In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-22-00002-CV

IN THE INTEREST OF A.G.N. AND A.T., CHILDREN

On Appeal from the County Court at Law

Bowie County, Texas

Trial Court No. 21C0409-CCL

Before Morriss, C.J., Stevens and Marion,* JJ.

Memorandum Opinion by Chief Justice Morriss

____________________

*Sandee Marion, Chief Justice, Retired, Sitting by Assignment
2

MEMORANDUM OPINION

On the petition of the Department of Family and Protective Services (the Department), 

the trial court terminated Mother’s parental rights to her two children, Astra and Amber.

1

 This 

appeal, however, challenges the termination of the father’s parental rights to each of those two 

children: Astra is Ryan’s child, while Amber is Horace’s child.

2

After a DNA test yielded the result that Ryan could not be excluded as Astra’s father

because the probability of paternity was “99.999998%,” the trial court terminated the parentchild relationship between Ryan and Astra. On appeal, Ryan argues that the trial court’s 

determination of paternity was not supported by sufficient evidence because the DNA test results 

were not returned until after the determination of parentage. As a result, Ryan also argues that 

the trial court had no authority to terminate his parental rights.

3

 Because Ryan stipulated that he 

was Astra’s father, we find that Ryan’s complaints related to paternity are moot.

The trial court also terminated the father-child relationship between Horace and Amber 

on grounds that Horace (1) constructively abandoned Amber, (2) knowingly engaged in criminal 

conduct that resulted in his conviction of an offense and confinement or imprisonment and 

inability to care for Amber for not less than two years from the date of the Department’s petition, 

(3) was placed on community supervision for being criminally responsible for the sexual assault 

of Mother, and (4) had a mental or emotional illness or deficiency that rendered him unable to 

1We use pseudonyms to protect the privacy of the children. See TEX. R. APP. P. 9.8.

2Mother has not appealed the termination of her parental rights.

3Ryan does not challenge the trial court’s finding that sufficient grounds existed to terminate his parental rights and 

that it was in Astra’s best interests to do so.
3

provide for Amber’s physical, emotional, and mental needs. See TEX. FAM. CODE ANN.

§§ 161.001(b)(1)(N), (Q), (U), 161.003. Horace argues that legally and factually sufficient 

evidence was not presented to prove that sufficient grounds existed to terminate his parental 

rights to Amber.4 We find that sufficient evidence supported the trial court’s finding that Horace 

constructively abandoned Amber.

As a result, we affirm the trial court’s judgment.

(1) Ryan’s Complaints Related to Paternity Are Moot

The Department’s amended petition listed Ryan as Astra’s alleged father. The DNA test 

result involved in Ryan’s appeal was certified June 8, 2021. At a July 22 hearing, at which Ryan 

was present, the Department requested the trial court to establish the parent-child relationship 

because “DNA ha[d] confirmed [Ryan’s] paternity.” Ryan, who never contested paternity with 

the trial court, referred to Astra as “his child” during the hearing and testified that he “want[ed] 

to make the right decision, and [he] want[ed his] kid.” After hearing his testimony, the trial court

orally found that Ryan was Astra’s biological father. On July 29, 2021, the trial court entered a

written order establishing the parent-child relationship between Ryan and Astra after finding that 

genetic testing had determined Ryan was Astra’s father. Yet, the DNA test results were not 

included in the trial court’s file until December 14, 2021. 

Because the DNA test results were not filed with the trial court or otherwise introduced 

into evidence by the time of the July 29 finding, Ryan argues, for the first time on appeal, that 

the trial court’s paternity order was not supported by sufficient evidence. By separate point, he 

4Horace does not challenge the trial court’s finding that it was in Amber’s best interests to terminate his parental 

rights. 
4

also contends that, because sufficient evidence did not support the determination of parentage, 

the trial court somehow lacked authority to terminate his parental rights.5 Both points are moot. 

“A case becomes moot if a controversy ceases to exist between the parties at any stage of 

the proceedings, including the appeal.” Antolik v. Antolik, 625 S.W.3d 530, 541 (Tex. App.—

Texarkana 2021, pet. denied) (quoting In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 

(Tex. 2005) (orig. proceeding)). “An appellate court is prohibited from deciding moot 

controversies.” Id. (quoting Fry Sons Ranch, Inc. v. Fry, No. 03-19-00684-CV, 2020 WL 

6685772, at *1 (Tex. App.—Austin Nov. 13, 2020, pet. denied) (mem. op.) (citing Nat’l Coll. 

Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999))).

Testimony about the DNA test results was admitted at the final hearing. During that 

time, in open court, Ryan judicially stipulated that he was Astra’s father, testified, “I am her 

father . . . I want to provide everything I can for her,” and testified that he loved her “very 

much.”

6

 Therefore, the record reveals that Ryan never contested paternity and, at the final 

hearing, stipulated to the issue of paternity. His appellate brief also does not contest the fact of 

5Ryan argues that, because there was no order determining Ryan to be a parent, his parental rights could not be 

terminated. This point of error is meritless since Ryan was found to be Astra’s parent. Moreover, the Texas Family 

Code gives the trial court the authority to terminate the parental rights of a parent. See TEX. FAM. CODE ANN.

§ 161.001. As applicable, the term “parent” is defined in the Texas Family Code as “a man presumed to be the 

father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of 

competent jurisdiction, [or] a man who has acknowledged his paternity under applicable law.” TEX. FAM. CODE 

ANN. § 101.024(a).

6See TEX. FAM. CODE ANN. § 160.623.
5

paternity. As a result, we find moot Ryan’s points of error related to the trial court’s 

determination that Ryan was Astra’s parent.7 

We affirm the trial court’s order terminating Ryan’s parental rights to Astra. 

(2) Sufficient Evidence Supported the Trial Court’s Finding that Horace Constructively 

Abandoned Amber 

Next, Horace argues that the evidence is legally and factually insufficient to support the 

trial court’s finding that statutory grounds existed to terminate his parental rights to Amber. 

“The natural right existing between parents and their children is of constitutional dimensions.” 

In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting 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.’” Id. (quoting 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.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is 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. (quoting In re A.B., 437 S.W.3d at 500). 

“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (quoting

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)).

7Even if the DNA test results should have been admitted prior to the trial court’s July 29 order, Ryan has failed to 

show harm since he testified and stipulated to paternity. 
6

“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 

termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001 (Supp.); 

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.’” Id. (quoting TEX. FAM. CODE ANN. 

§ 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof 

necessarily affects our review of the evidence.” Id.

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

to the findings to determine whether the fact-finder reasonably could have formed a firm belief 

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920 

(Tex. App.—Texarkana 2015, no pet.) (citing 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 or the credibility of which reasonably could be doubted.” Id. (citing In re 

J.P.B., 180 S.W.3d at 573). 

“In our review of factual sufficiency, we give due consideration to evidence the trial 

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder 

reasonably could have found to be clear and convincing and determine ‘whether the evidence is 
7

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the 

. . . allegations.’” Id. (quoting In re H.R.M., 209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d 

17, 25 (Tex. 2002))); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). “If, in light of the 

entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor 

of the finding is so significant that a fact-finder could not reasonably have formed a firm belief 

or conviction, then the evidence is factually insufficient.” In re L.E.S., 471 S.W.3d at 920

(quoting In re J.F.C., 96 S.W.3d at 266). “‘[I]n making this determination,’ we undertake ‘an 

exacting review of the entire record with a healthy regard for the constitutional interests at 

stake.’” Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 89 

S.W.3d at 26)). “We also recognize that the trial court, as the fact-finder, is the sole arbiter of a 

witness’ demeanor and credibility, and it may believe all, part, or none of a witness’ testimony.” 

In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex. App.—Texarkana June 22, 

2018, pet. denied) (citing In re H.R.M., 209 S.W.3d at 109).

“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 L.E.S., 471 S.W.3d at 920 (quoting 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))) (citing 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.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—

Texarkana 2015, no pet.) (citing In re C.H., 89 S.W.3d at 26)).
8

At the December 16, 2021, trial, Tonya Baker, a Department investigation supervisor, 

testified that, on April 1, 2021, Astra tested positive for methamphetamine at birth, requiring the 

removal of both Astra and Amber from Mother’s home. The Department’s petition was filed 

April 5. Because the Department introduced evidence that Horace was previously arrested for 

possession of marihuana and methamphetamine and had tested positive for drugs during a 2020 

investigation by the Department, the trial court entered a temporary order on April 16 denying 

Horace the right to visit Amber until he produced negative drug test results. 

