                              NUMBER 13-09-00522-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


                 IN THE INTEREST OF L.J.N., A MINOR CHILD


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                                        OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Vela
                    Opinion by Justice Rodriguez

       Appellant L.N. challenges the trial court's termination of his parental rights to L.J.N.,

a minor child. See TEX . FAM . CODE ANN . § 161.001 (Vernon Supp. 2010). By two issues,

L.N. argues that no evidence, or in the alternative, insufficient evidence, supported the trial

court's findings that L.N. had failed to support L.J.N. in accordance with his ability. We

reverse and render.
                                              I. BACKGROUND

       Since December 2006, Ted Ike Stanfield, appellee, and Ann Whitley, L.J.N.'s great-

uncle and grandmother, have been the joint managing conservators of L.J.N. L.N. is

L.J.N.'s biological father and was named possessory conservator. L.N. was ordered to pay

child support in the amount of $295 per month. L.N. made three child support payments:

$204.24 on April 23, 2007; $272.32 on May 8, 2007; and $272.32 on June 4, 2007. All

three payments were withheld from L.N.'s paycheck.

       In May 2007, L.N. was arrested for drug possession. He was convicted of the

charged offense and sentenced to a term of incarceration that began in June 2007. He

remained incarcerated throughout the following proceedings in the trial court.1

       On July 10, 2008, Stanfield filed his original petition to terminate L.N.'s parental

rights and adopt L.J.N. In his petition, Stanfield alleged that L.N. failed to support L.J.N.

"in accordance with his ability during a period of one year ending within six months of the

date of the filing of this petition." Stanfield also alleged that termination of the parent-child

relationship between L.N. and L.J.N. was in the best interest of the child.

       L.N., acting pro se, answered Stanfield's petition, requested the appointment of an

attorney, and because he was incarcerated at the time, moved for a bench warrant so that

he could be present for any hearing on the matter. L.N. also filed two documents titled

"Declaration of Inability to Pay Cost"; one was filed on August 9, 2008, and one was filed

August 25, 2008. In both documents, L.N. stated that he was "unable to pay the Court

costs in this civil action" and declared, in relevant part, that: "I have no source of income

or spousal income"; "I currently have $0 credited to me in the Inmate Trust Fund"; "[d]uring


       1
           The record does not indicate whether L.N. rem ains incarcerated as of the date of this opinion.

                                                       2
my incarceration in the Texas Department of Criminal Justice I have received

approximately $10.00 per month as gifts from relatives and friends"; and "[m]y monthly

expenses are approximately $9.00." At the conclusion of the documents, L.N. "verif[ied]

and declare[d] under the penalty of perjury that the foregoing statement[s] are true and

correct." Counsel was thereafter appointed for L.N.

        On February 12, 2009, the trial court held its first hearing on the termination petition.

L.N. appeared by telephone. Both Stanfield and L.N. testified. Stanfield testified that

L.J.N. came to live with him when she was three years old.2 He stated that she was now

six years old and had lived with him continuously since December 2006. Stanfield testified

that L.N. had made three child support payments; the disbursement receipts from the office

of the attorney general for those three payments were admitted into evidence. L.N.

testified that he had been continuously incarcerated since May 2007, and made no support

payments since he has been in prison. He testified that, aside from twenty to thirty dollars

he received from his family for his commissary fund, he has had no source of income since

his incarceration. He testified that he had no property to sell to earn funds to provide

support for L.J.N., was unable to borrow money, and has had no opportunity to work for

pay while he was in prison. The trial court then took the case under advisement on the

statutory ground for termination, requesting that the parties find and deliver to the court

case law regarding the effect of L.N.'s incarceration on his ability to pay support.3


        2
            L.J.N.'s biological m other is deceased.

        3
          After the first hearing, Stanfield am ended his petition to add an additional statutory ground for
term ination. In his am ended petition, in addition to the original failure-to-support ground, he alleged that L.N.
"knowingly engaged in crim inal conduct that has resulted in his conviction of an offense and confinem ent or
im prisonm ent and inability to care for the child for not less than two years from the date of the filing of this
Petition." See T EX . F AM . C O D E A N N . § 161.001(1)(Q) (Vernon Supp. 2010). However, because the trial court
term inated L.N.'s parental rights on the basis of the failure-to-support ground alone, we do not address this
additional ground on appeal.

