












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
                                        NO.
2-08-212-CV
 
 
IN THE INTEREST OF D.M.F., A CHILD
 
                                              ------------
 
              FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
 
                                              ------------
 
                                OPINION ON REHEARING
 
                                              ------------
After reconsidering our prior opinion on
appellees= motion for rehearing, we deny
the motion, but we withdraw our prior opinion and judgment dated December 11,
2008, and substitute the following, primarily to modify our discussion
concerning subsection H of family code section 161.001(1).  Tex. Fam. Code Ann. '
161.001(1)(H).




On January 11, 2007, the Texas Department of
Family and Protective Services (TDFPS) removed one-day-old Donny from his
mother, Sara, while she was still in the hospital.[1]  Appellant Jerry F., who was the alleged
father, was served in February 2007 and in January 2008, once his paternity was
established, entered his appearance in the termination suit brought by TDFPS to
terminate both parents= rights to Donny.  Jerry F.=s father,
David F., intervened in January 2008. 
Furthermore, Donny=s foster parents, appellees Bob
and Susan Parsons, intervened, seeking termination and adoption of Donny.  The trial court terminated both parents= rights
and appointed appellees Donny=s
managing conservators.  Jerry F. and
David F. appealed the trial court=s
judgment.  We reverse the trial court=s order
terminating Jerry F.=s parental rights and remand
this case to the trial court. 
                                                 Facts
Sara and Jerry F. had lived together in Tennessee.  Before breaking up with Jerry F., Sara took
two pregnancy tests, both of which were negative.  When Sara left Tennessee, she moved to Texas.  Sara was living in a women=s
shelter in Granbury at the time Donny was born and had a past history with
TDFPS, along with a history of drug use and mental problems, so TDFPS filed for
custody the day after Donny=s birth.




Sara filed an Affidavit of Status naming Jerry F.
the alleged father, but he was not served until after the first hearing and
after temporary orders had been entered. 
After service and completion of DNA testing identifying Jerry F. as the
father, Jerry F. and David F. asked the trial court to place Donny with
them.  They also asked that appellees be
struck from the suit.  Likewise,
appellees challenged Jerry F. and David F.=s
standing to sue.  The trial court denied
both motions.  TDFPS set up a service
plan for Jerry F., which he performed from Tennessee for the next four months,
including visiting with Donny, attending court hearings, completing parenting
classes, having a home study, having a psychological evaluation, and staying
employed.  The trial court concluded the
March 12, 2008 permanency hearing after the caseworker testified without
allowing either appellant to testify.




The final hearing took place on April 2,
2008.  The caseworker testified that
Jerry F. had completed his services, except for the individual counseling.  TDFPS recommended that Donny be placed with
his father, which corresponded with the Tennessee-recommended placement.  The ad litem questioned Jerry F. as to why he
had failed to complete the individual counseling, to which he replied that he
had just lost both of his paternal grandparents since the report=s filing
that had recommended individual counseling. 
The trial court stopped the trial and ordered Jerry F. to complete his
counseling.  The trial resumed on April
25, 2008 after Jerry F. had successfully completed his counseling, which the
caseworker verified.  The trial court
nevertheless terminated Jerry F.=s and
Sara=s[2]
parental rights and appointed appellees managing conservators of the child.
                                         Issues
Presented
In four issues, appellants contend (1) the trial
court=s order
terminating Jerry F.=s parental rights should be
reversed because the requirements of Texas Family Code sections 161.001(1)(H)
and (O), 161.001(2), and 153.131(a) were not satisfied, (2) the trial court=s order
terminating Jerry F.=s constitutionally protected
fundamental rights as a parent should be reversed because termination under the
circumstances presented by this case fails to satisfy the Due Process Clause of
the Fourteenth Amendment to the United States Constitution, (3) the trial court=s order
appointing appellees as managing conservators should be reversed, and (4) this
court should enter the proposed order submitted by appellants in their motion
to modify the final order, which requests, among other things, that Jerry F.
and David F. be named joint managing conservators.




