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In re E.A.M.V.

Court of Appeals of Texas, Fourth District, San Antonio

May 1, 2019

In the Interest of E.A.M.V., a Child

          From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-02217 Honorable Charles E. Montemayor, Judge Presiding

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

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE

         Father appeals from a judgment terminating his parental rights to his child, E.A.M.V.[1] In three issues, Father argues (1) the trial court erred in finding that he failed to admit paternity under section 161.002(b)(1) of the family code; (2) the evidence was legally or factually insufficient to support the trial court's finding that termination was in E.A.M.V.'s best interest under section 161.001(b)(2) of the family code; and (3) the evidence was legally or factually insufficient to support the trial court's finding that termination was not based on the circumstances listed in section 161.001(c) of the family code. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 161.002, 161.001(c). We affirm the trial court's judgment.

         Background

         The Texas Department of Family and Protective Services filed an original petition claiming Father was the alleged father of E.A.M.V. and seeking to terminate his parental rights. At the time, E.A.M.V. was only three months old. The Department was appointed E.A.M.V.'s temporary managing conservator. About a year later, the case was tried to the trial court. A Department caseworker, Father, and E.A.M.V.'s mother testified at trial. Father and E.A.M.V.'s mother, who were both in prison at the time of trial, testified by telephone. After hearing the evidence, the trial court terminated Father's parental rights on the ground that he did not respond to the Department's petition by timely filing an admission of paternity. See Tex. Fam. Code Ann. § 161.002(b)(1). Alternatively, the trial court terminated Father's parental rights because it found, by clear and convincing evidence, four statutory grounds to support termination: (1) Father had been convicted of the offense of indecency with a child; (2) Father had constructively abandoned E.A.M.V.; (3) Father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain E.A.M.V.'s return; and (4) Father had knowingly engaged in criminal conduct that had resulted in his conviction for an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of the filing of the Department's petition. See id. § 161.001(b)(1)(L), (N), (O), (Q). The trial court also found that termination of Father's parental rights would be in E.A.M.V.'s best interest. See id. 161.001(b)(2). Father appealed.[2]

         Failure to Admit Paternity

         In his first issue, Father argues the trial court erred in terminating his parental rights on the ground that he did not admit paternity. Section 161.002(b)(1) of the family code provides the court may summarily terminate the rights of an alleged father 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). "There are no formalities that must be observed when filing an admission of paternity or for such an admission to be effective." In re U.B., No. 04-12-00687-CV, 2013 WL 441890, at *2 (Tex. App.-San Antonio 2013, no pet.).

         Here, Father argues the trial court erred in terminating his parental rights under section 161.002(b)(1) because the record shows that he admitted his paternity of E.A.M.V. in a letter he wrote to the trial court and in his trial testimony. We agree that the record establishes that Father admitted paternity within the meaning of section 161.002(b)(1). About two weeks after the Department filed its petition, Father filed a letter with the trial court clerk, stating: "I am writing this letter to inform the court that I am the father of [E.A.M.V.] . . . the child in case number 2017-PA-02217 and I do not deny parentage." In the letter, Father asked the court to appoint his mother as sole managing conservator of E.A.M.V. while he served his prison term. Father also asked the trial court to appoint an attorney to represent him and to allow him time to prepare his defense. Furthermore, at trial, Father testified, "I am the biological father of [E.A.M.V.]." Father's letter to the trial court and his trial testimony constituted admissions of paternity within the meaning of section 161.002(b)(1) of the family code. See In re S.R.J.-Z., 537 S.W.3d 677, 682 (Tex. App.- San Antonio 2017, pet. denied) (concluding father's appearance and participation at trial, including his sworn admission that he was the children's father and trial counsel's advocacy against parental termination, amounted to an admission of paternity under section 161.002(b)(1)); In re U.B., 2013 WL 441890, at *2 (holding that alleged father's letter to trial judge referring to the children as "my children" and alleged father's testimony that he was the father of the children constituted an admission of paternity consistent with section 161.002(b)(1)).

         We hold the trial court erred in concluding that Father did not respond to the Department's petition by timely filing an admission of paternity and in terminating his parental rights based on section 161.002(b)(1). See In re S.R.J.-Z., 537 S.W.3d at 682; In re U.B., 2013 WL 441890, at *2. We sustain Father's first issue; however, the trial court also found that the Department proved, by clear and convincing evidence, four statutory grounds under section 161.001(b)(1) and that termination was in E.A.M.V.'s best interest under section 161.001(b)(2). See Tex. Fam. Code Ann. § 161.001(b)(1)(L), (N), (O), (Q); (b)(2). Because the trial court also terminated Father's parental rights based on section 161.001(b), we cannot reverse the judgment unless we conclude that it cannot be supported under section 161.001(b).

         Section 161.001(b) and the Child's Best Interest

         In his second issue, Father argues the evidence was legally or factually insufficient to support the trial court's finding that termination of his parental rights was in E.A.M.V.'s best interest. Father does not challenge the sufficiency of the evidence to support the trial court's findings as to any of the statutory grounds under section 161.1001(b)(1). See id. § 161.001(b)(1)(L), (N), (O), (Q). Father only challenges the sufficiency of the evidence to support the trial court's best interest finding. See id. § 161.001(b)(2).

         When reviewing the sufficiency of the evidence, we apply the well-established standards of review for legal and factual sufficiency. See Tex. Fam. Code Ann. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency). In evaluating a child's best interest, we consider the non-exhaustive Holley factors.[3] In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). However, "[t]he absence of evidence about some of these [factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). We also consider the factors set forth in section 263.307(b) of the Texas Family Code.[4] See Tex. Fam. Code Ann. § 263.307(b). Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d at 28. A best interest analysis may consider direct and circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.- San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.

         With these standards and factors in mind, we consider the trial evidence as it relates to E.A.M.V.'s best interest. The evidence showed that E.A.M.V. was only fifteen months old at the time of trial. E.A.M.V. had been removed from her mother's care when she was three months old and had been placed with a relative, her great-grandmother. Father had never met E.A.M.V. in person. He had only seen E.A.M.V. once by way of video conference. At the time of trial, Father was serving a prison sentence for possession of a firearm by a felon. Father and E.A.M.V.'s mother have an older child, who had been removed from his ...


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