In the Interest of A.S., a Child v. the State of Texas

In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-25-00645-CV
     ___________________________

  IN THE INTEREST OF A.S., A CHILD



  On Appeal from the 90th District Court
         Young County, Texas
         Trial Court No. 33125


   Before Kerr, Womack, and Wallach, JJ.
   Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      Appellee Mother filed a petition to terminate Appellant Father’s parental rights

to their child, A.S. 1 Following a bench trial, the trial court signed an order terminating

Father’s parental rights. In this ultra-accelerated appeal,2 Father contends in two issues

that the evidence is legally and factually insufficient to support (1) the trial court’s

Section 161.001(b)(1)(F) finding that he failed to support A.S. in accordance with his

ability during a one-year period ending within six months of the date that the petition

was filed and (2) the trial court’s best-interest finding. See Tex. Fam. Code Ann.

§ 161.001(b)(1)(F), (2). We will affirm.

                                    I. BACKGROUND

      Although they never married, Mother and Father had a child, A.S., together.

Before A.S. turned two years old, Mother and Father broke up and began living in

separate cities. Currently, Father lives in Magnolia, Texas, with his fiancée, and

Mother lives near her family in Graham, Texas.

      In 2021, Mother and Father obtained a court order setting forth their rights and

responsibilities regarding A.S. As amended in 2022, this order provided that Mother

      1
        We refer to the child by her initials and to other family members by their
relationship to the child. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
      2
        See Tex. R. Jud. Admin. 6.2(a), reprinted in Tex. Gov’t Code Ann., tit. 2,
subtit. F app. (requiring appellate court to dispose of appeal from judgment
terminating parental rights, so far as reasonably possible, within 180 days after notice
of appeal is filed).


                                            2
and Father were A.S.’s joint managing conservators and that Mother had the exclusive

right to designate A.S.’s primary residence in Graham. Under the order’s possession

schedule, Father had the right to possess A.S. two weekends per month, one of which

must be spent in Graham. Father was also required to pay Mother $500 per month in

child support.

      In June 2023, Mother filed a petition to modify the parent–child relationship in

which she asked the trial court to suspend Father’s possession rights pending a

mental-health evaluation and to allow Father only supervised visits following the

evaluation’s completion. In August 2023, Father filed a counterpetition requesting a

decrease in his child-support obligation. In September 2023, the parties entered into a

Rule 11 agreement requiring Mother and Father to undergo psychological evaluations

and suspending Father’s in-person access to A.S. pending the results of his

mental-health evaluation. A.S. has not seen Father in person since that time.

      In February 2025, Mother amended her petition to include a request to

terminate Father’s parental rights to A.S.

      In November 2025, the trial court conducted a bench trial on the parties’

petitions, including Mother’s petition to terminate Father’s parental rights. Following

the trial, the trial court found by clear and convincing evidence that Father had failed

to support A.S. in accordance with his ability during a period of one year ending

within six months of the date that Mother had filed her termination petition and that

the termination of Father’s parental rights was in A.S.’s best interest. See Tex. Fam.

                                             3
Code Ann. § 161.001(b)(1)(F), (2). Based on these findings, the trial court signed an

order terminating Father’s parental rights. At Father’s request, the trial court issued

findings of fact and conclusions of law. This appeal followed.

                                    II. DISCUSSION

A. Applicable Law and Standard of Review

       For a trial court to terminate a parent–child relationship, the party seeking

termination must prove two elements by clear and convincing evidence: (1) that the

parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and

(2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);

In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Evidence is clear and convincing if it

“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; Z.N.,

602 S.W.3d at 545.

      Due process demands the heightened standard of clear and convincing

evidence because “[a] parental rights termination proceeding encumbers a value ‘far

more precious than any property right.’” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012)

(quoting Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982)); In re

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In re E.N.C., 384 S.W.3d 796, 802 (Tex.

2012). In a termination case, the petitioner seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights, privileges,

duties, and powers normally existing between them, except the child’s right to inherit.

