in the Interest of B.W., a Child ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00009-CV
___________________________
IN THE INTEREST OF B.W., A CHILD
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court No. CV15-00769
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is a private termination proceeding in which the parental rights of
Appellant C.W. (Father)1 to his son Blake 2 were terminated on the petition of
Appellee D.S. (Mother) following a bench trial. In two issues, Father argues that the
trial court abused its discretion by not appointing an ad litem to represent Blake and
challenges the sufficiency of the evidence to support the termination of his parental
rights to Blake. Because the record does not demonstrate that the trial court abused
its discretion by not appointing an ad litem for Blake and because sufficient evidence
supports an unchallenged predicate ground of termination, we affirm.
II. Background
During the termination trial, the trial court heard testimony from Mother,
Paternal Grandmother, Paternal Grandfather, Paternal Great Aunt, and Paternal
Uncle.
A. Mother’s Testimony
Mother and Father never married. Mother testified that she and Father were
together about two years and stayed together about six months after Blake was born
See generally Tex. Fam. Code Ann. § 109.002(d) (providing that on the court’s
1
own motion, it may in its opinion identify the parties by fictitious names or by their
initials only).
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in
2
an appeal from a judgment terminating parental rights).
2
in 2013.3 At the time of the termination trial, Mother testified that Blake was five
years old and was in kindergarten.
Mother testified that when she and Father had dated, he had assaulted her, but
she did not file charges. Mother testified that when she was pregnant with Blake,
Father yelled at her, pushed her up against a wall, and then held her down in the front
yard. Mother said that Father had been violent towards her while Blake was present
by verbally abusing her when Blake was only a few months old to a year old.
The record demonstrates that in 2015, Father was charged with aggravated
assault with a deadly weapon and was placed on deferred-adjudication community
supervision. Mother testified that Father’s criminal charge was a result of his
assaulting his then-girlfriend.
Mother had concerns that Father was using drugs around the same time. 4
Mother testified that Father’s drug usage created a situation that had endangered
Blake’s physical and emotional well-being. Mother explained that Father had anger
issues and was very violent when he was on drugs. Mother said that Father had
The record demonstrates that Father was ordered to pay monthly child
3
support of $256 beginning January 1, 2014, and to provide health insurance for Blake.
Mother was not sure how long Father had been on drugs and was not sure if
4
he had used drugs during the time that they had lived together.
3
demonstrated violent tendencies toward his family,5 his ex-girlfriend, and Mother.
Mother testified that, to her knowledge, Father had not been violent towards Blake.
Mother testified that her concerns about Father’s drug use were confirmed
when his community supervision was revoked due to failed drug tests and he was
adjudicated guilty of aggravated assault with a deadly weapon. A copy of the
judgment adjudicating Father’s guilt was admitted into evidence. The judgment
reflects that Father was placed on deferred-adjudication community supervision in
2015; that the State filed a motion to adjudicate, alleging that Father had violated
multiple conditions of his community supervision; 6 that he pleaded true to the alleged
violations; and that the trial court found the allegations to be true, adjudicated Father
Mother testified that she had seen Father hit Paternal Grandmother on the
5
back with a broomstick and that he had been verbally abusive to Paternal
Grandmother and Paternal Grandfather.
6
The State alleged that Father had failed to report to the Cooke County
Community Supervision and Corrections Department for four months; had failed to
work his community service hours for twenty-four months; had failed to pay the
urinalysis testing fee; had failed to abstain from consuming any illegal substance
during his community supervision; had failed to attend the “SOP program” as
directed by his community supervision officer; had failed to pay the probation fee for
eighteen months; had failed to pay court costs; had failed to pay the $2,500 fine; had
failed to attend and complete a Life Skills Class and provide proof of completion to
his community supervision officer; had failed to attend and successfully complete an
intensive anger management class as directed; and had failed to attend and
successfully complete Batterer’s Intervention programs approved by his community
supervision officer.
