

 











 
 
 
 
 
 
 
                                   NUMBER 13-01-492-CV
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 

 
                         IN THE INTEREST OF
C.D.B., A CHILD

 
 

                          On appeal from the 1A District Court
                                  of Newton
County, Texas.
 

 
                                   O P I N I O N
 
                    Before Justices Dorsey, Rodriguez, and
Wittig[1]
                                   Opinion by Justice Wittig
 
David Albert
Bailey appeals the termination of his parental rights.  In two issues, he challenges the legal and
factual sufficiency of the adverse findings by the trial court.  We affirm.




   I
The marriage of appellant, David Albert Bailey, and appellee,
Pamela Kerr produced one offspring, C.D.B., born July 17, 1991. The couple was
divorced in Louisiana in 1996.  Appellee
remarried, and the child spent most all of his time with his new step-father
and almost no time with appellant. 
Appellant paid about $1200 support in the five years post divorce, lived
in another city, and rarely saw his son. 
Appellant blamed his lack of contact with his son on the assertion he
did not know where his son was physically located.  Because he could not see the child, appellant
did not pay child support.  Appellee, on
the other hand, was quoted as saying as long as she was not receiving support,
appellant could not see his child. 
Termination proceedings were instituted in January 2000, and the
termination of appellant=s parental
rights was granted by a decree signed in March 2001.[2]  Further factual background will be developed
in our sufficiency review.
  II




The natural right existing between a parent and child is one of
constitutional dimensions.  Santosky
v. Kramer, 455 U.S. 745, 758‑59 (1982) (holding that the parent‑child
relationship is Afar more
precious than any property right@).  Therefore, the involuntary termination of
parental rights interferes with fundamental constitutional rights.  Holick v. Smith, 685 S.W.2d 18, 20
(Tex.1985); In re G.M., 596 S.W.2d 846, 846 (Tex.1980).  Involuntary termination proceedings must be
strictly scrutinized in favor of preserving the relationship.  Holick, 685 S.W.2d at 20.   In light of the grave nature of the
proceedings and the constitutional rights implicated, the Texas Supreme Court
adopted the clear and convincing standard of proof for the trial of actions
seeking termination of parental rights.  
In re G.M., 596 S.W.2d at 847. 
Later, the requirement of clear and convincing evidence to support
termination was codified in the Family Code.  
Tex. Fam. Code Ann. '' 161.001,
161.206(a) (Vernon 1996).  AClear 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
(Vernon 1996).
In 2000, the Texas Supreme Court recognized that a higher
standard of appellate review was mandated by federal law where rights of
constitutional dimension were implicated, namely free speech.  Turner v. KTRK Television, Inc., 38
S.W.3d 103, 120 (Tex. 2000).  The Turner
court stated:
Federal
constitutional law dictates our standard of review on the actual malice issue,
which is much higher than our typical Ano evidence@ standard of review.
. . .  Under this standard, we must
independently consider the entire record to determine whether the evidence is
sufficient to cross the constitutional threshold that bars the entry of any
judgment that is not supported by clear and convincing proof of Aactual malice.@
 




Id. (quoting  Bose Corp. v. Consumers Union, 466
U.S. 485, 510‑11 (1984) (other citations omitted)).  In 2002, 
our highest court addressed factual sufficiency appellate review under
both federal constitutional guarantees and the Family Code.  It concluded Athat the appellate standard for reviewing
termination findings is whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State's
allegations.@  In re C.H., 45 Tex. Sup.
Ct. J. 1000, 2002 Tex. LEXIS 113, at *23 (July 3, 2002).




The heightened protection for these fundamental rights would be
rendered meaningless if a termination judgment were erroneously rendered at
trial based upon less than clear and convincing evidence, but the reviewing
court was required to affirm if there was merely Asome evidence@ meeting the
preponderance standard.  Logic
dictates  that the constitutional and
legislative requirements apply not only at the trial level but also at the
appellate level.  In re C.H., 2002
Tex. LEXIS 113, at *22 (citing In re K.R., 22 S.W.3d at 97 (Wittig, J.,
concurring)).  Given this development of
the law, we inexorably conclude that the third or intermediate Aheightened@ appellate
review applies both to a legal sufficiency review, Turner, 38 S.W.3d at
120, and factual sufficiency review. 
In re C.H., 2002 Tex. LEXIS 113, at *23.  In reviewing a legal sufficiency challenge,
we consider all of the evidence in a light most favorable to the party in whose
favor the verdict was rendered and indulge every reasonable inference in that
party's favor.  See Associated
Indem.Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285‑86
(Tex.1998); see also In re H.R., 04-01-737-CV, 2002 Tex. App. LEXIS
4877, *8-9 (San Antonio July 10, 2002, no pet. h.).[3]  The proof and inferences must be such that Aa factfinder
could reasonably form a firm belief or conviction about the truth of the
State's allegations.@  See In re C.H., 2002 Tex. LEXIS 113,
at *23.  Under legal sufficiency, we also
determine whether or not the contrary proposition is  established as a matter of law.  See Dow Chemical Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001).  
 Section 161.001 of the
Texas Family Code governs the involuntary termination of the parent‑child
relationship.  Under that section, a
court may order termination of the parent‑child relationship if it finds
by clear and convincing evidence one or more of the statutory ground set out in
section 161.001(1), and determines that termination is in the best interest of
the child as required by section 161.001(2).  
Tex. Fam. Code Ann. ' 161.001.  We determine the legal and factual
sufficiency focusing upon whether a reasonable jury could form a firm
conviction or belief on the two prong elements 
for termination, while at the same time retaining the deference an
appellate court must have for the factfinder=s role. 
In re C.H., 2002 Tex. LEXIS 113, at *24.  We should not reverse the judgment unless the
factfinder could not reasonably have formed a firm conviction or belief that
terminating appellant=s rights was in
C.D.B.=s best interest
or that the other statutory grounds could not have been similarly found.  Id. 
The absence of some of the Holley factors does not preclude a
factfinder from reasonably forming a strong conviction or belief that
termination is in the child=s best
interest, depending upon the evidence.  Id.
(particularly where the relationship endangers the safety of the child); Holley
v Adams, 554 S.W.2d 467, 371-72 (Tex. 1976).  Paltry evidence relevant to the Holley
factors, would not suffice to uphold a termination finding.  In re C.H., 2002 Tex. LEXIS 113, at
*28.




