In re M.L.H.

IN THE INTEREST OF M.L.H., A CHILD

No. 13-22-00004-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 7, 2022

On appeal from the 347th District Court of Nueces County, Texas.

Before Justices Longoria, Hinojosa, and Silva

MEMORANDUM OPINION

CLARISSA SILVA, JUSTICE

Appellant Aaron appeals the trial court's order terminating the parent-child relationship between he and his son Matthew, as requested by appellee, Amber.^[1] By four issues, Aaron argues: (1) the evidence was legally and factually insufficient to terminate the parent-child relationship under predicate ground (A) see Tex. Fam. Code Ann. § 161.001(b)(1)(A); (2) the evidence was legally and factually insufficient to terminate the parent-child relationship under predicate ground (C), see id. § 161.001(b)(1)(C); (3) "[t]he trial court lacked the authority to terminate the parent-child relationship solely on what the trial court believes is in the child's best[ ]interest," see id. § 161.001(b)(2); and (4) the trial court erred when it ordered Matthew's surname be changed and Aaron be removed as Matthew's father from Matthew's birth certificate. We reverse and render in part, and reverse and remand in part.

I. Background

Matthew was born in May 2013 to Aaron and Amber. At the time, Aaron and Amber were in a relationship but acrimoniously separated in September 2014. According to Amber, she made several attempts to establish visits between Aaron and Matthew with limited success: Aaron visited Matthew five times in 2015, but he has not visited Matthew since May 2015, except for a fortuitous encounter at a mall in 2017 or 2018.^[2]

In 2015, Amber filed a suit affecting the parent-child relationship (SAPCR) seeking to be appointed the sole managing conservator of Matthew, and Aaron to be ordered to pay child support. A default judgment was entered in May 2015, appointing Amber as Matthew's sole managing conservator and Aaron as possessory conservator. The order provided Aaron with "supervised visitation with [Matthew] at the discretion of [Amber]." Additionally, Aaron was ordered to pay child support and medical support.

In March 2017, the Office of the Attorney General (OAG) filed a motion to enforce and modify Aaron's support on Amber's behalf. The OAG alleged that Aaron was $4, 852.83 in arrears for child support, and $2, 710.02 in arrears for medical support. Although the order on the motion to enforce and modify support is not in the record, the parties testified that, following the motion, Aaron paid off his arrears and made all payments. Amber acknowledged that, at the time of trial, Aaron had a credit for his support payments. Aaron agreed that he did not provide any support between 2014 and when the motion to enforce was filed in 2017.

In August 2020, Amber filed a petition to terminate the parent-child relationship between Aaron and Matthew, based on the predicate grounds that Aaron (1) "voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return"; and (2) "voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months." See Tex. Fam. Code Ann. § 161.001(b)(1)(A), (C). Amber also requested that Matthew's last name be changed to her surname and Aaron be removed as Matthew's father on Matthew's birth certificate. The trial court appointed an amicus attorney to represent Matthew's best interest.

During trial, Amber testified that Matthew has lived with her since birth. After the original SAPCR order, Amber offered Aaron a standing visit on Sundays at her parents' home, but after he failed to appear several times, she discontinued the offer. According to Amber, Aaron made little to no effort to visit Matthew since their separation in 2014, apart from some sporadic requests to visit. Amber testified that in 2018, she sent Aaron multiple requests to pay half of Matthew's uninsured medical expenses, but after never receiving responses, she eventually gave up on sending the requests. Amber told the trial court that she believed it was in Matthew's best interest to terminate the parent-child relationship because she was "fully capable of taking care of him 100 percent as [she has] . . . since he was a baby." In support of her grounds for termination, Amber testified that "there was a period of about two and a half years where [Aaron] did not supply child support."

Aaron agreed that he had not visited Matthew since approximately 2014 or 2015. Aaron testified that in September 2015, he blocked Amber from phone and e-mail contact, citing "verbal abuse" from Amber. During the pendency of the termination suit, the parties arranged for Aaron and Matthew to engage in counseling to reintroduce Aaron into Matthew's life. According to Aaron, he attended one appointment with the selected counselor, but there was some miscommunication on the details of the process. Aaron believed Matthew would be at the appointment, but he was not, and the therapist "was confused with the reason why [they] were even meeting." Aaron testified that he did not notify Amber or the amicus attorney that he attended the appointment because he "[didn't] know the process for that." Aaron did not set up any subsequent appointments for counseling.

After the parties rested and made closing arguments, Matthew's amicus attorney stated she believed it would be detrimental to him for Aaron to suddenly be reintroduced into Matthew's life. Ultimately, the amicus attorney believed termination of the parent-child relationship was in Matthew's best interest. The trial court terminated the parent-child relationship, finding clear and convincing evidence to support predicate grounds (A) and (C), and that termination was in the child's best interest. See id. § 161.001(b)(1)(A), (C), (b)(2).

The trial court also appointed Amber sole managing conservator of Matthew, granted Amber's request to change his last name to her surname and to remove Aaron as Matthew's father on Matthew's birth certificate. This appeal followed.

II. Standard of Review and Applicable Law

A. Standard of Review

"[I]nvoluntary termination of parental rights involves fundamental constitutional rights" and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting In re G.M., 596 S.W.2d 846, 846 (Tex. 1980)); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi-Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the ‘death penalty' of civil cases.”). Accordingly, termination proceedings must be strictly scrutinized. In re K.M.L., 443 S.W.3d at 112.

A trial court may order termination of the parent-child relationship only if it finds by clear and convincing evidence that: (1) the parent committed an act or omission described in family code § 161.001(b)(1)(A)-(U) (predicate grounds); and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2). The "clear and convincing" standard falls between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d at 847; In re L.J.N., 329 S.W.3d at 671. It is defined as 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." Tex. Fam. Code Ann. § 101.007.

Evidence is legally sufficient to support termination if a reasonable factfinder could form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 630- 31 (Tex. 2018). In conducting a legal sufficiency review, we assume that the factfinder resolved disputed facts in favor of its finding if it was reasonable to do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence, if any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) ("Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.").

Evidence is factually insufficient to support termination "if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not reasonably have formed a firm belief or conviction that the finding was true." In re A.C., 560 S.W.3d at 631 (citing In re J.F.C., 96 S.W.3d at 266). Under the factual sufficiency standard, we defer to the factfinder's determinations on the credibility of the witnesses "so long as those determinations are not themselves unreasonable." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); see also In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("A standard that focuses on whether a reasonable jury could form a firm conviction or belief retains the deference an appellate court must have for the factfinder's role."). A reviewing court must affirm the termination if it finds sufficient evidence to support at least one predicate ground. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (citing a previous version of Tex. Fam. Code Ann. § 161.001(b)(1)).

"Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not...