Opinion
NUMBER 13-16-00635-CV
03-16-2017
IN THE INTEREST OF C.J.A., A CHILD
On appeal from the 2nd 25th District Court of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Rodriguez
This case involves the involuntary termination of parental rights. See TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through 2015 R.S.). Appellant F.A., the father of C.J.A., brings four issues on appeal. He contends by his first three issues that the evidence was neither legally nor factually sufficient to support the section 161.001(b)(1) statutory grounds for termination. See id. § 161.001(b)(1)(C), (F), & (Q). By a fourth issue, F.A. challenges the sufficiency of the evidence to support the trial court's finding that termination of his parental relationship with C.J.A. was in the best interest of the child. See id. at § 161.001(b)(2). We affirm.
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
I. APPLICABLE LAW AND STANDARD OF REVIEW
Before terminating parental rights, the trial court must find (1) that the parent committed an act prohibited by section 161.001(b)(1) of the family code, and (2) that termination is in the best interest of the child. Id. § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Proceedings to terminate parental rights under the family code require proof by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and convincing evidence is "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." In re J.O.A., 283 S.W.3d at 344; see TEX. FAM. CODE ANN. § 101.007 (West, Westlaw through 2015 R.S.). Appellate courts "strictly construe involuntary termination statutes in favor of the parent." In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).
In reviewing the legal sufficiency of the evidence supporting parental termination, while deferring to the factfinder's determinations on witness credibility issues, see In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam), we must "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. In re J.O.A., 283 S.W.3d at 344-45.
In a factual sufficiency review of the evidence supporting parental termination, we must give due deference to the factfinder's findings and must not supplant its judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). "We must determine whether, on the entire record, a fact[]finder could reasonably form a firm conviction or belief that the parent violated a provision of section 161.001(b)(1) and that the termination of the parent's parental rights would be in the best interest of the child." In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)). If, however, "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." Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing In re J.O.A., 283 S.W.3d at 345).
II. STATUTORY GROUNDS FOR TERMINATION
In this case, the trial court found that F.A. voluntarily left C.J.A. alone or in the possession of another without providing for the adequate support of the child and remained away for a period of at least six months, see TEX. FAM. CODE ANN. § 161.001(b)(1)(C); failed to support C.J.A. in accordance with F.A.'s ability during a period of one year ending within six months of the date of the filing of the termination petition, see id. § 161.001(b)(1)(F); and knowingly engaged in criminal conduct that resulted in his conviction for an offense for attempted indecency with a child and confinement or imprisonment and inability to care for C.J.A. for not less than two years from the date of filing the petition. See id. § 161.001(b)(1)(Q).
A. Failing to Support for Six Months (Part C)
We begin by considering F.A's first issue, which complains that the evidence is legally and factually insufficient to support the trial court's finding that F.A. abandoned C.J.A. See id. § 161.001(b)(1)(C).
The trial court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has left the child alone or in the possession of another without providing adequate support for the child and remained away for a period of at least six months. Id. "This ground is commonly characterized as the abandonment of a child by a parent." Jordan, 325 S.W.3d at 726. "The six-month period is a period of at least six consecutive months." Id.
F.A. concedes by his argument that he remained away from C.J.A. for a period of at least six consecutive months. See TEX. FAM. CODE ANN. § 161.001(b)(1)(C). However, F.A. challenges the remaining element of subsection C, contending that he did not voluntarily leave C.J.A. alone or in the possession of another without providing for his adequate support. See id.
The six consecutive months referenced in this discussion is the six months prior to the time C.J.A.'s mother filed for divorce.
F.A. claims that he made "an arrangement with [C.J.A.'s mother and stepfather] for them to provide adequate support for [C.J.A.]." See id. In support of his argument F.A. directs us to his following testimony: "[C.J.A.'s stepfather] has been there for [C.J.A.] . . . and helping [C.J.A.'s mother] out. . . ."
