                              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




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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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