                                                        3
       On July 20, 2009, the trial court held a second hearing on the termination petition.

L.N. again appeared by telephone. Stanfield asked the trial court to take judicial notice of

its file and the evidence it admitted at the previous hearing; the court granted this request.

L.N. testified that he had—several months after the February 12, 2009 hearing—received

thirty dollars from his mother. L.N. also testified that he had recently made arrangements

with the office of the attorney general to withhold twenty percent of whatever funds are put

into his commissary account for support for L.J.N. As of the date of the current hearing,

however, no funds had been extracted from L.N.'s account and transferred to Stanfield for

L.J.N.'s support.

       In closing, Stanfield argued, in part, that:

       L.N. has filed affidavits with the Court, pursuant to his indicating his
       indigency. And in those affidavits he indicated a monthly income, although
       be it a small income. He testified similarly, that he has received money while
       in jail. To-date, since June of '07, he has provided none of that money for
       the support of his child. As per our trial brief the obligation is not to support
       the child as ordered by the Court, but rather, to support the child
       commensurate with your ability, which we believe would be 20 percent of
       whatever money he was receiving. He provided zero percent of the money
       he received as gifts while he was incarcerated. . . . We believe that
       constitutes a basis for terminating his parental rights.

Counsel for L.N. argued that Stanfield failed to produce evidence that L.N. received money

and had the ability to pay support "each and every month" of the statutory twelve-month

period.

       After argument concluded, the trial court made the following finding:

       I am going to find that [L.N.] has failed to support his child in accordance with
       his ability for the period of . . . June of '07, until the present time, and in
       accordance with the statute . . . as a condition for involuntary termination.
       And I am going to find that it is in the best interests of this child that the
       parent/child relationship be terminated between [L.N.] and the child . . . and
       that is [sic] the grounds that I find for termination.


                                              4
The trial court then ordered termination of the parental relationship between L.N. and

L.J.N. and granted the adoption of L.J.N. by Stanfield. This appeal followed.

                        II. STANDARD OF REVIEW AND APPLICABLE LAW

         Involuntary termination of parental rights involves fundamental constitutional rights

and divests the parent and child of all legal rights, privileges, duties, and powers normally

existing between them, except for the child's right to inherit from the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.

App.–Corpus Christi 2006, no pet.). "Consequently, termination proceedings must be

strictly scrutinized, and 'involuntary termination statutes are strictly construed in favor of the

parent.'" In re D.S.P., 210 S.W.3d at 778 (quoting Holick, 685 S.W.2d at 20).

         Due process requires that termination be supported by clear and convincing

evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.–El Paso 2007, no pet.) (citing In re

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)); In re D.S.P., 210 S.W.3d at 778; see TEX . FAM .

CODE ANN . § 161.001. This intermediate standard falls between the preponderance of the

evidence standard of civil proceedings and the reasonable doubt standard of criminal

proceedings. In re E.M.E., 234 S.W.3d at 73. It is defined as 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

2008).

         In reviewing the legal sufficiency of the evidence supporting parental termination,

we must look at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could 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


                                                5
proof." In re D.S.P., 210 S.W.3d at 778 (citing In re J.F.C., 96 S.W.3d at 266). We must

assume that the fact finder resolved disputed facts in favor of its finding if it was reasonable

to do so and must disregard all evidence that a reasonable fact finder could have

disbelieved or found to be incredible. Id.; In re E.M.E., 234 S.W.3d at 73. "This does not

mean we must disregard all evidence that does not support the finding, but if we determine

that 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." In re E.M.E., 234 S.W.3d at

73.