                  Sufficiency
of the Evidence to Support Termination
In appellants= first
issue, they complain that the evidence is legally and factually insufficient to
show proof of either ground for termination or that termination would be in
Donny=s best
interest.  Appellants contend that
appellees have failed to establish by clear and convincing evidence at least
one ground for termination under the family code or the best interest
prong.  See Tex. Fam. Code Ann. ' 161.001
(Vernon 2008); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
Standard of Review in Parent-Child Termination Cases




A parent=s rights
to Athe
companionship, care, custody, and management@ of his
children are constitutional interests Afar more
precious than any property right.@  Santosky v. Kramer, 455 U.S. 745, 758B59, 102
S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex.
2003).  In a termination case, the State
seeks not just to limit parental rights but to end them permanentlyCto 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).  We strictly scrutinize
termination proceedings and strictly construe involuntary termination statutes
in favor of the parent.  Holick,
685 S.W.2d at 20B21; In re E.M.N., 221
S.W.3d 815, 820 (Tex. App.CFort
Worth 2007, no pet.).
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 of parental rights is a drastic
remedy and is of such weight and gravity that due process requires the
petitioner to justify termination by clear and convincing evidence.  Tex. Fam. Code Ann. ''
161.001, 161.206(a); J.F.C., 96 S.W.3d at 263.  This intermediate standard falls between the
preponderance standard of ordinary civil proceedings and the reasonable doubt
standard of criminal proceedings.  In
re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77,
83 (Tex. App.CFort Worth 2006, pet.
denied).  It is defined as the Ameasure
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 2008).
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). 
We 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 reasonable
factfinder could have done so.  Id.  We must also disregard all evidence that a
reasonable factfinder could have disbelieved. 
Id.  We 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.




We 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 573B74.  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.  If we determine that no reasonable factfinder
could form a firm belief or conviction that the grounds for termination were
proven, then the evidence is legally insufficient, and we must generally render
judgment for the parent.  J.F.C.,
96 S.W.3d at 266; see Tex. R. App. P. 43.3.
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).  We must determine whether,
on the entire record, a factfinder could reasonably form a firm conviction or
belief that the parent violated the relevant conduct provision of section
161.001(1) and that the termination of the parent=s
parental rights would be in the best interest of the child.  In re C.H., 89 S.W.3d 17, 28 (Tex.
2002).  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 conviction in the truth of its finding,
then the evidence is factually insufficient. 
H.R.M., 209 S.W.3d at 108. 
If we reverse on factual sufficiency grounds, then we must detail in our
opinion why we have concluded that a reasonable factfinder could not have
credited disputed evidence in favor of its finding.  J.F.C., 96 S.W.3d at 266B67.




                                         Issues
Presented
In this case, appellees, the foster parents,
sought termination under two subsections of the family code:  subsection H and subsection O.  Under subsection H they were required to show
by clear and convincing evidence that the parent 
voluntarily, and with
knowledge of the pregnancy, abandoned the mother of the child beginning at a
time during her pregnancy with the child and continuing through the birth,
failed to provide adequate support or medical care for the mother during the
period of abandonment before the birth of the child, and remained apart from
the child or failed to support the child since the birth.
 
Tex. Fam. Code Ann. ' 161.001(1)(H).  Under subsection O they were required to show
that the parent had
failed to comply with the
provisions of a court order that specifically established the actions necessary
for the parent to obtain the return of the child who ha[d] been in the
permanent or temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the child=s removal from the parent
under Chapter 262 [Suit By Governmental Entity to Protect Health and Safety of
Child] for the abuse or neglect of the child.
 
Id. ' 161.001(1)(O).  Appellees needed to prove at least one of
these grounds and also show that termination was in the best interest of the
child.  J.L., 163 S.W.3d at
84.  The trial court found that they had
proved both grounds and that termination was in the child=s best
interest by clear and convincing evidence.