4
guilty of aggravated assault, and sentenced him to ten years’ confinement. The record
reflects that Father’s parole eligibility date is January 13, 2023. 7
After Father tested positive for drugs, Mother filed her petition to terminate his
parental rights in April 2018. In addition to Mother’s concern that Father’s drug
usage might cause him to injure Blake, Mother testified that Father did not make any
child support payments during 2017 and that he was not in prison and was able to
make payments during that year.
Mother testified that before Father went to prison, his involvement with Blake
was “[v]ery little.” Mother said that Blake would visit often with Paternal
Grandparents but that Father never picked up Blake or brought him back to Mother.
Mother explained that there were occasions when it was Father’s visitation time, but
Paternal Grandparents would visit with Blake while Father went out partying with his
friends.
Mother was not sure if Father loved Blake. Mother said that Father “had five
years to see [Blake]. He could have c[o]me and seen him anytime he wanted, and he
never did.”
Mother testified that by the time of the termination trial, she had been married
to T.S. for almost a year, that they had dated for several years prior to marriage, that
he had been in Blake’s life for four years, and that T.S. was the only real father figure
The record demonstrates that if Father is not released on parole in 2023, he
7
will not be released from prison until January 2028, at which point Blake will be
fourteen and a half years old.
5
that Blake had known. Mother testified that T.S. planned to adopt Blake. Mother
said that Blake had talked to her about changing his last name and wondered why his
last name was different from hers. Mother requested that the trial court change
Blake’s last name to T.S.’s last name due to the poor reputation associated with
Father’s last name as a result of his criminal conviction.8
Mother opined that it was in Blake’s best interest for the trial court to terminate
Father’s parental rights. Mother also requested that the trial court appoint her as sole
managing conservator of Blake.
On cross-examination, Mother testified that she loved Paternal Grandparents
and that they got along well with Blake. Mother said that Paternal Grandparents had
offered her money to help her out and that she had “kindly told them that [she] didn’t
need it.” Mother testified that Blake was on her insurance at work, so she did not use
the Medicaid that Paternal Grandparents had renewed on Father’s behalf for the
benefit of Blake.
Mother testified that she had seen Father be verbally defiant towards Paternal
Grandparents and refuse their instruction. As a result, Mother was concerned about
Blake’s going to visit Paternal Grandparents after Father gets out of prison. Mother
had spoken to Paternal Grandparents about her concerns, but they would not agree to
8
Ultimately, the trial court decided not to change Blake’s last name and left that
for any future adoption proceeding.
6
her request to not allow Father around Blake because they wanted Father to be
allowed to be around Blake at family gatherings.
The trial court asked Mother why it would be in Blake’s best interest for
Father’s parental rights to be terminated, and she said,
[Father’s] had violence, drug abuse, and anger issues. He hasn’t been a
father. He’s had five years to be a father[,] and he hasn’t. I don’t want
[Blake] seeing the way he lives. It would be in [Blake’s] best interest, his
safety and well-being, for my current husband to raise him and teach
him the way of life. [Father], I don’t see him doing that.
B. Paternal Grandmother’s Testimony
Paternal Grandmother testified that she and her husband have a very close
relationship with Blake. Paternal Grandmother said that she called Mother whenever
she wanted to see Blake and that Mother had been very cooperative in allowing
Paternal Grandparents to see Blake. Paternal Grandmother admitted that Mother had
been a great mother to Blake.
Paternal Grandmother testified that when Father was not using drugs, he was
“amazing.” Paternal Grandmother said that Father began using drugs at the end of
high school and had used drugs off and on for eight years. Paternal Grandmother
knew that Father had used K2, but she did not know that he had used
methamphetamine and Xanax. Paternal Grandmother admitted that when Father was
doing drugs, he would push her, yell at her, and scream at her and Paternal
7
Grandfather. Paternal Grandmother did not recall an incident in which Father had hit
her with a broom.
