                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00083-CV




        IN THE INTEREST OF N.G.J., A CHILD




         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 80639




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                          MEMORANDUM OPINION
            After a brief hearing, 1 D.J.J.’s parental rights to his two-year-old daughter, N.G.J., were

terminated in a private action in which D.J.J. 2 represented himself. On appeal, D.J.J. contends the

evidence is legally and factually insufficient to support either ground for termination and is likewise

insufficient to support the best-interest determination.

            One basis found to support termination was the failure of D.J.J. to support N.G.J. in

accordance with D.J.J.’s ability during a period of one year ending within six months of the date of

filing the petition. See TEX. FAM. CODE ANN. § 161.001(1)(F) (West 2014). The other ostensible

basis found to support termination was D.J.J.’s purported use of a controlled substance in

violation of Chapter 481 of the Texas Health and Safety Code, 3 which alone is not a ground for

termination. In the interests of justice, we will interpret the latter as a finding that the evidence

established ground P, the statutory ground authorizing termination based on drug use. See TEX.

FAM. CODE ANN. § 161.001(1)(P) (West 2014).                        Because legally sufficient evidence fails to

support either of the statutory bases found to justify termination, we reverse the judgment of the

trial court and render judgment denying termination of D.J.J.’s parental rights to N.G.J. 4


1
 The record of the termination proceeding is a mere fifteen pages in length. D.J.J.’s former girlfriend, S.G., was the
petitioner and was represented by counsel. S.G. testified that N.G.J. was their child, and it was her desire to have
D.J.J.’s parental rights terminated. N.G.J. was almost three years old at the time of the hearing, having lived with
S.G. since the time of her birth. S.G. testified that she lived in Greenville with her father.
2
In keeping with the spirit of Section 109.002(d) of the Texas Family Code and Rule 9.8 of the Texas Rules of
Appellate Procedure and in an effort to protect the identity of the minor child who is the subject of this appeal, we
will refer to the parties by their initials. See TEX. R. APP. P. 9.8; TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
3
    The mother’s petition for termination alleged, in this regard, merely that D.J.J. uses and sells cocaine.
4
D.J.J. was not warned by the trial court of the dangers of self-representation during the termination proceeding,
which implicates rights of constitutional dimension. See In re C.L.S., 403 S.W.3d 15, 21 (Tex. App.—Houston [1st

                                                              2
         “The natural right existing between parents and their children is of constitutional

dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental

right to make decisions concerning “the care, custody, and control of their children.” Troxel v.

Granville, 530 U.S. 57, 65 (2000).               “Because the termination of parental rights implicates

fundamental interests, a higher standard of proof—clear and convincing evidence—is required at

trial.” In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to “engage in

an exacting review of the entire record to determine if the evidence is [] sufficient to support the

termination of parental rights.”          Id. at 500.      “‘[I]nvoluntary termination statutes are strictly

construed in favor of the parent.’” In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana

2007, pet. denied) (quoting Holick, 685 S.W.2d at 20).

         In order to terminate parental rights, the trial court must find, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that