Statutory Interpretation
Statutory construction is a legal question that
we review de novo.  In re C.A.P., Jr.,
233 S.W.3d 896, 900 (Tex. App.CFort
Worth 2007, no pet.).  Accordingly, we
give no particular deference to the trial court=s
determinations of what the law is. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding); Conseco Fin. Servicing Corp v. J & J
Mobile Homes, Inc., 120 S.W.3d 878, 883 (Tex. App.CFort
Worth 2003, pet. denied).
In construing statutory
language our objective is to determine and give effect to the Legislature's
intent.  We determine legislative intent
from the statute as a whole and not from isolated portions.  We presume the Legislature intended a fair
and reasonable result.  We also presume
the Legislature included each word in the statute for a purpose, and that words
not included were purposefully omitted.
 
In re M.N., 262 S.W.3d 799, 802 (Tex. 2008) (citations
omitted).  If the language is
unambiguous, then the court must seek the legislative intent as found in the
plain and common meaning of the words and terms used.  See Tex. Gov=t. Code
Ann. ' 312.002
(Vernon 2005); In re K.L.V., 109 S.W.3d 61, 65 (Tex. App.CFort
Worth 2003, pet. denied) (citing Monsanto Co. v. Cornerstones Mun.
Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993)).
Subsection H




Appellants argue that subsection H cannot apply
to Jerry F. because at the times described in subsection H he was not a Aparent@ but an Aalleged
father.@  See Tex. Fam. Code Ann. '' 101.0015,
101.024 (Vernon 2008).  Furthermore,
appellants contend that it is improper to look to or consider the conduct of an
alleged father before paternity has been established or acknowledged by the
father.  See id.  We first look to the family code to answer
this question.
The family code specifically defines the terms Aparent@ and Aalleged
father.@  A Aparent@ is Aa man
legally determined to be the father, . . . [or] a man who has acknowledged his
paternity.@ 
Id. ' 101.024.  Furthermore, the code specifically defines an
Aalleged
father@ as Aa man
who alleges himself to be or is alleged to be, the genetic father or a possible
genetic father of a child, but whose paternity has not been determined.@  Id. '
101.0015.  TDFPS=s
original petition identified Jerry F. as an Aalleged
father,@ and
appellees= intervening petition, which was
not filed until after the DNA testing was complete, calls Jerry F. a Apresumed
father [who] has denied paternity.@  Based upon the completed DNA testing,
however, on January 14, 2008, Jerry F. filed an answer admitting paternity and
denying any and all bases for terminating his parental rights.  Thus, by the time of the final hearing, Jerry
F. was a parent who had acknowledged his paternity.  Id. ' 101.024.




Regardless, section 161.002, which applies to the
termination of parental rights of an alleged father, directs that except as
otherwise provided by that section the Aprocedural
and substantive standards for termination of parental rights apply to the
termination of the rights of an alleged father.@  Id. ' 161.002(a);
In re M.D.S., 1 S.W.3d 190, 196 (Tex. App.CAmarillo
1999, no pet.).  Thus, we conclude and
hold that the provisions of section 161.001 of the family code also apply to an
alleged father, except for the standards of termination specifically listed in
section 161.002(b).[3]  Tex. Fam. Code Ann. '
161.002(b).  Therefore, the trial court
did not err in applying subsection H of section 161.001(1) to the case because
Jerry F. was only an alleged parent during part of the times required by the
statute.  However, we must also address
to what extent this particular subsection applies factually and what evidence
is admissible to prove abandonment of the mother and child.  Again, we look to the plain and common
meaning of the statute.  Tex. Gov=t. Code
Ann. ' 312.002.
Appellants contend that it is improper to look to
or consider the conduct of an alleged father before paternity has been
established or acknowledged by the father. 
See Tex. Fam. Code Ann. ''
101.024, 161.001(1)(H).  We agree.  Subsection H requires the petitioner to show
that the parent (or alleged parent)




$ voluntarily, and with
knowledge of the pregnancy
$ beginning during her
pregnancy and continuing through the birth
$ failed to provide the mother
support and medical care during the period of abandonment AND
$ remained apart from the child
OR 
$ failed to support the child
since birth.
Id. ' 161.001(1)(H).




