In re Interest of E.J.R.

• Decision Date: 29 September 2016
• Docket Number: NUMBER 13–16–00302–CV
• Citation: 503 S.W.3d 536
• Parties: IN the INTEREST OF E.J.R., a Child
• Court: Texas Court of Appeals

503 S.W.3d 536

IN the INTEREST OF E.J.R., a Child

NUMBER 13–16–00302–CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed September 29, 2016.

Brandy Voss Wingate, Attorney at Law, McAllen, TX, for Appellant.

Juan Jose Ibarra, Alamo, TX, Appellee (pro se).

Before Chief Justice Valdez and Justices Rodriguez and Benavides

OPINION

Opinion by Justice Rodriguez

Appellant N.L.C. and appellee J.J.I. are the biological parents of E.J.R., a child.¹ At N.L.C.'s request, J.J.I. signed an irrevocable affidavit relinquishing his parental rights, and N.L.C. filed a petition seeking to terminate the parent-child relationship between J.J.I. and E.J.R. However, J.J.I. appeared at the hearing on N.L.C.'s petition and testified that he did not want to lose his rights as E.J.R.'s parent. The trial court denied N.L.C.'s petition, allowing J.J.I. to retain his parental rights. By four issues on appeal, N.L.C. contends that in view of J.J.I.'s affidavit, the trial court erred in denying her petition.² We affirm.

I. BACKGROUND

The following is undisputed. On October 23, 2013, N.L.C. gave birth to E.J.R. At the time of the birth, N.L.C. was married to J.C., but N.L.C. suspected that J.J.I. was the biological father. In November 2013, a DNA test confirmed that J.J.I. was the biological father of E.J.R. J.J.I. was also married at the time of the conception and birth of E.J.R., but he subsequently divorced. J.J.I. is now remarried and has three other children. The Attorney General brought a paternity suit against J.J.I., and in September 2014, J.J.I. was adjudicated as the biological father of E.J.R. The trial court appointed N.L.C. as sole managing conservator and J.J.I. as possessory conservator. The court implemented a graduated visitation program for J.J.I., beginning with twenty periods of supervised visitation until the child was at least two years of age.

On January 14, 2016, J.J.I. executed a document titled Father's Affidavit for Voluntary Relinquishment of Parental Rights, pursuant to the Texas Family Code (the "Affidavit"). See TEX. FAM. CODE ANN. § 161.103 (West, Westlaw through 2015 R.S.). In the Affidavit, J.J.I. attested, "I freely and voluntarily give and relinquish to N.L.C. all my parental rights and duties" with respect to E.J.R. The Affidavit designated N.L.C. as managing conservator, and it further stated that "[t]ermination of the parent-child relationship is in the best interest of the child." The Affidavit set out, in bold font, "This affidavit is revocable only if the revocation is made before the eleventh day after the date the affidavit is executed."

On January 25, 2016, N.L.C. filed a petition seeking the termination of the parent-child relationship between J.J.I. and N.L.C. Attached to the petition was J.J.I.'s Affidavit. The trial court heard N.L.C.'s petition on May 2, 2016. J.J.I. appeared at the hearing and testified pro se. He did not deny that he had validly executed the Affidavit under the family code or claim that he had revoked the Affidavit. Instead, he testified that he loved and had spent time with his daughter, but that N.L.C. had made supervised visitations so difficult that he had reluctantly executed the Affidavit at N.L.C.'s request, believing it would be better for E.J.R. to be adopted by N.L.C.'s husband J.C. He testified, however, that this was a mistake and he wished to retain a role in his daughter's life. J.J.I. stated that he had brought many of his family members to meet E.J.R., including his mother and three other children, and he showed the trial judge several photos of the time he spent with E.J.R. He also admitted that he had been behind on child support obligations which had accrued from E.J.R.'s birth until the 2014 order adjudicating paternity, but attested that he completely caught up on his obligations once he was adjudicated as the father. According to J.J.I., he had attempted to spend more time with E.J.R., but N.L.C. had taken lengthy leaves of absence from Cameron County, had refused J.J.I.'s request for unsupervised visits at his home, and had unilaterally discontinued supervised visitation at the previous location—the home of N.L.C.'s parents—and insisted that J.J.I. pay to arrange supervision at a different location.

