In re Interest of H.P.

IN THE INTEREST OF H.P., III, A MINOR CHILD

No. 07-19-00394-CV

Court of Appeals Seventh District of Texas at Amarillo

May 1, 2020

On Appeal from the 100th District Court Childress County, Texas

Trial Court No. 10,964, Honorable Stuart Messer, Presiding

MEMORANDUM OPINION

Before PIRTLE and PARKER and DOSS, JJ.

In this accelerated appeal, appellant, Father, seeks reversal of the trial court's judgment terminating his parental rights to H.P.¹ In two issues, Father asserts that the evidence is insufficient to support the trial court's predicate findings and the finding that termination is in the best interest of H.P. Finding no error, we affirm the judgment of the trial court.

Background

Father and Mother were living together when H.P. was born in September of 2015. When H.P. was approximately three months old, Father was incarcerated for an aggravated assault that he committed before H.P. was born. Father is serving a fourteen-year sentence and he is not eligible for parole until October of 2022.

Before his incarceration, Father had daily interaction with H.P. Father sang songs to H.P., changed H.P.'s diapers, and made his bottles. During this time, Father worked at odd jobs and he gave the money he made to Mother. According to Father, he paid the bills, such as the car insurance, rent, and the light bill. He also bought diapers and baby formula.

After Father was transferred to the prison in Abilene, Mother and H.P. visited Father every other weekend until H.P. was eighteen months old. Father sent Christmas cards, drawings, and birthday cards to H.P. until Mother asked him to stop contacting her. Father arranged for H.P. to receive Christmas gifts through the Angel Tree Foundation. Father has a niece who babysits H.P. free of charge on Father's behalf. Father said, "They actually bought [H.P.] a baby crib and little toys and stuff like that, clothes, all on my behalf." Since his incarceration, Father has not sent any money for H.P.'s support. The last telephone contact Father had with H.P. was a year before trial.

Father is assigned to the trustee dormitory and he has not had any major or minor disciplinary actions. Since his incarceration, he has received a certification from the Occupational Safety and Health Administration and completed a ninety-hour course for certification through the National Center for Construction Education and Research. He iscurrently enrolled in a welding course and he plans to obtain his certification as a certified electrician. Upon his release from prison, Father plans to parole to a halfway house and seek employment.

Mother disputes the contact Father had with H.P. after his birth, explaining that "[Father] was gone more than he was there." When Father was transferred to the prison in Abilene, Mother took H.P. to visit with Father every other month. Father telephoned Mother regularly, but his calls were not always about the welfare of H.P. According to Mother, the last contact that Father had with H.P. was before H.P.'s first birthday.

As far as paying the bills when Father and Mother were together, Mother had her family's support because she was not working at the time. Mother is currently employed at Walmart and she has sufficient income to take care of herself and H.P.

Mother testified that termination of Father's parental rights was in the best interest of H.P. because Father told her that "whenever he gets out, he does not want a job. That he was going to go back to his old lifestyle, and that I could not keep his son from him, and that he will come take my son, and there's nothing I can do about it."

In January of 2019, Mother filed a petition to adjudicate parentage and terminate Father's parental rights.²

The trial court terminated Father's parental rights on the grounds he abandoned the child without providing adequate support, failed to support the child in accordancewith his ability, and engaged in criminal conduct that led to his conviction, imprisonment, and inability to care for the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(B), (F), and (Q) (West Supp. 2018).³ The trial court also found that termination was in the best interest of H.P. See § 161.001(b)(2). The trial court appointed Mother as the managing conservator and granted injunctive relief and a name change.⁴

Applicable Law

A parent's right to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child's best interests. See id.

In a case to terminate parental rights under section 161.001 of the Family Code, the petitioner must establish, by clear and convincing evidence, that (1) the parentcommitted one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is "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." § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). "Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights if the evidence also establishes that termination is in the child's best interest. In re K.C.B., 280 S.W.3d at 894-95.

The clear and convincing evidence standard does not mean the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the right to resolve credibility issues and conflicts within the evidence and may freely choose to believe all, part, or none of the testimony espoused by any particular witness. Id. Where conflicting evidence is present, the factfinder's determination on such matters isgenerally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no writ).

The appellate court cannot weigh witness credibility issues that depend on demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript, the appellate court must defer to the factfinder's determinations, as long as those determinations are not themselves unreasonable. Id.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the appellate court should look at all the evidence in the light most favorable to the trial court's finding "to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not credible, but we do not disregard undisputed facts. Id. Even evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven was true, then the evidence is legally insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. Id. We must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Analysis

Termination under § 161.001(b)(1)(Q)

In his first issue, Father challenges the legal and factual sufficiency of the...