Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 2nd 25th District Court of Gonzales County,
Justices Rodriguez, Contreras, and Longoria
V. RODRIGUEZ Justice
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.
Applicable Law and Standard of Review
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).
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.
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 factfinder 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).
Statutory Grounds for Termination
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. §
Failing to Support for Six Months (Part C)
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).
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."
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.
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. . . ."
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
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 ...