C.J.A.'s mother testified that F.A. left them after threatening her life at knifepoint and did not return. According to C.J.A.'s mother, F.A. provided no support for C.J.A., and F.A. neither made nor requested visits to see C.J.A. for the six-month period prior to her filing for divorce in December of 2012. Yet F.A. testified that he took C.J.A. "school shopping," made one car payment, and helped out when he could, after he and C.J.A.'s mother were separated. He also testified that six months before their divorce he "would call . . . and talk to [C.J.A.] and stuff." F.A. explained that C.J.A.'s mother would deny him access to [C.J.A.] because "she would be mad, different stuff people would tell her, or stuff that [F.A.] would be doing and stuff like that." However, the trial court could have disbelieved F.A., a determination to which we defer, see In re J.P.B., 180 S.W.3d at 573, and the court reasonably could have determined from this evidence that F.A. did not provide for the adequate support of C.J.A. during his six-month absence.
We further note that in In re H.R.M., a section 161.001(b)(1)(Q) case, the Texas Supreme Court concluded that "[a]bsent evidence that the non-incarcerated parent agreed to care for the child on behalf of the incarcerated parent, merely leaving a child with a non-incarcerated parent does not constitute the ability to provide care." 209 S.W.3d at 110 (citing In re E.S.S., 131 S.W.3d 632, 637 (Tex. App—Fort Worth 2004, no pet.) (explaining that the incarcerated parent had the ability to care for E.S.S. where he named his mother and brother as possessory conservators with visitation rights)). The supreme court emphasized that there must be an agreement between the parties to care for the child before the incarcerated parent can show that he has the ability to care for the child through the support of others. Id. The same reasoning applies in this case. Merely leaving C.J.A. with his mother and showing that she cared for C.J.A. during the referenced six-month period does not establish that F.A., whether incarcerated or not, provided adequate support for C.J.A., particularly where, as here, appellees are seeking to terminate F.A.'s parental rights. See id. There must have been evidence of any claimed agreement under such circumstances, see id., and we find none.
Viewing this evidence in the light most favorable to the judgment, we conclude that a reasonable factfinder could have formed a firm belief or conviction that F.A. left C.J.A. alone or in the possession of another without providing adequate support for C.J.A. and remained away for a period of at least six months. The evidence is legally sufficient to support the trial court's finding. See In re J.L., 163 S.W.3d at 85; see also TEX. FAM. CODE ANN. §161.001(b)(1)(C). Similarly, when reviewing the evidence as a whole it is also clear that a factfinder could have reasonably formed a firm conviction or belief that F.A. violated section 161.001(b)(1)(C) by leaving C.J.A. and failing to provide adequate support for a continuous six-month period. See In re M.C.T., 250 S.W.3d at 168 (citing In re C.H., 89 S.W.3d at 28); see also TEX. FAM. CODE ANN. §161.001(b)(1)(C). So we also conclude that the evidence is factually sufficient to support the trial court's finding on the section 161.001(b)(1)(C) ground. See In re M.C.T., 250 S.W.3d at 168 (citing In re C.H., 89 S.W.3d at 28); see also TEX. FAM. CODE ANN. §161.001(b)(1)(C). We overrule F.A.'s first issue.
B. Failure to Support According to F.A.'s Ability for One Year (Part F) and Imprisonment and Inability to Care for C.J.A. (Part Q)
Section 161.001(b)(1) requires proof of only one predicate ground to support termination. See In re E.N.C., 384 S.W.3d at 803; see also TEX. FAM. CODE ANN. § 161.001(b)(1). Because we have concluded that the evidence is sufficient to support the trial court's finding as to subsection C, we do not address F.A.'s second and third issues that challenge the trial court's findings on the other predicate grounds under subsections F and Q. See TEX. R. APP. P. 47.1; In re E.N.C., 384 S.W.3d at 803.
