in the Interest of O. R. M., Jr., M. M. and O. M., Children , 559 S.W.3d 738 ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-18-00058-CV
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IN THE INTEREST OF Appeal from
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O.R.M., JR., M.M., AND O.M., 65th District Court
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CHILDREN. of El Paso County, Texas
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(TC # 2017DCM0331)
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OPINION
This appeal is from a judgment terminating the parental rights of Appellant, O.M., to his
children, O.R.M., Jr., M.M., and O.M. We affirm.
FACTUAL SUMMARY
Appellant (Oliver) and D.L. (Dora) are the parents of three children, O.R.M., Jr., M.M.,
AND O.M.1 Oliver and Dora were not formally married but Dora testified that they were together
for more than fifteen years. Child Protective Services became involved with the family in October
1
To protect the identity of the children, the opinion will refer to Appellant by the fictitious name “Oliver” and to D.L.
by the fictitious name “Dora”. See TEX.R.APP.P. 9.8. The trial court entered an order terminating Dora’s parental
rights to the children and Dora appealed. On May 16, 2018, we granted Dora’s motion to dismiss her appeal. See In
the Interest of O.R.M., Jr., M.M., and O.M., 08-18-00058-CV, 2018 WL 2227780 (Tex.App.--El Paso May 16, 2018,
no pet.). With the exception of facts provided to establish background and context, the opinion will be limited to a
discussion of the facts and issues pertinent to Oliver’s appeal.
2016 due to concerns regarding Dora’s drug use2 and instability of the home. Oliver was
incarcerated3 at the time. The children were placed with their maternal grandmother, but she
subsequently informed the Texas Department of Family and Protective Services that she could no
longer care for the children because she and her fiancé were moving to Virginia. The Department
removed the children and filed a petition in January 2017 seeking to terminate Dora’s parental
rights. The petition also requested that the trial court determine whether Oliver is the father of the
children and to terminate his parental rights if, after being served with citation, he has not
responded by timely filing an admission of paternity or a counterclaim for paternity under Chapter
160 or he has not registered with the paternity registry under Chapter 160, Texas Family Code.
The trial court found that the Department had proven the termination ground alleged in the petition
by clear and convincing evidence, and that termination of Oliver’s parental rights was in the
children’s best interest. The trial court appointed the Department as the permanent managing
conservator of the children.
ALLEGED BIOLOGICAL FATHER
Oliver raises two issues challenging the termination of his parental rights under Section
161.002. We have construed the issues as asserting that the evidence is legally and factually
insufficient to support termination of his parental rights under Section 161.002.
Standards of Review
When reviewing the legal sufficiency of the evidence in a termination case, we consider
all of 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
2
Dora tested positive for methamphetamine and amphetamine on November 9, 2016.
3
At the time of trial, Oliver was incarcerated on a weapons charge and serving a seventy-seven-month sentence.
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the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the fact
finder’s conclusions, indulge every reasonable inference from the evidence in favor of that finding,
and presume the fact finder resolved any disputed facts in favor of its findings, so long as a
reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We disregard any
evidence that a reasonable fact finder could have disbelieved, or found to have been incredible,
but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d
at 266.
In a factual sufficiency review, the inquiry is whether the evidence is such that a fact finder
could reasonably form a firm belief or conviction about the challenge findings. See In re J.F.C.,
96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could
reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of
appeals should consider whether disputed evidence is such that a reasonable fact finder could not
have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so significant that a fact
finder could not reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient. Id.
Section 161.002(b)(1)
In Issue One, Oliver contends that he made an informal admission of paternity sufficient
to avoid summary termination of his parental rights under Section 161.002(b)(1). This statute
provides that the rights of an alleged biological father may be summarily terminated 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 of the Texas Family Code. TEX.FAM.CODE ANN. §
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161.002(b)(1)(West Supp. 2017). By filing an admission or counterclaim for paternity, the alleged
father is given the right to require the petitioner to prove by clear and convincing evidence one of
the predicate termination grounds set forth in Section 161.001(1) and that termination is in the best
interest of the child. Phillips v. Texas Department of Protective & Regulatory Services, 25 S.W.3d
348, 357 (Tex.App.--Austin 2000, no pet.).
The trial court found by clear and convincing evidence that Oliver, after being served with
citation, did not respond by timely filing an admission of paternity or by filing a counterclaim for
paternity or for voluntary paternity to be adjudicated under Chapter 160 of the Texas Family Code
before the final hearing in the case. The Department introduced into evidence a return of citation
showing that Oliver was served with the termination petition and a certificate of paternity registry
search establishing that he did not register his intent to claim paternity with respect to any of the
three children. See TEX.FAM.CODE ANN. § 161.109. The record also shows that Oliver did not
file an admission of paternity or a counterclaim for paternity under Chapter 160.
