the 13th District Court Navarro County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY Chief Justice
M. appeals from a judgment that terminated the parent-child
relationship between him and his child, A.L.M. Tex. Fam. Code
Ann. § 161.001 (West 2014). Enrique complains that the
evidence was factually insufficient to show that he failed to
support his child pursuant to Section
161.001(b)(1)(F). Tex. Fam. Code Ann. §
161.001(b)(1)(F). Because we find that the evidence was
factually insufficient on this ground, we reverse the
judgment of termination of Enrique's parental rights.
sole issue, Enrique complains that the evidence was factually
insufficient for the trial court to have found by clear and
convincing evidence that he had "failed to support the
child in accordance with [his] ability during a period of one
year ending within six months of the filing of the
petition". Tex. Fam. Code Ann. § 161.001(b)(1)(F).
In cases involving termination of parental rights, due
process requires the application of the clear and convincing
standard of proof. In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002); see § 161.206(a) (West 2014).
"'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). This standard, which
focuses on whether a reasonable jury could form a firm belief
or conviction, retains the deference a reviewing court must
have for the factfinder's role. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
reviewing the factual sufficiency of the evidence supporting
a termination order, we determine "whether the evidence
is such that a factfinder could reasonably form a firm belief
or conviction about the truth of the movant's
allegations." In re C.H., 89 S.W.3d at 25.
"If, 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." In re
J.F.C., 96 S.W.3d at 266.
the mother of A.L.M., filed the petition to terminate the
parent-child relationship on December 16, 2016. Enrique filed
a general denial. The final hearing was conducted on April
21, 2017, at which time the trial court found that Enrique
had failed to support his child in accordance with Section
161.001(b)(1)(F) and that termination was in the best
interest of the child. The trial court also granted
Brandi's request to change the child's last name.
had been ordered to pay child support beginning in March of
2013 and regular payments were taken from his paycheck until
February of 2016 when the amounts became more sporadic and
covered significantly less than his entire monthly
obligation. The child support payments stopped entirely after
one payment made in early June of 2016.
was incarcerated at the time of the final hearing and did not
attend because he was transferred to TDCJ shortly before the
hearing. Brandi testified to the reduced payments
and a payment record from the attorney general's office
was admitted into evidence that showed the exact dates and
amounts paid by Enrique. Brandi further testified that
Enrique was a car salesman with no physical disabilities and
had the ability to pay child support. Enrique had been
incarcerated since August of 2016 pending a revocation of
community supervision and new drug charges. Although Brandi
testified on cross-examination by the amicus attorney for the
child that Enrique did not have the ability to pay support
while incarcerated, she later expressed that it was
Enrique's decision to use drugs and go to jail that led
to him being unable to work. Brandi had been notified at some
point by letter that Enrique had been terminated from his
employment, although the record is unclear as to when that
argues that the evidence was insufficient to show that there
was evidence of him failing to support his child for twelve
consecutive months prior to the filing of Brandi's
petition. The amicus attorney appointed to represent the
child argued to the trial court that the evidence was
insufficient on this basis at the final hearing as well.
Brandi contends that the evidence was sufficient because
Enrique failed to support the child from March of 2016 to
March of 2017, which includes dates after the filing of the
petition but that were within six months of its filing.
bore the burden of proving by clear and convincing evidence
that Enrique had the ability to pay during each of these
months. See In re N.A.F., 282 S.W.3d 113, 116 (Tex.
App.-Waco 2009, no pet.). She likewise had to prove that he
failed to pay support commensurate with his ability for each
of those twelve months. See Wiley v. Spratlan, 543
S.W.2d 349, 351 (Tex. 1976). After reviewing the entire
record and giving appropriate deference to the trial court as
factfinder, we do not find that the evidence was "such
that [the] factfinder could reasonably form a firm belief or
conviction about the truth of the movant's
allegations." In re C.H., 89 S.W.3d at 25.
Brandi had been informed that Enrique had been terminated
from his employment at some point but had no knowledge of
other employment. There was no evidence regarding any other
ability to pay child support from any other sources either
before or after Enrique's incarceration. After he was
incarcerated, there was no evidence that Enrique had any
ability to pay child support to Brandi. Because the evidence
was factually insufficient, we sustain Enrique's sole
Having found that the evidence was factually insufficient, we
reverse the judgment as it relates to the termination of
Enrique's parental rights to A.L.M. We affirm the portion