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In re A.I.F.

Court of Appeals of Texas, Seventh District, Amarillo

May 17, 2018

IN THE INTEREST OF A.I.F., A MINOR CHILD

          On Appeal from the 100th District Court Childress County, Texas Trial Court No. 10215, Honorable Stuart Messer, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          James T. Campbell, Justice.

         In this private termination case, appellant R.F. appeals the trial court's final order adjudicating his parentage and terminating his parental rights to A.I.F., a child born of his relationship with appellee B.F.[1] We will overrule each of appellant's issues and affirm the trial court's final order.

         Background

         A.I.F. was born in June 2012. During final hearing testimony, appellant agreed that he is the father of A.I.F., she is his daughter, and he did not want his parental rights with A.I.F. terminated. At the time of A.I.F.'s birth, according to her mother's testimony, she and appellant were "in a relationship" and living together. She added they ceased living together two to three months after A.I.F.'s birth. Appellant testified he and B.F. separated when B.F. learned he had a daughter only six days younger than A.I.F.

         In October 2012, B.F. filed a petition to adjudicate parentage. She alleged appellant was the father of A.I.F. but that the man to whom she was then married was the child's presumed father. After a hearing later that month, the trial court rendered temporary orders which, among other things, named appellant the father of A.I.F., granted him visitation, and ordered that he make child support payments of $178 per month. Appellant also was ordered to participate in a hair-follicle drug test.

         B.F. testified that appellant never paid child support and has not financially supported A.I.F. Appellant testified that while he did not pay child support, during periods of visitation he provided diapers and "everything" A.I.F. needed. Appellant also did not take the hair-follicle drug test and the court therefore suspended his visitation in November 2012.

         Appellant testified that in early January 2013 he was confined in the county jail for a parole violation and while in custody was served with an indictment charging him with forgery. According to the final hearing evidence, during 2013 he was out of jail most of the time between March 26 and September 24 but paid no child support. On October 9, 2013, appellant was convicted of the forgery charge and sentenced to twenty years' confinement in prison and a fine of $10, 000. He remained continuously incarcerated to the time of final hearing.

         Appellant testified he has learned advanced computer skills in prison and is studying for certification in Braille translation. He believes the skills he has learned will qualify him, on release from prison, to earn enough income to pay child support for all his children. He has three children in addition to A.I.F. His parents bring his three other children to the prison for visitation. B.F. is on appellant's visitation list and he testified to a desire that she bring A.I.F. to visit.

         B.F. amended her petition in February 2015 to seek termination of appellant's parental rights. She alleged three predicate acts under Family Code § 161.001(b)(1)[2]and that termination was in the best interest of A.I.F. Final hearing was before the bench in December 2017. Appellant appeared from prison by telephone. Following the hearing, the trial court rendered a final order adjudicating appellant the father of A.I.F. and terminating his parental rights to the child.

         Analysis

         By his first issue, appellant argues that because A.I.F. has a presumed father genetic testing was required before appellant could be adjudicated the child's father. Without genetic testing, the argument continues, appellant's parental rights were not established and could not, therefore, have been terminated.

         B.F. sought adjudication of appellant's paternity in 2012. At the final hearing, rather than contesting his paternity, or otherwise arguing that procedurally he could not be adjudicated the father of A.I.F. until he and the presumed father were genetically tested, he agreed in testimony that he is the child's father and that she is his daughter. Only on appeal does appellant complain that the trial court did not follow the proper statutory procedure to adjudicate his parentage. Because his appellate complaint was not presented to the trial court, it was waived. Tex.R.App.P. 33.1(a). Further, we believe under the doctrine of invited error appellant could not now complain of the trial court's adjudication of his parentage when at the final hearing he claimed to be A.I.F.'s father and actively resisted B.F.'s effort to terminate his parental rights. See Naguib v. Naguib,137 S.W.3d 367, 375 (Tex. App.-Dallas 2004, pet. denied) ("A party to a lawsuit cannot ask something of a trial court and then complain on appeal that the trial court committed error in granting that party's request. This rule is grounded in even ...


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