                                            4
Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Consequently, “[w]hen [a party] seeks to sever permanently the relationship between a

parent and a child, it must first observe fundamentally fair procedures.” E.R.,

385 S.W.3d at 554 (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92). For the

same reason, we carefully scrutinize termination proceedings and strictly construe

involuntary-termination statutes in the parent’s favor. E.N.C., 384 S.W.3d at 802;

E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20–21.

      To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged finding

to determine whether a reasonable factfinder could form a firm belief or conviction

that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,

but they must be reasonable and logical. Id. We assume that the factfinder settled any

evidentiary conflicts in favor of its finding if a reasonable factfinder could have done

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved,

and we consider undisputed evidence even if it is contrary to the finding. Id.; J.F.C.,

96 S.W.3d at 266. That is, we consider evidence favorable to the finding if a

reasonable factfinder could, and we disregard contrary evidence unless a reasonable

factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is

the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336,

346 (Tex. 2009).



                                           5
      We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder’s findings and do not supplant them with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide

whether a factfinder could reasonably form a firm conviction or belief that the

petitioner proved one or more of the conduct-specific grounds on which the

termination was based and that the termination of the parent–child relationship would

be in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H.,

89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm

conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–

19.

      There is a strong presumption that keeping a child with a parent is in the child’s

best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review the entire record

to determine the child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).

The same evidence may be probative of both a Subsection (b)(1) predicate ground

and best interest. Id. at 249; C.H., 89 S.W.3d at 28. Factors that the trier of fact in a

termination case may also use in determining the best interest of the child include

(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

                                           6
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 that 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 v. Adams, 544 S.W.2d 367, 371–

72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest

finding, “we consider, among other evidence, the Holley factors” (footnote omitted));

E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some listed factors

may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed

evidence of just one factor may be sufficient to support a finding that termination is

in the child’s best interest. Id.

B. Sufficient Evidence Supports the Subsection (F) Predicate-Ground Finding

       In his first issue, Father contends that the trial court’s Subsection (F)

predicate-ground finding is supported by legally and factually insufficient evidence.

We disagree.

       “A trial court may terminate a parent’s rights under [S]ubsection (F) if it finds,

by clear and convincing evidence, that the parent failed to support the child in

accordance with the parent’s ability during a period of one year ending within six

months of the date of the filing of the petition.” In re I.M.S., 679 S.W.3d 704,

716 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (citing Tex. Fam. Code Ann.

§ 161.001(b)(1)(F)). “One year” means twelve consecutive months. Id. Because the

                                           7
one-year period must end within six months of the date that the termination petition

was filed, logically, it must begin no earlier than eighteen months before that date. See

In re J.G.S., 574 S.W.3d 101, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied);

see also In re F.E.N., 542 S.W.3d 752, 765 (Tex. App.—Houston [14th Dist.] 2018, pet.

denied) (concluding that relevant time period under Subsection (F) was “any twelve

consecutive months” between September 1, 2011, and March 1, 2013, which was date

termination petition was filed), pet. denied, 579 S.W.3d 74 (Tex. 2019) (per curiam).

      The party seeking termination bears the burden to establish that the parent had

the ability to support the child during each month of the twelve-month period. In re

Z.W.C., 856 S.W.2d 281, 282–83 (Tex. App.—Fort Worth 1993, no writ); accord J.G.S.,

574 S.W.3d at 117; In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no

pet.); In re T.B.D., 223 S.W.3d 515, 518 (Tex. App.—Amarillo 2006, no pet.). A

previous child-support order is not evidence of a parent’s ability to pay under

Subsection (F). In re D.M.D., 363 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.]

2012, no pet.); In re D.S.P., 210 S.W.3d 776, 781 (Tex. App.—Corpus Christi–

Edinburg 2006, no pet.) (concluding that child-support order “should not be afforded

any relevance in a termination proceeding involving [Subsection (F)]”). Without clear

and convincing evidence of the parent’s ability to support the child during the

statutory period, the trial court may not order termination under Subsection (F).

