in the Interest of D.J.S., a Child

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-19-00887-CV

IN THE INTEREST OF D.J.S., a Child

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2019PA00363 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Irene Rios, Justice Beth Watkins, Justice

Delivered and Filed: April 1, 2020

AFFIRMED

The sole issue presented on appeal is whether the trial court erred in terminating P.S.’s

alleged parental rights to D.J.S. pursuant to Section 161.001(b)(1)(N) of the Texas Family Code,

“in the alternative to terminating his rights as an alleged father, because [1] Appellant was not

established as the child’s parent and [2] said finding refers to actions or inaction of only the mother,

not Appellant.” We affirm the trial court’s order.

BACKGROUND

D.J.S. was born on October 2, 2018. On February 25, 2019, the Texas Department of

Family and Protective Services filed a petition to terminate the rights of P.S. as the alleged father

of D.J.S. 04-19-00887-CV

On December 10, 2019, a bench trial was held on the petition. P.S. was not present at the

bench trial. After announcing not ready, P.S.’s attorney informed the trial court that he had “looked

for [P.S.] several times” and “sent him a couple of letters.” P.S.’s attorney also stated he “did,

surprisingly, hear from [P.S.] on November 13th” and advised him of the trial setting. While

waiting for the case to be called on the court’s docket that morning, P.S.’s attorney further

informed the trial court that he called P.S.’s phone number, asked for P.S., and the male who

answered hung up. Finally, P.S.’s attorney stated he sent a text message to the phone number after

the male hung up, but he did not receive a reply. P.S.’s attorney stated P.S. was an “alleged”

father. The trial court denied the not ready announcement.

At the conclusion of the evidence, the trial court announced P.S.’s rights as an alleged

father were terminated pursuant to Section 161.002 of the Texas Family Code (“Code”). 1 The trial

court further announced P.S.’s rights were alternatively terminated pursuant to Section

161.001(b)(1)(N) of the Code. 2 P.S. appeals.

DISCUSSION

The sole issue presented in P.S.’s brief is whether the trial court erred in alternatively

terminating P.S.’s parental rights under Section 161.001(b)(1)(N) of the Code because that section

only authorizes the termination of a “parent’s” rights, not the rights of an alleged father. As the

Department notes in its brief, however, termination under Section 161.001(b)(1)(N) was an

alternative ruling to termination of P.S.’s rights as an alleged father under Section 161.002(b)(1)

1 Under Section 161.002(b)(1), an alleged father’s rights may be terminated if “after being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160” of the Code. TEX. FAM. CODE ANN. § 161.002(b)(1). 2 Under Section 161.001(b)(1)(N), a parent’s rights may be terminated if the parent has constructively abandoned the child and other conditions are satisfied. TEX. FAM. CODE ANN. § 161.001(b)(1)(N).

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because P.S. failed to timely file an admission of paternity or a counterclaim for paternity under

Chapter 160 of the Code after he was served. We agree.

“An appellant must challenge all independent bases or grounds that fully support a

judgment or appealable order.” In re M.J.M.G., 543 S.W.3d 862, 864 (Tex. App.—San Antonio

2017, no pet.). “By failing to challenge the trial court’s finding that [P.S] failed to file an admission

of paternity, [P.S.] did not challenge all of the independent grounds listed in the termination order.”

Id. “Accordingly, this court must accept this unchallenged finding as true.” Id. Therefore, because

P.S. failed to challenge the trial court’s termination of P.S.’s rights as an alleged father under

Section 161.002(b)(1) of the Code, we affirm the trial court’s order without addressing P.S.’s

challenge to the alternative ground for termination under Section 161.001(b)(1)(N). See id.; see

also In re C.R., No. 05-18-00412-CV, 2018 WL 4537626, at *3 (Tex. App.—Dallas Sept. 21,

2018, no pet.) (mem. op.) (“In light of B.H.’s failure to challenge the trial court’s termination under

subsections 161.002(b)(1) and (b)(2)(B), either of which fully supports the trial court’s termination

order, we need not address the unchallenged findings or the grounds raised in B.H.’s brief and

affirm the trial court’s order.”); In re D.R.L., No. 01-15-00733-CV, 2016 WL 672664, at *12 (Tex.

App.—Houston [1st Dist.] Feb. 18, 2016, no pet.) (mem. op.) (“Simply put, under section

161.002(b)(1), a trial court may summarily terminate an alleged father’s parental rights when he

does not file an admission of paternity or counterclaim for paternity under Chapter 160 without

requiring [the Department] to prove that the father engaged in one of the types of conduct listed in

section 161.001(b)(1) of the [Family] Code or that termination is in the best interest of the child.”)

(internal quotation marks omitted); In re D.T., No. 02-13-00331-CV, 2014 WL 261408, at *2–3

(Tex. App.—Fort Worth Jan. 23, 2014, no pet.) (mem. op.) (affirming termination order where

alleged father failed to challenge termination under Section 161.002 without addressing challenge

to constructive abandonment ground).

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CONCLUSION

The trial court’s order is affirmed.

Sandee Bryan Marion, Chief Justice

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