Summary
holding evidence legally and factually sufficient to support best interest finding when father had limited contact with child
Summary of this case from In re K.H.Opinion
No. 11-05-00094-CV
Opinion filed March 23, 2006.
On Appeal from the 35th District Court Brown County, Texas, Trial Court Cause No. 02-12-711.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
Donald Wayne Barron Jr. appeals the trial court's order terminating his parental rights to his daughter, J.L.R. We affirm.
Barron argues in four issues on appeal that the evidence is legally and factually insufficient to support the trial court's order of termination. We review these propositions under a heightened standard. In our review of a legal insufficiency claim, we will examine all of the evidence in the light most favorable to the finding and determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Phillips v. Texas Dep't of Protective and Regulatory Servs., 149 S.W.3d 814 (Tex.App.-Eastland 2004, no pet.). We must assume that the fact-finder resolved disputed facts in favor of its finding. In re J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, we will give due consideration to evidence that the fact-finder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Phillips, 149 S.W.3d at 817. We determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d at 25. We also consider whether any disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266.
The trial court found by clear and convincing evidence that Barron had:
b. voluntarily, and with knowledge of the pregnancy, abandoned the child's mother beginning at a time during her pregnancy with the child 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 birth.
TEX. FAM. CODE ANN. § 161.001(1)(H) (Vernon Supp. 2005).
c. knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of this petition is filed.
TEX. FAM. CODE ANN. § 161.001(1)(Q) (Vernon Supp. 2005).
The trial court further found that termination of Barron's parental rights was in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(2) (Vernon Supp. 2005).
J.L.R. was born July 8, 1999; and she has lived with Rebecca Rinehart, her maternal grandmother, most of her life. On March 13, 2003, Rinehart and her daughter, Erin Michelle Cook, were named joint managing conservators of J.L.R. with Cook having the right to establish the primary residence of J.L.R. On October 27, 2003, the trial court modified its previous order and stated that Rinehart had the right to establish the primary residence of J.L.R.
Rinehart testified that Cook lived with her when J.L.R. was born and that Rinehart's insurance paid for the medical costs. Rinehart stated that Barron had no contact with J.L.R. while in Rinehart's care and that she was not aware of J.L.R. having contact with Barron while J.L.R. was in the care of Cook. Rinehart further testified that Barron has never given her any monetary support for J.L.R.
Barron testified at the hearing that Cook lived with his family for a time while she was pregnant with J.L.R. but that he did not support her while she was pregnant. Barron stated that he has not provided Rinehart any monetary support for J.L.R. although he knew Rinehart was raising J.L.R. Baron said that he has given Cook "a bunch" of support. The record shows that Barron has had little contact with J.L.R. since her birth. The record shows that Barron's family has had some contact with J.L.R. and has provided J.L.R. with some food and clothing. Barron's family has not had any contact with J.L.R. since July 2003. We find that the evidence is legally and factually sufficient to support the trial court's finding that Barron abandoned Cook while she was pregnant with J.L.R. and failed to provide adequate support or medical care for Cook during her pregnancy and for J.L.R. since her birth.
Barron testified that he was convicted of the offense of indecency with a child and has been incarcerated since November 17, 2004. Barron's sentence expiration date is November 17, 2008; however, Barron testified that he could be released on May 19, 2006, if he receives credit for "good time." The petition to terminate Barron's parental rights was filed on August 6, 2004. Section 161.001(1)(Q) is to be read prospectively rather than retrospectively. In re A.V., 113 S.W.3d 355, 360 (Tex. 2003). Therefore, to meet the requirement of Section 161.001(1)(Q), Barron must be confined until August 6, 2006. Barron is sentenced to confinement until November 17, 2008; therefore, the trial court did not err in finding that the evidence supported termination. In re A.V., 113 S.W.3d at 360. The evidence is both legally and factually sufficient to support the trial court's finding.
Courts may use the non-exhaustive list of the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), to determine the best interest of the child. These factors include but are not limited to (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. The record shows that Rinehart has been the primary caretaker for J.L.R., that J.L.R receives counseling services while under Rinehart's care, and that Rinehart would like to adopt J.L.R. The record further shows that J.L.R. has had limited contact with Barron, that Barron has been convicted of indecency with a child, and that Barron is currently incarcerated. We find the evidence is legally and factually sufficient to support the trial court's finding that termination is in the best interest of J.L.R.
We note that, at the conclusion of the hearing on termination, the trial court stated its finding that Barron "did engage in conduct or knowingly place[d] the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child." The trial court further stated there was no evidence to support a finding that Barron "knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger[ed] the physical or emotional well-being of the child." The written order on termination states that the trial court found by clear and convincing evidence that Barron "knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger[ed] the physical or emotional well-being of the child." The trial court's oral finding that Barron engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child is not included in the trial court's written order.
Only one statutory ground is required to support a judgment of termination when there is also a finding that termination is in the best interest of the child. In re A.V., 113 S.W.3d at 362. We have found that the evidence is legally and factually sufficient to support the trial court's order of termination under Section 161.001(1)(H) and Section 161.001(1)(Q) and that the evidence is legally and factually sufficient to support the trial court's finding that termination is in the best interest of the child. Therefore, consideration of the inconsistency between the trial court's oral finding and the written order is not necessary to the disposition of this appeal. Accordingly, we need not address Barron's issue number two relating to that finding. TEX. R. APP. P. 47.1. Barron's first, third, and fourth issues on appeal are overruled.
The judgment of the trial court is affirmed.