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]
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