       In reviewing the evidence for factual sufficiency, we must give due deference to the

fact finder's findings and not supplant its 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 fact finder

could reasonably form a firm conviction or belief about the truth of the matter on which the

movant bore the burden of proof. In re C.H., 89 S.W.3d 17, 28 (Tex. 2005); In re T.B.D.,

223 S.W.3d 515, 517 (Tex. App.–Amarillo 2006, no pet.). 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 in the truth of its finding, then the evidence is factually insufficient. In re H.R.M.,

209 S.W.3d at 108.

       Before terminating parental rights, the trial court must find (1) that the parent

committed an act prohibited by section 161.001(1) of the family code, and (2) that

termination is in the best interest of the child. TEX . FAM . CODE ANN . § 161.001; In re N.A.F.,

285 S.W.3d 113, 115 (Tex. App.–Waco 2009, no pet.). The fact finder must find that both

elements are established by clear and convincing evidence; proof of one element does not


                                                6
relieve the movant of the burden of proving the other. In re N.A.F., 282 S.W.3d at 115-16

(citing Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976)) (other citations omitted).

       Here, the only statutory ground under which L.N.'s rights were terminated was

section 161.001(1)(F), which provides that termination may be ordered if the trial court

finds by clear and convincing evidence that the parent "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 [termination] petition." TEX . FAM . CODE ANN . § 161.001(1)(F).

One year means twelve consecutive months, and there must be proof the parent had the

ability to support during each month of the twelve-month period. In re N.A.F., 282 S.W.3d

at 116; In re E.M.E., 234 S.W.3d at 72; In re T.B.D., 223 S.W.3d at 518; In re D.S.P., 210

S.W.3d at 779; In re R.M., 180 S.W.3d 874, 878 (Tex. App.–Texarkana 2005, no pet.).

"The burden of proof is on the party seeking termination to prove by clear and convincing

evidence that the parent had the ability to pay during each of the months." In re N.A.F.,

282 S.W.3d at 116 (citing Morris v. Barnes, No. 03-02-00546-CV, 2004 WL 792201, at *3

(Tex. App.–Austin Apr. 15, 2004, no pet.) (mem. op.) (citing In re Z.W.C., 856 S.W.2d 281,

283 (Tex. App.–Fort Worth 1993, no writ))).

                                        III. DISCUSSION

       By his first issue, L.N. argues that the evidence was legally insufficient to support

termination of his rights on the relied-upon statutory ground. L.N. complains that the

evidence at trial failed to establish that he had the ability to pay support for L.J.N. for each

of the twelve months of the period considered by the trial court. Stanfield responds that

L.N.'s sworn assertions in his declarations of inability to pay costs that he received ten

dollars a month from family or friends suffice to prove that he had the ability to pay at least


                                                7
a nominal amount in support of L.J.N. Stanfield argues that these sworn assertions conflict

with L.N.'s testimony at trial that he had no source of income or ability to pay support and

that, on appeal, the reviewing court should not second-guess the trial court's determination

on this conflicting evidence.

        Stanfield bore a heavy burden to establish by clear and convincing evidence that

L.N. had the ability to pay support during each month of the twelve-month period

considered by the trial court. See In re N.A.F., 282 S.W.3d at 115-16. In attempting to

satisfy that burden, the only evidence advanced by Stanfield was L.N.'s declarations of his

inability to pay the costs associated with defending against the termination petition, in

which L.N. stated that he "received approximately $10.00 per month as gifts from relatives

and friends."4 We do not believe this declaration alone was legally sufficient to support

termination under the heightened burden required in these cases.

