### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00605- CV

R. M., Appellant

v. D. R. and B. R., App ellees

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. C2016 -16 21B , H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant R.M. appea ls the d i strict court’s final order terminating his pare ntal rig hts to his child L .M.M. in the underly ing suit fi led by private parties. See Tex. Fam. Code 1 §§ 101.032(a) (providing that suit to terminate pare ntal rig hts is suit aff ecting p ar en t -c h ild rela tionship), 102.003(a) (9) (authorizing suit aff ecting pare nt-child rela tions h i p t o be filed by
person, other than foster pare nt, who has had actua l car e, control, and p o s s essi on of child for at least six months). The court found t h at Appellant “voluntarily left the child alone or in the possession of another without providing adequate s u p p o rt of the child and rema ined awa y for a period of at l east six months.” See i d

. § 1 6 1

. 001(b)( 1)(C). The court also found t hat t ermination

We ref er to the parties by their roles i n t h i s ap peal. See Tex. Fam. Code § 109.002(d); 1 Tex. R. App. P . 9.8(b).of Ap pellant’s pare ntal rig hts was in the child’s best interest. See id. § 161.001(b)( 2). I n three 2 issues, Appellant challeng es the fac tual and leg al sufficie ncy of the evidenc e supporting the court’s finding s. We will affirm the cour t’s final orde r.

BACK GR OUND 3 Appellant and his wife are the biologica l pare nts of the child, who was born
M ay 2 9 , 2 0 1 3 , an d was four y ear s old at t he ti me of trial. Appellant and his wife are married bu t
separ ated. She is not a party to this appea l, and t h e rec ord reflec ts that she ex ecute d two separ ate aff idavits for voluntary relinq u i s h m en t of pare ntal rig hts as to the child, the first dated Fe bruar y 19, 2016, and the second dated Marc h 2, 2017. See id

. § 1 6 1

. 0 0 1(b)( 1)(K)

. Appellant testified that he is the biologica l fathe r of three other children and the fathe r “by m ar ri age ” of a fourth child, all of whom have been involved in a Child Protective Service s case since 2015 but are
not part of the underly ing private termination suit. Appellant does not have c ustody of t hose four children, who live with their materna l g randmother

. The child is not part of the CPS case involving her sibling s.

Until she was about two y ear s old, the child lived with Appellant in Houston while her mother was incar cer ated. After her mother’s rel ea se, the family moved in with the child’s

The court’s order also terminated the pare ntal rig hts of the child’s mother B.B ., who 2 signe d an affidavit for voluntar y relinquishment of her

pare ntal rig hts to the child. See Tex. Fam. Code § 161.001(b)( 1)(K) (authorizing termination of pare n t al rig hts based on that pare nt’s aff idavit o f relinquishment), .103 (addr essing aff idavits of voluntary relinquishment of pare ntal rig hts). At the time of trial, the c hild’s mother was in jail. The fac ts are summarized from the testimony and exhibi ts admitted into evidenc e at trial. 3 2materna l g randmother at her home in New Br aunfe ls. I n ear ly 2015, Appellant returne d to Houston

for work but his wife and the children rema ined in New Br aunfe ls with the children’ s g randmother

.

I n April 2015, the child’s moth er gave the child to the appellee s B.R. and D.R., a marrie d couple who live in New Br aunfe ls and have had phy sical custody of the child on and off for about two and a h alf y ear s. D.R. has known the child’s mother since childhood, and the child’s mother is rela ted to D.R.’s husband’s family

. D.R. testified that to her knowledg e, Appellant did not

see the child from April 2015 until J uly 2016, an d D. R

. d i d not rec eive any support for the child from him. Appellant testi fied t h at h e thought his wife was j ust allowing the child to visit and spend the night with A

ppellees. He testified that he would visit his children on the wee kends, and “[his wife] would g o back to [D.R.] and pick [t he child] up and bring her home to the house to make it look like nothing was g oing on.” Howeve r, D.R. testified that in Dec ember 2015 she went to pick
up the child from her g randmother ’s house and that Appellant did not stop D .R. or say “don’t take her” when he saw D.R. leaving with the child. Additionally , Appellant acknow ledg ed that in J une 2016, he sawthe child being dropped of f at he r own sister’ s birthday party by D.R.
D

