in the Interest of D.A., a Child ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-460-CV
IN THE INTEREST OF D.A., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Terrance D. appeals the trial court’s order terminating his parental
rights to his daughter, D.A. 2 In three issues, Terrance argues that section
161.002(b)(3) of the Texas Family Code violates his rights under the United States
and Texas constitutions and that the evidence is legally and factually insufficient to
show that he constructively abandoned D.A. W e will affirm.
II. F ACTUAL B ACKGROUND
1
 See Tex. R. App. P. 47.4.
2
 To protect the privacy of the children involved, we identify them by initials
only. See Tex. R. App. P. 9.8(b); Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008).
Terrance is D.A.’s alleged biological father. Lisza A. is D.A.’s mother. Lisza
is also the mother of A.D.A., A.D.A., and R.J.A. Terrance is not the father of the
other children.
Lisza was married to Nathaniel J. in January 2008. Later that same month,
Nathaniel went to jail; he was released in October 2008. Lisza got pregnant with
D.A. while Nathaniel was incarcerated.
D.A. was born on January 30, 2009. On February 1, 2009, Latandra
Hampton, a Child Protective Services (“CPS”) investigator, received a referral for
D.A. and Lisza’s other children because both D.A. and Lisza tested positive for
cocaine when D.A. was born. CPS then removed all of the children from Lisza’s
home and placed them in foster care.
The Texas Department of Family and Protective Services (“the Department”)
then filed its petition for protection of children, for conservatorship, and for
termination in suit affecting the parent-child relationship. In November 2009, after
being arrested for robbery, Lisza signed an Affidavit of Relinquishment of Parental
Rights for all of her children, including D.A. Terrance never filed any document in
this matter nor did he personally appear. The trial court, however, appointed an
attorney ad litem to represent Terrance.
On November 24, 2009, the trial court signed an order terminating the parental
rights of Terrance and Lisza as to D.A. The trial court found by clear and convincing
evidence that Terrance did not register with the paternity registry and that after due
2
diligence, his whereabouts could not be located by the Department. The trial court
found that Terrance constructively abandoned D.A. and that it was in D.A.’s best
interest to terminate Terrance’s parental rights. See Tex. Fam. Code Ann.
§ 161.001(1)(N) (Vernon Supp. 2010). This appeal followed.
III. B URDEN OF P ROOF AND S TANDARD OF R EVIEW
A parent’s rights to “the companionship, care, custody, and management” of
his or her children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397, 71 L.
Ed.2d 599 (1982); In re M.S., 115 S.W .3d 534, 547 (Tex. 2003). “W hile parental
rights are of constitutional magnitude, they are not absolute. Just as it is imperative
for courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child not
be sacrificed merely to preserve that right.” In re C.H., 89 S.W .3d 17, 26 (Tex.
2002). In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child's right to
inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685
S.W .2d 18, 20 (Tex. 1985). W e strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent. Holick, 685
S.W .2d at 20–21; In re M.C.T., 250 S.W .3d 161, 167 (Tex. App.—Fort W orth 2008,
no pet.).
3
In proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one ground listed under
subdivision (1) of the statute and must also prove that termination is in the best
interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163 S.W .3d 79, 84
(Tex. 2005). Both elements must be established; 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).
Termination decisions must be supported by clear and convincing evidence.
Tex. Fam. Code Ann. §§ 161.001, 161.206(a). 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.” Id. § 101.007 (Vernon 2008). Due
process demands this heightened standard because termination results in
permanent, irrevocable changes for the parent and child. In re J.F.C., 96 S.W .3d
256, 263 (Tex. 2002); see In re J.A.J., 243 S.W .3d 611, 616 (Tex. 2007) (contrasting
standards for termination and modification).
In reviewing the evidence for legal sufficiency in parental termination cases,
we must determine whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction that the grounds for termination were proven. In re
J.P.B., 180 S.W .3d 570, 573 (Tex. 2005). W e must review all the evidence in the
light most favorable to the finding and judgment. Id. This means that we must
assume that the factfinder resolved any disputed facts in favor of its finding if a
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reasonable factfinder could have done so. Id. W e must also disregard all evidence
that a reasonable factfinder could have disbelieved. Id. W e must consider,
however, undisputed evidence even if it is contrary to the finding. Id. That is, we
must consider evidence favorable to termination if a reasonable factfinder could and
disregard contrary evidence unless a reasonable factfinder could not. Id.