Paternal Grandmother testified that Father truly loves Blake and wants to see
Blake even though Blake is too young to visit Father in prison. Paternal
Grandmother said that Father had not been “influential the whole time” and that he
had regretted not spending as much time with Blake as he could have. Paternal
Grandmother testified that when Father had spent time with Blake, they had ridden
four-wheelers, had gone fishing, and had hung out and enjoyed their time together.
Paternal Grandmother testified that Father and Blake “truly have a bond” and that
Blake asks about Father “all the time.”
Paternal Grandmother testified that it would not be in Blake’s best interest for
the trial court to terminate Father’s parental rights because
[Father] loves [Blake] very much. He went through some real bad times,
and we don’t condone anything that he did. He made some bad choices.
But I don’t feel that terminating [Blake’s] relationship [with Father]
should be done because of that. He is in the penitentiary. He is -- once
he gets to his permanent place, he is taking classes to work with his
problem -- problems that he has.
He -- he’s never hurt [Blake], never hit [Blake], never in any way
showed any kind of hostility towards [Blake]. His -- when he had
hostility with other people, I do blame it on the drugs he was doing. But
he’s going to be in there five years. He is going to be drug free when he
comes out. He’s going to church every Sunday. I just don’t believe that
terminating [Blake’s] relationship with his father would do any justice for
either one of them.
8
Paternal Grandmother said that it would be in Blake’s best interest to have contact
with his family.
On cross-examination, Paternal Grandmother admitted that someone who had
abused drugs and had committed aggravated assault with a deadly weapon was not a
good, stable parent. Paternal Grandmother could not guarantee that Father would
stay clean after he is released from prison. Paternal Grandmother agreed that it
concerned her that Father could not stay clean and follow the court’s orders back
when he was on community supervision and was facing up to twenty years in prison.
C. Paternal Grandfather’s Testimony
Paternal Grandfather admitted that he and Father had engaged in verbal
altercations but not physical altercations. Paternal Grandfather did not condone
Father’s “prior problems.”
Paternal Grandfather opined that Father loves Blake. Paternal Grandfather
testified that before Father went to prison, he visited with Blake when they brought
him to their house as long as it was not during Father’s work hours. Paternal
Grandfather said that Blake cried every time they took him home because he did not
want to go home. Paternal Grandfather testified that taking Blake away from his
family was not in Blake’s best interest.
On cross-examination, Paternal Grandfather testified that he was unaware of
Father’s drug use when Father was living in a small apartment behind Paternal
Grandparents’ home while he was on community supervision. Paternal Grandfather
9
agreed that Father had been given numerous opportunities to get clean and to be a
good father to Blake and that in spite of those opportunities, Father had not taken
advantage of them and would be in prison until at least 2023. Paternal Grandfather
admitted that Mother is a great mother to Blake and wants what is in his best interest.
D. Paternal Great Aunt
Paternal Great Aunt testified that Blake is very attached to Paternal
Grandfather, Paternal Grandmother, Father, and the rest of the family and gets “a
great deal of love and support from the family.” Paternal Great Aunt opined that it
“would be wrong . . . to take that [love and support] away from any child.” Paternal
Great Aunt testified that she had seen Father with Blake six times in five years, that
Father had acted lovingly towards Blake, and that Blake had seemed to be very
attached to Father.
E. Paternal Uncle
Paternal Uncle testified that Blake loves Father. Paternal Uncle testified that
Father’s parental rights should not be terminated because he is a loving father and is
not a threat to his son “whatsoever.” Paternal Uncle testified that Father had never
physically hit him and that Father did not have a violent temper. Paternal Uncle knew
that Father had used methamphetamine before he went to prison but testified that
Father had never shown any kind of aggression towards Blake. Paternal Uncle did
not believe that it was a trait of a good father to use drugs in violation of a court order
prohibiting him from using drugs.
