## 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 Mor riss, C.J. , Stevens and Marion , * JJ. Memorandum Opinion by Chief Justice Morriss

____________________ *Sandee Marion, Chief Justice, Retired, Sitting by Assignmen t2 ME MORANDUM OPINION On the petition of the Department of Family and Protective Services ( the Depa rt ment), the trial court terminated Mother ’ s parental rights to her two children, Astra and Amber
. 1 This appeal, however, c hallenge s the termination of the father ’ s parental rights t o ea ch of thos e two children: Astra is Ryan ’ s child , while Amber is H orace ’ s child
. 2 After a DNA test yield ed the result t hat Ryan could not be excluded as Astra ’ s father because the probability of paternity was “ 99.999998%, ” the trial cour t terminated the parent

child relationship between Ryan and Astra. On appea l , Rya n a rgues that the trial court ’ s determination of paternity was not supported by sufficient evidence because the DNA test results
were not retu r ned until after the determination of parentage. As a resul t , Ryan also argues that the trial court had no a u thority to te rminate his parental rights
. 3 Because Ry an stipulated that he was Astra ’ s f

a t her , we find that Ryan ’ s complaints related to paternity are m oot . The trial court also terminated the father

- child relationship between Horace and Amber on grounds that Ho race (1) constructively abandoned A mber , (2) knowi ngly engaged in c riminal cond uct th at 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 p etition, (3) was placed on community supervision f or being criminal ly responsib le f or the sexual assault of Mother, and (4) had a mental or emotional illness or deficiency that rendered him unable to

1 We use pseudonyms t o protect the privacy of the child ren. Se e T EX . R. A PP . P. 9.8.
2 Mo ther has not appea led the termination of her parental rights.
3 Ryan does not challenge the trial cou rt’s f inding that suffic ient 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 need s. See T EX . F AM . C ODE A NN . § § 161.001(b ) ( 1 ) ( N), (Q), (U) , 161.0 03. Horace argues that legally and factually sufficient evidence was not presented to prove that sufficient grounds existed to te rminate his parental rights to Amber. 4 We f

ind that sufficien t 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 Co m

p la ints Related to Paternity Are M oot The Department ’ s amended petition listed Ryan as Astra ’ s all eged 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 re q u es ted 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 “ wan t[e d ] to make t he right decision , and [he] want[ed his] kid. ” After hearing his testimo ny , the trial c ourt orally found that Ryan was Astra ’ s biological father. On July 29, 2021, the tri al court entered a written order establishing the parent

- child r elation s hi p bet we en Ryan and Astra after finding that genetic testing had determined Ryan was Astra ’ s fathe r. Yet, the DNA test results were not included in the trial court ’ s file un til December 14, 2021. Because the DNA test results were not filed with the tr i al cour t or otherwise introduce d 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 su pported by sufficient evidence. By separate point, he

4 Horace does not ch a l lenge the trial court’s finding t hat it w as in Amber’s best intere sts to terminate his parental rights.4

also contends that , becau s e suffi ci ent evidence did not support the determination of parentage, the trial court somehow lacke d authority to terminate his parental rights. 5 Both points are moot.

“ A case becomes moot if a controversy ceases t o exist be tween t he parties at any stage of the proceedings, including the appeal. ” Antolik v. Antolik , 625 S.W.3d 530, 541 (Tex. App.

— Te xarkana 2021, pet
. denied) (quoti ng In re Kellogg Brown & Root , Inc
. , 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceedin g ) )
. “ A n appell at e 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. 19 99)) )
. T esti mony about the DNA test results was admitted at the final hearing . Durin g that t im e, in o pen c ourt, 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 The refore, the record reveals that Ryan never contested paternity and , at th e final hearing, stipulated to the issue of pat ernity. His appellate b rief a ls o does n ot contest the f act of

5 Ryan argu e s that , because there was no order determining Ryan to be a parent, hi s parental rights could not be term inated. T his point of error is meritless since Ryan was found to be Astra’ s parent . Moreove r, the Texas Family Code gives the trial court the author i ty to terminate the parental rig hts of a parent. See T EX . F AM . C ODE A N N . § 161.001. As applicable, t he term “pa re nt” 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 a d judicated to be the father by a court of competent jurisdiction, [or] a man who has acknowledged his p ate rnity un de r a pplicable law .” T EX . F AM . C ODE A NN . § 101.024(a).
6 See T EX . F AM . C ODE A NN . § 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 termina ti n g Ryan ’ s parental rights to Astra. (2) S uf

fi cient Evidence Support ed the Trial Court ’ s Finding that Horace Constructively Abandoned Amber Next, Horace argues that the evidence is legally and factually insuffici ent to s upport the trial court ’ s finding t hat statutory grounds existed to ter minate h is paren tal rights to Amb er.