Importantly, this subsection is one of the few
that requires scienter or prior knowledge of the pregnancy.  Id.; see Bryan A. Garner, A
Dictionary of Modern Legal Usage 491 (1987).  According to the statute, the abandonment of
the mother, with knowledge of her pregnancy, must begin before birth and
continue (as to the child) after the birth, and the failure to support must
occur Aduring
the period of abandonment.@  Tex. Fam. Code Ann. ' 161.001(1)(H);
see, e.g., In re T.B.D., 223 S.W.3d 515, 519 (Tex. App.CAmarillo
2006, no pet.) (holding that evidence of abandonment under H was factually
insufficient based, in part, on evidence that after father learned mother was
pregnant, mother changed her phone number because father would not leave her
alone); In re C.H., 25 S.W.3d 38, 55 (Tex. App.CEl Paso
2000) (looking at actions of presumed father with Afull
knowledge@ of pregnancy), rev=d on
other grounds, 89 S.W.3d 17 (Tex. 2002); see also In
re Stevenson, 27 S.W.3d 195, 202 (Tex. App.CSan
Antonio 2000) (requiring knowledge under subsection D abandonment), pet.
denied, 52 S.W.3d 735 (Tex. 2001). 
Thus, the abandonment must be with knowledge and occur both during the
pregnancy and after the birth; all elements are required.




Here, the evidence showed that Sara was the one
who left the state where she and Jerry F. had been residing, that she made
contact only with David F. twice prior to giving birth to Donny, and that the
last pregnancy tests she had taken before she left were negative.  She went to Ohio first.  She did not tell Jerry F. that she was
pregnant until she was in Texas.  That
was two weeks before Donny was born. 
Jerry F. knew that she was pregnant then but did not know that the baby
was his.  There simply is no clear and
convincing evidence of Jerry F.=s
knowledge until he received the results from the DNA testing, at the earliest,
or until he admitted paternity in his pleadings, at the latest.  Donny was born on January 10, 2007 and his
DNA testing was done on November 14, 2007; Jerry F.=s DNA
testing was done on December 5, 2007 and completed in mid-December 2007; and
Jerry F. admitted paternity in January 2008. 
None of these events occurred before Donny=s
birth.  Until paternity was established,
TDFPS could not give appellants information about Donny or schedule visits.  Therefore, we conclude and hold that because
there is no clear and convincing proof that Jerry F. had knowledge that Sara
was carrying his child until December 2007, after the child was born,
the evidence could not show that he abandoned her during her
pregnancy.  Because subsection
161.001(1)(H) requires knowledge of the pregnancy and the failure to support
the mother during the period of abandonment occurring before the birth,
subsection H cannot apply.  Therefore, we
conclude that the evidence is legally insufficient to support the trial court=s
finding that Jerry F. abandoned Sara during her pregnancy and continuing
through the birth of the child under subsection H of the family code.
Response to Dissenting Opinion on Rehearing Regarding Subsection H




