in the Interest of A.J.M., a Child ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00680-CV
IN THE INTEREST OF A.J.M., a Child
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02783
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: March 28, 2018
AFFIRMED
Appellant-father, A.M., appeals the trial court’s order terminating his parental rights to the
child A.J.M. 1 A.M. challenges the legal and factual sufficiency of the trial court’s findings
supporting termination of his parental rights. We affirm the trial court’s order.
BACKGROUND
On December 12, 2016, the Texas Department of Family and Protective Services (“the
Department”) filed its original petition for protection of a child, for conservatorship, and for
termination of parental rights. The only child named in the petition was A.J.M., who was born on
June 9, 2016. The petition alleged that A.M. was A.J.M.’s alleged father and sought to terminate
1
To protect the identity of minor children in an appeal from an order terminating parental rights, parents and children
are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-17-00680-CV
A.M.’s parental rights on multiple grounds, relying on both sections 161.002 and 161.001 of the
Texas Family Code.
On October 5, 2017, the case proceeded to a bench trial. According to the termination
order, A.M. appeared via teleconference and was represented by appointed counsel. The only
witness to testify at trial was Department caseworker Ammie Martinez. According to Martinez’s
testimony, the Department became involved in this matter because it received allegations of
physical neglect and neglectful supervision against A.J.M.’s mother, V.L. Martinez testified V.L.
was not caring for A.J.M. or her siblings, who were the subject of a separate suit. Martinez further
testified A.M. was incarcerated in state prison, serving a twenty-eight year sentence for human
trafficking and drug offenses, for the pendency of this case.
The Department created a family service plan and communicated the plan to A.J.M.’s
parents. Neither parent successfully completed the service plan. To Martinez’s knowledge, A.M.
had not engaged in any form of services while in prison. Nor had A.M. seen A.J.M. or had any
form of contact with the child during the case. Martinez offered her opinion that termination of
both parents’ parental rights was in A.J.M.’s best interests because neither parent had taken the
opportunity to participate in services or met the goals outlined in the service plan. Prior to trial,
V.L. signed a document voluntarily relinquishing her parental rights, and the document was filed
in the trial court. With regard to the termination of A.M.’s parental rights, Martinez pointed out
A.M. was incarcerated and not able to meet A.J.M.’s needs and A.J.M. would be an adult when
A.M. was released from incarceration.
On October 5, 2017, the trial court signed an order terminating both parents’ parental rights.
A.M.’s parental rights were terminated based on sections 161.002 and 161.001 of the Texas Family
Code. According to the termination order, the trial court found by clear and convincing evidence
that A.M., after having waived service of process or being served with citation in this suit, did not
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respond by filing a counterclaim for paternity or for voluntary paternity to be adjudicated under
chapter 160 of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.002. Alternatively, the
trial court found by clear and convincing evidence that A.M. (1) constructively abandoned A.J.M.
and (2) knowingly engaged in criminal conduct that has resulted in his conviction of an offense
and confinement or imprisonment and inability to care for A.J.M. for not less than two years from
the date of filing the petition. See id. § 161.001(b)(1)(N), (Q). Finally, the trial court found by
clear and convincing evidence that termination of A.M.’s parental rights was in A.J.M.’s best
interest. See id. § 161.001(b)(2). Only A.M. appeals.
SUFFICIENCY OF THE EVIDENCE
In three issues, A.M. contends the evidence is both legally and factually insufficient to
support the trial court’s findings in favor of terminating his parental rights to A.J.M. A.M. first
contends the evidence is insufficient to support the trial court’s finding in Paragraph 7.1 of the
termination order relating to the termination of an alleged biological father’s parental rights. In
the alternative, A.M. contends the evidence is insufficient to support the trial court’s findings in
Paragraph 7.2 of the termination order that A.M. constructively abandoned A.J.M. and knowingly
engaged in criminal conduct that resulted in his conviction and incarceration. A.M. also contends
the evidence is insufficient to support the trial court’s finding that termination of his parental rights
is in A.J.M.’s best interest.
Burden of Proof and Standard of Review
Under section 161.001 of the Texas Family Code, parental rights may be terminated only
upon proof, by clear and convincing evidence, that the parent has committed an act prohibited by
section 161.001(b)(1) of the Texas Family Code, and that termination is in the best interest of the
child. See id. § 161.001. Under section 161.002(b)(1) of the Texas Family Code, “The rights of
an alleged father may be terminated if … after being served with citation, he does not respond by
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timely filing an admission of paternity or a counterclaim for paternity under Chapter 160.” See id.
§ 161.002(b)(1). “However, if the alleged father files an admission of paternity, his rights may
only be terminated if the Department proves by clear and convincing evidence one of the grounds
for termination in Section 161.001(b)(1) and that termination is in the child[’s] best interest.” In
the Interest of U.B., No. 04–12–00687–CV, 2013 WL 441890, at *1 (Tex. App.—San Antonio
Feb. 6, 2013, no pet.) (mem. op.). “‘Clear and convincing evidence’ means 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.