. R. te s ti f ie d th a t A p p e ll a n t to ld h e r in D e c e mb e r 2 0 1 5 th a t “ h e w a n te d c o mp e n s a

ti o n f o r o n e y e a r a n d a h a lf a n d th a t h e w o u ld w a s h h is h a

n d s a n d s ig n o v e r h e r r ig

h ts

. ” Her understanding of this conver sation was that Appellant was offe ring to sell the child. D.R. testified that she “wa sn’t about to pay money for her,” that she knew that was illega l, and that she told her lawy er. Appellant challenged D.R.’s testimony about the reque st for compensa tion, noting that D.R. was unable to specify what “dollar

amount” of mone y

he had r equeste d.

3Appellant testified that in J uly 2016 his wife “fina lly broke down to me and explained

to me what she had done,” and he then told D.R. that the child was coming back to live with him and h er m o t h er . For about one month, the child lived with Appellant, her mother, and the four ot h er children at her g randmother ’s house. Appellant testified that he was called back to work in Aug ust 2016, and he left for Sweeny , Texas wit h t h e re s t o f the family rema ining at the g randmother ’s house. He also testified that he had provided “upwa rds of $20,000 to his mother-in-la w to disperse
among st [his] children.” He further testified that he ha d medical insurance cover ag e for the child, but he admitted that he had n o t g iven an insurance car d to Appellee s direc tly

. D.R. testified that Appellant never g ave her any insurance car d for the child and that “[the child] has been on Medica id for a long time.”

After Appellant left, the child’s mother returne d the child to live with Appellee s. The child continued residing with them until the trial in Aug ust 2017. Appellant testified that he believed the child was mere ly v i s i t i n g with Appellee s and at times, spending the night. D.R. testified that when the child returne d afte r spending a month with her pare nts, the child had blisters with pus all over he r body

that require d antibiotics. Appellees fi led the underly ing termination suit in September 2016, but they had difficulty locating Appellant. After hiring a private investiga tor, Appellee s s ec u re d s ervic e on Appellant in J anuar

y 2017. Appellant filed a document that the tri al court construed as a g ener al denial. I n that pleading , Appellant acknow ledg es that “it will rea ch a six month period that [he] has
not seen [t he child],” but he faults D.R. for “not b ri n gi ng the child to visit when reque sted” and deny ing acc ess t o her. Appellant testi fied that until he was serv ed, he did not know t hat t he child

4was living with Appellee s. He acknow ledg es that afte r he was serve d, he knew wher e the child was,

but he did not provide any support direc tly

to Appellees f

or the c hild. D.R. testified that Appellant stay ed aw ay from the child until the t rial date without

a phone call or a visit and that he did nothing to retrie ve the child. Appellant testified that Appellee s ref used to communicate with him, that he attempted to provide g ifts, and that he asked his mother-inlaw and sister-in-law to a rra ng e for him to g o over to Appellee s’ hous e, but “it is not happening .” During the bench trial, in addition to the testimony of Appellant and Appellee s, the
court considere d a home stud y o f Ap pellees’ family that was admitted into evidenc e. The home study con cl u d ed t h at the child should continue to reside with Appellee s and that they should be allowed to adopt her. At the conclusion of the trial, the court enter ed an o rder terminating the mother’s pa

renta l rig hts and Appellant’s pa renta l rig hts to the child. This appeal followe d.

DISCUSSIO N Appellant challeng es the fac tual and leg al sufficie ncy of the evidenc e supporting the court’s finding s. I n a private proce eding to terminate the pare nt-child rela tionship, t h e petitioner
must establish by clea

r and convincing evidenc e a predic ate violation—i.e., that the pare nt’s acts or omissions constitute a statutory g round for

termination—and that termination of parental rights i s in the child’s best interest. Tex. Fam. Code § 161.001(b)( 1), (2); In re B.T.D. , No. 01-16-00582- CV, 2017 Tex. App. L EXI S 503, at *23 (Tex. A pp.—Houston [1st Dist.] J an. 20, 2017, no pet.) (mem. op.); see I n re S.M.R. , 434 S.W .3d 576, 580 (Tex. 2014). We evalua te the leg al sufficie ncy of the evidenc e in pare ntal-rig hts termination case s by revie wing all the evidenc e in the light most favor able to the finding to deter mine whether a
5rea sonable fac tfinder could have formed a firm belief or conviction that the challeng ed finding was