10
F. Trial Court’s Disposition
After hearing the testimony and reviewing the evidence, the trial court found
by clear and convincing evidence that Father had
engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-
being of the child.
By his own admission, in Petitioner’s Exhibit No. 1, he was
physically abusive to a girlfriend, he committed the offense of aggravated
assault with a deadly weapon, he used while on -- he was given an
opportunity on probation, and he didn’t take advantage of that
opportunity. He admitted to using Xanax, methamphetamine,
amphetamine[,] and THC.
He was given an opportunity to help him with his anger issues.
He failed to attend the life skills class[ and] the intensive anger
management class, [and] he failed to complete the batterer’s intervention
program.
So I find by clear and convincing evidence that he’s engaged in
conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the
child.
I also find by clear and convincing evidence that he -- by virtue of
[Petitioner’s] Exhibit No. 3, which shows no child support payment at
all in 2017, while he was not incarcerated and was supposed to be
working, according to the terms of his probation, that he failed to
support the child in accordance with his ability during the period of one
year, ending within six months of the date of filing of this petition.
The [c]ourt finds by clear and convincing evidence that he used a
controlled substance, as defined by Chapter 481 of the Health and Safety
Code, in a manner that endangered the health or safety of the child.
And finally, the [c]ourt finds by clear and convincing evidence
that he knowingly engaged in criminal conduct that has resulted in his
conviction of an offense, and his confinement or imprisonment and
11
inability to care for the child for not less than two years from the date of
filing the petition.
By the time [Father] gets out of the penitentiary, that is -- the
child’s 5 now. That’s almost his entire lifetime again. He’ll be out in
four and a half years.
The [c]ourt finds by clear and convincing evidence that it is in the
best interest of [Blake] to terminate the parent[–]child relationship
between [Father] and the child.
The trial court’s oral rendition was memorialized in a written order terminating
Father’s parental rights to Blake.
III. No Abuse of Discretion Shown in Not Appointing an Ad Litem
In his first issue, Father argues that the trial court abused its discretion by not
appointing an ad litem under section 107.021.
A. Applicable Law and Standard of Review
Texas Family Code section 107.021 provides for the discretionary appointment
of counsel in private termination suits as follows:
(a) In a suit in which the best interests of a child are at issue, other than a
suit filed by a governmental entity requesting termination of the parent[–]child
relationship or appointment of the entity as conservator of the child, the
court may appoint one of the following:
(1) an amicus attorney;
(2) an attorney ad litem; or
(3) a guardian ad litem.
(a-1) In a suit requesting termination of the parent[–]child relationship
that is not filed by a governmental entity, the court shall, unless the court
finds that the interests of the child will be represented adequately by a
12
party to the suit whose interests are not in conflict with the child’s
interests, appoint one of the following:
(1) an amicus attorney; or
(2) an attorney ad litem.
(b) In determining whether to make an appointment under this section,
the court:
(1) shall:
(A) give due consideration to the ability of the parties to
pay reasonable fees to the appointee; and
(B) balance the child’s interests against the cost to the
parties that would result from an appointment by taking
into consideration the cost of available alternatives for
resolving issues without making an appointment;
(2) may make an appointment only if the court finds that the
appointment is necessary to ensure the determination of the best
interests of the child, unless the appointment is otherwise
required by this code; and
(3) may not require a person appointed under this section to serve
without reasonable compensation for the services rendered by the
person.
Tex. Fam. Code Ann. § 107.021. We review a finding made under this section for an
abuse of discretion. See In re C.A.P., No. 04-12-00553-CV, 2013 WL 749825, at *2
(Tex. App.—San Antonio Feb. 27, 2013, pet. denied) (mem. op.).
B. Findings of Facts and Conclusions of Law
Here, the trial court made the following relevant findings of fact and
conclusions of law:
13
3. On September 29, 2016, this Court entered an Order in Suit to
Modify Parent[–]Child Relationship in this cause removing [Mother] and
[Father] as joint managing conservators and naming [Mother] as Sole
Managing Conservator of the child [Blake].