Chantel Finley, a Department conservatorship worker, testified that Horace appeared at 

the temporary hearing where he was ordered to complete a family service plan, which included 

random drug testing, a psychological examination, counseling, substance abuse assessment, and 

parenting classes. According to Finley, the family service plan was provided to Horace and his 

counsel, but Horace refused to sign and did not complete his family service plan. Finley testified 

that Horace used drugs during the pendency of the case, had a drug-related criminal history, and 

failed to comply with drug-testing requirements. Finley said that Horace was incarcerated at 

times but clarified that the Department had requested Horace to submit to drug testing “a total of 

eighteen times when he was out [of jail]” and that he had failed to do so. On January 7, 2021, 

during the Department’s investigation on a prior allegation, Horace had “admitted to being an 

addict.”

Finley also testified that Horace was, at the time of trial, incarcerated on a current drug 

conviction. She added that Horace had not visited with Amber since the date of her removal 

from Mother’s home but that he could have visited her had he submitted a negative drug test. 
9

Becky Moore, a Court Appointed Special Advocate, testified that she had visited 

Horace’s residence and did not believe that he could provide Amber with a safe, stable 

environment. According to Moore, Horace “was living in a shed with no running water [and] 

exposed wires going up and down the walls.” The evidence also showed that, during the prior 

investigation, Horace’s “portable building” had no bathroom or “cooktop stove” and that, while 

Amber was in Horace’s care, she was taken to the emergency room for “a diaper rash that ha[d]

blisters.” Moore also testified that Horace’s criminal history contributed to her belief that Amber 

was not safe in Horace’s care. 

Horace challenges the trial court’s Ground N finding. Under Ground N, the trial court 

may terminate the parent-child relationship if it finds, by clear and convincing evidence, that the 

parent has 

constructively abandoned the child who has been in the permanent or temporary 

managing conservatorship of the Department of Family and Protective Services 

for not less than six months, and:

(i) the department has made reasonable efforts to return the child to 

the parent;

(ii) the parent has not regularly visited or maintained significant 

contact with the child; and

(iii) the parent has demonstrated an inability to provide the child with a 

safe environment. 

TEX. FAM. CODE ANN. § 161.001(b)(1)(N). It is undisputed that Amber was in the Department’s 

temporary managing conservatorship for not less than six months. Also, Horace does not contest

that the Department made reasonable efforts to return Amber to Horace or that Horace 
10

demonstrated an inability to provide the child with a safe environment.8 Instead, Horace argues 

only that the evidence was insufficient to prove that he did not try to visit or maintain contact 

with Amber. We disagree. 

Horace argues that there was no evidence that he did not want to visit Amber. First, the 

Department was not required to prove that Horace had an insufficient desire to visit his child.9 

See In re M.R.J., No. 07-13-00440-CV, 2014 WL 2591616, at *5 (Tex. App.—Amarillo May 9, 

2014, no pet.) (mem. op.). It was only required to show that Horace had not regularly visited or 

maintained significant contact with her. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N)(ii); In re 

M.R.J., 2014 WL 2591616, at *5, see also In re S.P., No. 09-21-00296-CV, 2022 WL 318441, at 

*8 (Tex. App.—Beaumont Feb. 3, 2022, no pet.) (mem. op.) (“Subsection N is silent about the 

voluntariness of a parent’s failure to regularly visit or maintain significant contact with his 

children.”); In re I.D., No. 05-21-00244-CV, 2021 WL 4236878, at *5 (Tex. App.—Dallas Sept. 

17, 2021, pet. denied) (mem. op.) (“[S]ubsection (N)(ii) says nothing about voluntariness of a 

parent’s failure to regularly visit or maintain significant contact with a child.”). 

8

“A family service plan is designed to reunify a parent with a child who has been removed by the Department.”

In re J.C., No. 04-17-00828-CV, 2018 WL 1733139, at *3 (Tex. App.—San Antonio Apr. 11, 2018, no 

pet.) (quoting In re A.Q.W., 395 S.W.3d 285, 288 (Tex. App.—San Antonio 2013, no pet.), overruled on other 

grounds by In re J.M.T., 617 S.W.3d 604, 611 (Tex. App.—San Antonio 2020, no pet.). “‘Implementation of a 

family service plan by the Department is considered a reasonable effort to return a child’ to his parent ‘if the parent 

has been given a reasonable opportunity to comply with the terms of the plan.’” Id. (quoting In re A.Q.W., 395 