Despite the foregoing evidence showing that he did not respond in the manner required by
Section 161.002(b)(1), Oliver argues that the record demonstrates that he nevertheless claimed
paternity of the children in writing and this is sufficient to prevent summary termination of his
parental rights. More specifically, Oliver points to his handwritten note made in the section of the
family service plan designated for the parent’s comments. It reads:
I will follow through this plan only because I love my kids so much that I’m willing
to take full custody of them. The blemish is on the mothers behave [sic]. I have
nothing to do with what she was doing. If the mother doesn’t comply, I will. I
already seen she has failed one’s [sic]. With the documents I got in the mail from
C.P.S. Plus I do fear for my kids [sic] life being around people like that. I care for
them a lot. So I prefer my kids to be with me as soon as I get a chance to take them
with me. Thanks.
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Oliver placed his signature at the bottom of the note. The service plan, including Oliver’s
handwritten note, was filed with the trial court clerk on March 30, 2017, and it was introduced into
evidence at trial. Oliver cites Toliver v. TDFPS, 217 S.W.3d 85, 105 (Tex.App.--Houston [1st
Dist.] 2006, not pet.), Estes v. Dallas County Child Welfare Unit of Texas Department of Human
Services, 773 S.W.2d 800, 802 (Tex.App.--Dallas 1989, writ denied), and In re K.W., 138 S.W.3d
420, 429 (Tex.App.--Fort Worth 2004, pet. denied) in support of his argument that his note
constitutes a sufficient claim of paternity to preclude summary termination under Section 161.002.
In Toliver, the alleged father did not file any written documents claiming paternity, but he appeared
at trial and stated that he was the child’s father. Toliver, 217 S.W.3d at 105. The First Court of
Appeals concluded that the alleged father’s unequivocal assertion of paternity at trial triggered his
right to require the Department to prove one of the predicate termination grounds under Section
161.001(1) before his parental rights could be terminated. Id. The instant case is factually
distinguishable because Oliver did not appear at trial and make an unequivocal assertion of
paternity.
In Estes, the alleged biological father filed a pro se answer after being served with the
termination petition. Estes, 773 S.W.2d at 801. The answer generally denied all of the allegations,
and Estes requested the appointment of counsel based on his assertion that he was an indigent
parent. Id. The Dallas Court of Appeals concluded that Estes’ answer constituted an admission
of paternity because he characterized himself as an “indigent parent”. Id., 773 S.W.2d at 802. Our
case is distinguishable because Oliver did not file a general denial of the allegations in the
termination petition and he did not describe himself as the children’s father.
In re K.W. shares some factual similarities with the instant case. In that case, the Texas
Department of Protective and Regulatory Services (“TDPRS”) served a petition seeking
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termination of parental rights on an alleged father who was incarcerated. In re K.W., 138 S.W.3d
at 429. The father wrote letters to both TDPRS and the trial court stating that he was the child’s
biological father and he was not giving up his parental rights. Id. Noting that the statute does not
require a formal “statement of paternity,” the Second Court of Appeals held that the father’s letters
constituted admissions of paternity sufficient to put TDPRS and the trial court on notice that the
father admitted his paternity and wanted to oppose termination of any rights he might have with
respect to the child. Id. at 431. Consequently, the Court concluded that there was no evidence to
support the trial court’s finding under Section 161.002(b)(1). Id. at 431.
The father-child relationship is established by an effective acknowledgment of paternity
by the man under Subchapter D,4 unless the acknowledgment has been rescinded or successfully
challenged. TEX.FAM.CODE ANN. § 160.201(b)(2). Section 160.301 provides that the mother of
a child and a man claiming to be the biological father of the child may sign an acknowledgment
of paternity with the intent to establish paternity. TEX.FAM.CODE ANN. § 160.301. Section
161.302 establishes the formal requirements for a voluntary “acknowledgement of paternity.” See
TEX.FAM.CODE ANN. §160.302 (West 2014). It requires that an acknowledgement of paternity (1)
be in a record; (2) be signed or otherwise authenticated, under penalty of perjury by the mother
and the man seeking to establish paternity; (3) state that the child whose paternity is being
acknowledged: (A) does not have a presumed father or has a presumed father whose name is stated;
and (B) does not have another acknowledged or adjudicated father; (4) state whether there has
been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with
the results of the testing; and (5) state that the signatories understand that the acknowledgment is
the equivalent of a judicial adjudication of paternity of the child and that a challenge to the
4
Subchapter D governs voluntary acknowledgment of paternity. See TEX.FAM.CODE ANN. §§ 160.301-.315 (West
2014 & Supp. 2017).
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acknowledgment is permitted only under limited circumstances. See TEX.FAM.CODE ANN. §
160.302 (West Supp. 2017).