III. BEST INTEREST OF THE CHILD
In his fourth issue, F.A. challenges the trial court's finding that termination of his rights would be in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(2). He claims that the evidence is legally and factually insufficient to show that it is in C.J.A.'s best interest to terminate his parental rights because C.J.A. "wants [F.A.] in his life, [F.A.] wants to provide emotional, financial, and physical support to [C.J.A.], less drastic alternatives have not been considered, and [F.A.] is remorseful for his past deeds." A. The Holley Factors
Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include:
[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 v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (footnotes omitted). These factors are not exhaustive; some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d at 27; W.B. v. Tex. Dep't of Protective and Regulatory Servs., 82 S.W.3d 739, 742 (Tex. App.—Corpus Christi 2002, no pet.). And undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the children. In re D.S., 128 S.W.3d 707, 716 (Tex. App.—Fort Worth 2004, no pet.) (citing In re C.H., 89 S.W.3d at 27); see also In re P.R.W., 493 S.W.3d 738, 745 (Tex. App.—Corpus Christi 2016, no pet.) (mem. op.). On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. In re C.H., 89 S.W.3d at 27.
B. Analysis
1. Desires of the Child
F.A. asserts that C.J.A.'s stepfather's testimony that the child "misses" F.A.'s family and that he blocked all access to C.J.A. because it "hurts [C.J.A.'s] heart," shows that C.J.A. desires to maintain a relationship with F.A. and his family. We disagree.
At the time of the termination hearing, C.J.A. was seven years old. There is no evidence that C.J.A. expressed an opinion regarding his desires about his relationship with F.A. or that he was mature enough to form one. Nonetheless, C.J.A.'s stepfather did testify that he let C.J.A. speak with his paternal grandmother by phone "and it hurt him for a long time. It's hard to let him sit down and talk because—everybody he misses, you know. . . . Because it hurts his heart. You don't want to see the child hurt." F.A. contends that this testimony supports his position regarding C.J.A.'s desires. But even were we to conclude that a stepfather's concern for a child after receiving a phone call from his paternal grandmother is evidence that C.J.A. loves F.A. and shows affection, it is only marginally relevant. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied). Without more, this first factor weighs only marginally against termination. See id.
2-3. Emotional and Physical Needs of and Dangers to the Child Now and in the Future
F.A. asserts that, when he is released from prison, he wants to see C.J.A., pay for child support, including arrearages, and pay for C.J.A.'s medical expenses. However, the record reflects that F.A. did not adequately support C.J.A., financially or emotionally, before his incarceration—as early as mid-2012. According to C.J.A.'s mother, they have received only one support payment from F.A. And although F.A. testified that he wrote to C.J.A. "all the time," C.J.A.'s stepfather testified that C.J.A. received only one letter from F.A. and that was approximately a year before the termination hearing. C.J.A.'s paternal grandmother also testified that she wanted to provide for the child, but there was no testimony to show that she had done so in the past or can do so in the future. Finally, the evidence shows that in 2012 F.A. threatened C.J.A.'s mother at knifepoint, although no charges were brought, and that in 2013 F.A. pleaded guilty to attempted indecency with a child (not C.J.A.) and received a ten-year sentence. The second and third Holley factors weigh in favor of termination.
According to our review of the record, F.A. was incarcerated in July 2013, with a projected release date of July 22, 2023. F.A. testified that his first parole request was denied and that, at the time of trial, he was waiting for an answer on his second parole request.
4. Parental Abilities of the Individuals Seeking Custody
C.J.A.'s mother cared for C.J.A. since her separation from F.A. in 2012 and was appointed sole managing conservator of C.J.A. in the 2013 divorce decree. F.A. concedes that she is a good parent and "[t]hat is why he is comfortable with her caring for [C.J.A.]."
The testimony at the termination hearing also shows that, since their marriage, C.J.A.'s mother and step-father have taken care of C.J.A. In addition, the clerk's record includes a home study that describes the couple as follows and recommends that the trial court grant the adoption by the stepfather:
As a couple, [C.J.A.'s stepfather and his mother] are mature, stable, sensible, caring, and loving people with strong moral and ethical values. They are committed and focused. They have created a home environment that is conducive to raising [C.J.A.] and his [three half-brother or sister] siblings . . . . It is felt that they are attentive to [C.J.A.'s] academic, emotional, and physical needs.
In regards to adoption, [C.J.A.'s stepfather] is sincerely and highly motivated to adopt his step[]son, [C.J.A.] After the psychosocial interview, I find [C.J.A.'s stepfather] to be sensible, stable, level-headed and a well-adjusted individual with a strong desire to provide a loving and stable home for [C.J.A.] This adoption will greatly benefit [C.J.A.] as he will be nurtured and given opportunity to grow into his own person. I strongly recommend and support the adoption of [C.J.A.] by his stepfather . . . .
