in the Interest of A.L.M., a Child
10-17-00167-CV
| Tex. App. | Nov 29, 2017Background
- Mother (Brandi) filed a petition to terminate Enrique's parental rights to A.L.M. on December 16, 2016; final hearing April 21, 2017.
- Trial court found Enrique failed to support the child under Tex. Fam. Code § 161.001(b)(1)(F) and that termination was in the child’s best interest; also ordered a name change.
- Enrique had a child support order beginning March 2013; wage withholding produced regular payments until Feb 2016, became sporadic thereafter, and stopped after a June 2016 payment.
- Enrique was incarcerated in August 2016 on revocation/new charges and was transferred to TDCJ before the final hearing; he did not appear.
- Evidence: mother testified about payment record from the attorney general showing dates/amounts; she knew Enrique had been terminated from employment at some point but there was no proof of other income or ability to pay, especially during incarceration.
- The court of appeals found the evidence factually insufficient to prove Enrique failed to support the child in accordance with his ability for the statutory period and reversed the termination portion of the judgment; it affirmed the name-change order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was clear and convincing that Enrique failed to support the child "during a period of one year ending within six months of the filing of the petition" under § 161.001(b)(1)(F) | Brandi: Enrique failed to support the child from March 2016–March 2017 (encompassing dates within six months of filing) | Enrique: Evidence insufficient to show failure to support for the required 12-month period or that he had ability to pay during that time | Reversed: evidence factually insufficient to prove failure-to-support under § 161.001(b)(1)(F) because mother failed to prove Enrique's ability to pay for the months at issue, especially during incarceration |
Key Cases Cited
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (clarifies clear-and-convincing factual-sufficiency review in parental-termination cases)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (standard for whether a factfinder could reasonably form a firm belief under clear-and-convincing evidence)
- In re N.A.F., 282 S.W.3d 113 (Tex. App.—Waco 2009) (burden to prove ability to pay under § 161.001(b)(1)(F))
- Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976) (obligation to prove failure to pay in accordance with ability)