







NUMBER 13-04-657-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

IN THE INTEREST OF D.S.P. AND H.R.P., CHILDREN



On appeal from the 319th District Court of Nueces County, Texas.
 

O P I N I O N


Before Justices Hinojosa, Yañez, and Rodriguez
Opinion by Justice Yañez

 
	This appeal is from a judgment terminating the parental rights of a biological mother
and father and awarding custody of their two children, D.S.P. and H.R.P., to the children's
paternal grandparents.  The father voluntarily relinquished his rights to the children, and
there being no appeal from that part of the judgment terminating his rights, that part of the
judgment has become final.  Appellant, the mother, appeals from that part of the judgment
terminating her rights.  On appeal, she raises three issues, which can be properly narrowed
and addressed as two:  (1) the evidence is legally and factually insufficient to support
termination under Texas Family Code section 161.001(1)(F); and (2) the evidence is legally
and factually insufficient to support termination under Texas Family Code section
161.001(2). (1)  As to that part of the judgment terminating appellant's parental rights, we
reverse and render judgment in favor of appellant.
Background
	Appellant had two children out of wedlock with the children's father.  The first child,
D.S.P., was born in September 1998; the second child, H.R.P., was born in July 2000.  On
October 16, 2000, shortly after the birth of their second child, the trial court appointed
appellant sole managing conservator of D.S.P.  The father was appointed possessory
conservator and both of his parents, appellees, (2) were afforded limited visitation and
possession rights.
	On February 8, 2002, the children's paternal grandmother was appointed sole
managing conservator of D.S.P. and H.R.P., while the children's parents were made
possessory conservators.  Two years later, on February 5, 2004, appellees petitioned to
adopt the children and to terminate the parental rights of both parents.  On November 17,
2004, the trial court ruled in appellees' favor, finding by clear and convincing evidence that
both parents had failed to support the children in accordance with their ability during a
period of one year ending within six months of the date of the filing of the petition, and that
termination of the parent-child relationship was in the best interest of the children.  
Standard of Review
 A parent's right to "the companionship, care, custody, and management" of her
children is a constitutional interest "far more precious than any property right." (3)  The United
States Supreme Court has emphasized that "the interest of parents in the care, custody,
and control of their children . . . is perhaps the oldest of the fundamental liberty interests
recognized by this Court." (4)  Likewise, the Texas Supreme Court has also concluded that
"this natural parental right" is "essential," "a basic civil right of man," and "far more precious
than property rights." (5)  Consequently, termination proceedings must be strictly scrutinized,
and "involuntary termination statutes are strictly construed in favor of the parent." (6)
	Because termination "is complete, final, irrevocable, and divests for all time that
natural right . . . the evidence in support of termination must be clear and convincing before
a court may involuntarily terminate a parent's rights." (7)  Clear and convincing evidence is
"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." (8)  Because
termination findings must be based upon clear and convincing evidence, not simply a
preponderance of the evidence, the Texas Supreme Court has held that the traditional
legal and factual standards of review are inadequate. (9)  Instead, in conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the
evidence, viewed in the light most favorable to the finding, is such that the fact finder could
reasonably have formed a firm belief or conviction about the truth of the matter on which
the movant in a termination proceeding bore the burden of proof. (10)  In viewing the evidence
in the light most favorable to the judgment, we "must assume that the fact finder resolved
disputed facts in favor of its finding if a reasonable fact finder could do so," and we "should
disregard all evidence that a reasonable fact finder could have disbelieved or found to be
incredible." (11)
	In conducting a factual sufficiency review in a termination-of-parental-rights case,
we must determine whether, considering the entire record, including both evidence
supporting and evidence contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which the movant in a
parental termination proceeding bore the burden of proof. (12)  We should consider whether
the disputed evidence is such that a reasonable fact finder could not have resolved the
disputed evidence in favor of its finding. (13)  "If, in light of the entire record, 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." (14)