The only person who testified that any of the
pregnancy tests Sara took in Tennessee while still living with Jerry F. were
positive was David F., who admittedly was not with them when they went to the clinic
to take the tests.  Regardless, the last
two tests Sara took before she left Tennessee were negative and no one refutes
this testimony.  The dissent ignores this
key fact stating merely that two tests were positiveBwhich
two?  Furthermore, caseworker Ruth
Garringer testified that Sara admitted to her that the pregnancy test she took
in Tennessee with Jerry F. present showed that she was not pregnant.  And while the dissent makes much of the fact
that Sara and Jerry F. lived together in Tennessee for three months, the
dissent ignores the fact that Sara was living with a new boyfriend in Ohio when
she first called David F. and told him she was pregnant.  This hardly establishes clear and convincing
evidence of Jerry F.=s knowledge of Sara=s
pregnancy as required by the statute.
Importantly, the dissent minimizes the burden of
proof in a termination case as well as the standard of review we are to apply
in review of a termination.  In order to
support a termination, the elements of termination are supposed to be found by
the trier of fact by clear and convincing evidence.  Tex. Fam. Code Ann. ''
161.001, 161.206(a); In re J.F.C., 96 S.W.3d at 263B64.  In other words there must be clear and
convincing evidence at trial of each of the elements of the subsection under
which termination is sought.  Here, under
subsection H the statute requires the proponent to show abandonment was Avoluntary,
and with knowledge of the pregnancy.@  Tex. Fam. Code Ann. '
161.001(1)(H).  Thus, knowledge is
an element to be proven by clear and convincing evidence.




And in cases such as this, where termination is
based upon subsection H, A[i]n order for an enforceable
obligation to exist requiring the support of an illegitimate child, there must
be a court order, a judicial admission, or an unequivocal acknowledgment of
paternity.@ 
Djeto v. Tex. Dep=t of
Protective and Regulatory Servs., Inc., 928 S.W.2d 96, 98 (Tex. App.CSan
Antonio 1996, no writ).  The dissent says
Djeto does not apply because that termination was based on subsection F
not H, i.e., it only concerns whether there is an enforceable obligation of
support.  However, Djeto helps us
answer the same question posed by F that is posed by H: when does the duty to
support an illegitimate child begin?  Id.
at 98.  Both subsections obviously
require knowledge or acknowledgment of the pregnancy.  See Tex. Fam. Code Ann. '
161.001(1)(F), (H); Djeto, 928 S.W.2d at 98.  Subsection F=s Aknowledge@
requirement is therefore by implication and by the reasoning of Djeto,
whereas subsection H=s Aknowledge@
requirement is by the statute=s
express words.  See Tex. Fam. Code
Ann. '
161.001(1)(F), (H); Djeto, 928 S.W.2d at 98.  We do not believe the statute=s Aknowledge
of the pregnancy@ requirement can be written out
of subsection H as the dissent suggests. 
We do not require direct evidence of a parent=s or
alleged father=s knowledge of the pregnancy but
rather clear and convincing evidence from which we can infer such
knowledge.  In this case, this simply did
not happen until Jerry F. completed his DNA testing and acknowledged his
paternity in his pleadings.
Subsection O




Additionally, Jerry F. contends that appellees
failed to show by clear and convincing evidence that subsection O of section
161.001(1) of the family code was met.  See
Tex. Fam. Code Ann. ' 161.001(1)(O).  In particular, Jerry F. observes that
subsection O first requires the existence of a valid, predicate court order
that a parent has failed to comply with to obtain the return of the child.  No specific order was submitted into evidence
or identified as being an order with which Jerry F. had not complied.  While there was testimony about Jerry F.=s
compliance with a service plan, it is unclear whether this was an order
directed to Jerry F.  Furthermore, if
there was a predicate order, it was most likely the order entered after the
child=s
removal from Sara which, as appellants note, was entered before Jerry F. was
even served in 2007 or before he answered in January 2008.  Therefore, we conclude that there is legally
insufficient evidence of an order directed to Jerry F. that he violated as
required by subsection O.




