Opinion
No. 09-04-365 CV
Submitted on April 21, 2005.
Opinion Delivered May 5, 2005.
On Appeal from the 217th District Court, Angelina County, Texas, Trial Cause No. Cv-37,071-04-01.
Affirmed.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
John Goff appeals the termination of his parental rights to E.A.G. and A.K.G. The sole point of error raised on appeal challenges the legal and factual sufficiency of the evidence establishing the four grounds for termination alleged in the petition filed by the mother of the children. We address three of those grounds, find them to be legally and factually sufficient, and affirm the judgment.
In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). If we determine that no reasonable factfinder could form a firm belief or conviction of the truth of the matter in controversy, we must conclude that the evidence is legally insufficient and render judgment for the appealing parent. Id. In addressing the factual sufficiency of the evidence, we consider whether, in light of the entire record, the disputed evidence is so significant that the trier of fact could not reasonably have formed a firm belief or conviction about the truth of the allegations. Id. If the evidence is factually insufficient, the appealing parent is entitled to a new trial.
The trial court found Goff: (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (2) failed to support the children in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition; (3) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the children beginning at a time during her pregnancy with the younger of the two children and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth; and (4) knowingly engaged in criminal conduct that resulted in the parent's conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition. TEX. FAM. CODE ANN. § 161.001 (1)(E),(F),(H) and (Q) (Vernon 2002). The trial court found termination to be in the best interest of the children. Tex. Fam. Code Ann. § 161.001 (2) (Vernon 2002). We may affirm the judgment if the trier of fact could have reasonably formed a firm belief of the truth of any of the Section 161.001(1) predicate findings alleged by the petitioner and that termination would be in the best interest of the children. In the Interest of A.V. J.V., 113 S.W.3d 355, 362 (Tex. 2003); In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002).
We turn first to the findings regarding failure to support. The trial court found the appellant failed to support his two children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition, and also found that Goff abandoned the petitioner during her second pregnancy. A longstanding drug addiction affected not only Goff's earning power, but also his spending habits. The appellee testified Goff abused alcohol and engaged in the use of illegal drugs while he was released on parole in 1995 and 1996. The appellee divorced him when he failed to achieve sobriety. An eventual reconciliation resulted in the birth of E.A.G. in 1999, but the Goffs again separated. That year Goff was using crack, in violation of his parole, and was jailed. A.K.G. was conceived during a brief subsequent reconciliation, apparently while Goff awaited a parole revocation hearing. They separated after the appellant emptied their bank account for drugs and alcohol and left the appellee without food or money. Although out on parole at the time and engaged in full time employment for $15 per hour, Goff admitted he provided no support to the appellee during her second pregnancy. The appellant also admitted that the appellee informed him she was going to Nacogdoches, near where her parents lived, and that he knew where they lived. The appellee admitted she did not remain with her parents, but testified that the appellant knew where she was and called her several times and threatened her. By September 2001, he had been charged with having committed new offenses. The appellant has been incarcerated since the fall of 2001. The appellee divorced the appellant a second time in 2002. Although ordered to pay child support in the divorce decree, Goff did not meet the obligation and there is an arrearage as a result of the court order. He provided no support at all until January 2004, the month the appellee filed the petition to terminate. The appellant contends he did not abandon the pregnant mother because she is the one who left the relationship. He does not challenge the finding that he failed to support the children for the one year period before the filing of the petition, but notes that he began sending money immediately afterwards.
The trial court also found that Goff knowingly engaged in criminal conduct that resulted in conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition. Goff was convicted of robbery and burglary of a habitation in 1992, and was on parole when he became a father. Goff was charged with assault and burglary in 2001 and his parole was revoked around the time of the birth of his second child. His mandatory release date is May 17, 2008. Incarceration alone does not show inability to care for the children. In the Interest of B.M.R., 84 S.W.3d 814, 818 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Among the factors to be considered are the availability of financial and emotional support from the incarcerated parent. Id. Courts have also considered the availability of family members to assume the incarcerated parent's role as possessory conservator. In the Interest of E.S.S., 131 S.W.3d 632, 640 (Tex.App.-Fort Worth 2004, no pet.). In this case, Goff obtained employment in prison, for which he receives wages of $1.27 per hour. Goff paid about half of his earnings to the petitioner each month between filing the petition in January 2004 and the trial in June 2004, for a total of "possibly" $500. This modest financial support is the full extent of the care Goff would offer his children over the ensuing years, were his rights not terminated. There is no evidence that Goff's family assists him in caring for the children. The caregiver for the children is the person who is seeking termination of Goff's parental rights. She remarried in August 2003, and her husband is the children's father figure and source of emotional and financial support. Goff concedes he cannot physically care for his children, but argues he has a limited financial and emotional ability to care for his children. Goff compares his situation to soldiers at war, but fails to take into account that his situation is the direct result of his criminal conduct.
After reviewing the evidence in the light most favorable to the judgment, we conclude that the trial court could have reasonably formed a firm belief of the truth of the petitioner's allegations of non-support. In addition, when the evidence is viewed in a neutral light, and considering the appellant's efforts to provide support and his explanations for his conduct, the disputed evidence is not so strong as to cast doubt on the trial court's conclusions. Although the petitioner is the one who moved out of their home, the trial court could have reasonably found that she did so to escape the dire emotional and financial consequences of the appellant's continuing course of criminal behavior. The appellant's failure to provide for the financial and emotional needs of the children preceded his incarceration and became irreversible with the revocation of his parole. As a direct result of his criminal behavior, Goff provided no financial support for the year before the filing of the petition. Although the appellant provided modest financial support after the filing of the petition, the trial court could have reasonably concluded that a few hundred dollars is not adequate support for two children. In addition, Goff articulated no concrete plans for meeting his obligations as a possessory conservator. The appellee will not voluntarily bring the children to prison to see him, and there is no evidence that he sought to exercise his possessory rights, through an intermediary or otherwise.
The appellant mentions the non-exhaustive factors for reviewing the court's finding that termination is in the best interest of the children, but does not apply those factors to the facts of his case. We conclude the trial court's finding is supported by the evidence. The petitioner provides a stable home and the sole source of the children's emotional support. Her husband is their father figure and intends to adopt the children. The appellant demonstrated concern for the children, but cannot meet their needs and has no concrete plan for doing so in the future.
In reviewing the finding that termination of parental rights is in the best interest of the children, we consider the non-exhaustive list of elements described in Holley v. Adams: 1) the desires of the children; 2) their present and future physical and emotional needs; 3) the present and future emotional and physical danger to the children; 4) the parental ability of the individuals seeking custody; 5) the programs available to assist these individuals in promoting the best interest of the children; 6) the plans for the children by the individuals seeking custody; 7) the stability of the home; 8) the parent's acts or omissions that may indicate the existing parent-child relationship is not a proper one; and 9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
We find no error in the judgment. Accordingly, the judgment is affirmed.