S.W.3d at 289). Also, Texas cases have concluded that illegal drug use “creates the possibility that a parent will be 

impaired or imprisoned, and thus, incapable of parenting.” In re K.M., Nos. 01-19-00285-CV & 01-19-00286-CV, 

2019 WL 3949483, at *7 (Tex. App.—Houston [1st Dist.] Aug. 22, 2019, pet. denied) (mem. op.) (quoting In re 

K.R.G., No. 01-16-00537-CV, 2016 WL 7368082, at *7 (Tex. App.—Houston [1st Dist.] Dec. 15, 2016, pet. denied) 

(mem. op.)); see In re N.F., No. 09-19-00435-CV, 2020 WL 2070286, at *24 (Tex. App.—Beaumont Apr. 30, 2020, 

pet. denied) (mem. op.); In re L.E.S., 471 S.W.3d at 924.

9Evidence presented at the hearing showed that, in January 2021, Horace said that, “once the [prior investigation] 

case closed he would go back to using [drugs]” and “would do what [was] needed to keep [Amber] safe, even if 

[that] mean[t] a removal.”
11

We disagree with Horace’s argument that the no-contact order thwarted his ability to visit 

Amber. Texas “courts have determined that a trial court may conclude that a parent has failed to 

regularly visit or maintain significant contact with [a] child[] under subsection N even though the 

parent’s visitation rights were abated by the court or there was a court order requiring a parent 

not have contact with the child[].” In re S.P., 2022 WL 318441, at *8 (citing Nuyen v. Tex. 

Dep’t of Family & Protective Servs., No. 03-12-00147-CV, 2012 WL 3629427, at *6 (Tex. 

App.—Austin Aug. 23, 2012, no pet.) (mem. op.); Quiroz v. Dep’t of Family & Protective 

Servs., No. 01-08-00548-CV, 2009 WL 961935, at *6 (Tex. App.—Houston [1st Dist.] Apr. 9, 

2009, no pet.) (mem. op.)). Where the no-contact order establishes that it does not preclude the 

parent from seeing a child “based on factors beyond [the parent’s] control,” and “by the very 

nature of the order, [the parent] only had to come to court in order to have the order lifted,”

visiting the child is within the parent’s control. In re S.P., 2022 WL 318441, at *8 (quoting 

Quiroz, 2009 WL 961935, at *6); see Nuyen, 2012 WL 3629427, at *6). The trial court’s 

April 16 temporary order merely stated that no visitation would be allowed “until the parents 

produce[d] negative drug test results,” provided that the order would remain in effect “until 

further notice of the Court,” and informed the parties that there would be a status hearing on 

May 20. Because taking needed drug tests was within Horace’s control, Horace, not the trial 

court’s order, prevented Horace’s visitation with Amber. See In re K.P., No. 11-20-00001-CV, 

2020 WL 4038858, at *3 (Tex. App.—Eastland July 15, 2020, no pet.) (mem. op.) (evidence of 

abandonment was clear and convincing even though mother argued that she failed to regularly 

visit or maintain significant contact with children after removal because trial court prohibited her 
12

from visiting children due to a positive drug test, something within mother’s control); see also

In re X.A.S., No. 05-19-01082-CV, 2020 WL 1042520, at *6 (Tex. App.—Dallas Mar. 3, 2020, 

no pet.) (mem. op.). 

“Where a parent’s own actions caused the inability to visit his [child], a trial court may 

conclude there is clear and convincing evidence that the parent failed to regularly visit or 

maintain significant contact with the children under subsection N.” In re S.P., 2022 WL 318441, 

at *8 (citing In re K.P., 2020 WL 4038858, at *3). Here, Finley testified, and it was undisputed, 

that Horace had not visited Amber since she was removed from Mother’s care in April 2021. 

Finley also testified that Horace would have been allowed to visit Amber had he provided a 

negative drug test result and that he had been given eighteen opportunities to do so but had 

refused. On this record, we conclude that legally and factually sufficient evidence supported the 

trial court’s finding that Horace failed to regularly visit or maintain significant contact with 

Amber. 

Having found that sufficient evidence supports the trial court’s Ground N finding, we 

need not consider Horace’s arguments on the remaining statutory grounds. See In re E.J.Z., 547 

S.W.3d at 343. As a result, we affirm the trial court’s order terminating Horace’s parental rights 

to Amber. 
13

We affirm the trial court’s judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: May 2, 2022

Date Decided: May 12, 2022