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In re S.K.S.

Court of Appeals of Texas, Twelfth District, Tyler

July 31, 2017

IN THE INTEREST OF S.K.S., AND C.H.S., CHILDREN

         APPEAL FROM THE COUNTY COURT AT LAW RUSK COUNTY, TEXAS (Tr. Ct. No. 2013-09-527)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Greg Neeley Justice

         R.M. appeals the termination of her parental rights. On appeal, she presents three issues. We reverse and remand.

         Background

         J.S. is the father and R.M. is the mother of S.K.S. and C.H.S. An order in suit to modify the parent-child relationship signed on June 25, 2014, required that J.S. be appointed sole managing conservator of the children and that R.M. be appointed possessory conservator of the children. Further, R.M. was obligated to pay child support to J.S. in the amount of $275 per month beginning on June 1, 2014.

         On July 15, 2016, J.S. filed an original petition for termination of R.M.'s parental rights. R.M. filed a first amended answer and counter-petition to modify the parent-child relationship. At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that R.M. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsection (F) of Texas Family Code section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between R.M., S.K.S., and C.H.S. was in the children's best interest. Based on these findings, the trial court ordered that the parent-child relationship between R.M., S.K.S., and C.H.S. be terminated. The trial court also ordered that J.S. be appointed managing conservator of the children.

         The trial court further found that R.M. was ordered to make periodic payments of child support in the amount of $275 per month beginning June 1, 2014. The trial court found that R.M. failed to make payments as ordered, that R.M. was in arrears in the amount of $8, 250 for the period of June 1, 2014 through November 1, 2016, and interest had accrued in the amount of $639.38. The trial court ordered that J.S. be awarded the amount of $8, 889.38 in cumulative child support arrearages and interest at six percent per year from the date of the order, or January 18, 2017. This appeal followed.

         Termination of Parental Rights

         Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). Because a termination action "permanently sunders" the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.-El Paso 1998, no pet.).

         Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. Tex. Fam. Code Ann. § 161.001 (West Supp. 2016); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.-Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. Tex. Fam. Code Ann. § 161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2016); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. Tex. Fam. Code Ann. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.

         The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. Tex. Fam. Code Ann. § 161.001; In re J.J., 911 S.W.2d at 439. Clear and convincing evidence means "the measure or degree of 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." Tex. Fam. Code Ann. § 101.007 (West 2014). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.

         Standard of Review

         When confronted with both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no pet.). In conducting a legal sufficiency review, 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts ...


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