Additionally, Jerry F. was named as an alleged
parent in TDFPS=s Original Petition dated
January 12, 2007, but his parentage was not established until December 5, 2007,
when DNA testing was completed.  He never
had custody of the child; the child was removed directly from Sara at the
hospital the day after he was born, based primarily on Sara=s
alleged mental condition.  The child=s
removal had nothing to do with claims of abuse or neglect by Jerry F., at that
time either the alleged father or acknowledged father.  See generally id. ' 161.001.  Because the statute=s
language clearly requires removal from Athe
parent,@ it
necessarily requires that the removal be from at least someone with
possession.  See id.  Moreover, subsection O applies only to a
child who has been removed from the parent and placed with TDFPS due to
the abuse or neglect of the child.  See
id.
Therefore, we hold that the evidence is legally
insufficient to support the trial court=s
finding that Jerry F.=s parental rights should be
terminated under subsection O of section 161.001(1) of the family code.
                              Best
Interest and Constitutionality
Because we have concluded that the evidence is
legally insufficient to support the trial court=s
findings that Jerry F.=s parental rights should be
terminated under either subsection H or O of section 161.001(1), we do not need
to reach the best interest determination that was also challenged in issue
one.  See Tex. R. App. P. 47.1;
Tex. Fam. Code Ann. ' 161.001(1); J.L., 163
S.W.3d at 84.  Moreover, because we
sustain appellants= first issue, we need not reach
appellants= second issue challenging the
constitutionality of the trial court=s order
of termination.  See Tex. R. App.
P. 47.1.
                                               Custody




In appellants= third
issue, they challenge the trial court=s
appointment of appellees, the foster parents, as Donny=s
managing conservators.  When parental
rights are terminated, the family code requires appointment of managing
conservators.  See Tex. Fam. Code
Ann. '
161.207(a) (Vernon 2008).  Here appellees
had no pleadings on file seeking appointment as managing conservators under any
other family code provision because their attempt to amend under section
153.371 during the termination and adoption hearing was struck.  Id. '153.371
(Vernon 2008).  In their original
petition in intervention seeking termination, their live pleading at trial,
they had not requested custody. 
Therefore, their appointment as managing conservators was not
independent of Jerry F.=s termination.  See In re D.N.C., 252 S.W.3d 317, 318
(Tex. 2008).  Therefore, we conclude and
hold that the trial court erred in naming appellees managing conservators.  See Colbert v. Tex. Dep=t of
Family & Protective Servs., 227 S.W.3d 799, 816 (Tex. App.CHouston
[1st Dist.] 2006), pet. denied, 252 S.W.3d at 317.  We sustain appellants= third
issue.
As to appellants= fourth
issue, in which they contend that their proposed order naming them joint
managing conservators be entered by this court, we sustain the issue in part
but deny the specific relief requested. 
We remand this cause to the trial court for entry of appropriate orders
directing the transfer of custodianship from the foster parents, appellees, to
the father, Jerry F.[4]




                                             Conclusion
Having sustained appellants= first
and third issues and their fourth issue in partCand
having not reached their second issue, we reverse the trial court=s order
terminating Jerry F.=s parental rights.  We remand this cause to the trial court for
entry of further orders consistent with this opinion.
 
 
TERRIE
LIVINGSTON
JUSTICE
PANEL:  CAYCE, C.J.; LIVINGSTON, J.; and DIXON W.
HOLMAN (Senior Justice, Retired, Sitting by Assignment).
 
CAYCE, C.J. filed a
dissenting opinion.
 
DELIVERED:  April 16, 2009















 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-08-212-CV
 
 
IN THE INTEREST OF
D.M.F., A CHILD
 
                                              ------------
 
              FROM THE 355TH
DISTRICT COURT OF HOOD COUNTY
 
                                              ------------
 
                                   DISSENTING OPINION
 
                                              ------------
I respectfully dissent because I disagree with
the majority=s holding that the evidence is
legally insufficient to show that Jerry F. had the requisite knowledge of Sara=s
pregnancy during the pregnancy to support the termination of his parental
rights under section 161.001(1)(H) of the Texas Family Code.1
The evidence shows the following:  
$                  
While Jerry F. and Sara were living together, Jerry F. took Sara to a
pregnancy clinic in Tennessee because she said she was pregnant.  Two of four pregnancy tests were positive. 
 




