






Becker v. State







COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS







IN THE INTEREST OF

E.M.E., A CHILD





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No. 08-06-00240-CV

Appeal from
 65th District Court

of El Paso County, Texas

(TC # 2001CM4403)



 

 

 




O P I N I O N

            Eddie Carrillo appeals from a judgment terminating his parental rights to E.M.E. for failure
to support the child.  For the reasons that follow, we reverse and render judgment.
FACTUAL SUMMARY
            Dora Elkabachi


 and Eddie Carrillo divorced on August 24, 2001.  Elkabachi was appointed
sole managing conservator of E.M.E., and Carrillo was ordered to pay child support in the amount
of $155 per month.  The court found that good cause existed to deny Carrillo possession of or access
to the child.  On January 29, 2002, Carrillo filed a pro se motion seeking to suspend his child support
obligation due to his incarceration in the El Paso County jail system.  With the assistance of counsel,
he filed an amended petition on July 7, 2003 seeking to modify the parent-child relationship.  He
alleged in the petition that he had been sentenced to nineteen years’ imprisonment and that he had
been incarcerated since June 9, 2002.  The trial court denied the motion on December 8, 2003. 
Carrillo did not appeal.  
            On May 17, 2006, Elkabachi filed a petition to terminate the parent-child relationship on the
grounds that Carrillo:  (1) had failed to support the child during a period of one year ending within
six months of the filing date of the petition; (2) had been convicted or placed on community
supervision for being criminally responsible for the death or serious injury of a child under
Section 21.11 of the Penal Code;


 and (3) had knowingly engaged in criminal conduct that had
resulted in his conviction and confinement or imprisonment and inability to care for the child for not
less than two years from the date the petition was filed.  The trial court conducted a hearing on
September 8, 2006 and subsequently terminated Carrillo’s rights on the sole ground that he had
failed to support the child during a one year period in accordance with his ability.
SUFFICIENCY OF THE EVIDENCE
            In a single issue for review, Carrillo challenges the legal sufficiency of the evidence to
support termination under Section 161.001(1)(F).  Specifically, he contends that the evidence is
insufficient to establish that he had an ability to pay during the pertinent time period.  Elkabachi has
not favored us with a brief on appeal.
            Before parental rights may be terminated, a petitioner must establish by clear and convincing
evidence that (1) the respondent parent has committed one or more of the statutory acts or omissions,
and (2) termination is in the best interest of the child.  Tex.Fam.Code Ann. § 161.001(1),
(2)(Vernon Supp. 2006); In the Interest of J.L., 163 S.W.3d 79, 85 (Tex.2005).  The statutory basis
for termination of Carrillo’s parental rights is Section 161.001(1)(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.
Tex.Fam.Code Ann. §§ 161.001(1)(F), 161.001(2).  One year means twelve consecutive months,
and the ability to pay support must exist each month during the twelve-month period.  In the Interest
of Z.W.C., 856 S.W.2d 281, 283 (Tex.App.--Fort Worth 1993, no writ); Brokenleg v. Butts, 559
S.W.2d 853, 856 (Tex.Civ.App.--El Paso 1977, writ ref’d n.r.e.).  The one-year period begins no
earlier than eighteen months before the petition to terminate is filed.  Yepma v. Stephens, 779 S.W.2d
511, 512 (Tex.App.--Austin 1989, no writ).  The burden is on the movant to prove by clear and
convincing evidence that the parent had the ability to pay each month.  In the Interest of Z.W.C., 856
S.W.2d at 283.  Given that Elkabachi filed her petition on May 17, 2006, we must determine whether
the evidence established that Carrillo failed to support the child for twelve consecutive months
between November 17, 2004 and May 17, 2006.  We must also consider whether Elkabachi
established by clear and convincing evidence that Carrillo had an ability to pay within that same
twelve-month period.
            Due process requires clear and convincing evidence before parental rights are terminated. 
In the Interest of J.F.C., A.B.C., and M.B.C., 96 S.W.3d 256, 263 (Tex. 2002); In the Interest of
A.D., 203 S.W.3d 407, 410 (Tex.App.--El Paso 2006, no pet.).  Codifying the constitutional
requirement, the Family Code provides that the burden of proof in termination cases is clear and
convincing evidence.  Tex.Fam.Code Ann. § 161.001(1), (2).   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 (Vernon 2002).  This intermediate standard falls between preponderance of the evidence
of ordinary civil proceedings and the reasonable doubt standard utilized in criminal proceedings. 
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979);  In re A.D., 203 S.W.3d at 410.  
            In conducting our legal sufficiency review, we must review the evidence in the light most
favorable to the finding in order to determine whether a reasonable trier of fact could have formed
a firm belief or conviction about the truth of such findings.  In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002); In re A.D., 203 S.W.3d at 410.  To give appropriate deference to the fact finder, we must
assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could
do so.  In re J.F.C., 96 S.W.3d at 266; In re A.D., 203 S.W.3d at 410.  We should also disregard all
evidence that a reasonable fact finder could have disbelieved or found to have been incredible.  Id.
This does not mean we must disregard all evidence that does not support the finding, but if we
determine no reasonable fact finder could have formed a firm belief or conviction that the matter to
be proven is true, then the evidence is legally insufficient.  Id.
            E.M.E. was born on April 19, 2001.  Elkabachi and Carrillo separated six weeks later.  The
record reflects that Carrillo was continuously incarcerated from April 2002 through June 19, 2006,
when he was released on bond after his conviction was set aside by the Court of Criminal Appeals. 
Carrillo testified that he had not paid any child support as a result of his incarceration and that he had
no ability to pay.  He did not have any income while in prison and received only $20 a month from
his family for personal hygiene products.  If he had not been given that money each month, he would
not have been able to buy these items.  
            Citing Brokenleg v. Butts, 559 S.W.2d 853 (Tex.Civ.App.--El Paso 1977, writ ref’d n.r.e.),
Elkabachi argued at trial that the child support order contains an implied finding that Carrillo has the
ability to pay the amount of child support ordered.  The issue here, however, is whether this implied
finding is applicable in a termination proceeding as opposed to a contempt proceeding.  We
recognize that the Corpus Christi Court of Appeals has relied upon implied findings in a termination
suit.  In the Interest of R.R.F., 846 S.W.2d 65, 68 (Tex.App.--Corpus Christi 1993, writ denied).