W e must therefore consider all of the evidence, not just that which favors the
verdict. Id. But we cannot weigh witness credibility issues that depend on the
appearance and demeanor of the witnesses, for that is the factfinder’s province. Id.
at 573, 574. And even when credibility issues appear in the appellate record, we
must defer to the factfinder’s determinations as long as they are not unreasonable.
Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due deference
to the factfinder’s findings and not supplant the judgment with our own. In re H.R.M.,
209 S.W .3d 105, 108 (Tex. 2006). W e must determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the parent
violated the relevant conduct provisions of section 161.001(1) and, if challenged, that
the termination of the parent-child relationship would be in the best interest of the
child. C.H., 89 S.W .3d at 28. 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
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conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W .3d at 108.
IV. E VIDENTIARY S UFFICIENCY OF C ONSTRUCTIVE ABANDONMENT F INDING
In his second and third issues, Terrance argues that the evidence is legally
and factually insufficient to prove that he constructively abandoned D.A. Specifically,
Terrance argues that the evidence is legally and factually insufficient to show that
the Department made reasonable efforts to return D.A. to Terrance and that
Terrance demonstrated an inability to provide a safe environment for D.A.
The elements of constructive abandonment are (1) a child has been in the
permanent or temporary managing conservatorship of the Department or an
authorized agency for not less than six months, (2) the Department or authorized
agency has made reasonable efforts to return the child to the parent, (3) the parent
has not regularly visited or maintained significant contact with the child, and (4) the
parent has demonstrated an inability to provide the child with a safe environment.
Tex. Fam. Code Ann. § 161.001(1)(N); In re M.R.J.M., 280 S.W .3d 494, 505–06
(Tex. App.—Fort W orth 2009, no pet.) (op. on reh’g). If there is no evidence of one
or more of these elements, then the finding of constructive abandonment must fail.
See M.R.J.M., 280 S.W .3d at 505. Terrance challenges the sufficiency of the
evidence on only the second and fourth grounds.
A. Reasonable Efforts to Return the Child to the Parent
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Returning a child to a parent under section 161.001(1)(N) does not necessarily
mean that the child has to be physically delivered to the individual. See In re D.S.A.,
113 S.W .3d 567, 573 (Tex. App.—Amarillo 2003, no pet.). “[R]easonable efforts” to
reunite parent and child can be satisfied through the preparation and administration
of a service plan. See id. at 572–73; In re K.M.B., 91 S.W .3d 18, 25 (Tex.
App.—Fort W orth 2002, no pet.). Terrance argues that the Department did not
make reasonable efforts to return D.A. because the Department never developed a
service plan for him.
The Fourteenth Court of Appeals addressed this issue in In re B.S.T., 977
S.W .2d 481 (Tex. App.—Houston [14th Dist.] 1998), rev’d on other grounds by In re
C.H., 89 S.W .3d 17, 26 (Tex. 2002). In B.S.T., after the trial court terminated
appellant’s parental rights, appellant filed an appeal claiming that he was never
given a service plan and that no reasonable efforts were made to return the children
to him. Id. at 486. The court of appeals stated that
[o]ur review of the record reveals that [the mother] was provided with a
Family Service Plan, but there is no evidence appellant was provided
a separate plan by TDPRS. The record indicates [the mother] did not
know appellant’s whereabouts at the time the children were taken into
custody. A diligent search was made to locate appellant. W hen he
was located, and after his release from prison, he was advised of
visitation and did visit with his children twice, but he made no further
efforts to be involved. Caseworkers advised him he should sign an
affidavit of paternity, but he never did so. A caseworker for TDPRS
testified that all reasonable efforts were made to return the children to
the parents. W e believe this evidence is sufficient to support
termination under subsection (N).
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Id.