true. In re J.P.B. , 180 S.W .3d 570, 573 (Tex. 2005). We must assume that the fac tfinder resolved disputed fac ts in favor of its findi n g i f a rea sonable fac tfinder could do so, and we disreg ard all evidenc e that a r easona

ble fa ctfinder

could have disbelieved or f ound incre dible. Id

. We evalua

te t he factual sufficiency of t he evidence by revie wing t he entire rec ord, and we uphold the finding unless the disputed evidenc e that could not rea sonably have been cre dited in favor of the finding is so signific ant that a rea sonable fac tfinder could not have formed a firm belief or conviction that the alleg ation was true

. In re A.B. , 437 S.W .3d 498, 502-03 (Te x . 2014). We do not weig h witness cre dibilit y issues that depend on appea ranc e and demea

nor, and when

cre dibilit y issues are ref

lected in the rec ord, we must defe r to the fac tfinder’ s deter minations if they

are not unrea sonable. In re J .P.B. , 180 S.W .3d at 573.

Su ffi c ie nt evidence that Appellan t volun tarily left child wi thout adequate s up po r t fo r 6 m o nt hs

I n his first and second issues, Appellant challeng es the fac tual and leg al sufficie ncy of the court’s finding that he voluntarily left the child alone or in the possession of another without providing adequate support of the child and rema ined awa y for a period of at l ea s t s ix months. Under subsection 161.001(b)( 1)(C) of the Fam i l y C o d e, a court may terminate the pare nt-child rela tionship if the court finds by clea r and convincing evidenc e that the pa rent ha s voluntarily left the child alone or in the possession of another without providing adequate support for the child and

rema ined away for a p er i o d of at least si x months. See Tex. Fam. Code § 161.001(b)( 1)(C). The six -month minim um is a period of six months consecutively

. Jordan v. D ossey , 325 S.W .3d 700, 727 (Tex. App.—Houston [1s t Dist.] 2010, pet. denied)

. 61. Dec em ber 2015-July 2016 Appellant contends that he never “voluntaril y place d” the child with Appellee s beca use his wife was the one who “g ave” the child to them. Howeve r, for purposes of deter mining whether section 161.001(b)( 1)(C) of the Family Code is met, “[i] t should not be signific ant whether

a pare nt phy sically delivers their chi l d t o s o m eo ne who will car e for the child.” In re R.M. , 180 S.W .3d 874, 878 (Tex. App.—Texarkana 2005, no pet.) (noting that pare nt did n o t p e r sonally deliver child to pare nt’s g rea t aunt and uncle and did not initiate arr ang ement for them to car e for his child). Her e, the e vidence shows that the period from De cembe r 2015 throug h J uly 2016 is a period of

at least six c o n s e c u ti v e months during which Appellant rema ined awa y from the child—who was living with Appellees—a

nd did not provide support for he r. Although Appellant stated that he did not know that his wife gav e t h e chil d to Appellee s in April 2015, by Dec ember 2015 he saw the child leaving from her g randmother ’s house with D.R. without stopping them, he subsequently s aw the child dropped off at her own sister’s birthday party by D.R. in J une 2016, and the evidenc e i s u n d isputed that Appellee s kept t he child

u n til J uly 2016. Appellant would have also been aler ted that the child was not living with her grandmother and si blings when he learned in 2015 that his four other children were involv ed i n a CPS case . D.R. testified that to her knowledg e, Appellant did not see the child from April 2015 until J uly 2016, and that she did not rec eive any support from Appellant for the child. Fu rt h er , D. R. testified that Appellant told her that if he wer e g iven some “compe nsation for one y ear and a half,” he would “wa sh his hands and sign over her rig hts,” which D.R. understood as an attempt to sell the child to her. The court could have cre dited the evidenc e at trial showing that Appellant voluntarily