 
Likening a termination proceeding based on Section 161.001(1)(F) to a contempt proceeding, the
court additionally held that inability to pay is an affirmative defense which requires the responding
parent to prove that he did not have the ability to pay.  In the Interest of R.R.F., 846 S.W.2d at 68. 
But inability to pay is a statutory affirmative defense in a contempt proceeding.  Tex.Fam.Code
Ann. § 157.008(c)(Vernon 2002); see Morris, 2004 WL 792201 at *4.  Section 161.001 does not
create a similar affirmative defense in termination proceedings.  Morris, 2004 WL 792201 at *4. 
To the contrary, Section 161.001(1)(F) squarely places the burden to prove ability to pay on the
petitioner.  
            The Corpus Christi Court of Appeals has since reconsidered its holding in R.R.F. See In the
Interest of D.S.P., 210 S.W.3d 776 (Tex.App.--Corpus Christi 2006, no pet.).  It concluded that
requiring the respondent to present evidence of inability to pay wrongfully shifts the burden and
excuses the petitioner from proving that the parent failed to support in accordance with the parent’s
ability.  In re D.S.P., 210 S.W.3d at 781.  We agree with this analysis and likewise hold that
Elkabachi had the burden to prove Carrillo had the ability to pay.
            It is undisputed that Carrillo did not support E.M.E. during the relevant time period, and that
he had no income while in prison.  Elkabachi did not produce any evidence showing that he had an
ability to pay.  Because the evidence is legally insufficient to support termination under Section
161.001(1)(F), we sustain Issue One.  We reverse and render judgment denying termination.

March 8, 2007                                                             
                                                                                    ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
