AFFIRMED and Opinion Filed January 31, 2022 

 S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00712-CV 

IN THE INTEREST OF A.M., A CHILD 

On Appeal from the 199th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 199-30187-2019 

MEMORANDUM OPINION 

Before Justices Schenck, Reichek, and Carlyle 

Opinion by Justice Reichek 

Appellant appeals the trial court’s order terminating his parental rights to his 

biological son, A.M. Appellant contends the evidence is insufficient to support 

termination because genetic testing did not show he was the father of A.M. until five 

weeks before trial and he was not given a reasonable amount of time to complete 

services. For reasons set out below, we overrule appellant’s issues and affirm the 

trial court’s order. 

BACKGROUND

A.M. was born on December 17, 2019, and umbilical cord testing showed he 

was positive for amphetamines and methamphetamines. The Department of Family 

and Protective Services, which had a safety plan in place prior to A.M.’s birth, 
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initially planned to allow A.M. to be released to his maternal grandmother. But, 

after an investigation, the Department determined she would not be a proper 

placement.1

 Mother told the Department that she did not know who A.M.’s father 

was because she had “a one night stand with many different people.” Mother was 

unable to provide the Department with a suitable alternative to the maternal 

grandmother; consequently, on A.M.’s release from the hospital, he was placed with 

a foster family, where he has remained ever since. 

On December 23, 2019, the Department filed its Original Petition for 

Protection of the Child, for Conservatorship, and for Termination in Suit Affecting 

Parent-Child Relationship, alleging a continuing danger to the health or safety of 

A.M. if returned to the parent. The petition alleged the presumed/alleged father was 

unknown. On the same day, the trial court appointed attorneys ad litem to represent 

the interests of Mother, unknown father, and A.M. 

Early on, Mother identified two men who could be A.M.’s father. After one 

of the two men was ruled out, Mother told the caseworker there was a third man who 

could be the father, but he did not want to be involved “due to warrants.” By no 

later than August 2020, Mother had identified that man as appellant. That same 

month, the Department completed a “diligent search” for appellant, and caseworker 

1

 The Department found that the maternal grandmother had a history with the agency that included a 

“reason to believe” finding for neglectful supervision after another child died in her care. 
3 

Shawanda Fulton sent a certified letter to him at a Farmersville address that had been 

connected with him for his entire adult life. Ten days later, Mother told Fulton that 

appellant received the letter and had called her, cursed her out, and hung up the 

phone. Mother asked Fulton if appellant would be arrested if he went to take a DNA 

test; Fulton said she did not know “but doubted it.” 

The following month, the Department filed its second amended petition, 

naming appellant as one of the alleged fathers and requesting service of process on 

him. Following a permanency hearing on September 22, the trial court ordered 

appellant to submit to DNA testing no later than October 29, 2020, and ordered him 

to participate in a list of services. Additionally, the court extended the case dismissal 

date to June 26, 2021,2

 because Mother had identified appellant and the Department 

needed additional time to locate and serve him and conduct paternity testing. 

Over the next several months, the Department made several attempts to locate 

appellant and serve him with process. Caseworkers sent letters, made phone calls, 

sent text messages, and reached out on appellant’s social media account but did not 

hear from him. 

The case was set for trial on March 22, 2021, but Mother mediated the case 

and agreed to relinquish her rights to A.M. On April 20, 2021, the trial court 

2

 The permanency order actually states the 180-day extension date as June 26, 2020, but the year is 

clearly a typographical error, given the original dismissal date of December 28, 2020. 
4 

approved and accepted Mother’s voluntary relinquishment and indicated on the 

docket sheet that it would “proceed to trial on Unknown Father.” Two days later, 

the trial court signed an order for substituted service on appellant, and citation issued 

on April 30. In that same time period, the trial court reset the case for a trial before 

the court on May 26, 2021. 

On April 28, Tonya Rodriguez, the Department’s conservatorship supervisor, 

received a call from a female relative of appellant’s asking about A.M. The woman 

indicated she wanted A.M. to be placed with her, and Rodriguez explained that the 

Department first needed to establish paternity for the child and suggested appellant 

contact his attorney. Later that same day, Rodriguez received a second call from 

another relative who wanted more information and clarification. Through the 

family’s efforts, appellant was served at the Farmersville address on May 3, 2021. 