$                  
Jerry F. knew that Sara told his grandmother that she was pregnant
while they lived with his grandmother.
 
$                  
Jerry F. knew that Sara had called his father to tell him that she was
pregnant and that the child was Jerry F.=s.
 
$                  
Jerry F. testified that, in light of the fact that he and Sara lived
together and had sex, he knew that Sara contended he was the father.
 
$                  
Jerry F. knew that Sara was having a baby and knew that she was asking
his father for money to help with expenses.
 
$                  
Jerry F.=s father talked to Jerry
F. about holding up his responsibility to help support Sara while Sara was
pregnant.
 
$                  
Sara contacted Jerry F. two weeks before delivery to ask him to sign
away his rights to D.M.F.
 
I believe this is clear and convincing evidence that Jerry F. had
knowledge that Sara was pregnant during the pregnancy and that the baby was
his.
I agree with the majority that section
161.001(1)(H) requires that there be Aclear
and convincing@ evidence of Jerry F.=s
knowledge that Sara was pregnant with his child.  But, I disagree with the majority=s
conclusion that the clear and convincing standard in this case was only met by direct
evidence of such knowledgeCJerry F.=s DNA
testing and his judicial admission of paternity.  This assumes an elevated burden of proof for
scienter that can never be met in most termination cases based on subsection
(H).




Although the majority says they do not require
direct evidence of knowledge, their analysis of the evidence in this case tells
a different story.  In reviewing the
legal sufficiency of the evidence  of
Jerry F.=s
knowledge, the majority has disregarded all of the clear and convincing
circumstantial evidence of Jerry F.=s
knowledge of the pregnancy prior to the DNA testing (as well as direct evidence
of his knowledge from the two positive pregnancy tests) to reach the conclusion
that there is no clear and convincing evidence of knowledge prior to the
testing.  In so doing, the majority is
clearly equating the only evidence of knowledge that it believes meets the
clear and convincing standard with direct evidence.




In addition, by disregarding the direct evidence
of Jerry F.=s knowledge based on the two
positive pregnancy tests and instead considering the contrary evidence of the
two negative tests, the majority has misapplied the legal sufficiency review
standard.  In performing a legal
sufficiency review, the appellate court must consider evidence favorable
to the finding if a reasonable fact-finder could and disregard evidence
contrary to the finding unless a reasonable fact-finder could not.2  In
light of the entire record, we, therefore, 
must consider the favorable evidence of two positive pregnancy tests in
determining whether Jerry F. had knowledge of the pregnancy because a
reasonable fact-finder could not disregard that evidence.  On the other hand, a reasonable fact-finder
could disregard the contrary evidence of the two negative tests.  The majority should have disregarded it, as
well.
Furthermore, the majority conflates the legal
standard for ascertaining whether an enforceable obligation to pay child
support for an illegitimate child exists under subsection (F) of section
161.001(1), with the burden of proof and evidentiary standard for determining
whether there is legally sufficient evidence that an alleged father has
knowledge of the pregnancy under subsection (H).  The majority contends that the following
standard applies to knowledge of the pregnancy:
AIn order for an enforceable
obligation to exist requiring the support of an illegitimate child, there
must be a court order, a judicial admission, or an unequivocal acknowledgment
of paternity.@  Djeto v. Tex. Dept. of Protective &
Regulatory Servs., 928 S.W.2d 96, 98 (Tex. App.CSan Antonio 1996, no
writ).  [emphasis added]
 




This, however, is the standard for determining whether a parent has a
duty to provide support for a child for the purpose of terminating the
parent-child relationship under subsection (F).3  It plainly is not the standard for
determining whether an alleged father has sufficient knowledge of a
pregnancy to support termination under subsection (H).4  By construing the two subsections as
answering the Asame question,@ the
majority renders subsection (H) both redundant and meaningless.




