in the Interest of J.V.M., a Child ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

In the Interest of J.V.M., a child

No. 11-04-00066-CV -- Appeal from Taylor County

Ernesto Cerda appeals the trial court=s order which terminated his parent-child relationship with J.V.M., a child.  We affirm.

Susan Molina Sanchez and her husband, Richard Sanchez, filed a petition to terminate the parental rights of the mother and father of J.V.M.  Susan=s sister is the mother of the child, and appellant is the father.   Appellant did not agree to the termination of his parental rights.  At appellant=s request, an attorney was appointed to represent him in these proceedings.  The trial court overruled appellant=s motion for bench warrant and ordered that he could present his Atestimony by way of telephonic questions and answers@ and Aby way of affidavit, letters, or the like.@  Appellant=s counsel was appointed in August of 2003, and the termination hearing was in February of 2004.  Both petitioners were represented by counsel who announced ready for trial; the child=s mother was present, and she announced ready for trial; and appellant was represented by his court-appointed counsel.  Only two persons testified at the hearing, but the trial court admitted into evidence six exhibits which contain eight letters which appellant mailed from the Institutional Division of the Texas Department of Criminal Justice.

                                                              Petitioner=s Testimony

Richard testified that his wife, Susan, is the sister of the child=s mother.  They have had J.V.M. in their home since the little girl was 15 months old; at the time of the hearing, she was almost six years old.  Richard agreed that appellant was the father of J.V.M.

Richard said that appellant was Aincarcerated in the penitentiary,@ and judgments of conviction were introduced which show that appellant had been confined for a term of five years which began on April 13, 1998, and for a second term of ten years which began after the completion of the five-year term.  The 1998 conviction was for attempted sexual assault, and the second offense was for sexual assault.  Richard testified that termination of the parental rights would be in the best interest of the child, and Richard asked that he and Susan be appointed as managing conservators of the child.  Richard said that Susan was not able to attend the hearing because she works for the State and was attending a school in Gainesville.

                                                      Testimony by Mother of J.V.M.

Jessica Dora Molina is 22 years old.  She is the mother of J.V.M., the child who is the subject of these termination proceedings.  Jessica said that her daughter was born on April 8, 1998, and she agreed  that appellant is the father of J.V.M.

Jessica testified that it would be in the best interest of J.V.M. to terminate her  parental rights, to terminate the parental rights of appellant, and to appoint Susan and Richard as managing conservators of the child.  Susan is Jessica=s sister, and Richard is Jessica=s brother-in-law.  Jessica said that J.V.M. refers to them as Amother and father or mommy and daddy.@ Jessica also said that she sees J.V.M. from time to time and that the child is Adoing well.@

                                                              Appellant=s Evidence

After petitioners rested, appellant=s court-appointed lawyer introduced eight letters which appellant had mailed to the lawyer while appellant was in the penitentiary.  Appellant=s lawyer also said in open court that none of appellant=s family or friends had ever contacted him even though he had told appellant Arepeatedly by letter@ that appellant should have any potential witnesses contact the lawyer immediately.

The first letter was not dated, but it was mailed on October 10, 2003.  Appellant said in this letter that he had received the termination papers, that he had not heard anything from his father, but  that he knew a couple who would care for his child during his incarceration.  Appellant also said in this letter that, while he was on parole (in January of 2000 while serving the five-year sentence),  he attempted to see his daughter, that Jessica would not tell him where J.V.M. was living, and that all of his attempts to visit his child were hindered by Jessica and other family members.

The second letter was dated December 3, 2003. Appellant told his lawyer in this letter that he thought  it was Aimmoral@ and Acruel and unusual punishment@ for him to be refused the right to be present for the termination hearing.

The third letter was dated December 12, 2003. Appellant said that he was willing for his daughter to Astay in temporary custody@ with Susan and Richard with the condition that his father and his grandmother have visitation rights, that he be allowed an Aopen line of direct com-munication@ with Susan and Richard, and that his child=s last name be changed to Cerda.  Appellant also offered to begin the payment of child support (without making a showing of any ability to make those payments) and asked for copies of all of the court records and transcripts to which he was entitled as an Aindigent.@

The fourth exhibit contained two letters which were dated January 5, 2004.  Appellant said in one of them that he had sent the lawyer=s request for information to members of appellant=s family and that it was his hope and prayer Athat they will contact you immediately.@  Appellant said in the other letter dated January 5, 2004, that Susan and Richard have Abeen in custody of my daughter@ since she was an infant and that neither of them have ever met him.

