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In re C.J.A.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 16, 2017

IN THE INTEREST OF C.J.A., A CHILD

         On appeal from the 2nd 25th District Court of Gonzales County, Texas.

          Before Justices Rodriguez, Contreras, and Longoria

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         This case involves the involuntary termination of parental rights.[1] 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.

         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. [2] 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.

         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 ...


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