“ 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. Ap p.
— Texar kana 2018, no pet.) (quoting Holi c k 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. 5 7, 65 (2 000)). “ Because the termination o f parental rights implicates fundame ntal i nt er ests, 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 require d to

“ en gage in an exacting review of the entire record to determine if the ev idence i s . . . sufficient to sup port the termination of parental rights. ” Id. (quoting In re A.B. , 437 S.W.3d at 500).

“ [I]nvoluntary termination statutes are strictly constru ed in favor of the parent. ” Id. (quoting In re S.K.A. , 236 S.W.3d 875, 900 (T ex. Ap p.
— T exarka na 2007, pet. denied) ( quoting Holick , 685 S.W.2d at 20)).

7 Even if the DNA test results should have been a d mitted prior to the trial court’s July 29 order, Ryan has f ailed to show harm since he testified an d stipulat ed to paternity
.6

“ In order to terminate parental rights, the trial court must find, by clear and convincing evidence, th at the parent has engaged in at least one statutory ground for termination and that te rm inatio n is in the child ’ s bes t interest. ” Id. (citing T EX . F AM . C ODE A NN . § 161.001 (Supp.); In re E.N.C. , 384 S.W.3d 796, 798 (Tex. 2012)). “‘ Clear and convincing ev idence ’ is tha t

‘ degree of proof that wil l produce in the mind of the trier of fact a fi rm bel ief or conviction as to the truth of the allegations sought to be established. ’” Id. (quoting T EX . F AM . C ODE A NN . § 101.007 (citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 200 9))). “ This standard of pr o of necessarily affects our review of the e vi de nce. ” Id.

“ In our legal suf

ficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact

- finder reasonably c ould have form ed a firm belief
or conv ict i on that the grounds for termination were p ro ve n. ” I n 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 pe t .)). “ We assume the trial court, a cting a s fa ct
- fi nder, 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 o r the credibility of whi ch r easonably could be doubted. ” Id
. ( citing In re J. P. B. , 1 80 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 convi ncing. ” Id. ( citing In re H.R.M. , 209 S. W .3d 105, 108 (Tex. 2006) (per curia m)). “ We c onsid er only that evidence th e fact

- finder reasonably could have found to be clear and convincing and determine ‘ whether the evidence is7

such that a fact[

- ]finder could reasonably fo rm a firm belief or conv ict i on about the truth of the

. . . all egation s. ’” 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 li ght of the entire re cord, the disputed evide nce that a reasonable fact

- finder could not ha ve c redit ed in favor of the findi ng is so significant that a fact

- finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insuff icient. ” 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. (quo ting I

n re A.B. , 437 S.W.3d 498, 503 (Tex. 2014 ) (quoting I n re C.H. , 89 S.W.3d at 26)). “ W e al so 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 wi tness ’ testimony. ” In re A.M. , No. 06

- 18

- 00012

- CV , 2018 WL 3077784, at *3 (Tex. App.

— Texa rk an a 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 paren tal ri ghts, ‘ the rights of natural par ents are n o t absolute; protection of the child is pa ra mo u nt. ’” In re L.E.S. , 471 S.W.3d at 920 (quotin g 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 r e M.S. , 115 S.W.3d 534, 547 (Tex. 2003 )). “ A c h i ld ’ s emotional and physical interests mus t no t be sacrificed merely to preserve parental rig hts. ” 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 a t 26)).8