J.G.S., 574 S.W.3d at 117.



                                            8
      Father argues that the evidence is insufficient to support the trial court’s

Subsection (F) finding because he testified that in 2024 3 he earned an amount roughly

equal to the yearly earnings of a full-time minimum-wage worker and because he

made child-support payments of “around $200[] per month,” an amount

approximating what such a full-time minimum-wage earner with two children would

be required to pay under the current child-support guidelines.4 See Tex. Fam. Code

Ann. § 154.125. This argument is flawed on multiple levels. First, Father testified that

in 2024 he earned between $20,000 and $26,000,5 an amount far exceeding a full-time

minimum-wage      income.    See Vanderbol v.      Vanderbol,   No.   02-23-00230-CV,

2024 WL 1925141, at *3 (Tex. App.—Fort Worth May 2, 2024, pet. denied) (mem.

op.) (calculating that a worker earning “the federal minimum wage for a 40-hour

week” would earn “approximately $15,080 per year” (citations omitted)). Second,

Father did not make child-support payments of “around $200[] per month” in 2024;

rather, he paid only $1,000 for the entire year—that is, approximately $83 per month.


      3
        Because Mother filed her termination petition in February 2025, the
twelve-month period beginning in January 2024 and ending in December 2024 falls
within Subsection (F)’s parameters. See Tex. Fam. Code Ann. § 161.001(b)(1)(F);
J.G.S., 574 S.W.3d at 117.
      4
        Father has another child with a different mother, and he has separate
child-support obligations to her. Thus, at the time of trial, he had the duty to support
two children.
      5
       Father testified that he earned $15,000 to $20,000 in 2023 and that he earned
“[m]aybe five or six grand more” in 2024.


                                           9
      And reviewing the record as a whole, we conclude that there is ample evidence

to support the trial court’s Subsection (F) predicate-ground finding. Indeed, Father

explicitly admitted that he could have paid more in support than he actually did in

2024. 6 This admission alone constitutes sufficient evidence that he failed to support

A.S. in accordance with his ability during the relevant time period. Cf. In re T.L.R.,

No. 02-12-00004-CV, 2012 WL 4010402, at *4 (Tex. App.—Fort Worth Sept. 13,

2012, no pet.) (mem. op.) (holding that “appellant’s explicit admissions that he [had]

failed to complete certain aspects of the service plan” constituted legally and factually

sufficient evidence to support the jury’s predicate-ground finding under former

Subsection (O)); In re E.V., No. 04-05-00620-CV, 2005 WL 3297029, at *1 (Tex.

App.—San Antonio Dec. 7, 2005, no pet.) (mem. op.) (same). Additionally, Father

testified that he has minimal monthly expenses because his fiancée pays all of their

bills, including rent, electricity, gas, and water, and acknowledged that “each and every

month” of 2024 he paid $600—an amount exceeding his child-support obligation for

A.S.—to lease a trailer to haul motorcycles and equipment before “voluntar[il]y




      6
         In his brief, Father asserts that “this was a general statement” and that “there
is no evidence about the relevant time period” to which he was referring when he
testified that he could have paid more in child support than he actually paid. But the
record belies this assertion. During cross-examination, Mother’s counsel specifically
asked Father whether he “could have paid more than” the “total of 1,000 big dollars
[that he paid] for the entire year of 2024,” and Father answered in the affirmative.


