                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-08-00341-CV

                      IN THE INTEREST OF N.A.F., A CHILD,



                          From the County Court at Law No. 2
                                 Brazos County, Texas
                          Trial Court No. 07-002977-CV-CCL2


                                          OPINION


        Molly, the mother of N.A.F., filed a petition to terminate the parental rights of

N.A.F.’s father, Robert, asserting two statutory grounds. After a bench trial at which

Robert did not appear,1 the trial court terminated Robert’s parental rights on the sole

ground that he failed to support N.A.F. in accordance with his ability. We will reverse

the trial court’s termination order.

        The natural right that exists between parents and their children is one of

constitutional dimension. In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994). A parent’s

right to “the companionship, care, custody and management” of his or her children is a

constitutional interest “far more precious than any property right.” Santosky v. Kramer,

1 This is a restricted appeal. See TEX. R. APP. P. 26.1, 30. Robert did not receive timely notice of the
termination order, but his notice of appeal was filed within six months of the order.
455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (quoting Stanley v.

Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). Therefore, in a case

terminating parental rights, the proceedings are strictly scrutinized, and the involuntary

termination statutes are strictly construed in favor of the parent. Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985).

        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.” Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256

(Tex. App.—Waco 1998, no pet.). This standard is defined as “that measure or degree of

proof which 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. In a proceeding to terminate

the parent-child relationship brought under section 161.001 of the Texas Family Code,

the petitioner must establish by clear and convincing evidence two elements: (1) one or

more acts or omissions enumerated under subsection (1) of section 161.001; and (2) that

termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (Vernon

2008); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The

factfinder must find that both elements are established by clear and convincing

evidence, and proof of one element does not relieve the petitioner of the burden of

proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at

766.

        Raising three issues, Robert asserts that the evidence is legally and factually

insufficient to support termination. Robert’s third issue asserts that the trial court erred

In re N.A.F.                                                                            Page 2
in terminating his parental rights because the evidence is legally insufficient to establish

his ability to pay child support for each month that he failed to pay child support

during one year ending within six months of the filing of the petition seeking

termination.

        A legal sufficiency review in termination cases must take into consideration

whether the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the matter on which the petitioner bears the burden of

proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002).

        In a legal sufficiency review, a court should 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 that its finding was
        true. To give appropriate deference to the factfinder’s conclusions and the
        role of a court conducting a legal sufficiency review, looking at the
        evidence in the light most favorable to the judgment means that a
        reviewing court must assume that the factfinder resolved disputed facts in
        favor of its finding if a reasonable factfinder could do so. A corollary to
        this requirement is that a court should disregard all evidence that a
        reasonable factfinder could have disbelieved or found to have been
        incredible.

Id. at 266.

        Subsection 161.001(1)(F) authorizes termination of parental rights of a parent

who fails 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 for

termination. TEX. FAM. CODE ANN. § 161.001(1)(F). The one-year period means twelve

consecutive months, and there must be clear and convincing proof that the parent had

the ability to pay support during each month of the twelve-month period. In re E.M.E.,

234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.); In re T.B.D., 223 S.W.3d 515, 518

In re N.A.F.                                                                            Page 3
(Tex. App.—Amarillo 2006, no pet.); In re D.S.P., 210 S.W.3d 776, 779 (Tex. App.—

Corpus Christi 2006, no pet.). The burden of proof is on the person seeking termination

to prove by clear and convincing evidence that the other had the ability to pay during

each of the months. Morris v. Barnes, 2004 WL 792201, at *3 (Tex. App.—Austin April

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)).

        Molly’s petition was filed on November 15, 2007, and the bench trial, which

appears to have lasted less than ten minutes, took place in May 2008. Molly’s burden

was to present clear and convincing evidence that Robert had the ability to pay child

support for twelve consecutive months within the eighteen-month period ending

within six months of November 15, 2007. See E.M.E., 234 S.W.3d at 72; Z.W.C., 856

S.W.2d at 283. Robert did not attend the trial—according to Molly, the trial’s only

witness, he was in jail at the time for failure to pay child support. The order for Robert

to pay child support is not in the record, nor is the amount he was to pay.

        Molly testified that she sought child support in 2003 through the Attorney

General, she had not received a full child-support payment in “almost two years,” and

she had last received some payment in July 2007. She did not testify about Robert’s

ability to pay or his employment history, nor did she testify when Robert’s incarceration

began. We thus cannot ascertain if he was employed or incarcerated in any of the

months in which he was alleged to have not paid child support. Molly’s brief admits:

“It is undisputed that Molly did not offer testimony regarding Appellant’s ability to pay

for the twelve months in question.”

In re N.A.F.                                                                        Page 4
        The trial court found that Robert had the ability to pay in the relevant time

period. Robert says there is no evidence to support that finding. Molly, asserting that

the child-support order includes with it an implied finding that Robert had the ability to

pay, points to a 1999 opinion where we stated as much in a termination case:

               When the trial court establishes the amount of child support to be
        paid by a parent, the court must consider the ability to contribute to the
        child’s support. In the Interest of R.R.F., 846 S.W.2d 65, 68 (Tex. App.—
        Corpus Christi 1992, writ denied). The child support order includes
        within it an implied finding that the obligor has the means or ability to
        pay the amount ordered. Id.