Here, Hampton testified that after D.A. was removed from Lisza’s home, she
contacted Terrance by telephone. She stated that during the phone call, Terrance
told her that he was not D.A.’s father. She testified that she told Terrance to go to
the courthouse to receive paperwork about the case. During the conversation,
Terrance did not ask for DNA evidence regarding his paternity nor did he ask to see
D.A. Hampton stated that she did not have any other contact with Terrance, that she
did not attempt to contact him at his home address, and that she did not send him
any correspondence.
Additionally, Oneeka Chilton, a CPS caseworker, testified that she developed
a service plan for Lisza and her husband Nathaniel. She further stated that it was
her understanding that Terrance was the father of D.A. She testified, however, that
Terrance never visited with the children and that he never called her regarding D.A.
Chilton said that she attempted to call Terrance at his home but that the phone had
been disconnected. Further, Chilton testified that two service attempts were made
on Terrance at two different addresses but that CPS could not serve him. Chilton
stated that Terrance had not shown an ability to care for or support D.A.
Further, Lisza testified that she last had contact with Terrance before she was
incarcerated but that she did not know what month that was. She stated that she
had “heard of” Terrance quite a few times that year. Lisza said that her mother has
8
had contact with Terrance while she has been incarcerated. She stated that she did
not know Terrance’s last address.
Lisza testified that Terrance knew that she was pregnant with D.A. She
further stated that Terrance attempted to care for her and D.A. while she was
pregnant and after D.A. was born. She stated that Terrance knew that D.A. had
been removed from her home by CPS. Although Terrance asked her for information
on whom to contact to get custody of D.A., she did not know if he ever followed
through and contacted CPS. Additionally, Lisza testified that Terrance did not make
any attempts to visit D.A. Lisza stated that Terrance was aware that he could have
been in court on the day of the trial and that she told Terrance how to contact the
CPS worker.
It is apparent from the record that the Department made all reasonable efforts
to return D.A. to Terrance. The Department contacted Terrance, but Terrance did
not take any action to visit or get custody of D.A. Furthermore, a diligent search was
made to locate Terrance. Terrance disconnected his phone, and neither Lisza nor
the Department knew how to reach him. Additionally, the Department attempted to
serve Terrance at two different addresses.
W e hold that the evidence is legally and factually sufficient to prove that the
Department made reasonable efforts to return D.A. to Terrance. See Tex. Fam.
Code Ann. § 161.001(1)(N)(i); B.S.T., 977 S.W .2d at 486.
B. Demonstrated Inability to Provide a Safe Environment for the Child
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Terrance argues that the Department presented “no evidence concerning the
environment that Appellant would provide for the child.” However, the record does
not contain any indication that Terrance wanted D.A. to live with him; instead,
Terrance’s acts show the opposite. The Department contacted Terrance, but
Terrance stated that he was not D.A.’s father. Additionally, Terrance never visited
with D.A. after she was born and before his parental rights were terminated.
Although Terrance argues that he was in contact with D.A.’s maternal grandmother
while D.A. was in a foster home, there is no evidence that Terrance met with D.A.,
offered to pay for D.A.’s necessities while she was in foster care, or contacted the
Department to try to get custody of D.A.
Accordingly, the evidence establishes Terrance’s inability to provide D.A. with
any environment, much less a safe environment. Thus, the evidence is legally and
factually sufficient as to the “safe environment” element of constructive
abandonment. See Tex. Fam. Code Ann. § 161.001(1)(N)(iii); see also In re T.M.,
No. 02-09-145-CV, 2009 W L 5184018, at *4–5 (Tex. App.—Fort W orth Dec. 31,
2009, pet. denied) (mem. op.) (holding evidence legally and factually sufficient to
support inability to provide safe environment finding when father failed to complete
service plan, did not attempt to find a place for children to live, and did not give foster
mother money to care for children).
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Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court's constructive abandonment finding. 3 Thus, we overrule
Terrance’s second and third issues. Additionally, having overruled Terrance’s
second and third issues, we need not address his first issue. See Tex. R. App. P.
47.1.
V. C ONCLUSION
Having overruled Terrance’s second and third issues, we affirm the trial court’s
order terminating the parent-child relationship between Terrance and D.A.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: September 16, 2010
3
 Terrance does not challenge the trial court’s best interest finding.
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