Moreover, by requiring positive DNA testing or a
judicial admission of paternity to satisfy the knowledge requirement of
subsection (H), the majority emasculates one of the important public policy
purposes of the statuteCto encourage fathers and alleged
fathers who possess the requisite knowledge of a pregnancy to provide the unwed
mother adequate support and medical care during the pregnancy and through
birth.5  The
penalty for fathers who fail to provide such support during the pregnancy is
loss of their parental rights to the child. 
Under the majority=s analysis, however, a father
who possesses knowledge of the pregnancy can avoid this responsibility with
impunity, and wait to assert his parental rights to the child until after the
child is born.  Consequently, few, if
any, fathers or alleged fathers will be subject to having their parental rights
terminated under subsection (H) for voluntarily failing to provide support to
the mother of their child during her pregnancy.
The burden of proof applicable to subsection (H)
is clear and convincing evidence.6  The evidentiary standard for reviewing the
legal sufficiency of the evidence when the burden of proof is clear and
convincing evidence is the heightened standard of review articulated in In
re J.F.C.7  Under this heightened standard, the evidence
in this case needed to be such that the factfinder could reasonably form a firm
belief or conviction that Jerry F. had knowledge of Sara=s
pregnancy during the pregnancy.  Viewing
all the evidence in the light most favorable to the trial court=s
finding, and giving appropriate deference to the trial court=s
conclusions and resolution of disputed facts,8  I believe the evidence in this case, both
direct and circumstantial, that Jerry F. knew Sara was pregnant with his baby
during her pregnancy is sufficient to meet this burden.




Because I believe there is clear and convincing
evidence of Jerry F.=s knowledge of Sara=s
pregnancy during all relevant time periods, I would affirm the trial court=s
judgment.
 
 
 
JOHN
CAYCE
CHIEF
JUSTICE
 
DELIVERED:  April 16, 2009




[1]The names of the parents
and parties subject to this appeal have been replaced with fictitious names in
accordance with Texas Rule of Appellate Procedure 9.8.  Tex. R. App. P. 9.8.


[2]Sara did not appeal the
order.


[3]Although appellees also
sought termination under some of the specific provisions of section 161.002(b)
applying solely to an alleged father, the trial court did not base its
termination order on any of those grounds.


[4]Because Jerry F. and
David F. have jointly requested that they be named joint managing conservators
of the child, we also instruct the trial court to name David F. a joint
managing conservator if it determines that such an appointment is in the child=s best interest.


1See Tex. Fam. Code Ann. ' 161.001(1)(H) (Vernon
2008).


2See City of Keller v.
Wilson,
168 S.W.3d 802, 807, 827 (Tex. 2005).


3See Tex. Fam. Code Ann. ' 161.001(1)(F) (providing
that court may terminate parent-child relationship where parent has Afailed 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@).


4Oddly, the majority claims that I have Awritten out@ subsection (H)=s knowledge requirement
by requiring less than a judicial admission, court order, or unequivocal
acknowledgment of paternity to prove knowledge of a pregnancy under subsection
(H).  But, it is the majority that has
eviscerated the knowledge requirement of subsection (H), not me.  By holding that knowledge of a pregnancy must
be established by the same facts for proving the existence of an enforceable
support obligation under subsection (F), the majority is requiring more than
subsection (H) requires for proving such knowledgeCclear and convincing
evidence. See id. ' 161.001(1)(H).


5Id.


6Id. '' 161.001, 161.206(a).


796 S.W.3d 256, 266 (Tex. 2002).


8Id. at 266.  Contrary to the majority=s assertion that I have
ignored evidence that may not favor the trial court=s findings, I have
considered all of the evidence in the appropriate light and disregarded only
the evidence that a reasonable factfinder could have disbelieved.  In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005).