In re J.M.T., 39 S.W.3d 234, 239 (Tex. App.—Waco 1999, no pet.), disapproved on other

grounds by J.F.C., 96 S.W.3d at 267 & n.39. But the Corpus Christi court has since

overruled its holding in R.R.F.:

                Our application of law in R.R.F., as it relates to section
        161.001(1)(F), has been both criticized and utilized approvingly. The basis
        for criticism largely stems from our analogy between a termination
        proceeding and a contempt proceeding for failure to pay child support. In
        reviewing our holding in R.R.F. and its subsequent treatment, we find the
        criticism to be persuasive.

                The problem with the analogy begins with the fact that the
        proceedings are governed by independent statutes that impose different
        burdens on the parties involved. In a contempt proceeding, the obligee
        bears the burden of proving that child support was due and not paid.
        Once the obligee has met that burden, the obligor may plead the
        affirmative defense of inability to provide support, which the obligor then
        has the burden to prove by a preponderance of the evidence. This is in
        contrast to a termination proceeding governed by section 161.001, which
        (1) is devoid of any language regarding affirmative defenses, (2) includes
        as an element of termination the failure to pay in accordance with ability,
        and (3) demands that each finding required for termination of the parent-
        child relationship be based on clear and convincing evidence. In addition
        to these statutory distinctions, we also note that the proceedings differ in
        that “the consequences of termination are permanent, unlike the
        consequences of modification and enforcement proceedings, which makes

In re N.A.F.                                                                           Page 5
        an analogy between the two fairly weak. One can purge contempt by
        payment; once termination is final, there is no recourse.”

                In light of the above reasoning, we conclude that our holding in
        R.R.F., that “in a termination proceeding, the inability to pay support
        under a valid order is an affirmative defense that must be raised by the
        party defending the allegation of failure to pay support,” is in error.
        Furthermore, while a child support order does contain an implied finding that the
        obligor has the ability to pay the support, we conclude that this matter should not
        be afforded any relevance in a termination proceeding involving section
        161.001(1)(F). Requiring a parent at risk of losing her parental rights to
        present evidence of her inability to pay for the purpose of either (1)
        asserting an affirmative defense or (2) overcoming a child support order’s
        implied finding of ability to pay, wrongfully shifts the burden of proving
        ability to pay to the parent and excuses the movant in the termination
        proceeding from the burden of proving that the parent failed to support in
        accordance with the parent’s ability. Furthermore, an application of law
        that allows for such a result seemingly runs afoul of rulings from the
        Texas Supreme Court, which has ruled that “involuntary termination
        statutes are strictly construed in favor of the parent.” Accordingly, we
        hereby overrule the reasoning and holdings in R.R.F. that have been
        applicable to this discussion.

D.S.P., 210 S.W.3d at 780-81 (footnotes and citations omitted) (emphasis added).

        At least two other courts have reached the same conclusion as the Corpus Christi

court in D.S.P. See E.M.E., 234 S.W.3d at 73-74; Morris, 2004 WL 792201, at *4; see also

James W. Paulsen, Family Law: Parent and Child, 47 SMU L. REV. 1197, 1217-19 (1994)

(criticizing R.R.F.). But see In re J.M.M., 80 S.W.3d 232, 250 (Tex. App.—Fort Worth

2002, pet. denied) (applying R.R.F.), disapproved on other grounds by J.F.C., 96 S.W.3d at

267 & n.39.

        Because of the Corpus Christi court’s disavowal of R.R.F., we likewise disavow

our reliance on R.R.F. in J.M.T. While it is true that a child-support order contains an

implied finding that the obligor was able to pay the ordered support, that “support


In re N.A.F.                                                                                  Page 6
order only contains an implied finding as of the time the order is entered; it cannot

predict the future.” Paulsen, 47 SMU L. REV. at 1219. Thus, a child-support order is no

evidence of Robert’s ability to pay support for the twelve consecutive months required

by subsection 161.001(1)(F). See D.S.P., 210 S.W.3d at 781-82.

        Accordingly, we hold that the evidence was legally insufficient for a reasonable

factfinder to form a “firm belief or conviction” that Robert failed to support N.A.F. in

accordance with his ability for twelve consecutive months as defined, and we sustain

Robert’s third issue. We further hold that the trial court erred in terminating Robert’s

parental rights on the ground that he violated subsection 161.001(1)(F). We need not

address Robert’s other two issues. TEX. R. APP. P. 47.1.

        We reverse the trial court’s termination of Robert’s parental rights.          In the

interest of justice, we remand the cause for another trial. TEX. R. APP. P. 43.3(b).



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissents from the judgment. A separate opinion will not
       issue.)
Reversed and remanded
Opinion delivered and filed February 11, 2009
[CV06]




In re N.A.F.                                                                            Page 7
