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In re A.J.M.

Court of Appeals of Texas, Fourth District, San Antonio

March 28, 2018

IN THE INTEREST OF A.J.M., a Child

          From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02783 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice.

         Appellant-father, A.M., appeals the trial court's order terminating his parental rights to the child A.J.M.[1] 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.

         Background

         On 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.

         On 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.

         The 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 from incarceration.

         On 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. appeals.

         Sufficiency of The Evidence

         In 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.

         Burden of Proof and Standard of Review

         Under 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.

         We 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 ...


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