                               NUMBER 13-13-00203-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG

                          IN THE INTEREST OF E. Y., A CHILD


                        On appeal from the 135th District Court
                              of Victoria County, Texas.


                               MEMORANDUM OPINION
                   Before Justices Rodriguez, Garza, and Perkes
                     Memorandum Opinion by Justice Perkes

        Appellant (E.Y.’s father), challenges the trial court’s order terminating his parental

rights to his minor child, E.Y.1         By a single issue, appellant argues that the trial court

reversibly erred in terminating his parental rights because he lacked the necessary




        1
           In appeals involving the termination of parental rights, the Texas Rules of Appellate Procedure
require the use of an alias to refer to a minor. TEX. R. APP. P. 9.8. We may also use an alias “to [refer to]
the minor’s parent or other family member” to protect the minor’s identity. Id. In this case, we will refer to
the minor child as “E.Y.,” the mother as “I.T.,” and refer to the father as “appellant.”
transportation that would have allowed him to visit his child, and thus he did not abandon

his child. We affirm.

                                         I. BACKGROUND

        E.Y. was born on June 29, 2009. On September 20, 2011, the Department of

Family and Protective Services (“the Department”) filed an original petition for protection

of a child, for conservatorship, and for termination.                    Among other grounds for

termination, the Department sought to terminate the mother’s (“I.T.”) parental rights

because of drug use,2 and appellant’s rights because of constructive abandonment. At

the time of the filing, appellant was incarcerated in the Victoria County Jail for failure to

pay child support for two children other than E.Y. In December 2011, appellant was

released from jail and began contact with the Department regarding his service plan and

the visitation of his daughter, E.Y.

        On September 4, 2012, a merits hearing was held at which the Department

presented evidence in support of its petition for termination.                       Terry Kubena, a

caseworker with the Department, testified that after appellant’s release from jail, appellant

did “nothing” with regard to his service plan, except to visit E.Y. six to eight times between

January and March 2012. According to Kubena, appellant accompanied I.T. to visit E.Y.

on those occasions. Once I.T. stopped visiting E.Y., however, appellant also stopped

visiting.

        The record shows that, due to domestic problems between appellant and I.T., the

couple separated. I.T. moved to her mother’s home in Alford, Texas. After appellant


        2
          The affidavit filed in support of the Department’s petition for termination showed that I.T. used
cocaine and other drugs while E.Y. was in her care, and that she did not adequately supervise or feed E.Y.
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and I.T. subsequently reconciled, appellant arranged to drive to Alford to pick up I.T. and

her belongings, and to bring her back to Victoria, Texas. In March 2012, several weeks

after appellant stopped visiting E.Y., E.Y. was moved to Alford to live with her maternal

grandmother. E.Y. remained with I.T.’s mother in Alford for the remaining pendency of

this case in the trial court.

       Kubena testified that Alford is an hour-and-a-half drive from Victoria and that the

Department would have “worked it out” for appellant if transportation problems made it

difficult for him to visit E.Y. Appellant testified that Alford is a two-and-a-half- hour drive

from Victoria, and that no one informed him that the visits were no longer “going to be in

Victoria.” Appellant testified that he learned from the maternal grandmother that E.Y.

was moved.      He admitted he had a prior conviction for possession of a controlled

substance for which he was completing a ten-year probation sentence.

       At the conclusion of the September 4, 2012, merits hearing, the trial court

terminated I.T.’s parental rights, but gave appellant “one more chance” to comply with the

service plan. Appellant received an extension of 180 days to begin and complete the

Department’s service plan, including counseling and other requirements.

       On March 22, 2013, the trial court convened a second merits hearing, during which

the Department again sought to terminate appellant’s parental rights. The Department

presented evidence that, while appellant had completed the counseling and parenting

classes required under his service plan, he had not visited E.Y. between April 2012 and

the March 2013 merits hearing. Kubena testified that appellant made no contact with her




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to set up visitation with E.Y., nor did he ask that a visit be set up in Victoria to spare him

any inconvenience in travelling to Alford.