On May 14, appellant submitted a DNA sample for paternity testing. Trial 

began on May 26 and reconvened on July 20, 2021. In the meantime, the DNA 

results showing that appellant is the biological father of A.M. were filed with the 

court on June 14. At trial, six witnesses testified: appellant, three CPS workers, the 

CASA supervisor, and A.M.’s foster father. 

Appellant was the first witness. He testified he was forty-six years old and 

had known Mother for nine years. The two had a sexual relationship, and Mother 

told him when she became pregnant that he may be the father. When given that 
5 

information, he said he decided he would “just wait . . . until she gave birth and then 

go from there.” The two communicated “[o]ff and on” during the pregnancy. 

On the day A.M. was born, Mother sent appellant a picture by text message. 

Appellant did not respond and said he did “[n]othing” to determine if he was A.M.’s 

father. Appellant said that, a month later, Mother notified him by text message that 

the Department had removed A.M. from her care. He said he did not know Mother 

was using drugs when she was pregnant, but he heard “later on” from a friend that 

A.M. was removed because he had tested positive for drugs. He did not tell any of 

his family members that A.M. could be his son or show them the infant’s photograph 

after he was born. 

Appellant testified he did not recall receiving a letter from caseworker Fulton 

in August 2020 asking whether he wanted to “work services” and undergo a paternity 

test, but he admitted that he “may have” called Mother on August 24 and yelled at 

her for giving his name to the Department. He said his mother, who lived at the 

Farmersville address, told him about the letters she was receiving from his lawyer 

and the Department about this case, and he knew the Department was trying to locate 

him to determine if he was A.M.’s father. In addition, he said Mother told him about 

the court hearings, but he did not understand they were being conducted virtually 

(by Zoom) instead of in person. Appellant testified he did not want to submit to 

paternity testing because he was waiting for the other men to be tested, and he did 
6 

not attend any prior court hearings because he did not want to be arrested on an 

outstanding warrant. He did not investigate getting his own paternity test or contact 

Fulton or anyone at the Department to see if he would be arrested if he went to take 

a paternity test. And, he acknowledged, when he eventually did go for paternity 

testing, he was not arrested. 

Appellant admitted that he did not contact the Department about this case until 

the week before the July trial date and that his aunt and sister contacted the 

Department to arrange paternity testing after they received notice of the trial setting. 

He never submitted the name of any relative as a potential placement for A.M. 

because he “didn’t know for sure” that he was the father. 

On questioning by his lawyer, appellant testified that now that he had been 

confirmed as the father of A.M., he was willing to be drug tested and begin services. 

He also acknowledged that he probably could not raise the child by himself and 

wanted his sister to care for A.M. When asked why it took him “so long to get 

started,” appellant said he “just waited” because he “heard there were two other guys 

before me and they got tested, and so I was the third one.” He also acknowledged 

that he was advised by counsel “to start doing some things” whether he had been 

tested or not, but he did not want to put himself at risk of being incarcerated. But, 

he also clarified that he was not “afraid” he was going to be arrested if he came to 

court, but that he “just need[ed] more time” to put things in order so that he could 
7 

take care of his “legal issue.” He later clarified that his “legal issue” was a pending 

charge for possession of methamphetamine and that he was “sure” he would “go to 

prison” for it. 

And, finally, appellant testified he was the father of three other children. One 

of those children lived with his sister, and the other two lived with their mother. 

Although he said he sees them, he also said he does not financially support them. 

The trial court also heard testimony that the Department had made several 

efforts to locate and contact appellant during the course of the case and have him 

served, and documentary proof of those efforts was admitted into evidence. The 

caseworkers and supervisor also testified that A.M.’s family contacted them after 

receiving notice of the trial setting and that appellant did not contact the Department 

until a week before he first appeared in court for trial. Both caseworkers who had 

been assigned to the case recommended appellant’s rights be terminated. As one of 

the caseworkers explained, the case had been “ongoing for a while” and an extension 

was granted that afforded appellant “plenty of opportunity to come forward earlier 

in this case to try to establish a relationship” with A.M. 

Additionally, there was evidence that A.M. was thriving with his foster 

family, who had cared for him since he was three days old and wanted to adopt him. 

The CASA volunteer testified that she believed it would be “extremely traumatic” 

to remove him and place him with appellant or appellant’s relatives, who had only 
8 

shown interest “very recently.” She said that even if appellant were to begin services 

immediately, A.M. would be two or two and a half years old by the time they were 

completed. 