Dist.] 2012, pet. denied). The United States Supreme Court has recognized that even a private termination
proceeding involves state action. See M.L.B. v. S.L.J., 519 U.S. 102, 117 n.8 (1996). “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 103. The Supreme Court thus “places termination
of parental rights cases in the same category as criminal cases and analogizes a parent losing parental rights to ‘a
defendant resisting criminal conviction’ because both seek ‘to be spared from the State’s devastatingly adverse
action.’” C.L.S., 403 S.W.3d at 20 (quoting M.L.B., 519 U.S. at 125). In recognition of this analysis, and in light of
the fact that Faretta v. California, 422 U.S. 806 (1975), “protects the right to counsel, not merely the right to
appointed counsel,” C.L.S., 403 S.W.3d at 21 (citing Parker v. State, 545 S.W.2d 151, 155 (Tex. Crim. App. 1977)),
C.L.S. held that, “before a parent is permitted to represent himself pro se, the record should show that the trial judge
informed him “‘that there are technical rules of evidence and procedure, and that he will not be given any special
consideration simply because he has asserted his right of self-representation.’” C.L.S., 403 S.W.3d at 21 (quoting
Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008)).
          D.J.J. filed a pro se notice of appeal of the order terminating his parental rights. Contemporaneously with
his pro se notice of appeal, D.J.J. also filed a motion seeking the appointment of appellate counsel, claiming that he
lacked the financial means to retain counsel on his own. In light of the significant constitutional rights at issue in
this appeal, we abated this matter to the trial court to conduct a hearing to determine whether D.J.J. was indigent
and, if so, whether counsel should be appointed to represent D.J.J. on appeal.
          The trial court thereafter conducted a hearing and determined that D.J.J. was indigent and, in the interests
of justice, appointed D.J.J. an attorney to represent him on appeal. See TEX. FAM. CODE ANN. § 107.021(a) (West
2014); see In re J.C., 250 S.W.3d 486 (Tex. App.—Fort Worth 2008, pet. denied) (appeal of private termination
order abated to trial court to consider discretionary appointment of counsel).
                                                           3
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001 (West 2014); see

In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). Clear and convincing evidence is that “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 (West 2014); In re

J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review

of the evidence.

       In our legal sufficiency review, we consider all the evidence in the light most favorable to

the findings to determine whether the fact-finder could reasonably have formed 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) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no

pet.). We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the

finding if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder

could have reasonably disbelieved. J.P.B., 180 S.W.3d at 573.

       Despite the profound constitutional interests at stake in a proceeding to terminate parental

rights, “‘the rights of natural parents are not absolute; protection of the child is paramount.’”

In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex.

1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “A child’s emotional and physical

interests must not be sacrificed merely to preserve parental rights.” In re C.A.J., No. 06-14-

00089-CV, 2015 WL 832211, at *2 (Tex. App.—Texarkana Feb. 27, 2015, no pet. h.) (citing

In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).




                                                  4
(1)      Legally Sufficient Evidence Fails to Statutorily Support Termination for Nonsupport

         According to S.G., D.J.J. was required by court order 5 to pay child support for N.G.J. in the

amount of $150.00 per month, but he never paid any amount to support N.G.J. S.G. and N.G.J. lived

with D.J.J. during 2013, but S.G. testified that D.J.J. did not help support N.G.J. during that time.

S.G. further testified that D.J.J. has sold cocaine, and she knew that because she “used to be around

him.” D.J.J. was adamant in his testimony that he never sold cocaine, although he admitted that he

used cocaine in the past, as had S.G. 6

         The trial court found that D.J.J. failed to “support the child in accordance with his ability

during a period of one year ending within six months of the date of the filing of the petition.”

See TEX. FAM. CODE ANN. § 161.001(1)(F). “‘One year means twelve consecutive months, and

the ability to pay support must exist each month during the twelve-month period.’” In re E.M.E.,

234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.) (quoting In re Z.W.C., 856 S.W.2d 281,

283 (Tex. App.—Fort Worth 1993, no writ)); In re R.M., 180 S.W.3d 874, 878 (Tex. App.—

Texarkana 2005, no pet.). This twelve-month period of nonsupport and ability to pay begins no

earlier than eighteen months before the date of the filing of the petition to terminate. E.M.E., 234

S.W.3d at 72. Given that S.G. filed her petition April 24, 2014, we must determine whether the




5
 While S.G. attached a copy of the purported order to her brief on appeal, it is not part of the record and cannot be
considered.
6
 S.G., who was drug tested by Child Protective Services in April 2014, testified that the results of that test were
negative. She believed, however, that, if D.J.J. was drug tested, the results of any such test would be positive.
There is no evidence that D.J.J. was ever drug tested.
                                                         5
evidence established that D.J.J. failed to support N.G.J., in accordance with his ability, for twelve

consecutive months between October 24, 2012, and April 24, 2014. 7

        While there is a dispute regarding whether nonsupport has been established for the necessary

time period, we note a glaring defect in the proof relative to D.J.J.’s ability to pay. S.G. had the

burden to prove, by clear and convincing evidence, that D.J.J. had the ability to pay each month

during the relevant time period. See In re L.J.N., 329 S.W.3d 667, 672 (Tex. App.—Corpus

