pet.); In re J.R., 319 S.W.3d 773, 777 (Tex. App.—El Paso 2010, no pet.); In re

Z.W.C., 856 S.W.2d 281, 283 (Tex. App.—Fort Worth 1993, no writ). The burden

of proof is on the party seeking termination to prove by clear and convincing

evidence that the parent had the ability to pay during each of the months. L.J.N.,

329 S.W.3d at 672; E.M.E., 234 S.W.3d at 72.

Appellee filed his ―First Amended Counter-Petition to Adjudicate

Parentage,‖ which sought to terminate the parent-child relationship between

appellant and Adam, on July 1, 2009.7 Thus, we must determine whether the

7 The original counterpetition, which appellee filed in October 2008, did not request termination of appellant’s parental rights.

7 evidence establishes that appellant failed to support Adam for twelve consecutive

months between January 1, 2008 and July 1, 2009, and whether the evidence

establishes that appellant had an ability to pay within that same twelve-month

period. See E.M.E., 234 S.W.3d at 72 (―Given that Elkabachi filed her petition on

May 17, 2006, we must determine whether the evidence established that Carrillo

failed to support the child for twelve consecutive months between November 17,

2004 and May 17, 2006.‖).

Appellant admitted that he had not paid child support to any person at least

since the time he filed his petition to establish parentage on September 29, 2008.

He testified that he gave between $75 and $150 a week to Adam’s grandmother

until the two got into an argument sometime prior to the time he filed the petition.

On cross-examination, however, he conceded, ―I guess it was 2007‖ when he

had last ―provided any sort of financial support for the child.‖ In any event, both

Mother and appellee testified that neither had received any support from

appellant at any time since Adam was born. Thus, the evidence supports the

trial court’s determination that appellant failed to support the child for a period of

twelve consecutive months between January 1, 2008 and July 1, 2009.

The record also supports the trial court’s finding that appellant had an

ability to pay during the relevant period. Appellant was working as a tattoo artist

when Adam was born in 2007. During the early months of 2008, appellant

owned two tattoo shops, which generated income for him until he was arrested

8 on June 5, 2009.8 As the owner of the tattoo shops, he earned $5,000 to $6,000

each month, receiving $3,500 average monthly net income. Also, the evidence

reveals that appellant made payments to Father’s Choice in an effort to see

Adam despite being dissatisfied with the services he had received and that he

paid for an attorney in connection with this case.9 Therefore, evidence supports

the trial court’s determination that appellant had an ability to support Adam during

each month of the period.

Appellant cites Prokopuk v. Offenhauser to support his argument that he

had no duty to support the child until after his paternity was officially established.

801 S.W.2d 538, 540 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (―We . . .

hold that where a father has doubts as to his paternity, there is no enforceable

obligation to support an illegitimate child before paternity is established.‖)

(emphasis added). However, unlike the mother in Prokopuk, who denied the

appellant’s paternity at all times from the child’s birth until the conclusion of the

trial, Mother and appellee have recognized appellant as the biological father at all

times since receiving the DNA test results and even stipulated to that fact at trial.

Appellant acted like Adam’s father in 2007 when he visited Adam, provided some

8 At the time of the termination trial, appellant was incarcerated with bail set at $1,000,000 pending his criminal trial. He had been charged with two counts of attempted capital murder of a police officer and possession of prohibited weapons. He acknowledged that he could face a life sentence if convicted. He testified, ―I do understand that I might be put away for a while.‖ 9 Appellant states in his brief that he made monthly payments to Father’s Choice for ―legal counsel.‖

9 financial support for him, and hired Father’s Choice once the argument with

Adam’s grandmother occurred. Appellant has never doubted or disputed his

paternity. Thus, we hold that appellant had a duty to support Adam at least by

January 1, 2008, and continuing in the time period relevant to section

161.001(1)(F). See In re B.T., 954 S.W.2d 44, 49 (Tex. App.—San Antonio

1997, writ denied) (―Th[e] duty of support exists regardless of whether a parent is

court-ordered to support the child.‖); R.W. v. Tex. Dep’t of Protective &

Regulatory Servs., 944 S.W.2d 437, 440 (Tex. App.—Houston [14th Dist.] 1997,

no writ) (―And just like all other parents, these duties arose long before appellant

filed his voluntary statement of paternity and without regard to any adjudication

by a court establishing his parentage. The duty existed from the moment

appellant, by his actions, recognized the child as his own.‖); Jimenez ex rel. Little

v. Garza, 787 S.W.2d 601, 603 (Tex. App.—El Paso 1990, no writ) (―[T]here

would be no duty arising in absence of a court order, where a father has doubt as

to his paternity. But where there is a judicial admission or an unequivocal

unretracted acknowledgment, the duty to support addressed in termination

proceedings should commence from the date of admission or acknowledgment.‖)

(emphasis added); see also In re D.M.F., 283 S.W.3d 124, 133 (Tex. App.—Fort

Worth 2009, pet. granted, judgm’t vacated w.r.m.) (reasoning that a parent has

an enforceable obligation to support a child once the parent has unequivocally

acknowledged paternity).

10 For these reasons, we hold that the evidence is legally and factually

sufficient to support the trial court’s finding that appellant’s parental rights to

Adam should be terminated under subsection (F) of section 161.001(1).

We overrule appellant’s sole point.10

Because a petitioner must establish only one of the acts or omissions

enumerated under subdivision (1) of section 161.001, we will not address

whether the evidence is legally and factually sufficient to support the trial court’s

finding under subsection (B). See Tex. Fam. Code Ann. § 161.001(1); Tex. R.

App. P. 47.1; In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no

pet.).

10 Additionally, appellant asserts that the trial court violated his due process rights when it terminated his parental rights. However, he fails to cite case law or provide analysis explaining how the proceedings below denied him due process. Because appellant’s brief does not contain adequate argument supporting his contention about due process, we overrule the contention. See Tex. R. App. P. 38.1(i); In re J.B.W., 99 S.W.3d 218, 225 n.35 (Tex. App.—Fort Worth 2003, pet. denied). We note that appellant initiated this case by filing his petition to establish parentage, that the termination order recites that ―all persons entitled to citation were properly cited,‖ and that appellant was represented during part of the trial court’s proceedings and appeared and testified at trial. See In re K, 520 S.W.2d 424, 427–28 (Tex. Civ. App.—Corpus Christi 1975) (rejecting a parent’s argument of denial of due process in an analogous procedural scenario), aff’d, 535 S.W.2d 168 (Tex.), cert. denied, 429 U.S. 907 (1976)).

11 Conclusion

Having overruled appellant’s only point, we affirm the trial court’s order

terminating appellant’s parental rights to Adam.11

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: May 26, 2011

11 In August and September 2010, appellant filed motions in this court concerning unsealing the trial court’s record so that he could comply with the briefing requirements contained in the rules of appellate procedure. The trial court unsealed the record on October 1, 2010, and appellant has not requested to amend his brief since that time. Thus, we deny as moot appellant’s ―Motion to Unseal Court Records and Request Extension of Time to File Appeallants [sic] Brief‖ and ―Motion for Extension of Time.‖ See Eastman v. Willowick Apartments, 139 S.W.3d 348, 349 (Tex. App.—Fort Worth 2004, no pet.).