Grounds for Termination
	Before parental rights may be terminated, the evidence must establish (1) a
statutory ground for termination and (2) that termination is in the best interest of the child. (15) 
The statutory ground at issue here is section 161.001(F).  Under subsection (F), the court
may order termination of the parent-child relationship if the court finds by clear and
convincing evidence that the parent has 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. (16)  One year means twelve consecutive months, and the ability to pay
support must exist each month during the twelve-month period. (17)
Analysis
	We first address appellant's claim that the evidence is legally and factually
insufficient to support termination under Texas Family Code section 161.001(1)(F).
	The appellees filed their original petition on February 5, 2004, so we must consider
any consecutive one-year period that would have begun between September 5, 2002, and
February 5, 2004.  On February 8, 2002, under the trial court's Order in Suit
Affecting/Modifying the Parent-Child Relationship, whereby appellant was appointed
possessory conservator, appellant was ordered to pay the following in child support: (1)
$100.00 per month, with the first payment being due and payable on March 1, 2002, and
on the first day of each month thereafter for six consecutive months; and (2) $195.00 per
month thereafter, with the first payment being due and payable on September 1, 2002. 
Appellant was therefore obligated to make monthly support payments of $195.00 during
the time frame under consideration.
	Appellant testified that between September 5, 2002, and February 5, 2004, she
failed to make any child support payments, was unemployed, and was not receiving
unemployment benefits. (18)  According to her testimony, she lived with her mother and sister
during this time, both of whom worked to support the household.  In return, appellant cared
for her sister's child during the day, precluding her ability to seek employment.  Appellant
maintains, however, that she did apply for several minimum wage jobs, but was
unsuccessful.  Though she did not finish high school, appellant testified that she did obtain
a G.E.D. and is capable of reading and writing.  Aside from her own testimony, the only
other evidence at trial addressing whether appellant failed to support her children in
accordance with her ability was the testimony of appellees.  With regard to this matter, they
testified that appellant had failed to pay child support and expressed skepticism toward
appellant's alleged inability to find employment. 
	Appellees contend that clear and convincing evidence exists that appellant failed
to support her children in accordance with her ability for a period of one year in light of (1)
her testimony, which evidences her intentional unemployment or underemployment; and
(2) her lack of evidence supporting her inability to maintain employment at the federal
minimum wage level.  To support their contention, they cite this Court's ruling in In re
R.R.F., 846 S.W.2d 65 (Tex. App.-Corpus Christi 1992, no writ).
	In R.R.F., we affirmed the termination of a father's parental rights based on three
statutory grounds for termination, one of which was Texas Family Code section
15.02(1)(F), the predecessor to section 161.001(1)(F). (19)  In addressing the father's
sufficiency of the evidence challenge to the trial court's finding that he failed to support his
children in accordance with his ability, we held that (1) a "child support order includes within
it an implicit finding that the obligor has the means to pay the amount ordered," and (2) "the
inability to pay support under a valid order is an affirmative defense that must be raised by
the party defending the allegation of failure to pay support." (20)  The latter holding derived
from the Court's analogizing a termination proceeding to a contempt proceeding for failure
to pay child support. (21)  We noted that both proceedings involved a non-paying parent that
stood in jeopardy of either loss of parental rights or incarceration, and reasoned that
because inability to pay is an affirmative defense in a contempt proceeding, it is also an
affirmative defense in a termination proceeding. (22) As a result of our two holdings, and
upon finding that the father in R.R.F. did not meet his burden to show his inability to pay
the support ordered, we overruled his evidentiary challenge. (23)
 Our application of law in R.R.F., as it relates to section 161.001(1)(F), has been both
criticized (24) and utilized approvingly. (25)
 The basis for criticism largely stems from our analogy
between a termination proceeding and a contempt proceeding for failure to pay child
support.  In reviewing our holding in R.R.F. and its subsequent treatment, we find the
criticism to be persuasive.
	The problem with the analogy begins with the fact that the proceedings are