                                           10
return[ing]” it to the lessor in January 2025.7 He also agreed that because he is a

mechanic and has worked in the oil field, he could find a better-paying job if he

wanted one. See In re D.S.P., 210 S.W.3d 776, 782 (Tex. App.—Corpus Christi–

Edinburg 2006, no pet.) (recognizing that a finding that a parent’s “inability to pay

[was] the result of the parent’s conscious choice” could support termination on

Subsection (F) grounds but concluding that, based upon the record in that particular

case, appellees had failed to present evidence showing that “appellant’s inability to

support [was] the result of her own doing”); cf. In re W.C.S., No. 04-21-00269-CV,

2022 WL 2821076, at *2 (Tex. App.—San Antonio July 20, 2022, no pet.) (mem. op.)

(“[A] court may take a parent’s earning potential into account when determining the

amount of child support the parent must pay.” (quoting In re M.A.G.,

No. 04-01-00347-CV, 2002 WL 501657, at *3 (Tex. App.—San Antonio Apr. 3, 2002,

no pet.) (not designated for publication))).

      Considering all of the evidence discussed above and the remainder of the

record, we conclude that the trial court reasonably could have formed a firm belief or

conviction that Father failed to support A.S. in accordance with his ability during the

relevant time period. See Tex. Fam. Code Ann. § 161.001(b)(1)(F). Accordingly, the



      Father claimed that this $600 per month lease obligation was a business
      7

expense because he “was trying to grow [his motorcycle-repair] business” by attending
motocross events. But he also testified that he rode in motocross events “for fun” as
a “hobby” and that he used the trailer at events that he rode in.


                                           11
evidence is factually sufficient to support the trial court’s Subsection (F)

predicate-ground finding. 8 See C.H., 89 S.W.3d at 18–19.

       We overrule Father’s first issue.

C. Sufficient Evidence Supports the Trial Court’s Best-Interest Finding

       In his second issue, Father contends that the evidence is legally and factually

insufficient to support the trial court’s best-interest finding. Again, we disagree.

       The record reflects that A.S. does not want to visit Father or even to speak

with him on the phone, a factor that weighs in favor of the trial court’s best-interest

finding. See Holley, 544 S.W.2d at 371–72. As early as 2023, A.S. began jumping in the

back seat of Mother’s car to hide from Father when he came to pick her up for his

possession time. When A.S. went to visit Father during spring break of that same year,

Father left A.S. with some people that she did not know while he went to work. This

made A.S. uncomfortable, and she FaceTimed Mother “bawling and crying” to tell

her that she wanted to come home and that “[s]he didn’t want to be there anymore.”

Since then, A.S. has generally refused to answer Father’s calls and has explained to her

psychologist that she does not want to talk to Father because she does not feel like he

“puts out any effort,” so she is not going to do so either. According to A.S.’s maternal

grandmother, A.S. constantly refuses to take Father’s phone calls and becomes mean


       Because we conclude that the evidence is factually sufficient, we necessarily
       8

conclude that it is also legally sufficient. See S.B. v. Tex. Dep’t of Fam. & Protective Servs.,
654 S.W.3d 246, 252 & n.2 (Tex. App.—Austin 2022, pets. denied).


                                              12
and anxious when she is encouraged to answer them. A.S. also told her psychologist

that she does not like going to Father’s house because he would frequently fight with

his fiancée and would not enforce certain rules that A.S. knew Mother wanted her to

follow. 9

       Further, the record reflects that A.S.’s visits to Father’s home generally had a

negative emotional impact on her. Her first-grade teacher testified that after visiting

Father, A.S. was often distracted, tired, grumpy, and struggled to get her schoolwork

done. According to the teacher, A.S. “wasn’t her same [self]” when she returned from

her visits with Father; she did not relate to her peers the same way and was more

isolated. A.S.’s maternal grandmother also testified that A.S. suffered emotionally

from her visits with Father and that she “didn’t come back as our grandchild.”

According to her grandmother, A.S. would be “agitated, very, very stressed out,” and

“short” with family members, and she would often “act out” after returning from

these visits. A.S. also began wetting the bed when she returned from visits with Father

and needed therapy to help her deal with this issue.




       9
         Father makes much of the fact that A.S.’s psychologist testified that the child
kept going “back and forth” about whether she liked going to Father’s house for
visits. But this mischaracterizes the psychologist’s testimony. Although he stated that
A.S. was going back and forth for a while, he went on to explain that the home
environment at Father’s house “progressively got worse to where it seemed like there
was more fighting there and then less rule following, and then that’s where [A.S.]
really started getting more vocal about not wanting to go.”