7left t he child with Appellee s without providing support for her and rema i n ed awa y for at least si x months. The court could have also discredited Appellant’s testimony that he thought the child was only visiti ng Appellee s, and Appellant’s contention that D.R. was being untruthful about his reque st for c ompensation bec ause she was una ble to provide a

dollar amount.
2. January 2017-August 2017 Additionally , the period from J anuar y 2017 to Aug ust 2017 is a period o f at least six consec utive month s during which Appellant knew the child was living with Appellee s, voluntarily left her there , and did not provide s u p p ort for her. Appellant acknowledg ed that as of J anuar y 13, 2017—when he was serve d with Appellee s’ petition to terminate his pare ntal rig hts to the child—he knew the child was living with them and wher e they lived, but he did not provide any support direc tly to Appellee s for the child. Aside from Appellant’s testimony about the $20,000 he
g ave to his mother-in-la w, there was no evidenc e that he provided an y support for the child indirectly either. There is no evidenc e that Appellant made any arr ang ements to provide assistance
to Appellee s for the child or that he had rea ched an ag ree ment with Appellee s that no such assistance

was neede d. See Jordan , 325 S.W .3d at 728 (noting that “ther e was no understanding betwee n Akin and J ordan that J ordan would not be sending support beca use Akin could provide adequate support

on his own”) ; In re T.L.S. , No. 01-12-00434- CV, 2012 Tex. App. L E XIS 1 0 2 97, at *14-15 (Tex. App.—Houston [1st Dist.] Dec

. 13, 2012, no pet.) (mem. op.) (noting lack of evidenc e showing that appellant made arr ang ements to provide assistance or had rea ched ag ree ment wi t h her mother, as

car egi v er of appellant’ s children, that no such assistance was neede d). Appellant’s pleading acknow ledg ed that it “will rea ch a six month period that [he] has not seen [t he child]” and reque sted

8that his mother-in-la w b e n amed the child’s manag ing conser vator, not him. D.R. testified that throug h the date of trial (Aug ust 2017), Appellant stay ed awa y from the child without a phone call

or a visit, and that he did nothing to retrie ve the child from Appellee s. The court could have cre dited the evidenc e at trial showing that Appellant voluntarily left the child with Appellees without providing support for her and that Appellant rema ined awa y for at least six months. The court could h a v e a ls o d is c r e d it ed Appellant’s testimony that he attempted to provide g ifts, provided some portio n of $20,000 t o h i s mother-in-la w for the child, and asked his mother-in-la w and sister-in-law to

arr ang e visits for him at Appellee s’ house.

Viewing the evidenc e in the light most favor able to the court’s f in d in g s , a n d a s s u mi ng that the cour

t resolved a

ny disputed fac ts in favor of its finding s, we c onclude that the court c ould have rea sonably formed a firm belief or conviction that Appell an t left the child alone or in the
p ossession of another without providing adequa te support for the child and rema ined awa y for a period of at least six months. See Tex. Fam. Code § 1 6 1.001(b)( 1)(C). Fur ther, considering the

en t i re record, we conclude that any disputed evidenc e could have been rec onciled in favor of the court’s findings, such that the cour t could have r easona

bly formed a firm belief or conviction t hat Appellant left the child alone or in the possession of another without providing adequate support for the child and rema ined awa y for a period of at least six months. According ly , the evidenc e in this

rec ord is leg ally and fac tually sufficie nt to support a statutory g round for termination of Appellant’s
pare ntal rig hts under section 161.001(b)( 1)(C) of the Fa mily Code. We overr

ule Appellant’s first and sec ond issues.

9Suf

fi cient e vidence supp orte d best-intere st fin din g

I n his third issue, Appellant challeng es the fac tual and leg al sufficie ncy of the court’s finding that termination of his pa renta l r ights wa s in the child’s best intere st. See Tex. F am. Code § 161.001(b)( 2). W e m ay co nsider a non-exhaustive list of fac tors in deter mining whether termination of pare ntal rig hts was in the child’s best interest, including: (1) the desires of the child; (2 ) t h e emotional and phy sical needs of the child now and in the future; (3) the emotio n al an d phy sical dang er to the child now and in the future; (4) the pare ntal abilities of the individuals seeking custody ; (5) the prog rams ava ilable to assist these individuals to promote the best interest of the child; (6) the plans for the child by the individuals seeking custody ; (7) the stability of the home or proposed place ment ; (8 ) t h e acts or omissions of the pare nt which may indicate that the exis ting
pare n t -child rela tionship is not proper ; and (9) any excuse for the acts or omissions of the pare nt. Holley v . Adams , 544 S.W .2d 367, 371-72 (Te x . 1976).