For her part, N.L.C. testified that J.J.I. had been only minimally involved in E.J.R.'s life; whereas the order adjudicating paternity had granted him the right to regular four-hour visitations, she testified that he often visited E.J.R. for one to two hours. She testified that after E.J.R. was born, J.J.I. had "stalled the court dates" for the attorney general's suit concerning paternity and child support obligations for nearly a year, and that his primary concern was paying child support. Finally, counsel for N.L.C. argued that it was N.L.C.'s right to refuse unsupervised visitations because J.J.I. had allegedly not completed the number of supervised visits required under the 2014 order adjudicating paternity.

At the conclusion of the hearing, the trial court denied N.L.C.'s petition for termination. The trial court entered the following relevant findings of fact:

2. The court finds Respondent [J.J.I.] loves his child;

3. The court finds Respondent has been deprived from exercising his right to see his child as granted to him in the court decree;

4. The court finds Respondent is frustrated with the inability to see and visit his daughter;

5. The court finds Respondent testified in open court that he does not want to relinquish his parental rights if he is allowed to see his child;

6. The court finds Respondent's signing of the relinquishment of parental rights was motivated by his inability to see his child and said frustration led to his reluctant signing of the relinquishment and termination of parental rights affidavit;

7. The court finds Respondent would not have shown up to the court hearing had he wanted to terminate his parental rights;

8. The court finds the child will have two families who love the child—her mom and her stepfather and her dad and his family;

9. The court finds it is in the best interest of the child to keep the child's father in the child's life.

N.L.C. filed this appeal shortly before the trial court entered its finding and conclusions.

II. LEGAL EFFECT OF AN IRREVOCABLE AFFIDAVIT OF RELINQUISHMENT

N.L.C.'s first, second, and fourth issues on appeal are related, and we take them up together. By her first issue, N.L.C. argues that the trial court reversibly erred by "setting aside" J.J.I.'s Affidavit. By her second issue, N.L.C. argues that an affidavit of relinquishment is, standing alone and per se , clear and convincing evidence which conclusively establishes that termination is in a child's best interest. By her fourth issue, N.L.C. argues that it was J.J.I.'s burden to satisfy the trial court that termination was inappropriate and that in light of the Affidavit, J.J.I.'s evidence on this point was legally and factually insufficient.

A. Standard of Review and Applicable Law

"A parent's right to the companionship, care, custody, and management of [his] children is a constitutional interest far more precious than any property right." In re D.S.P. , 210 S.W.3d 776, 778 (Tex. App.–Corpus Christi 2006, no pet.) (quoting Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ) (internal quotations omitted). Because of the fundamental rights at issue, due process requires that termination be supported by clear and convincing evidence. In re K.M.L. , 443 S.W.3d 101, 112 (Tex. 2014) ; In re L.J.N. , 329 S.W.3d 667, 671 (Tex. App.–Corpus Christi 2010, no pet.). Clear and convincing evidence is "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." TEX. FAM. CODE ANN. § 101.007 (West, Westlaw through 2015 R.S.); In re P.R.W. , 493 S.W.3d 738, 742 (Tex. App.–Corpus Christi 2016, no pet.).

Before parental rights may be involuntarily terminated, the trier of fact must find two elements by clear and convincing evidence: (1) that the parent committed one of the statutory acts found in section 161.001(1) of the family code, and (2) that termination is in the children's best interest. TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through 2015 R.S.); In re E.N.C. , 384 S.W.3d 796, 803 (Tex. 2012). The filing of an irrevocable or unrevoked affidavit of relinquishment is one of the statutory acts that may serve as grounds for involuntary termination under section 161.001(1). TEX. FAM. CODE ANN. § 161.001(1)(K) ; Vallejo v. Tex. Dep't of Family & Protective Servs. , 280 S.W.3d 917, 918–19 (Tex. App.–Austin 2009, no pet.). As the petitioner, N.L.C. bore the burden to prove the grounds for termination by clear and convincing evidence. See Burns v. Burns , 434 S.W.3d 223, 227 (Tex. App.–Houston [1st Dist.] 2014, no pet.).

N.L.C. challenges the legal and factual sufficiency of the evidence supporting the trial court's decision. When "a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); In re A.L.D.H. , 373 S.W.3d 187, 192 (Tex. App.–Amarillo 2012, pet. denied) (applying this standard to the denial of a petition for parental termination). For a legal sufficiency challenge in a parental termination suit, we review the entire record in the light most favorable to the finding of the trier of fact, assuming that the trier of fact resolved disputed facts in favor of its finding if a reasonable factfinder could do so. In re A.L.D.H. , 373 S.W.3d at 193 ; see In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). We will sustain N.L.C.'s legal sufficiency challenge and reverse the adverse finding only if, as a matter of law, N.L.C.'s evidence conclusively establishes...