                                                             III




Our legal sufficiency reviews first notes that section
161.001(1)(F) of the Texas Family Code provides for involuntary termination of
the parent child relationship when a parent fails 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.  See Tex.
Fam. Code Ann. '
161.001(1)(F).  Appellant does not
challenge this first element on the necessary termination findings.  And indeed the evidence is more than ample to
establish appellant=s lack of
support.  Rather, he specifically challenges
the second required element, arguing a lack of clear and convincing evidence
that termination is in the best interest of C.D.B.  We believe the evidence is legally sufficient
because, considering the evidence that supports the finding, the factfinder
could reasonably have formed a firm conviction or belief that terminating
appellant=s rights was in
C.D.B.=s best
interest.   In re C.H., 2002 Tex.
LEXIS 113, at *27; Turner 38 S.W.3d at 12.  First, the finding of lack of support is not
challenged.  Additionally, testimony
adduced showed appellant did not have a relationship with his son.  In fact, appellant admitted at trial he
wanted to Aestablish@ a relationship
with C.D.B.  The child had a relationship
with his step-father and called him ADad.@ The child knew
his step-father as his father, and did not know appellant as his father.
Appellant failed to see the child for several years, prior to the termination
action.  Even though appellant=s parents lived
in the same town as the child=s mother=s parents,
appellant made little or no effort to locate and see his son.  Appellant did not live in the same house as
the child for nearly seven years.  Other
than one or two birthdays and a Christmas/New Years holiday, there was scant
evidence appellant attended the physical, emotional, or parental needs of the
boy.  Holley, 544 S.W.2d at
372.  Appellant failed to obtain a social
study to address material concerns for the welfare of the child, and testimony
was evoked that appellant had shown no interest in the child.  Accordingly, we find there is evidence to
support the finding by the intermediate clear and convincing standard and the
contrary proposition is not established as a matter of law.  Dow Chemical Co., 46 S.W.3d at 241.  Appellant=s first issue is overruled.
IV




In reviewing the factual sufficiency of the trial court=s finding that
termination of appellant=s parental
rights are in the child=s best
interest, we will additionally review the evidence that would indicate that the
factfinder could not reasonably have formed a firm conviction or belief that
terminating appellant=s rights was in
C.D.B.=s best
interest.  We also determine whether the
finding is so against the great weight of the evidence that it is clearly wrong
and unjust.   Id. at 242.  The evidence contrary to the verdict raises
some questions.  Appellant testified that
it was difficult to locate his son.  His
former mother-in-law was not helpful in locating the physical address of the
child, and the post office box he had for contact, turned out at trial to be
that of the step-father, Mr. Kerr.  Kerr
and appellee actually lived fifty miles away from the post office box and had
moved several times in the intervening years.  During 1996 and 1997, appellant testified his
only means of attempting to locate his son was through the maternal
grandmother; she did not help appellant on his several attempts to contact the
child.  In 1999, appellant attempted to
send birthday and Christmas gifts to his son. 
In 1998 appellant attempted to mail a birthday gift.  And in July 2000, appellant sent a birthday
gift.  Several photographs depicted a
1999 Christmas meeting between appellant and the child.  According to appellant=s argument, the
photos show Athat the child
had no fear@ of
appellant.  A letter from appellee stated
Aif you want to
have contact with [C.D.B.] like you say you do, you will send money regularly.@  And appellant contended he did not pay
regular support because he could not see his child.
While the evidence against the verdict certainly raised some
question whether appellant could be given yet further opportunity to Aestablish@ a relationship
with his boy, we cannot say, considering and weighing all the evidence, that
clear and convincing proof was so weak or lacking that it could not produce in
the factfinder=s mind a firm
belief or conviction that termination of parental rights was in the child=s best
interest, or that the finding is so against the great weight of the evidence
that it is clearly wrong and unjust.  In
re C.H., 2002 Tex. LEXIS 113, at *23; Dow Chem. Co. at 242.  Appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
 
DON
WITTIG
Retired
Justice
 
Publish.
Tex.
R. App. P. 47.3(b).
 
Opinion delivered and
filed
this 5th day of
December, 2002.
 




[1]
Retired Justice Don Wittig assigned to this Court by the Chief Justice of the
Supreme Court of Texas pursuant to Tex.
Gov=t Code Ann. '
74.003 (Vernon 1998). 


[2]
Appellee=s brief was
finally filed in February 2002.


[3]
Under the historic preponderance of evidence legal sufficiency
review, AThe evidence
presented, viewed in the light most favorable to the prevailing party, must be
such as to permit the logical inference [that the jury must reach].@  Transportation Ins. Co. v. Moriel, 879
S.W.2d 10, 24 (Tex.1994).  We believe,
under the heightened intermediate legal sufficiency review, we still view the
evidence in the light most favorable to the prevailing party, but that evidence
must demonstrate proof or permit logical inferences that the fact finder could
reasonable form a firm belief or conviction about the truth of the assertions.