After hearing the evidence, the trial court terminated appellant’s parental 

rights, finding that he had violated subsections (A), (B), (C), (F), (H) and (N) of 

161.001(b)(1) as well as section 161.002(b)(3) and that termination was in A.M.’s 

best interest. This appeal ensued. 

ANALYSIS

The focus of both parties’ briefing is on subsection (N), constructive 

abandonment and, because we conclude it is dispositive, we address that ground. In 

doing so, we will assume without deciding that appellant adequately addressed the 

sufficiency of the evidence to support grounds (A), (B), (C), (F), and (H), and did 

not waive his complaint, even though he did nothing more than provide a general 

citation to a case that involved none of those grounds. 

The decision to terminate a parent’s rights to his child must be supported by 

clear and convincing evidence. TEX. FAM. CODE ANN. §§ 161.001, 161.206(a). 

Evidence is “clear and convincing” if it “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. § 101.007. Due process demands this heightened standard because termination 
9 

results in permanent, irrevocable changes for the parent of the child. In re J.F.C., 

96 S.W.3d 256, 263 (Tex. 2002). 

In a legal sufficiency review, we 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. Id. at 266. We resolve 

any disputed facts in favor of the finding if a reasonable factfinder could do so and 

disregard all evidence that a reasonable factfinder could have disbelieved. Id. We 

cannot weigh witness credibility issues that depend on the appearance and demeanor 

of the witnesses, for that is the factfinder’s province. In re J.P.B., 180 S.W.3d 570, 

573 (Tex. 2005). And even when credibility issues appear in the appellate record, 

we defer to the factfinder’s determinations as long as they are not unreasonable. Id. 

In reviewing factual sufficiency, we give due deference to the factfinder’s 

findings and do not supplant the verdict with our own. In re H.R.M., 209 S.W.3d 

105, 108 (Tex. 2006). We determine whether a factfinder could reasonably form a 

firm conviction or belief about the truth of the State’s allegations. In re J.F.C., 96 

S.W.3d at 266. 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 in the 

truth of its finding, then the evidence is factually insufficient. Id. 
10 

 A parent constructively abandons a child when (1) the child has been in the 

permanent or temporary managing conservatorship of the Department for not less 

than six months, (2) the Department has made reasonable efforts to return the child 

to the parent, (3) the parent has not regularly visited or maintained significant contact 

with the child, and (4) the parent has demonstrated an inability to provide the child 

with a safe environment. TEX. FAM. CODE ANN. § 161.001(b)(1)(N). 

Here, appellant argues he was not shown to be A.M.’s father until the paternity 

testing results on June 14, 2021, and the trial court failed to give him sufficient time 

to complete services, particularly in a pandemic. He therefore contends that the 

Department failed to produce evidence that it made reasonable efforts to return the 

child to him as required by subsection (N). We are unpersuaded by appellant’s 

argument. 

As appellant recognizes, his parental rights were not terminated for failure to 

comply with a court order or complete services under subsection (O). See id. 

§ 161.00(b)(1)(O). And while implementation of a service plan is often the means 

by which the Department establishes its reasonable efforts to return a child to a 

parent, it is not the exclusive means of establishing that element. In re J.W., 615 

S.W.3d 453, 463 (Tex. App.—Texarkana 2020, no pet.); In re J.G.S., 550 S.W.3d 

698, 704–05 (Tex. App.—El Paso 2018, no pet.). Rather, the Department can prove 

it made reasonable efforts to return the child to appellant by showing that appellant 
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impeded the Department’s attempts to timely adjudicate appellant’s parentage. In 

re J.W., 615 S.W.3d at 465. In other words, an alleged father in appellant’s situation 

cannot use a delay in adjudication of parentage that he created to defend against 

termination of his parental rights. Id. 

Here, the evidence showed that appellant was aware from the very beginning 

that he could be A.M.’s father. Mother told him she was pregnant and that he could 

be the father, texted him a picture of A.M. on the day he was born, and told him that 

A.M. had been removed from her care a month later. And while she did not initially 

name appellant as a potential father, she identified him to the Department by no later 

than August 2020. That same month, the caseworker sent him a letter at a 

Farmersville address seeking his involvement. The address was the residence of 

appellant’s mother and was one that had followed him his entire adult life. Appellant 

did not respond to the Department; instead, he called Mother and cursed her out for 

giving his name to the Department. 

Over the course of the next several months, caseworkers made a diligent 

search to locate appellant and made several attempts to contact and/or serve him. 

