In re B.S.W.

• Decision Date: 18 September 2002
• Docket Number: No. 06-01-00111-CV.,06-01-00111-CV.
• Citation: 87 S.W.3d 766
• Parties: In the Interest of B.S.W., A Child.
• Court: Texas Court of Appeals

87 S.W.3d 766

In the Interest of B.S.W., A Child.

No. 06-01-00111-CV.

Court of Appeals of Texas, Texarkana.

Submitted August 6, 2002.

Decided September 18, 2002.

Ebb B. Mobley, Longview, for appellant.

Andy Porter, Quita Russell, Asst. Dist. Attys., Longview, for appellee.

Before MORRISS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice GRANT.

S.E.W., the alleged father of B.S.W., appeals the trial court's termination of his parental rights. S.E.W. contends the trial court erred when it denied his request for a paternity test. S.E.W. also contends the evidence is legally and factually insufficient to support the termination of parental rights.

T.A.W. left her two children, B.S.W. and E.N.P., with a sitter and failed to return for them. The State took possession of both children and filed suit to justify that action and to provide a legal basis on which to provide care for the children. In the State's initial petition, the father of B.S.W. is listed as unknown. The State terminated the parental rights of the mother. At some point the State, through the mother, determined that S.E.W., a prison inmate, might possibly be the father of B.S.W. On April 4, 1998, S.E.W. pleaded guilty to the offense of robbery and received an eight-year sentence.

On May 2, 2001, the State filed an amended petition seeking to terminate the parental rights of S.E.W. and had him personally served. There is no answer or response from S.E.W. to the State's petition in the clerk's record; however, S.E.W. sent a letter to the State's attorney stating that he was answering the case and that he wanted "to know how my daughter is doing." S.E.W. received court-appointed counsel for the termination hearing and testified via telephone at the hearing. At no time did S.E.W. officially acknowledge paternity of B.S.W. before the court, though in his letter to the State's attorney, he did ask how his daughter was doing. At the termination hearing, S.E.W. requested genetic testing. S.E.W. neither denied nor admitted paternity.

In S.E.W.'s first point of error, he contends the trial court committed reversible error when it denied his request for a paternity test. The State in its petition requested a determination of parentage and specifically requested the trial court to order a parentage test under Section 160.102 of the Family Code if S.E.W. denied paternity. TEX. FAM.CODE ANN. § 160.102, amended by Act of May 25, 2001, 77th Leg., RS., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610 (current version found at TEX. FAM.CODE ANN. § 160.502 (Vernon Supp.2002)). Because this action commenced before the effective date of the Uniform Parentage Act, we look to the law at the time the proceeding was commenced. Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 3.02, 2001 Tex. Gen. Laws 1642. In a suit to determine parentage, the Family Code requires, "When the respondent appears in a parentage suit, the court shall order the mother, an alleged father, and the child to submit to the taking of blood, body fluid, or tissue samples for the purpose of scientifically accepted parentage testing." TEX. FAM.CODE ANN. § 160.102(a) (Vernon 1996). Though not required under Section 160.102(a), S.E.W. requested genetic testing. The trial court never ordered the parentage test.

The language of the statute is mandatory. Under Chapter 160, when determining parentage, the trial court shall order parentage testing. The trial court erred in failing to order a parentage test when the State requested a determination of parentage under Chapter 160.

Though the trial court erred in failing to order the testing, S.E.W. does not make any argument in his brief as to how this error harmed him. In order to be reversible error, we must conclude that the failure to grant the parentage test probably caused the rendition of an improper judgment or probably prevented S.E.W. from properly presenting the case to the court of appeals. TEX.R.APP. P. 44.1. S.E.W. had the burden to show the error probably caused the rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Crescendo Invs. v. Brice, 61 S.W.3d 465, 477 (Tex. App.-San Antonio 2001, pet. denied). Although S.E.W. did not admit paternity before the trial court and requested a paternity test, he requested custody of the child, and his letter to the State's attorney referred to B.S.W. as "my daughter." S.E.W. testified he went with the child's mother to the hospital when she found she was pregnant and lived with her, providing her a home, until he went to jail. He testified his mother helped support B.S.W. by caring for her for over a year. S.E.W. listed his mother as a possible placement for the child, but his mother did not come forward. In his brief, S.E.W. offers no argument as to how the defense of his case would have been altered by a positive paternity test. The State presented evidence S.E.W. had been incarcerated for more than two years and had not cared for the child since her birth. Because S.E.W. failed to meet his burden to show the error probably caused the rendition of an improper judgment, we overrule his first point of error.