4. In the Order in Suit to Modify Parent[–]Child Relationship rendered
by this Court on September 29, 2016, the Court found that [Father] has
a history or pattern of committing family violence during the two-year
period preceding or during the pendency of the suit.
5. Also in the Order in Suit to Modify Parent[–]Child Relationship in
this cause entered on September 29, 2016, [Father] was ordered to make
payments to [Mother] for current child support in the amount of
$256.00 per month and retroactive child support in the amount of
$57.00 per month for the support of the child the subject of this suit.
6. [Mother] filed an Original Petition to Terminate Parent[–]Child
Relationship on April 5, 2018, requesting the Court to waive the
appointment of an Attorney Ad Litem for the child and to terminate the
parent[–]child relationship between [Father] and [Blake].
....
8. [Mother], the mother and sole managing conservator of the child[,]
has been the primary caregiver and decision maker for the child for the
entirety of the child’s young life.
9. [Mother] is a great mother to the child as witnesses called on behalf
of [Father] stated in their testimony.
....
Conclusions of Law
....
18. The mother’s interests do not conflict with the interests of the
child[;] therefore[,] the interests of the child are adequately represented
by the mother[,] and thus the appointment of an attorney ad litem was
not necessary in this case to determine the best interests of the child.
14
C. Analysis
Father argues that the trial court ignored the statute’s first requirement—to
give due consideration to the ability of the parties to pay reasonable fees to the
appointee—because the trial court accepted as evidence only Father’s incarceration.
A plain reading of the statute, however, demonstrates that the trial court is not
permitted to appoint an attorney ad litem in a private termination unless the trial court
finds that the appointment is necessary to ensure the determination of the child’s best
interests. See Tex. Fam. Code Ann. § 107.021(b); see also Vargas v. Vargas, No. 01-15-
00690-CV, 2016 WL 3227964, at *3 (Tex. App.—Houston [1st Dist.] June 9, 2016, no
pet.) (mem. op.). Here, the trial court specifically found that an appointment was
unnecessary. Therefore, whether the parties could pay an ad litem’s fees never
became relevant. See Vargas, 2016 WL 3227964, at *3.
The record reflects that the primary interest of Mother—who had previously
been the victim of a physical assault and verbal assaults by Father and who had
witnessed him verbally assault Paternal Grandparents—was to protect Blake from
Father. Mother testified that she was concerned that Father might injure Blake
because Father had anger issues and was very violent when he was on drugs. And the
trial court had previously found that Father had a history or pattern of committing
family violence. Because this constitutes some evidence to support the trial court’s
conclusion that Mother adequately represented Blake’s interests, we hold that the trial
court did not abuse its discretion by not appointing an attorney ad litem for Blake. See
15
C.A.P., 2013 WL 749825, at *2 (holding that trial court did not abuse its discretion by
not appointing an attorney ad litem for child because mother’s testimony supported
trial court’s finding that child’s interests were adequately represented by mother); In re
R.J.C., No. 04-09-00106-CV, 2010 WL 816188, at *3 (Tex. App.—San Antonio
Mar. 10, 2010, no pet.) (holding that trial court did not abuse its discretion by failing
to appoint an attorney ad litem for child because trial court found that mother had no
interest adverse to child and adequately represented child’s interests and because
record demonstrated that mother was trying to protect child from father); see also In re
A.C.W., No. 12-11-00137-CV, 2012 WL 1379653, at *2 (Tex. App.—Tyler Apr. 18,
2012, no pet.) (mem. op.) (holding that trial court did not abuse its discretion by not
appointing an attorney ad litem for child because trial court followed the statute in
making its findings); In re T.L.W., No. 12-10-00401-CV, 2012 WL 1142475, at *3
(Tex. App.—Tyler Mar. 30, 2012, no pet.) (mem. op.) (holding that trial court did not
abuse its discretion by failing to appoint an attorney ad litem for child).
