Appeal from the 318th District Court Midland County, Texas
Trial Court Cause No. AD-33, 289
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
WRIGHT, SENIOR CHIEF JUSTICE
upon a petition filed by the mother and stepfather of A.D.M.,
the trial court terminated the parental rights of
A.D.M.'s father and permitted A.D.M. to be adopted by her
stepfather. The father filed a pro se notice of appeal. In
his appellate brief, the father presents eight points of
error. W e affirm.
outset, we note that Appellees (A.D.M.'s mother and
A.D.M.'s adoptive father) assert that Appellant's
brief is frivolous. Appellees ask that we dismiss this appeal
as frivolous because Appellant failed to adhere to the
briefing standards required by the Texas Rules of Appellate
Procedure. See Tex. R. App. P. 38.1. Although
Appellant's brief does not meet all of the requirements
of Rule 38.1, we do not believe that his appeal is frivolous.
We will address the relevant deficiencies in Appellant's
brief as we address his points of error. Furthermore, we will
construe the briefing rules liberally. See Tex. R.
App. P. 38.9.
first point of error, Appellant asserts that his criminal
history should not have been taken into consideration, that
he was subjected to double jeopardy, and that misinformation
of a constitutional magnitude was considered at trial. W e
the grounds upon which Appellees sought to terminate
Appellant's parental rights related to Appellant's
criminal history. Appellees asserted three grounds upon which
Appellant's parental rights could be terminated; the
trial court found that two of the three asserted grounds
supported termination. Specifically, the trial court found
that the father had failed to support the child in accordance
with his ability during a period of one year ending within
six months of the date that the petition was filed and that
the father had knowingly engaged in criminal conduct that
resulted in his convictions for the offenses of aggravated
assault and manslaughter and, thus, in his imprisonment and
inability to care for the child for not less than two years
from the date that the petition was filed. See Tex.
Fam. Code Ann. § 161.001(b)(1)(F), (Q) (West Supp.
2018). The trial court also found, pursuant to Section
161.001(b)(2), that termination of Appellant's parental
rights would be in the best interest of the child. See
id. § 161.001(b)(2).
support a finding under subsection (Q), the record must show
that the parent will be incarcerated or confined and unable
to care for the child for at least two years from the date
the termination petition was filed. Id. §
161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d 105, 110
(Tex. 2006). Thus, it was proper for the trial court to
consider Appellant's criminal history, including the two
judgments that were admitted into evidence, which reflect
that Appellant was convicted of manslaughter and aggravated
assault and was sentenced on October 6, 2016, to a term of
confinement for five years. Furthermore, nothing in the
record indicates that Appellant was subjected to double
also asserts in his first point of error that the hearing
procedure violated his rights and that he was denied a full
and fair hearing and cites Zunig a v. Zuniga, 13
S.W.3d 798 (Tex. App.-San Antonio 1999, no pet.), in support
of his assertion. The Texas Supreme Court, however, has
disapproved of the holding in Zuniga upon which
Appellant relies. See In re Z.L.T., 124 S.W.3d 163,
166 (Tex. 2003). Furthermore, Appellant filed an answer below
and was duly served with notice of the final hearing.
Appellant, however, did not appear at trial, did not request
to be bench warranted so that he could appear at trial, and
did not request to appear by telephone or any other manner.
Nothing in the record reflects that Appellant was denied a
full and fair hearing. We overrule Appellant's first
point of error.
second point of error, Appellant asserts that the trial court
subjected A.D.M. to coercive questioning when the trial court
asked leading questions regarding whether A.D.M. wanted her
last name to be changed. There were no objections to the
questions asked by the trial court. Thus, Appellant's
complaint has not been preserved for review. See
Tex. R. App. P. 33.1. We overrule Appellant's second
point of error.
third point of error, Appellant asserts that Appellees failed
to produce any evidence that they were married. He also
expresses concerns about the "honesty" of
A.D.M.'s mother and the lack of evidence of the adoptive
father's citizenship. First, we note that A.D.M.'s
mother testified that she was married to R.S., the adoptive
father. Second, the veracity of A.D.M.'s mother was a
question for the trial court, not this court. The trier of
fact is the sole judge of the credibility of the witnesses at
trial, and we are not at liberty to disturb the
determinations of the trier of fact as long as those
determinations are not unreasonable. In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005). And, finally, Appellant
cited no authority in support of his contention related to
the citizenship status of the adoptive father, see
Tex. R. App. P. 38.1(i), and we have found none. We overrule
Appellant's third point of error.
fourth point of error, Appellant complains of the use of
A.D.M.'s full name during the final hearing. He also
complains, in very general terms, of the violation of his
constitutional rights and, again, cites no authority for his
contentions. See Tex. R. App. P. 38.1(i). Based upon
a motion filed in this court by Appellant, in which he sought
to strike the child's name from the appellate record, we
believe that Appellant has misconstrued Rule 9.8 of the Texas
Rules of Appellate Procedure, which prohibits the use of a
child's name "in all papers" (except for the
docketing statement) that are submitted to the court in a
parental termination appeal. See Tex. R. App. P.
9.8(b)(1). Rule 9.8(d) specifically provides that the
requirements of the portion of the rule relied upon by
Appellant do not apply to the appellate record: "Nothing
in this rule permits alteration of the original appellate
record except as specifically authorized by court
order." Tex.R.App.P. 9.8(d). We have found no authority
to support the contentions made by Appellant in his fourth
point of error; accordingly, we overrule his fourth point of
fifth point of error, Appellant asserts that the trial court
entertained misleading legal arguments about Appellant
voluntarily leaving A.D.M. alone and, again, raises a double
jeopardy complaint. Because the trial court did not enter a
finding that Appellant had voluntarily left the child alone,
as alleged by Appellees in their petition, see Fam.
§ 161.001(b)(1)(C), Appellant's fifth point of
error, insofar as it relates to him voluntarily leaving
A.D.M. alone, is not dispositive of this appeal. See
Tex. R. App. P. 47.1. Furthermore, we have already overruled
Appellant's contention regarding double jeopardy. We
overrule Appellant's fifth point of error.
sixth point of error, Appellant argues that he did not
voluntarily waive his right to be present at the hearing. He
asserts that, because he was incarcerated, he could not have
appeared at ...