Court of Appeals of Texas, Fourth District, San Antonio
the 407th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-PA-02783 Honorable Charles E. Montemayor,
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Irene Rios, Justice
A.M., appeals the trial court's order terminating his
parental rights to the child A.J.M. A.M. challenges the legal
and factual sufficiency of the trial court's findings
supporting termination of his parental rights. We affirm the
trial court's order.
December 12, 2016, the Texas Department of Family and
Protective Services ("the Department") filed its
original petition for protection of a child, for
conservatorship, and for termination of parental rights. The
only child named in the petition was A.J.M., who was born on
June 9, 2016. The petition alleged that A.M. was A.J.M.'s
alleged father and sought to terminate A.M.'s parental
rights on multiple grounds, relying on both sections 161.002
and 161.001 of the Texas Family Code.
October 5, 2017, the case proceeded to a bench trial.
According to the termination order, A.M. appeared via
teleconference and was represented by appointed counsel. The
only witness to testify at trial was Department caseworker
Ammie Martinez. According to Martinez's testimony, the
Department became involved in this matter because it received
allegations of physical neglect and neglectful supervision
against A.J.M.'s mother, V.L. Martinez testified V.L. was
not caring for A.J.M. or her siblings, who were the subject
of a separate suit. Martinez further testified A.M. was
incarcerated in state prison, serving a twenty-eight year
sentence for human trafficking and drug offenses, for the
pendency of this case.
Department created a family service plan and communicated the
plan to A.J.M.'s parents. Neither parent successfully
completed the service plan. To Martinez's knowledge, A.M.
had not engaged in any form of services while in prison. Nor
had A.M. seen A.J.M. or had any form of contact with the
child during the case. Martinez offered her opinion that
termination of both parents' parental rights was in
A.J.M.'s best interests because neither parent had taken
the opportunity to participate in services or met the goals
outlined in the service plan. Prior to trial, V.L. signed a
document voluntarily relinquishing her parental rights, and
the document was filed in the trial court. With regard to the
termination of A.M.'s parental rights, Martinez pointed
out A.M. was incarcerated and not able to meet A.J.M.'s
needs and A.J.M. would be an adult when A.M. was released
October 5, 2017, the trial court signed an order terminating
both parents' parental rights. A.M.'s parental rights
were terminated based on sections 161.002 and 161.001 of the
Texas Family Code. According to the termination order, the
trial court found by clear and convincing evidence that A.M.,
after having waived service of process or being served with
citation in this suit, did not respond by filing a
counterclaim for paternity or for voluntary paternity to be
adjudicated under chapter 160 of the Texas Family Code.
See Tex. Fam. Code Ann. § 161.002.
Alternatively, the trial court found by clear and convincing
evidence that A.M. (1) constructively abandoned A.J.M. and
(2) knowingly engaged in criminal conduct that has resulted
in his conviction of an offense and confinement or
imprisonment and inability to care for A.J.M. for not less
than two years from the date of filing the petition. See
id. § 161.001(b)(1)(N), (Q). Finally, the trial
court found by clear and convincing evidence that termination
of A.M.'s parental rights was in A.J.M.'s best
interest. See id. § 161.001(b)(2). Only A.M.
of The Evidence
three issues, A.M. contends the evidence is both legally and
factually insufficient to support the trial court's
findings in favor of terminating his parental rights to
A.J.M. A.M. first contends the evidence is insufficient to
support the trial court's finding in Paragraph 7.1 of the
termination order relating to the termination of an alleged
biological father's parental rights. In the alternative,
A.M. contends the evidence is insufficient to support the
trial court's findings in Paragraph 7.2 of the
termination order that A.M. constructively abandoned A.J.M.
and knowingly engaged in criminal conduct that resulted in
his conviction and incarceration. A.M. also contends the
evidence is insufficient to support the trial court's
finding that termination of his parental rights is in
A.J.M.'s best interest.
of Proof and Standard of Review
section 161.001 of the Texas Family Code, parental rights may
be terminated only upon proof, by clear and convincing
evidence, that the parent has committed an act prohibited by
section 161.001(b)(1) of the Texas Family Code, and that
termination is in the best interest of the child. See
id. § 161.001. Under section 161.002(b)(1) of the
Texas Family Code, "The rights of an alleged father may
be terminated if … after being served with citation,
he does not respond by timely filing an admission of
paternity or a counterclaim for paternity under Chapter
160." See id. § 161.002(b)(1).
"However, if the alleged father files an admission of
paternity, his rights may only be terminated if the
Department proves by clear and convincing evidence one of the
grounds for termination in Section 161.001(b)(1) and that
termination is in the child['s] best interest."
In the Interest of U.B., No. 04-12-00687-CV, 2013 WL
441890, at *1 (Tex. App.-San Antonio Feb. 6, 2013, no pet.)
(mem. op.). "'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.
evaluate the legal and factual sufficiency of the evidence to
support the trial court's findings under the standard of
review established by the Texas Supreme Court in In re
J.F.C. See In re J.F.C., 96 S.W.3d 256, 266-67
(Tex. 2002). Under this standard, "[t]he trial court is
the sole judge of the weight and credibility of the evidence,
including the testimony of the Department's
witnesses." In re ...