Father relies on In re D.M.O. for the proposition that “where parents are
adversaries in a suit to terminate one parent’s rights, the trial court can seldom find
that one party adequately represents the interests of the children involved or that their
interests are not adverse.” No. 04-17-00290-CV, 2018 WL 1402030, at *3 (Tex.
App.—San Antonio Mar. 21, 2018, no pet.) (mem. op.). Father, however, recognizes
that D.M.O. and many of the other cases he cites involve situations in which the trial
court did not make any determinations or findings under section 107.021, but he
16
argues that this case is fundamentally no different because the trial court did not
follow the guiding rules and principles of the statute and “performed a five-question,
perfunctory inquiry rooted in expediency for the trial court.” We disagree.
First, D.M.O. is distinguishable from the facts before us; the father in D.M.O.
testified at trial that he wished to maintain a relationship with his child and brought
evidence to support his arguments, and there was no evidence that the father in
D.M.O. had engaged in violent or physically abusive behavior, had been incarcerated,
or had otherwise engaged in conduct endangering the child. Id. at *4. Second, the
statute does not set forth a set of questions that must be asked or a checklist of tasks
that must be performed before the trial court can find that the appointment of an
ad litem is not necessary to ensure the determination of the best interests of the child.
See generally Tex. Fam. Code Ann. § 107.021(b). Moreover, as set forth above, the trial
court followed the statute in making its finding, and its finding is supported by the
record.
Father further argues that the trial court “seemed more than anything frustrated
that a request for an ad litem came the day of trial” and that the trial court’s “clear
bias to appointing an ad litem cleared the way for it to avoid its statutory obligations.”
Father has not demonstrated that the trial court was biased because judicial rulings
alone do not constitute a basis for bias. See Dow Chem. Co. v. Francis, 46 S.W.3d 237,
240–41 (Tex. 2001). Moreover, as set forth above, the trial court did not avoid its
statutory obligation but fulfilled it by finding, as allowed by the statute, that the
17
appointment of an attorney ad litem was not necessary in this case to determine the
best interests of the child. See Tex. Fam. Code Ann. § 107.021(b)(2).
Accordingly, we overrule Father’s first issue.
IV. Sufficient Evidence Supports Unchallenged Termination Findings
In his second issue, Father challenges whether there is clear and convincing
evidence to support the termination of his parental rights. [Ant’s Br. @ 8, 20] In
particular, Father argues that there is insufficient evidence that he engaged in conduct
that endangered Blake’s well-being or that his drug use endangered Blake. See id.
§ 161.001(b)(1)(E), (P).
A. Burden of Proof and Sufficiency Standards of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: 1) that the
parent’s actions satisfy one ground listed in family code section 161.001(b)(1); and
2) that termination is in the child’s best interest. Id.. § 161.001(b); In re E.N.C., 384
S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is
clear and convincing if it “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; E.N.C., 384 S.W.3d at 802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
18
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that
the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. Id. We disregard all evidence that a reasonable
factfinder could have disbelieved, and we consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See id. The factfinder is the sole judge of the witnesses’
credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them or the judgment with
our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record
to decide whether a factfinder could reasonably form a firm conviction or belief that
the parent violated at least one subsection of 161.001(b)(1) and that the termination of
the parent–child relationship would be in the child’s best interest. Tex. Fam. Code
Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder
reasonably could form such a firm conviction or belief, then the evidence is factually
sufficient. C.H., 89 S.W.3d at 18–19.