        In order to conclude that L.N. had the financial ability to make support payments to

L.J.N., Stanfield asks this Court to rely on the very documents L.N. filed with the trial court

to prove his indigence, i.e., his inability to pay.5 See Mayfield v. Smith, 608 S.W.2d 767,

770 (Tex. Civ. App.–Tyler 1980, no writ) (rejecting argument by appellees "that appellant,

while confined in prison, could have sent for child support part of such funds as were sent

to him by his family for toilet articles not furnished by the State" and because there was no

other evidence of ability to pay, the evidence was insufficient to support the trial court's

finding in that regard). No other evidence was offered by Stanfield of L.N.'s ability to pay

support from June 2007 to the date of the second hearing, which was the period of non-

        4
            W e note that, in the sam e declaration, L.N. also states that his m onthly expenses are nine dollars.

        5
        See, e.g., Tuck v. State, 215 S.W .3d 411, (Tex. Crim . App. 2007) (defining "indigent defendant" as
one who cannot pay or give security for the record) (citing T EX . R. A PP . P. 20.2).

                                                         8
support considered by the trial court in its findings. Aside from the statements in L.N.'s

indigency declarations, the only evidence in the record regarding L.N.'s ability to pay child

support is L.N.'s testimony that he has had no source of income since his incarceration,

he has no property to sell to earn funds, he was unable to borrow money, and he has had

no opportunity to work for pay while in prison. Although L.N. did testify that he has

received twenty to thirty dollars from friends and relatives for his commissary fund, there

was no testimony or other evidence that he received that assistance regularly or

consistently, and as such, we do not find it to be evidence of his ability to pay support

during each month of the relevant twelve-month statutory period. See In re E.M.E., 234

S.W.3d at 73 (holding that the petitioner failed to prove ability to pay for twelve consecutive

months where appellant testified that "he had not paid any child support as a result of his

incarceration," that "[h]e did not have any income while in prison[,] and received only $20

a month from his family for personal hygiene products"); see also In re N.A.F., 282 S.W.3d

at 116 (holding that there must be proof of ability to support during each month of the

twelve-month period); In re E.M.E., 234 S.W.3d at 72 (same); In re T.B.D., 223 S.W.3d at

518 (same); In re D.S.P., 210 S.W.3d at 779 (same); In re R.M., 180 S.W.3d at 878

(same).

       It is our obligation to strictly scrutinize termination proceedings and strictly construe

the statute in favor of the parent. In re D.S.P., 210 S.W.3d at 778 (citing Holick, 685

S.W.2d at 20). Thus, even viewing the evidence in the light most favorable to the trial

court's finding, we cannot conclude that it was reasonable for the court to resolve the

disputed facts surrounding L.N.'s ability to pay in favor of termination. See id. (citing In re

J.F.C., 96 S.W.3d at 266-67); see also In re E.M.E., 234 S.W.3d at 73; Mayfield, 608


                                               9
S.W.2d at 770. To resolve the dispute in favor of termination, the trial court used the very

documents that L.N. filed to show his inability to pay against him; construing those

documents as some statement of ability and then, in the absence of any other evidence,

crediting that over L.N.'s testimony at the hearings that he had no ability to make support

payments was unreasonable. See In re E.M.E., 234 S.W.3d at 73; Mayfield, 608 S.W.2d

at 770. Stanfield's burden was a heavy one, and we conclude that he failed to produce

clear and convincing evidence in support of the requisite statutory ground to meet that

burden. See In re N.A.F., 282 S.W.3d at 115-16 (citing Holley, 544 S.W.2d at 370)

(holding that the fact finder must find that both the best-interest and statutory elements are

established by clear and convincing evidence and that proof of one element does not

relieve the movant of the burden of proving the other). In other words, based on L.N.'s

declarations of indigency alone, no reasonable fact finder could have formed a firm belief

that the matter to be proved by Stanfield—a consecutive twelve-month period in which L.N.

both had the ability to pay and failed to pay—was true. See In re E.M.E., 234 S.W.3d at

73. The evidence supporting the only statutory ground for termination was therefore legally

insufficient, and the trial court erred in terminating L.N.'s parental rights on this basis. See

id. L.N.'s first issue is sustained.

                                       IV. CONCLUSION

       We reverse the trial court's order and render judgment denying termination of the

parental relationship between L.N. and L.J.N.


                                                           NELDA V. RODRIGUEZ
                                                           Justice

Delivered and filed the 23rd
day of November, 2010.


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