       The Department also presented evidence that on March 12, 2013, Victoria Police

executed a search warrant of appellant’s home in Victoria, which he shared with I.T.

Police obtained the search warrant because appellant was observed selling drugs.

During the raid of his home, appellant was caught flushing cocaine down the toilet as the

police entered the home. Appellant was arrested and charged with tampering with

physical evidence and with delivery of a controlled substance.

       E.Y.’s maternal grandmother testified that E.Y. is doing well in her care and that

E.Y. does not miss or ask for appellant. She testified that neither her address nor phone

number changed while E.Y. was living with her. She also testified that, during a period of

separation between I.T. and appellant, appellant sent her a photograph for I.T. The

photograph showed appellant holding wads of money and the accompanying text

message told I.T. this was what she was missing.

       Initially, appellant was not present at the March 23, 2013 merits hearing because

he changed telephone numbers and did not report the change to either the Department or

to his legal counsel. Through the efforts of court staff, a telephone number was found on

the bail-bond papers pertaining to his recent arrest, and his counsel was able to confer

with him. Appellant was present for the conclusion of the merits hearing. Appellant

testified that he could not visit E.Y. because he did not have transportation; he worked as

a surveyor and drove a company truck, but was not allowed to use the truck for personal

use. Appellant had worked as a surveyor since June 2012, earned twelve dollars per


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hour, and had a “401(k)” account. On cross-examination, he admitted that he had not

contacted Kubena at the Department to set up a visit with E.Y. since the September 2012

merits hearing.

       A court appointed special advocate (“CASA”) supervisor also testified at the March

2013 merits hearing. She testified that appellant and E.Y. have no relationship and that

E.Y., who was three years old at the time of the hearing, would not even know appellant.

       On March 25, 2013, the trial court rendered its order terminating appellant’s

parental rights to E.Y. on the ground of constructive abandonment under section

161.001(1)(N) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(1)(N)

(West 2008). The trial court concluded that termination is in E.Y.’s best interest and

found by clear and convincing evidence that appellant:

       constructively abandoned the child [E.Y.] who has been in the permanent or
       temporary managing conservatorship of the Department of Family and
       Protective Services or an authorized agency for not less than six months
       and: (1) the Department or authorized agency has made reasonable efforts
       to return the child to the father; (2) the father has not regularly visited or
       maintained significant contact with the child; and (3) the father has
       demonstrated an inability to provide the child with a safe environment.

. See id. This appeal followed.

                                 II. ISSUE PRESENTED

       By his sole issue on appeal, appellant argues the trial court erred in terminating his

parental rights because transportation problems prevented him from visiting E.Y. while

E.Y. resided in another county. We construe this issue as a challenge to the legal and

factual sufficiency of the evidence to support the trial court’s finding that appellant “has

not regularly visited or maintained significant contact with the child,” E.Y. See id. §


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161.001(1)(N)(ii); see also TEX. R. APP. P. 33.1(d) (“In a nonjury case, a complaint

regarding the legal or factual insufficiency of the evidence . . . may be made for the first

time on appeal in the complaining party’s brief.”).


                               III. STANDARD OF REVIEW

       Involuntary termination of parental rights involves natural and 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 also In re D.S.P., 210 S.W.3d 776, 778 (Tex.

App.—Corpus Christi 2006, no pet.).         Termination must be supported by clear and

convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d

at 778. This intermediate standard falls between the preponderance of the evidence

standard of 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.—Fort Worth 2006, pet. denied). 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 (West 2008);

see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Before terminating parental rights, the

factfinder must find that the parent committed an act prohibited by subsection 161.001(1)

of the Texas Family Code and that termination is in the best interest of the child. TEX.

FAM. CODE ANN. § 153.002 (West 2008); id. § 161.001; see In re J.L., 163 S.W.3d at 84.