19
B. Unchallenged Section 161.001(b)(1) Findings
Father acknowledges in his brief that his parental rights were terminated based
on four grounds: endangering conduct (subsection (E)); failure to support Blake
(subsection (F)); use of a controlled substance in a manner that endangered Blake
(subsection (P)); and criminal conduct that resulted in a conviction and confinement
(subsection (Q)). See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (F), (P), (Q). But
Father’s arguments on appeal challenge only the endangering-conduct ground and the
controlled-substance ground. By failing to challenge the trial court’s findings under
subsections (F) and (Q), Father has waived any complaint about the sufficiency of the
evidence to support these findings. See id. (requiring only one predicate ground to
support termination); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (interpreting
section 161.001(b) as requiring only one predicate ground); see also Toliver v. Tex. Dep’t
of Family & Protective Servs., 217 S.W.3d 85, 102–03 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (holding failure to challenge all of trial court’s predicate-ground
findings resulted in waiver).
Nevertheless, the record before us contains sufficient evidence to support the
trial court’s unchallenged subsection (F) and (Q) findings.9 As demonstrated by the
9
Texas Family Code section 161.001(b)(1) provides that the trial court may
terminate the parent–child relationship if the trial court finds by clear and convincing
evidence that the parent has
20
“Texas Child Support Disbursement Unit Payment Record” from the Office of the
Attorney General, Father did not make a single child support payment from January
through December 2017, which was within six months of April 2018—the date when
Mother filed her petition to terminate Father’s parental rights to Blake, and by
Mother’s testimony that Father was not in prison and was able to pay child support
during 2017. See In re K.A.H., 195 S.W.3d 840, 843 (Tex. App.—Dallas 2006, no pet.)
(holding evidence sufficient to support finding that father did not support his child
for a period of one year). Moreover, Father does not dispute that he knowingly
engaged in criminal conduct that has resulted in (1) his conviction and (2) his
imprisonment and inability to care for Blake for not less than two years from the date
Mother filed her petition to terminate Father’s parental rights. See Tex. Fam. Code
Ann. § 161.001(b)(1)(Q).
(F) failed to support the child in accordance with the parent’s ability
during a period of one year ending within six months of the date of the
filing of the petition[ or]
....
(Q) knowingly engaged in criminal conduct that has resulted in the
parent’s:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the
child for not less than two years from the date of filing the
petition[.]
Tex. Fam. Code Ann. § 161.001(b)(1)(F), (Q).
21
Because only one ground under section (b)(1) is necessary to support
termination, we overrule Father’s second issue. See In re G.H., No. 02-18-00080-CV,
2018 WL 3968788, at *10 (Tex. App.—Fort Worth Aug. 16, 2018, no pet.) (mem. op.)
(overruling issues challenging other section 161.001(b)(1) grounds for termination
because the record contained sufficient evidence to support an unchallenged section
161.001(b)(1) ground). 10
V. Conclusion
Having overruled Father’s two issues, we affirm the trial court’s order
terminating his parental rights to Blake.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: May 9, 2019
10
Father also includes within his second issue a one-sentence argument
challenging the trial court’s best-interest finding: “Father further disputes that
termination is in the Child’s best interest.” Father does not, however, cite the seminal
case of Holley v. Adams, does not list the Holley factors, and does not provide any
analysis to support his one-sentence argument. 544 S.W.2d 367, 371–72 (Tex. 1976).
Accordingly, the argument is insufficiently briefed. See Tex. R. App. P. 38.1(i). As
such, Father has waived any challenge to the trial court’s best-interest finding. See In
re D.N.M., No. 07-18-00251-CV, 2018 WL 4374705, at *3 n.4 (Tex. App.—Amarillo
Sept. 13, 2018, no pet.) (mem. op.) (concluding that appellant’s inadequate briefing
waived any challenge to best-interest finding); In re D.V., No. 06-16-00065-CV, 2017
WL 1018606, at *7 (Tex. App.—Texarkana Mar. 16, 2017, pets. denied) (mem. op.)
(same); In re C.L., No. 04-03-00638-CV, 2004 WL 86136, at *3 (Tex. App.—San
Antonio Jan. 21, 2004, no pet.) (mem. op.) (holding that appellant waived error by
providing nothing more than a four-sentence “argument” summarily claiming there
was no evidence that termination was in children’s best interest).
22