Under this factor, the trial court could have also considered F.A.'s conviction for attempted indecency with a child and that he could be incarcerated until 2023. This would impact his ability to care for C.J.A. during that time.
While recognizing "that termination should not be used as a way to reallocate a child to 'better' or more prosperous parents," In re D.W., 445 S.W.3d 913, 932 (Tex. App.—Dallas 2014, pet. denied), in this instance, this fourth Holley factor weighs in favor of termination.
5. Programs Available to Assist the Individuals Seeking Custody to Promote the Best Interest of the Child
F.A. suggests that upon his release from prison, he should be placed under a plan with the Department of Family and Protective Services. However, there is no evidence of any programs that are now available or that will be available to assist F.A. in promoting C.J.A.'s best interest if his parental rights are not terminated. On the other hand, there is no evidence of programs that are or will be available to assist appellees either, although C.J.A.'s mother testified that she did seek therapeutic treatment for C.J.A. after F.A. left the home. This fifth Holley factor is neutral regarding termination.
6. Plans for the Child by the Individuals Seeking Custody
F.A. argues that the court should not take the "drastic route of severing [F.A.'s] parental relationship with [C.J.A.]" and should not allow C.J.A.'s adoption by his stepfather. He asserts that by not allowing the adoption, nothing would change; C.J.A. would continue to live with appellees. However, there is no evidence of F.A.'s plans for C.J.A. should his rights not be terminated. F.A. suggested that his mother would be willing to support and care for C.J.A., but there is no evidence of any plans for her to do so. On the other hand, this suit, itself, reflects appellees' plan. They seek to terminate F.A.'s parental rights so that C.J.A.'s stepfather can adopt the child. This sixth factor weighs in favor of the termination of F.A.'s parental rights.
7. Stability of the Home
Utilizing the same reasoning and facts set out under the fourth factor, this seventh Holley factor weighs in favor of termination.
8-9. The Acts or Omissions of the Parent Which May Indicate That the Existing Parent-Child Relationship is not a Proper One and any Excuse for the Acts or Omissions of the Parent
Appellees assert that the record contains evidence of several acts and omissions, which indicate that the relationship between F.A. and C.J.A. might be improper. We agree.
As explained above, F.A. left C.J.A. and his mother after a violent episode. The evidence supports a determination that, after leaving C.J.A. and before his incarceration, F.A. neither provided adequate support nor made an arrangement or agreement for the care of C.J.A. And when C.J.A. was almost four years old, F.A. was incarcerated for committing a criminal offense—attempted indecency with a child—for which he received a ten-year sentence. F.A. has provided little support for C.J.A. during his incarceration. The evidence supports only a conclusion that F.A.'s mother may help support the child, not that she has or will do so on F.A.'s behalf.
At the termination hearing, F.A. offered no excuses or rationale for his acts and omissions, other than he "just didn't have the money." After conceding that he did wrong with his attempted indecency-with-a-child offense, he explained, "I feel like he's still my son" and "[j]ust due to the fact of my bad mistakes that I've made, I don't think it should be . . . I should lose my rights to him for the rest of my life over a mistake."
We conclude that the eighth and ninth factors weigh in favor of termination.
C. Summary
After a thorough review of the record in the light most favorable to the trial court's verdict, we conclude that the evidence is legally sufficient because a reasonable trier of fact could form a firm belief or conviction that termination of F.A.'s parental rights was in the best interest of C.J.A. See In re J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72; see also TEX. FAM. CODE ANN. § 161.001(b)(2). We conclude the evidence is factually sufficient because the disputed evidence is not so significant it would prevent a reasonable factfinder from forming a firm belief or conviction that termination was in C.J.A.'s best interests. See In re H.R.M., 209 S.W.3d at 108; see also TEX. FAM. CODE ANN. § 161.001(b)(2). We overrule F.A.'s fourth issue.
IV. CONCLUSION
We affirm the trial court's order terminating F.A.'s parental rights to his child, C.J.A.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 16th day of March, 2017.