At the December 16, 2021, tri al, Tonya Baker, a Department inv estigation su pe rv isor, 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 Depar tment ’ s petition was filed A pril 5. Beca u se the Department introduced evidence that H or ace was previously arrested for possession of marihuana and methamphetamine and had tested positive for drugs during a 2020 investigation by the Department, the t rial c ourt entered a tempo rary order on April 1 6 denying Horace the right to visit Amber u nt il he produced negative drug test results. C hantel Finley, a Department conservatorship worker, testified that Horace appeared at the temporary hearing where he wa s orde r ed to complete a family service plan , wh i ch included random drug t esting, a psychol og ic al examination, counseling, substance abu se assessment, and parenting classes
. According to Finley, the family service plan was provided to Horace and his
c ounse l, but Horace refused to sign and did not compl e te his family service pla n . Finley testif ie d that Horace used drugs during the pendenc y of the case , had a drug

- related criminal history , and failed to comply with drug

- testing requirements. Finley said tha t Hora ce was incarcerated at times but clarifie d that the Department had requested Horace t o s ubmit to d r ug testing “ a total of eightee n times when he was out [of jail] ” and that he had failed to do so. On January 7, 20 21 , during the Department ’ s investig ation on a prior allegation , Horace had “ admitt e d to being an addict. ” Finley also test i f

ie d that Horace was , at the time of trial, incarcerated on a current drug conviction. She added that Hor ace had not visited with Amber since the date of her remova l from Mother ’ s home but that he could have vis i ted her had he submitte d a negative drug t es t .9

Becky Moore, a Court Appo inted Speci al Advocate, testified that she had visited Horace ’ s residence and did not believe that he could provide Amber with a safe , stab le environment. According to Moore, Hora c e “ was living in a shed with no running wa te r [and] exposed wire s going up and down th e walls
. ” The evidence a lso showed that, during the prior investigation, Horace ’ s “ portable building ” had no bathroom or “ cookt op stove ” and that , while Amber was in Ho r ace ’ s care, she was tak en to the emergency r oo m 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 . H orace challenges the trial court ’ s Ground N finding. Under Groun d N, the trial cour t
ma y terminate the parent

- child relationshi p if it finds, b y clear and convincing evidence, that the parent has constructively abandoned the child who has been in t he per manent or temporary managing cons ervators h ip of the Department of Family and Protect iv e Services for not less than six months, a nd: (i) the department has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visite d or maintained significant conta ct with t he child; and (iii) th e parent has demons tr at ed an inability to provide the child wit h a s afe environment
. T EX . F AM . C ODE A NN . § 161.001(b ) ( 1 ) ( N). It is undisputed that Amber was in the Department ’ s tempo rary m anaging conservatorship for not less than six months. Also, Hora ce does not contest t ha t the Department made reasonable efforts to r eturn Amber to Horace or that Horace10

demonstrated an inability to provide the child with a safe environment. 8 Instea d, Hor ace arg ues only that the evidence was ins u fficient to prove that he did not try to v is it or maintain contact with Amber. W e dis agree. Horace argues that there was no evidence that he did not want to visit Amber. First, the Department was not requ ired t o prove that Horace had an insufficient d e sire to visit h is child. 9 See In re M.R
. J

. , N o. 07

- 13

- 00440

- CV, 2014 WL 25916 16, a t *5 (Te x. App.

— Amarillo May 9, 2014 , no pet. ) (mem. op.)
. It was only required to show that Horace had not regularly visite d or
m aintained significant contact with her. S ee T EX . F A M . C ODE A NN . § 161.001(b ) ( 1 ) ( N ) ( ii ) ; In re M.R. J
. , 2014 WL 25916 16, a t *5 , see also In re S.P
. , No. 09

- 21

- 0 0296

- CV, 2022 WL 318441, at *8 (Tex. App.

— Beaumont Feb. 3, 2022, no pet
. ) (mem. op.) ( “ Subs ection N is silent about the voluntariness of a parent ’ s f ailure to regularly visit or mai nt ai n 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] ubsect ion (N ) ( ii) says nothing about voluntarin e ss of a pa rent ’ s failure to regularl y visi t or maintain significant contact with a child
. ” )
.

8 “A family s er vic e plan is designed to reunify a parent with a child who h as been r emoved by the Depa rtment.” In re J.C. , No
. 0 4

- 17

- 00828

- CV, 2018 WL 1733139, at *3 (Tex. App.

— San Anton i o 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.