Christi 2010, no pet.) (proof of ability to support during each month of twelve-month period is

required by Section 161.001(1)(F)); In re N.A.F., 282 S.W.3d 113, 116 (Tex. App.—Waco 2009,

no pet.) (same); E.M.E., 234 S.W.3d at 72 (same); In re T.B.D., 223 S.W.3d 515, 518 (Tex.

App.—Amarillo 2006, no pet.) (same); In re D.S.P., 210 S.W.3d 776, 781–82 (Tex. App.—

Corpus Christi 2006, no pet.) (same); R.M., 180 S.W.3d at 878 (same). S.G. failed to offer any

evidence regarding D.J.J.’s ability to pay during the statutory time period, 8 and no such evidence

appears in the record. Given this complete absence of evidence on that element, termination of

D.J.J.’s parental rights cannot be supported under Section 161.001(1)(F) of the Family Code. See

T.B.D., 223 S.W.3d at 518; Yepma v. Stephens, 779 S.W.2d 511, 512 (Tex. App.—Austin 1989,

no writ) (applying rule).




7
 Eighteen months before the date of the filing of the petition was October 24, 2012. So, we must consider any
consecutive twelve-month period that would have begun no earlier than October 24, 2012, and that would have
ended within six months of April 24, 2014.
8
 Although a child support order, such as S.G. apparently described here, may carry with it an implicit finding of the
ability to pay at the time of the order, we do not consider any such implicit finding here because (1) there was no
proof of the time period covered by the order and (2) any such implied finding “should not be afforded any
relevance in a termination proceeding involving section 161.001(1)(F).” D.S.P., 210 S.W.3d at 781.
                                                         6
(2)     Legally Sufficient Evidence Fails to Statutorily Support Termination for Drug Use

        We turn to the other ground for termination: drug use.

        Under Section 161.001(1)(P), a court may order termination of parental rights if the court

finds, by clear and convincing evidence, that the parent has “used a controlled substance, as

defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or

safety of the child” and the parent “failed to complete a court-ordered substance abuse treatment

program” or the parent, “after completion of a court-ordered substance abuse treatment program,

continued to abuse a controlled substance.” TEX. FAM. CODE ANN. § 161.001(1)(P). 9 The trial

court made no explicit finding that D.J.J. used a controlled substance, as defined by Chapter 481

of the Health and Safety Code, in a “manner that endangered the health or safety” of N.G.J., and

further made no findings regarding either the failure to complete a court-ordered substance abuse

treatment program or the continued abuse of a controlled substance after the completion of such

a program.

        While there was testimony regarding D.J.J.’s drug use, there was no evidence regarding

any resulting danger to N.G.J. or of anything relative to any court-ordered substance abuse

program as required under this ground for termination. See id. Because of this complete absence

of such evidence, termination of D.J.J.’s parental rights is not supported under Section

161.001(1)(P) of the Family Code. See In re D.J.J., 178 S.W.3d 424, 430 (Tex. App.—Fort Worth

2005, no pet.).



9
 This assumes, of course, that the court further finds, by clear and convincing evidence, that termination is in the
child’s best interest. See TEX. FAM. CODE ANN. § 161.001(2).
                                                         7
        Because evidence supporting the only two statutory grounds for termination was legally

insufficient, D.J.J.’s parental rights were improperly terminated. 10

        We reverse the trial court’s order and render judgment denying termination of D.J.J.’s

parental rights to N.G.J.




                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:           March 17, 2015
Date Decided:             March 26, 2015




10
  In light of this conclusion, we need not address the factual sufficiency of the evidence on the two grounds for
termination or of the sufficiency of the evidence to support the trial court’s best-interest finding.
                                                       8
