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In re J.E.

Court of Appeals of Texas, Fourth District, San Antonio

May 15, 2019

IN THE INTEREST OF J.E., a Child

          From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-00436 Honorable Charles E. Montemayor, Judge Presiding [1]

          Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice

          MEMORANDUM OPINION

          Beth Watkins, Justice

         R.A. appeals from the trial court's termination order. On appeal, R.A. contends the trial court erred in terminating his alleged parental rights because the termination contradicts the trial court's finding that R.A. is not the father of the subject child. We agree and affirm the trial court's order as modified.

         Background

         After J.E. tested positive for amphetamines at birth, the Texas Department of Family and Protective Services ("the Department") filed a petition seeking termination in the event reunification was unattainable. The petition alleged E.A. was the mother of three children, R.A. III, P.M.A., and J.E. It also alleged E.A.'s husband, R.A., was the father of the children, but alternatively alleged another man, D.G., was the alleged father of J.E. After the initial Chapter 262 hearing, the trial court dismissed two of the children from the case, leaving the case pending only as to J.E.

         Ultimately, the Department sought termination of E.A.'s, R.A.'s, and D.G.'s parental rights to J.E. After the final hearing, the trial court rendered an order of termination.[2] With regard to R.A., the trial court found he is not the father of J.E. Despite this finding, the trial court also found R.A. knowingly engaged in criminal conduct that resulted in his conviction, confinement, and inability to care for J.E. for not less than two years from the date the petition was filed. See Tex. Fam. Code § 161.001(b)(1)(Q). However, the trial court made no best interest finding as to R.A. See id. § 161.001(b)(2).[3] R.A. perfected this appeal.

         Analysis

         On appeal, R.A. contends that because the evidence supports the trial court's finding that R.A. is not J.E.'s father, the trial court erred in alternatively finding R.A. violated ground (Q) of the Code. See id. § 161.001(b)(1)(Q). He asks that we reverse this portion of the termination order, render an order affirming the portion of the trial court's order that finds he is not J.E.'s father, and dismiss him from the litigation. The Department agrees the trial court erred in making the alternative finding, but argues we should modify the termination order by striking the finding and affirming the order as modified.

         The Texas Family Code ("the Code") defines a "parent" as "the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father." Id. § 101.024(a) (emphasis added). Pursuant to section 160.204(a) of the Code, a man is presumed to be the father of a child if, inter alia:

1. he is married to the child's mother and the child is born during the marriage;
2. he is married to the child's mother and the child is born before the 301st day after the date the marriage is terminated;
3. he married the child's mother before the child's birth in apparent compliance with the law, even if the marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated; or
4. he married the child's mother after the child's birth in apparent compliance with the law, even if the marriage is or could be declared invalid, and he voluntarily asserted his paternity, and (a) the assertion is filed with the vital statistics unit; (b) he is voluntarily named as the child's father on the ...

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