— Sa n Ant onio 2 0 20, no pet. ). “ ‘ Implementation of a family service p lan by the Department is considered a reas onable 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. ( quo ti ng In r e A.Q.W. , 395 S.W.3d at 289). Also, Texas cases have concl ud ed that illegal drug use “creates the po ssibility that a parent will be impaired or imprisoned, and thus, incapable of parenting.” In re K.M
. , No s . 01

- 19

- 00285

- CV & 01

- 1 9

- 00286

- CV , 2 0 19 W L 3949 4 83, 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, pe t. denied ) ( mem . op.); In re L.E.S
. , 471 S.W.3d a t 924.
9 Evidence presented at the hearing showed that, in January 2021 , Horace said that , “once the [prior investigation] ca se close d he wou ld go back to using [drugs] ” and “would d o what [was] needed to ke ep [Amber] safe, even if [that] mean [t] a removal.”11

We disagree with Horace ’ s argu m ent t hat the no - contact order thwarted his ability to visit Amber
. Texas “ courts have determined that a trial court may conclud e that a pa rent has failed to regular ly vis it o r maintain significant contact with [a] child [] under subsection N even though th e par ent ’ s visitation rights were abated by the court or there was a court order requir ing a parent not have contact with the ch i ld []
. ” In re S.P
. , 2022 WL 318441, at *8 (c it ing Nuyen v. Tex. Dep ’ t of Family & Protective Servs
. , No. 03

- 12

- 00147

- CV, 2012 WL 3 629427 , at * 6 (Tex. App.

— Austin Aug. 23, 2012, no pet.) (mem. op.); Quiroz v. Dep ’ t of Family & Protective Servs
. , No. 01

- 08

- 0 0548

- CV, 2 009 WL 961935 , at *6 (Tex. A pp.
— Ho us ton [1st Dist.] Apr. 9, 2009, no pet.) (mem. op. ) ). Where the no

- contact order estab lishes that it does not preclude the parent from seeing a child “ based on fac tors b eyond [the parent ’ s] control, ” and “ by th e very natu re of the order, [the parent ] on ly h ad to come to court in order to have the order lifted , ” visiting the child is wi thin the parent ’ s control. In re S.P
. , 2022 WL 318441, at *8 (quoting Quiroz , 200 9 WL 9 61935 , at *6 ) ; see Nuyen , 2012 WL 3629427 , at *6 )
. The trial court ’ s April 16 te mpo ra ry order merely stated that no visitation would be allowed “ until the parents produce [d] negat ive d rug test results, ” provided that the order would remain in effect “ unti l further notice of the Court, ” and inf or m ed th e parties that there would be a statu s he aring on May 20. Because taking needed drug test s was within Horace ’ s control , Horace, not the t rial court ’ s order, prevented Horace ’ s visitation with Amber. Se e In r e K.P
. , No. 11

- 20

- 00001

- CV, 2020 WL 40388 5 8, a t *3 (Tex. App.

— Eastland July 15 , 2020 , no pet.) (mem. op.) (evidence of abandonment was clear and convincing even thou gh mother argued that s he failed to regularly visit or maintain significant contact w ith ch ildren after removal because trial court p rohi bited her12

from visiting children due t o a positive drug test, something within mother ’ s control) ; see also In re X.A.S
. , N o. 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 c a use d the inability to visit his [ch ild] , a t ri al court may conclude there is clear and convincing evidence that the parent fa iled to regularly visit or maintain significant contact with the children under sub sectio n N. ” In re S.P
. , 2022 WL 318441, at *8 ( cit ing In re K.P
. , 2020 WL 4038858, at *3 )
. H ere, Finley testified, and it was undisputed, that Horace had not visited A mber since she was removed from Mother ’ s care in April 2021. Finl e y also testified tha t Hora ce would have been allowed to visit Amber had he provided a negative drug tes t resul t an d that he had been given eighteen opportunities to do so but had refused. On this record, w e conclude that legally and factually sufficient evidence supported th e tria l court ’ s finding that Horace failed to r e gu larly visit or maintain signific ant cont ac t with Amber. Having found that sufficient evidence supports the trial cou rt ’ s Ground N find ing, we need not consider Horace ’ s arguments on the remaining statutor y grou nds
. S ee In re E.J.Z. , 547 S.W.3d at 343. As a result, we affirm the trial c o urt ’ s order terminating Horace ’ s pa rental ri ght s to Amber.13

We affirm the trial court ’ s judgment.

Josh R. Morriss, III Chief Justice Date Submitted : May 2 , 20 2 2 Date Decided : May 12 , 202 2