Section 161.002(b)(1) requires only an “admission of paternity” and does not require that
an alleged biological father file a formal acknowledgment of paternity in accordance with Section
160.302. See Estes, 773 S.W.2d at 801-02 (drawing a distinction between a formal “statement of
paternity” and an “admission of paternity”). While we agree with the Fort Worth Court of
Appeals’ analysis in K.W., Oliver’s handwritten note cannot be characterized as an unequivocal
admission of paternity. Oliver makes a general reference to “my kids” in the note and expresses a
desire to protect the children from the consequences of Dora’s conduct, but he does not admit that
he is the biological father of each of the three children. Further, the note does not express any
opposition to termination of his parental rights because Oliver’s agreement to comply with the
service plan is contingent on Dora’s failure to comply with the requirements imposed on her. We
conclude that Oliver’s handwritten note does not constitute an admission of paternity and it is
insufficient to preclude summary termination of his parental rights under Section 161.002(b)(1).
Presumption of Paternity
Oliver additionally argues that he proved by uncontroverted evidence the existence of a
common law marriage, and therefore, he is the presumed father of the children. The father-child
relationship is established by an unrebutted presumption of the man’s paternity of the child under
Section 160.204 of the Texas Family Code. TEX.FAM.CODE ANN. § 160.201(b)(1). Under Section
160.204(a)(1), a man is presumed to be the father of a child if he is married to the mother of the
child and the child is born during the marriage. TEX.FAM.CODE ANN. § 160.204(a)(1).
An informal or common-law marriage exists in Texas if the parties (1) agree to be married,
(2) live together in Texas as husband and wife after the agreement, and (3) represent to others that
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they are married. See TEX.FAM.CODE ANN. § 2.401(a)(2)(West 2006); Russell v. Russell, 865
S.W.2d 929, 932 (Tex. 1993); In the Interest of C. M. V., 479 S.W.3d 352, 360 (Tex.App.--El Paso
2015, no pet.). The existence of an informal marriage is a fact question, and the party seeking to
establish the existence of the marriage bears the burden of proving the three elements by a
preponderance of the evidence. Burden v. Burden, 420 S.W.3d 305, 308 (Tex.App.--Texarkana
2013, no pet.). An informal marriage does not exist until the concurrence of all three elements. In
re C.M.V., 479 S.W.3d at 360, citing Burden, 420 S.W.3d at 308.
Oliver had the burden in the trial court to establish each element of a common law marriage
by a preponderance of the evidence. He argues on appeal that he proved the existence of a common
law marriage by uncontroverted evidence. We have construed this argument as raising a matter of
law challenge to the legal sufficiency of the evidence supporting an adverse finding. For Oliver
to succeed on appeal, the evidence must establish each element of a common-law marriage as a
matter of law. See Burden v. Burden, 420 S.W.3d 305, 307 (Tex.App.--Texarkana 2013 no pet.),
citing Dow Chemical Company v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)(explaining that party
attacking legal sufficiency of adverse finding on issue on which party bears burden of proof “must
demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of
the issue” and that party may prevail on appeal only if no evidence supports the adverse finding
and the contrary proposition is conclusively established).
Proof of an agreement to be married may be made by circumstantial evidence or conduct
of the parties. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). An agreement to be married
cannot be inferred from the mere evidence of cohabitation and representations of marriage to
others, but this evidence may be circumstantial evidence of an agreement to be married. Id.;
Burden, 420 S.W.3d at 308. To establish that the parties agreed to be married, it must be shown
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that they intended to create an immediate and permanent marriage relationship, not merely a
temporary cohabitation that may be ended by either party. Burden, 420 S.W.3d at 308, citing Eris
v. Phares, 39 S.W.3d 708, 714 (Tex.App.--Houston [1st Dist.] 2001, pet. denied).
A caseworker, Perla Pena, testified that Dora told her that she and Oliver were married, but
they were not “legally married”. Consistent with Pena’s testimony, Dora testified that she and
Oliver are not legally married, but they “have been together for more than 15 years.” Dora also
asserted that she referred to Oliver as her husband, but when asked if they told other people they
were married, Dora stated: “We tried getting married one time, but it just didn’t work out like that
so we just left it alone.” The couple’s cohabitation and Dora’s reference to Oliver as her husband
is insufficient to prove, as a matter of law, an agreement to be married. Consequently, Oliver
failed to establish the existence of an informal marriage and he is not presumed to be the father of
the children.
Having found the evidence both legally and factually sufficient to support the findings
made by the trial court under Section 161.002(b)(1), we overrule Issue One. See R.H. v. Texas
Department of Family & Protective Services, 550 S.W.3d 631 (Tex.App.--El Paso 2013, no pet.);
Phillips, 25 S.W.3d at 357. Issue One is overruled.
Failure to Register with Paternity Registry
In Issue Two, Oliver challenges the termination of his parental rights on the ground that he
failed to register with the paternity registry. The Family Code allows for the termination of an
alleged father’s parental rights if he fails to register with the paternity registry under specified
circumstances. See TEX.FAM.CODE ANN. § 161.002(b)(2), (3), (4). The termination order is
supported by the trial court’s findings made under Section 161.002(b)(1). Consequently, it is
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unnecessary to address the merits of Issue Two. The judgment of the trial court terminating
Oliver’s parental rights is affirmed.
September 26, 2018
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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