       When the legal sufficiency of the evidence supporting the termination of parental

rights is challenged, the reviewing court looks at all the evidence in the light most

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favorable to the termination finding to determine whether a reasonable trier of fact could

have formed a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d

336, 344 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). The court must

assume that the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266. It should

disregard all evidence that a reasonable factfinder could have disbelieved or found to be

incredible. J.O.A., 283 S.W.3d at 344;J.F.C., 96 S.W.3d at 266. If, after conducting a

legal sufficiency review of the record evidence, the court determines that no reasonable

factfinder could have formed a firm belief or conviction that the matter to be proved was

true, the court must conclude that the evidence on that matter is legally

insufficient. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.

       When the factual sufficiency of the evidence is challenged, the reviewing court

reviews disputed or conflicting evidence. J.O.A., 283 S.W.3d at 345; J.F.C., 96 S.W.3d

at 266. The evidence is factually insufficient in a parental rights termination case 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. J.O.A., 283 S.W.3d at 345; J.F.C., 96 S.W.3d at

266.

                                      IV. ANALYSIS

       One element of constructive abandonment under section 161.001(N) of the Family

Code is the parent’s failure to regularly visit or maintain significant contact with the child.

See TEX. FAM. CODE ANN. § 161.001(N)(ii). In a published opinion, the Eighth Court of


                                              7
Appeals recently considered an argument similar to appellant’s argument that

transportation problems prevented him from visiting E.Y., and thus he did not

constructively abandon E.Y. under the visitation element of constructive abandonment.

See H.N. v. Department of Family and Protective Services, No. 08-11-00364-CV, 2013

WL 968209, at *4–5 (Tex. App.—El Paso, March 13, 2013, no pet.). In the H.N. case,

the father argued that he did not visit his minor child for nearly eighteen months because

he could not afford to visit and did not have time to visit because he was busy complying

with service-plan requirements.         Id. at *4.     The record showed the father was

unemployed, but that he sometimes worked ‘under the table’ for a moving company. Id.

n.4. The Department presented evidence that it had been willing to help the father

arrange visits and that it had informed him that he could communicate with the child by

phone or mail, but he did none of these things.             Id. at *5.    Under the applicable

standards of review, the appellate court concluded the evidence was legally and factually

sufficient to support the trial court’s finding that the father did not regularly visit or maintain

significant contact with the child. Id.; see also In re J.J.O., 131 S.W.3d 618, 629 (Tex.

App.—Fort Worth 2004, no pet.) (concluding legally and factually sufficient evidence

supported finding mother failed to regularly visit or maintain significant contact with child

when mother made only twelve visits to child during a nine-month period).

       In this case, the record shows that appellant failed to visit E.Y. for over eleven

months. Although he was gainfully employed and previously drove to Alford to pick up

E.Y.’s mother, I.T., he neither visited E.Y. in Alford, nor sought the Department’s

assistance to establish visits in Victoria where appellant lived. At the merits hearing in


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September 2012, the trial court told appellant that he was being given a final chance to

comply with the service plan. Kubena testified at that hearing that the Department would

work with appellant to keep transportation problems from hindering appellant’s ability to

visit E.Y. Nevertheless, appellant failed to visit E.Y. between the September 2012 merits

hearing and the March 2013 merits hearing.          Further, appellant never asked the

Department to set up visits in Victoria, even though he knew he could do so. The CASA

supervisor testified at the March 2013 hearing that appellant and E.Y. had no relationship

and that E.Y. would not even know appellant.

      The trial court was free to disbelieve appellant’s testimony that transportation

problems kept him from visiting and maintaining contact with E.Y. We conclude the

evidence was legally and factually sufficient to support the trial court’s conclusion that

appellant did not visit or maintain contact with E.Y. See H.N., 2013 WL 968209, at *5; In

re J.J.O., 131 S.W.3d at 629. Appellant’s sole issue on appeal is overruled.

                                   V. CONCLUSION

      We affirm the trial court’s order terminating appellant’s parental rights to E.Y.



                                                 GREGORY T. PERKES
                                                 Justice

Delivered and filed the
3rd day of July, 2013.




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