









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.

          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
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.
  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.

          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.

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
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
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
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."
  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.
 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-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
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.