They sent letters to different addresses used by him in the past, attempted to call him 

on phone numbers connected to him, and attempted to contact him on social media. 

Documentary proof was admitted to show those efforts. And appellant knew of the 

Department’s attempts to contact him and the reason. He also knew of the various 
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court hearings. Nevertheless, he refused to respond because, based on his own 

testimony, he feared being arrested on an outstanding warrant, he wanted to wait to 

see the paternity results of the other two men identified by Mother, and/or he needed 

“more time” to get matters in order to take care of his legal issues. When he finally 

confirmed he was A.M.’s father in June 2021, he waited to contact the Department 

for more than a month, which was one week before trial. This evidence does not 

merely establish that appellant impeded the Department’s efforts to determine his 

parentage; rather, it shows he actively avoided the Department and the paternity 

determination. 

To the extent appellant argues that our sister court’s opinion in J.W. supports 

his argument that the Department did not make reasonable efforts to reunite him and 

A.M., we cannot agree. There, the court found the evidence factually insufficient to 

show that the father impeded the Department’s attempts to timely adjudicate his 

parentage because the evidence did not explain the reason for the delay in obtaining 

the father’s DNA sample, in obtaining the results, in adjudicating parentage, in 

issuing the order, and in meeting with the father to discuss the service plan. J.W., 

615 S.W.3d at 473–74. Here, as explained above, Father knew the Department was 

trying to contact him to determine parentage of A.M., but he avoided contact while 

waiting to see if the other men would be eliminated. 
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Finally, we reject appellant’s efforts to justify his actions in avoiding 

involvement in this suit because of the COVID-19 pandemic. In his brief, he asserts 

that he “voiced concerns about his warrants and other legal issues as he did not want 

to get infected in a jail or anywhere.” He asserts that it is “common knowledge” that 

the jails had high infection rates and, until April 2021, no vaccine was widely 

available. But he cites no place in the record where he presented this excuse to the 

trial court. As the trial judge noted, appellant had more time than most parents in 

these cases because of the extension and he “still failed to do what he needed to do.” 

We conclude the evidence is legally and factually sufficient to prove that the 

Department made reasonable efforts to return A.M. to appellant, but appellant 

impeded its attempts to timely adjudicate appellant’s parentage. See In re D.A., No. 

2-09-460-CV, 2010 WL 3618718, at *3–4 (Tex. App.—Fort Worth Sep. 16, 2010, 

no pet.) (mem. op.) (where Department made diligent search to locate father, but 

father disconnected his phone and caseworkers did not know how to reach him and 

attempted service at two addresses, evidence was sufficient to show Department’s 

reasonable efforts to return child to him); In re B.S.T., 977 S.W.2d 481, 486 (Tex. 

App.—Houston [14th Dist.] 1998, no pet.) (evidence sufficient to support 

termination under subsection (N) where father was located after release from prison 

and advised of visitation; visited children twice but then made no effort to be 

involved; was advised to sign affidavit of paternity but did not do so; and caseworker 
14 

testified reasonable efforts were made to return children to parents), overruled in 

part on other grounds by In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).3

 Appellant has 

not challenged the remaining elements of subsection (N) or the best interest finding; 

thus, we do not address those here. We overrule appellant’s issues. 

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

A.M. 

Schenck, J., dissenting 

210712F.P05 

 

3

 The dissent characterizes the majority opinion as terminating appellant’s parental rights because he 

was “slow to establish paternity.” To be clear, Father was not “slow” in this case; he deliberately remained 

ignorant of the fact of his parentage for the entirety of A.M.’s life and wasted crucial months actively 

avoiding the Department’s attempts to establish paternity and unify him with his biological child. During 

this time, A.M. has been well-cared for by foster parents, who want to adopt him and are the only parents 

this now two-year-old child has ever known. To suggest this is legally insufficient evidence for which to 

hold appellant accountable for constructive abandonment is a misperception of the statute and appellant’s 

constitutional parental rights. 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
15 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF A.M., A 

CHILD 

No. 05-21-00712-CV V. 

 On Appeal from the 199th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 199-30187-

2019. 

Opinion delivered by Justice 

Reichek; Justices Schenck and 

Carlyle participating. 

 In accordance with this Court’s opinion of this date, we AFFIRM the trial 

court’s Final Order in Suit Affecting Parent-Child Relationship for Minor Child – 

Termination of Parental Rights, Appointment of Managing Conservator – TDFPS. 

Judgment entered January 31, 2022.