governed by independent statutes that impose different burdens on the parties involved. 
In a contempt proceeding, the obligee bears the burden of proving that child support was
due and not paid. (26)  Once the obligee has met that burden, the obligor may plead the
affirmative defense of inability to provide support, which the obligor then has the burden
to prove by a preponderance of the evidence. (27)  This is in contrast to a termination
proceeding governed by section 161.001, which (1) is devoid of any language regarding
affirmative defenses, (2) includes as an element of termination the failure to pay in
accordance with ability, and (3) demands that each finding required for termination of the
parent-child relationship be based on clear and convincing evidence. (28) In addition to these
statutory distinctions, we also note that the proceedings differ in that "the consequences
of termination are permanent, unlike the consequences of modification and enforcement
proceedings, which makes an analogy between the two fairly weak.  One can purge
contempt by payment; once termination is final, there is no recourse." (29)
	In light of the above reasoning, we conclude that our holding in R.R.F., that  "in a
termination proceeding, the inability to pay support under a valid order is an affirmative
defense that must be raised by the party defending the allegation of failure to pay support,"
is in error. (30)  Furthermore, while a child support order does contain an implied finding that
the obligor has the ability to pay the support, we conclude that this matter should not be
afforded any relevance in a termination proceeding involving section 161.001(1)(F). 
Requiring a parent at risk of losing her parental rights to present evidence of her inability
to pay for the purpose of either (1) asserting an affirmative defense or (2) overcoming a
child support order's implied finding of ability to pay, wrongfully shifts the burden of proving
ability to pay to the parent and excuses the movant in the termination proceeding from the
burden of proving that the parent failed to support in accordance with the parent's ability. 
Furthermore, an application of law that allows for such a result seemingly runs afoul of
rulings from the Texas Supreme Court, which has ruled that "involuntary termination
statutes are strictly construed in favor of the parent." (31)  Accordingly, we hereby overrule the
reasoning and holdings in R.R.F. that have been applicable to this discussion.
	In reviewing the evidence supporting the termination of appellant's parental rights
under Texas Family Code section 161.001(1)(F), we find that there was clear and
convincing evidence that appellant failed to support her children for a period of one year
ending within six months of the date of the filing of the petition.  We also find, however, that
there was no evidence that appellant failed to support her children in accordance with her
ability during that time.  
	In Brokenleg v. Butts, the El Paso Court of Appeals found there was undisputed
evidence that during the entire period prior to the filing of the petition for termination of
parental rights, the mother made no contribution to the support of her child. (32)  The court,
however, ruled that the trial court erred in terminating the mother's parental rights, so that
the child might be adopted by her grandparents, on the ground that she failed to support
her child "in accordance with her ability" during the relevant period. (33)  During the relevant
period, the mother went through various phases of employment and unemployment. (34)  The
court found that the trial court erred because there was no evidence that the mother had
any ability to support her child during the time that she was unemployed. (35)
	In this case, as in Brokenleg, no evidence was presented to show that appellant had
the ability to support her children while she was unemployed.  Though appellees contend
that appellant's inability to support is the result of her own doing, it was their burden to
prove failure to support, "even where the inability to pay is the result of the parent's
conscious choice." (36)  We conclude that they failed to meet this burden.
 Accordingly, we hold that the evidence was legally insufficient for a reasonable fact
finder to form a "firm belief or conviction" that appellant failed to support her children in
accordance with her ability between September 5, 2002, and February 5, 2004.  We further
hold that the trial court erred in terminating appellant's parental rights on the grounds that
she violated section 161.001(1)(F). (37) 
Conclusion
	Having held that the trial court erred in terminating appellant's parental rights on
grounds that she violated section 161.001(1)(F), we need not address appellant's
remaining issues. (38)
	We reverse the trial court's termination of appellant's parental rights and render
judgment in favor of appellant.