In his second point of error, S.E.W. contends the evidence is legally insufficient to support the termination of his parental rights. The trial court filed findings of fact stating there is a "substantial probability" that S.E.W. is the biological father of B.S.W., that it is in the best interest of B.S.W. to terminate S.E.W.'s parental rights, if any exist, and that S.E.W. knowingly engaged in conduct that resulted in his conviction and confinement or imprisonment and inability to care for B.S.W. for not less than two years from the date of the filing of the petition, May 2, 2001. Section 161.001 provides for the involuntary termination of the parent-child relationship. Specifically, the relationship may be terminated if the parent "knowingly engaged in criminal conduct that has resulted in the parent's: 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 filing the petition" and that "termination is in the best interest of the child." TEX. FAM. CODE ANN. § 161.001(1)(q), (2) (Vernon Supp.2002).

In order to terminate the parent-child relationship, the party seeking to terminate the relationship must establish each of the elements by clear and convincing evidence. TEX. FAM.CODE ANN. § 161.001. The appellate standard for reviewing termination findings has recently been set out in detail by the Texas Supreme Court in In re C.H., 89 S.W.3d 17 (Tex.2002). The standard for our review in determining whether clear and convincing evidence has been provided to justify termination is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. Id. at 25-26; see TEX. FAM. CODE ANN. § 101.007 (Vernon 1996) ("`Clear and convincing evidence' means the measure or 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."). The Court reasoned that this provides a standard that "focuses on whether a reasonable jury could form a firm conviction or belief [yet] retains the deference an appellate court must have for the factfinder's role." In re C.H., at 26.

In reaching this conclusion, the Court explicitly rejected standards "that retain the traditional factual sufficiency standard while attempting to accommodate the clear-and-convincing burden of proof." Id.; see, e.g., In re WC., 56 S.W.3d 863, 868 n. 3 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Leal v. Tex. Dep't of Protective and Regulatory Servs., 25 S.W.3d 315, 321 (Tex.App.-Austin 2000, no pet.). The Court also disapproved of a test articulated in several cases which stated that a court of appeals must determine whether a reasonable trier of fact could conclude that the existence of a disputed fact is "highly probable." In re C.H., at 26.

Under this review, the Court emphasized we must maintain the respective constitutional roles of juries and appellate courts.

"An appellate court's review must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." Id. See Santosky, 455 U.S. at 767-69, 102 S.Ct. 1388 (holding that "beyond reasonable doubt" standard not required in termination cases). While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.

Id. at 26.

The evidence clearly shows S.E.W. is currently incarcerated on an eight-year sentence for robbery. S.E.W. challenges the trial court's finding that he is unable to care for the child "for not less than two years from the date of filing the petition." TEX. FAM CODE ANN. § 161.001(1)(q). S.E.W. contends the statute acts prospectively and the State had to prove his sentence would not expire for at least two years after the filing of the live petition on May 2, 2001. In re I.V., 61 S.W.3d 789, 798 (Tex.App.-Corpus Christi 2001, no pet.), the court applied the prospective view. However, the Waco, Fort Worth, and El Paso courts have all adopted the opposite view, looking backward from the filing of the petition to see if the parent had been incarcerated for two years before the filing of the petition. In re A.L.S., 74 S.W.3d 173, 176 (Tex.App.-El Paso 2002); In re A.R.R., 61 S.W.3d at 700; In re A.V, 57 S.W.3d 51, 60 (Tex.App.-Waco 2001, pet. filed). We adopt the statutory interpretation expressed by Fort Worth, Waco, and El Paso which requires a petitioner to prove that a respondent knowingly committed criminal conduct resulting in the respondent's imprisonment and inability...