AFFIRMED and Opinion Filed January 31, 2022 

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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 pare ntal rights to his biological son, A.M. Appellant contends the evidence is insufficient to support termination because ge netic testing did not show he wa s 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.
B ACKGROUND A.M. was born on December 17, 2019, and umbilical cord testing showed he was positive for amphetamines and methamphetamines. Th e Department of Family and Protective Services, which had a safety plan in place prior to A.M.’s birth,2 initially planned to allow A.M. to be releas ed to his maternal grandmother. But, after an investigation, the Department determined she w ould 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 w ith many different people.” Mother was unable to provide the Department with a suitable alternative to the maternal grandmother; consequently, on A.M.’s releas e 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 conti nuing danger to the health or safety of A.M. if returned to the pare nt. The petition alleged the presumed/alleged father was unknown. On the same day, the trial court appointed atto rneys 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 identif ied that man as appe llant. That same month, the Department completed a “diligen t search” for appellant, and caseworker

1 The Department found that the maternal grandmothe r had a history with the agency that included a “reason to believe” finding for neglectful supervis ion after another child died in her care.3 Shawanda Fulton sent a certif ied letter to him at a Farmer sville 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 calle d 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 th e alleged fathers a nd requesting service of process on him. Following a permanency hearing on September 22, the trial court ordered appellant to submit to DNA testing no late r than October 29, 2 020, and ordered him to participate in a list of services. Add itionally, 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 se rve him and conduct pa ternity testing. Over the next several mont hs, the Department made se veral attempts to locate appellant and serve him with process. Caseworkers sent letters, made phone calls, sent text messages, and reached out on appe llant’s social media account but did not hear from him. The case was set for tria l 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 orig inal dismissal date of December 28, 2020.4 approved and accepted Mother’s voluntar y relinquishment and indicated on the docket sheet that it would “proceed to tria l on Unknown Father.” Two days later, the trial court signed an order for substitu ted service on appellant, and citation issued on April 30. In that same time period, the tr ial court reset the case for a trial before the court on May 26, 2021. On April 28, Tonya Rodriguez, the Depa rtment’s conservatorship supervisor, received a call from a female relative of ap pellant’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 pate rnity for the child and suggested appellant contact his attorney. Later that same day, Rodriguez received a second call from another relative who wanted more inform ation 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 sa mple 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 biologi cal father of A.M. were filed with the court on June 14. At trial, six witnesses testified: appe llant, three CPS workers, the CASA supervisor, and A.M.’s foster father. Appellant was the first witness. He te stified he was forty-six years old and had known Mother for nine years. The tw o had a sexual relati onship, and Mother told him when she became pregnant that he may be the father . When given that5 information, he said he deci ded 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 a ppellant a picture by text message. Appellant did not respond and sa id he did “[n]othing” to de termine if he was A.M.’s father. Appellant said that , a month later, Mother notif ied him by text message that the Department had removed A.M. from her care. He sa id 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 re ceiving a letter from caseworker Fulton in August 2020 asking whether he wanted to “work services” a nd undergo a paternity test, but he admitted that he “may hav e” 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 wa s 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 unders tand they were being conducted virtually (by Zoom) instead of in person. Appellan t testified he did not want to submit to paternity testing because he was waiting for the other men to be tested, and he did6 not attend any prior court hearings because he did not want to be arrested on an outstanding warrant. He did not investigat e 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 even tually 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 pot ential placement for A.M. because he “didn’t know for su re” 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 w illing to be drug tested and begin services. He also acknowledged that he probably c ould not raise the child by himself and wanted his sister to care for A.M. Wh en asked why it took him “so long to get started,” appellant said he “just waited” because he “hear d 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 hi mself 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 could7 take care of his “legal issue.” He later cl arified that his “legal issue” was a pending charge for possession of meth amphetamine and th at he was “sure” he would “go to prison” for it. And, finally, appellant testif ied he was the father of three other children. One of those children lived with his sister, a nd 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 th at the Department had made several efforts to locate and contact appellant dur ing the course of the case and have him served, and documentary proof of those e fforts 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 c ontact the Department until a week before he first appeared in c ourt for trial. Both caseworkers who had been assigned to the case recommended appella nt’s rights be terminated. As one of the caseworkers explained, the case had be en “ongoing for a while” and an extension was granted that afforded appellant “plent y 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 th ree days old and wanted to adopt him. The CASA volunteer testified that she be lieved it would be “extremely traumatic” to remove him and place him with appella nt or appellant’s relatives, who had only8 shown interest “very recently.” She said that even if appe llant were to begin services immediately, A.M. would be two or two and a half year s old by the time they were completed. After hearing the evidence, the trial court terminat ed appellant’s parental rights, finding that he had violated subsec tions (A), (B), (C), (F), (H) and (N) of 161.001(b)(1) as well as s ection 161.002(b)(3) and that termination was in A.M.’s best interest. This appeal ensued.
A NALYSIS The focus of both parties’ briefing is on subsection (N), constructive abandonment and, because we conclude it is dispositive, we addre ss 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 i nvolved none of those grounds. The decision to terminate a parent’s rights to his child must be supported by clear and convincing evidence. T EX