We evaluate the legal and factual sufficiency of the evidence to support the trial court’s
findings under the standard of review established by the Texas Supreme Court in In re J.F.C. See
In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under this standard, “[t]he trial court is the sole
judge of the weight and credibility of the evidence, including the testimony of the Department’s
witnesses.” In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio
Jan. 30, 2017, no pet.) (mem. op.).
Failure to Admit Paternity
In his first issue, A.M. contends the evidence is legally and factually insufficient to support
the trial court’s finding pursuant to Family Code section 161.002. In his brief, A.M. judicially
admits he “is the alleged biological father of A.J.M. He is not a ‘legal’ father to A.J.M.” See R.H.
v. Tex. Dep’t of Family & Protective Servs., No. 08-12-00364-CV, 2013 WL 1281775, at *6 (Tex.
App.—El Paso March 28, 2013, no pet.) (mem. op.) (observing appellant judicially admitted in his
brief that he was an alleged father and argued that the evidence was factually and legally
insufficient to support the statutory predicate for termination under section 161.002(b)(1)).
However, A.M. argues “[t]he evidence adduced at trial was entirely devoid of any evidence
suggesting ‘after being served with citation, A.M. did not respond by timely filing an admission
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of paternity or a counterclaim for paternity under Chapter 160.’” Specifically, A.M. complains
that, although Martinez testified a Certificate of Paternity Registry Search was on file with the trial
court, no such document is included in the appellate record.
We note A.M. is correct that a Certificate of Paternity Registry Search is not included in
the appellate record. However, “[t]here are no formalities that must be observed when filing an
admission of paternity or for such an admission to be effective.” See U.B., 2013 WL 441890, at
*2. In In re K.E.S., the court determined that the father had admitted paternity because he made
statements to the Department acknowledging that he was the father and had “completely
cooperated when asked to take a paternity test, the results of which were offered by [the
Department] and admitted without objection by Father.” In re K.E.S., No. 02–11–00420–CV,
2012 WL 4121127, at *3 (Tex. App.—Fort Worth Sept. 20, 2012, pet. denied.) (mem. op.).
In contrast, the court in In re D.T. affirmed termination based on section 161.002(b)(1),
observing that the father had not written to the trial court claiming paternity and had not appeared
at trial to testify. In re D.T., No. 02–13–00331–CV, 2014 WL 261408, at *2 (Tex. App.–Fort
Worth Jan. 23, 2014, no pet.) (mem. op.). The court also noted, “[t]here is no indication in the
record that [the alleged father] offered to take a paternity test or made any effort outside of a single
visit with [the child].” Id.
Similarly, in In re J.L.W., the court affirmed termination based on section 161.002(b)(1).
In re J.L.W., No. 08–09–00295–CV, 2010 WL 5541187, at *6 (Tex. App.—El Paso Dec. 29, 2010,
no pet.) (mem. op.). The court observed, “although [the alleged father] expressed a willingness to
undergo genetic testing, and despite both the trial court’s order that testing be performed and the
Department’s attempts to assist [him] in being tested, [he] never submitted to testing.” Id.
It is undisputed A.M. is not listed on A.J.M.’s birth certificate. Further, the record does
not reflect that A.M. filed an admission of paternity or otherwise claimed paternity by writing to
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the trial court about being A.J.M.’s father. Although A.M. appeared at trial via teleconference, he
did not testify that he was A.J.M.’s father or perform any other act that would have prevented the
summary termination of his parental rights under section 161.002. Cf. In re K.W., No. 02–09–
00041–CV, 2010 WL 144394, at *3 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.) (mem. op.)
(stating that there are no formalities that must be observed for an admission of paternity to be
effective). There is no indication in the record that A.M. offered to take a paternity test; rather,
the record reflects that A.M.’s name was on the birth certificate of only one of the siblings, and
A.M. refused to participate in paternity testing for the other siblings. Cf. In re K.E.S., 2012 WL
4121127, at *3 (stating that father admitted paternity under section 161.002 when, although he did
not file a counterclaim of paternity or for voluntary paternity under chapter 160, he responded to
the Department’s letter acknowledging that he believed the child to be his and cooperated when
asked to take a paternity test, which was admitted without objection at trial, allowing the issue to
be tried by consent).
Given that A.M. made no representation of paternity in the trial court that he is A.M.’s
father, or otherwise admitted paternity, we conclude the trial court had legally and factually
sufficient evidence to support the determination made in Paragraph 7.1 of the termination order
that under section 161.002(b)(1) that A.M. “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.” Therefore, we affirm the termination of A.M.’s parental rights as to the child A.J.M.
under section 161.002 without reaching his section 161.001 statutory predicate or best interest
issues. See R.H., 2013 WL 1281775, at *6-7 (indicating that once the appellate court determined
the trial court was authorized to terminate the alleged father’s rights pursuant to section
161.002(b)(1), it was irrelevant whether the trial court’s findings regarding the section 161.001
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statutory predicate findings were appropriate and also holding that section 161.002(b)(1) does not
require the Department to prove that termination is in the child’s best interest).
CONCLUSION
The State’s motion to show cause on authority to appeal and to show whether the appeal is
frivolous is denied. Based on the foregoing reasons, the trial court’s order terminating the parental
rights of A.M. as to the child A.J.M. is affirmed.
Irene Rios, Justice
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