Her e, many of the best-intere st fac to rs are addre ssed in the home study that was admit t ed into evidenc e. The home study was conducte d by Nichole Mueller, who has a Master’ s deg ree in social work and almost eleve n y ear s of experience working for Child Protective Service s.

As to the emotional and phy sical needs of the child, the study ref lects that the child is bonded to Appellee s and calls them “daddy ” and “mommy .” The repor t notes that when the child first came to live with Appellee s, she was distant, did not want hug s, kisses, or cuddling , and did not talk. Now, the c hild is happy , talkative, and smiles all the time.

As to the pare ntal abilities of the individuals seeking custody , the study states t h at Appellee s are bonded to the child, that they are able to provide a safe and perma nent home for her,

10that they are financ ially able to meet the chi l d ’s needs, that they are involved in their children’ s

schools, and that they

have ne ver ha d any

involvement with Chil d Protective Servic es. As to the stability of the home or proposed place ment, the study notes that Appellee s have be en tog ether

for twe nty

y ear s and marr ied since 2008, that they have a g ood support sy stem of friends and family , that they have lived in their home for eig ht y ear s, that they h av e s table employ ment histories, and that all of their ref ere nces had positive things to say about them, including how g ener ous and car ing they are toward others. Appellee s’ children who live at home stated that the child is funny , that they like to play

with her, that she is a

lot of fun, and “ [w] e love he r.” As to the plan s fo r t h e child by the individuals seeking custody , Appellee s plan to adopt the child. The study rec ommends to the court that the c hild continue to live with Appellees in their home and that they should move forwa rd with adopting her. At trial, D.R. testified that she and B.R. want to support the child emotionally and financ ially , enroll her in school, take her to the doctor a nd g et her immuniz ations that she has only had once in her lifetime, a nd adopt her

. As to the acts or omissions of the pare nt which may indicate that t h e exis ting
p arent-child rela tionship is not proper , Appellant initially testified that he was employ ed as an industrial elec trician with Z achr y I ndustrial ear

ning $38.75 an hour, but he later acknow ledg ed that due to his “wr ong ful termination” he had been unemploy ed for six wee ks. Appellant disag ree d that 4

Appellant also acknow ledg ed that in 1997 he was arr ested on four c o u n t s o f aggravated 4 assault with a deadly wea pon and tw o co u n t s o f ag g rava ted robber y and sentenc ed to eig ht y ear s in the p en i t en t i ar y , and that in 2011 and 2013 he was arr ested for driving with an invalid license with a prior conviction or suspension. See In re C.T.E. , 95 S.W .3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (noting that pare n t ’s cr i minal history is non-dispositive fac tor in deter mining best intere st of children)

.
11in ord er fo r him not to know where his child was li ving, he had to have been uninvolved with his

child’s l ife. D.R. testi fied that g iven Appellant’ s lack of involveme nt with the child, she believe d it was best for the child to continue living with her and B .R. As to any excuse for the acts or omissions of the pare nt, Appellant contends that he did not know the child had been living with Appellee s and that they later preve nted him from seeing

or supporting her. Howeve r, even afte r Appellant knew wher e t h e child was living, there was no evidenc e that Appe llant sent any thing to Appellee s to support the child, that he tried to g o to their home to see the child, or that he a sked the c ourt to allow his visit ation.

Viewing the evidenc e in the light most favor able to the court’s f in d in g s , a n d a s s u mi ng that the cour

t resolved a

ny disputed fac ts in favor of its finding s, we c onclude that the court c ould have formed a firm belief or conviction that termination of Appellant’s pare ntal ri gh t s was in the child’s best intere st. See Tex. F am. Code § 161.001(b)( 2). F urther, c onsidering the entire rec ord,

we conclude that any disputed evidenc e could have been rec onciled in favor of the court’s finding s, such that the court could have formed a firm belief o r co n v i ct i o n that termination of Appellant’s
p ar en t al rig hts was in the child’s best interest. Thus, the evidenc e in this rec ord is leg ally an d fac tually sufficie nt to support the court’s best-intere st finding under section 161.0 0 1 (b)(2) of the
Family Code. We overr

ule Appellant’ s third issue.

CONCLUSION We affir m the district court’s fina l order of termination.

12J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin Affir med Filed: Mar ch 6, 2018

13