. F AM

. C ODE A NN

. §§ 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 he ightened standard because termination9 results in permanent, irrevocable ch anges 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 whethe r a reasonable trier of fact could have formed a firm belief or convict ion 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 reasonabl e factfinder could ha ve 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 th e appellate record, we defer to the factfinder’s determinations as long as they are not unreasonable. Id

. In reviewing factual sufficiency, we gi ve due deference to the factfinder’s findings and do not supplant th e verdict with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). We determine whethe r a factfinder could reasonably form a firm conviction or belie f about the truth of the State’s allegations. In re J.F.C. , 96 S.W.3d at 266. If, in light of the entir e 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 fo rmed a firm belief or conviction in the truth of its finding, then the evid ence is factually insufficient. Id

.10 A parent constructively abandons a child when (1) the child has been in the permanent or temporary mana ging conservatorship of th e Department for not less than six months, (2) the Department has ma de 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 dem onstrated an inability to provide the child with a safe environment. T EX

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. § 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 tr ial court failed to give him sufficient time to complete services, particularly in a pa ndemic. 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 unpers uaded by appellant’s argument. As appellant recognizes, his parental righ ts were not terminated for failure to comply with a court order or comple te 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 esta blishes 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.—T exarkana 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 ch ild to appellant by showing that appellant11 impeded the Department’s attempts to tim ely 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 pare ntage that he created to defend against termination of his parental rights. Id

. Here, the evidence showed that appella nt was aware from the very beginning that he could be A.M.’s father. Mother to ld 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 he r care a month later. And while she did not initially name appellant as a potential father, she id entified him to the De partment by no later than August 2020. That same month, the caseworker sent him a letter at a Farmersville address seeking his involvemen t. The address was the residence of appellant’s mother and was one that had followed him his en tire adult life. Appellant did not respond to the Departme nt; instead, he called Moth er and cursed her out for giving his name to the Department. Over the course of the next severa l 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 th e past, attempted to call him on phone numbers connected to him, and atte mpted to contact him on social media. Documentary proof was admitted to show thos e efforts. And appellant knew of the Department’s attempts to contact him and the reason. He also knew of the various12 court hearings. Nevertheless, he refuse d to respond because, based on his own testimony, he feared being arrested on an out standing 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 or der to take care of his lega l 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 appella nt impeded the Department’s efforts to determine his parentage; rather, it shows he actively a voided 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 ma ke reasonable efforts to reunite him and A.M., we cannot agree. There, the court found the evid ence factually insufficient to show that the father impeded the Depart ment’s attempts to timely adjudicate his parentage because the evidence did not expl ain the reason for the delay in obtaining the father’s DNA sample, in obtaining th e results, in adjudicating parentage, in issuing the order, and in meeting with th e 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 parent age of A.M., but he avoided contact while waiting to see if the other men would be eliminated.13 Finally, we reject appellant’s efforts to justify his actions in avoiding involvement in this suit because of the COVI D-19 pandemic. In hi s 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 reco rd where he presented this excuse to the trial court. As the trial judge noted, appe llant 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 re turn A.M. to appellant, but appellant impeded its attempts to timely ad judicate 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 De partment made diligent sear ch to locate father, but father disconnected his phone and caseworke rs did not know how to reach him and attempted service at two a ddresses, 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 pe t.) (evidence sufficient to support termination under subsection (N) where father was located after re lease from prison and advised of visitation; visited childre n twice but then made no effort to be involved; was advised to sign affidavit of paternity but did not do so; and caseworker14 testified reasonable effort s 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 s ubsection (N) or the be st interest finding; thus, we do not address those here. We overrule appellant’s issues. We affirm the trial court’ s order terminati ng appellant’s parental rights to
A.M.

Schenck, J., dissenting 210712F.P05

3 The dissent characterizes the majority opinion as te rminating 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 insuffici ent evidence for which to hold appellant accountable for constr uctive abandonment is a misperception of the statute and appellant’s constitutional parental rights. /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE15 

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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 Cour t’s opinion of this date, we AFFIRM the trial court’s Final Order in Suit Affecting Pare nt-Child Relationship for Minor Child – Termination of Parental Rights, Appoint ment of Managing Conservator – TDFPS.
Judgment entered January 31, 2022.