The fifth exhibit was a letter dated January 15, 2004, in which appellant asked his lawyer to request the court to permit the taking of his deposition.

The sixth exhibit contained two letters dated January 26, 2004.  One letter was addressed to appellant=s court-appointed counsel, and it contained the names and addresses of family and friends who Amight@  be witnesses for him.  The other letter was addressed to the judge, and it contains these statements which appellant made to the trial court:

There is no doubt in my mind that [Susan and Richard] are very loving & caring people & that they have taken wonderful care of [J.V.M.] since she was an infant. [They] took my daughter into their home & have raised her as their own & I am very grateful to them for that since I was in no position no matter how much I wanted to care for [her] myself....I=m not trying to have my daughter removed from where she is at, I just don=t want to lose her.  I have suffered for the last few years of my life knowing that I had a daughter that I didn=t know & who didn=t even know I existed.  I am begging the court not to take my child from me.  All I want is to get visits with her....I truely (sic) do feel that a child should at least be giving (sic) the chance to know both her mother=s & father=s side of the family.

                                                         Issues for Appellate Review

Appellant presents two issues for appellate review, arguing that the evidence was both Alegally insufficient@ and Afactually insufficient@ to support the trial court=s order which terminated his parent-child relationship with J.V.M.

                                                              Standards of Review

While the Texas Supreme Court has Agreat respect for the biological bond between parent and child@ and has held that the Anatural right which exists between parents and their children is one of constitutional dimensions,@ it has also held that Athe rights of natural parents are not absolute@ and that Aprotection of the child is paramount.@  See, e.g., In the Interest of J.W.T., 872 S.W.2d 189, 194-95 (Tex.1994).

The Texas Supreme Court has made it clear that the Aappellate standard@ for reviewing the factual sufficiency of the evidence in proceedings to terminate the parental rights of a parent to a child is:

[W]hether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth [of the allegations in the petition for termination]. (Emphasis added)

In re C.H., 89 S.W.3d 17, 25 (Tex.2002); see also In re A.V., 113 S.W.3d 355, 361 (Tex.2003), and In re J.F.C., 96 S.W.3d 256, 264 (Tex.2002).

TEX. FAM. CODE ANN. ' 161.001 (Vernon 2002) provides in relevant part that a trial court may order the termination of the parent-child relationship if the trial court finds by Aclear and convincing evidence@ that the parent has committed a predicate act or omission harmful to the child and that termination is in the best interest of the child.  Section 161.001; In re B.L.D., 113 S.W.3d 340, 353-54 (Tex.2003).  Any complaint that the evidence is legally or factually insufficient to support the findings necessary for termination is analyzed by a heightened standard of appellate review.  In re B.L.D., supra.

In a legal sufficiency review, we 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.  In re J.F.C., supra at 266.  A reviewing court must assume that the fact finder resolved disputed facts in favor of its finding.  In re J.F.C., supra.  In a factual sufficiency review, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing.  In re C.H., supra.  In reviewing the factual sufficiency of the evidence, 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., supra.  We consider whether 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., supra at 266.

One of the predicate acts shown in Section 161.001 is that a parent has knowingly engaged in criminal conduct which has resulted in the parent=s conviction of an offense which causes the parent=s confinement or imprisonment and inability to care for the child for not less than two years from the date of filing of the petition for termination.  Section 161.001(2).  Further, the trial court must find by clear and convincing evidence that Atermination is in the best interest of the child.@  Section 161.001(2).

                                                              Trial Court=s Findings

The trial court=s order shows that the court Afound by clear and convincing evidence@ that appellant knowingly engaged in criminal conduct which 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 after the petition for termination was filed.  The trial court=s order shows that the court found Aby clear and convincing evidence@ that termination of the parent-child relationship between appellant and J.V.M. was in the best interest of the child.

                                                                  Appellate Ruling

The evidence which was before the trial court has been Astrictly scrutinized@ by this court, and we find that it was both legally and factually sufficient for the trial court to form a firm belief or conviction that appellant had knowingly engaged in criminal conduct which resulted in his conviction, confinement, and inability to care for his child and also to form a firm belief or conviction that termination of his parent-child relationship with the child was in the best interest of the child.  In re A.V., supra; In re J.F.C., supra; and In re C.H., supra.  The issues are overruled.

The order of the trial court is affirmed.

BOB DICKENSON

February 17, 2005                                                                   SENIOR JUSTICE

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Wright, J., and

McCall, J., and Dickenson, S.J.^[1]

---

^[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.