  
 LINDA REYNA YAÑEZ,
							Justice




Opinion delivered and filed this the
7th day of December, 2006.
1. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2006).  
2. Appellees are the father's biological mother and step-father.
3. Santosky v. Kramer, 455 U.S. 745, 758-59 (1982).
4. Troxel v. Granville, 530 U.S. 57, 65 (2000).
5. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
6. Id.
7. Id. (citing Santosky, 455 U.S. at 747; Richardson v. Green, 677 S.W.2d 497 (Tex. 1984)).
8. Tex. Fam. Code Ann. § 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
9. In re J.F.C., 96 S.W.3d at 264-66.
10. See id. at 266.
11. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d at 266).
12. Id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
13. In re J.F.C., 96 S.W.3d at 266-67.
14. Id. at 266.
15. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2006).  
16. Tex. Fam. Code Ann. § 161.001(1)(F) (Vernon Supp. 2006).
17. In re Z.W.C., 856 S.W.2d 281, 283 (Tex. App.-Fort Worth 1993, no writ); Craddock v. Worley, 601
S.W.2d 445, 445 (Tex. Civ. App.-Dallas 1980, no writ).
18. Appellant testified that she began making child support payments in the amount of $125.00 per
month starting in June 2004, which is when she started babysitting for her aunt, earning $150.00 a week.  This
occurred, however, approximately four months after appellees filed their petition to terminate; as a result, this
testimony will not be considered in our section 161.001(1)(F) analysis. 
19. In re R.R.F., 846 S.W.2d 65 (Tex. App.-Corpus Christi 1992, no writ).
20. Id. at 68.
21. Id.
22. Id.
23. Id.
24. See Morris v. Barnes, No. 03-02-00546-CV, 2004 Tex. App. LEXIS 3397, at *11-14 (Tex.
App.-Austin April 15, 2004, no pet. h.) (mem. op.); James W. Paulsen, Family Law: Parent and Child, 47 SMU
L. Rev. 1197, 1217-19 (1994).
25. See In the Interest of C.H.W., No. 13-02-341-CV, 2003 Tex. App. LEXIS 10180, at *7-8 (Tex.
App.-Corpus Christi Dec. 4, 2003, pet. denied); In the Interest of J.M.M., 80 S.W.3d 232, 250-51 (Tex.
App.-Fort Worth 2002, pet. denied).
26. See Tex. Fam. Code Ann. § 157.002 (Vernon Supp. 2006); Gonzalez v. Tippit, 167 S.W.3d 536, 543
(Tex. App.-Austin 2005, no pet. h.).
27. See Tex. Fam. Code  Ann. §§ 157.006, 157.008(c) (Vernon Supp. 2006).
28. See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006).
29. Morris, 2004 Tex. App. LEXIS 3397, at *12-13.
30. In re R.R.F., 846 S.W.2d at 68.
31. Holick, 685 S.W.2d at 20 (citing Cawley v. Allums, 518 S.W.2d 790, 792 (Tex. 1975); Heard v.
Bauman, 443 S.W.2d 715, 719 (Tex. 1969)).
32. Brokenleg v. Butts, 559 S.W.2d 853, 856 (Tex. Civ. App.-El Paso 1977, writ ref'd n.r.e.).
33. Id. at 855.
34. Id. at 856.
35. Id.
36. In re Guillory, 618 S.W.2d 948, 951 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ) (citing
Compasano v. Texas, 576 S.W.2d 100, 104 (Tex. Civ. App.-Houston [1st Dist.] 1978, no writ)).
37. Having held that the trial court's findings to terminate appellant's parental rights under section
161.001(1)(F) were not supported by legally sufficient evidence, we need not address appellant's factual
sufficiency arguments. See Tex. R. App. P. 47.1. 
38. See Tex. R. App. P. 47.1.