                                          13
      But the record reflects that A.S. has been thriving overall since she stopped

visiting Father. A.S.’s maternal grandmother testified that A.S. is “great” now that she

is not going to Father’s home for visits; she is not stressed out, makes good grades,

and is a happy child. A.S.’s current teacher confirmed that A.S. is “doing great” in

school and is “a happy kid.” See In re L.C., No. 02-24-00510-CV, 2025 WL 1774759,

at *4 (Tex. App.—Fort Worth June 26, 2025, pet. denied) (mem. op.) (holding that

the fact that the child was “flourishing in her current environment” supported trial

court’s   best-interest   finding);   see   also   In   re   I.N.D.,   No. 04-20-00121-CV,

2020 WL 2441375, at *6 (Tex. App.—San Antonio May 13, 2020, pet. denied) (mem.

op.) (considering evidence that children were doing well in foster placements in best

interest analysis). Additionally, Mother has a strong family-support system and is

taking good care of A.S. See L.C., 2025 WL 1774759, at *4 (holding that the fact that

appellee mother had “good parenting skills and [was] taking good care of the child”

supported the trial court’s best-interest finding); In re J.G.S., 550 S.W.3d 698,

705 (Tex. App.—El Paso 2018, no pet.) (concluding that the fact that the child was

“well-cared for by her aunt and uncle” and was “doing well in her placement”

supported the trial court’s finding that termination was in the child’s best interest); In

re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(considering the fact that child was being well cared for by foster parents as a factor in

best-interest determination).



                                              14
      Father claims that he “had a strong relationship” with A.S. and emphasizes that

Mother agreed that A.S. “appeared to be happy and smiling” in certain pictures taken

with Father. But given the overwhelming evidence that A.S. does not want to visit—

or even talk to—Father, that her visits with Father had a negative emotional impact

on her, and that she has been flourishing since the visits stopped, we cannot conclude

that Father’s personal view regarding the strength of his past relationship with A.S.

(before he stopped seeing her) and anecdotal evidence that A.S. looked happy in a few

pictures taken with him would preclude a factfinder from forming a firm conviction

or belief that the termination of Father’s parental rights was in A.S.’s best interest. See

C.H., 89 S.W.3d at 18–19.

      Father also claims that he “is able to provide [A.S.] a safe and stable living

environment” because he got engaged to his current fiancée in 2019 and “has lived

with her, other than a few months in 2023, since then.” But because Father depends

on his fiancée to cover all his living expenses and is not on the lease to their home, his

living situation is not as stable as he claims.10 Cf. In re M.G., No. 02-23-00074-CV,

2023 WL 4008687, at *6 (Tex. App.—Fort Worth June 15, 2023, pet. denied) (mem.

op.) (holding that because mother lived with father but was not married to him and

was not named on the apartment lease, “her living situation was subject to [f]ather’s

      10
        When asked at trial “how [he] would . . . get by on a monthly basis” if
something suddenly happened to his fiancée, Father was unable to offer any
semblance of a plan and instead vaguely stated that he would “figure out a way to
make it work.”


                                            15
whims—and         was   thus    unstable”);   In   re   A.R.B.,   No.   14-14-00146-CV,

2014 WL 2936925, at *13 (Tex. App.—Houston [14th Dist.] June 26, 2014, no pet.)

(mem. op.) (holding that father had failed to comply with his service plan’s

requirement that he find stable housing because he lived with his fiancée but was not

on the lease and “admitted that if he and [his] fiancée broke up, he would have to

depend on family and friends for support”). Further, the record reflects that Father’s

relationship with his fiancée is somewhat volatile and that they frequently fought

during A.S.’s visits, causing her significant emotional distress. Indeed, they have

already broken up once—for a period of approximately six months—and Father has

had to leave the home several times after fighting with his fiancée, including at least

one time when A.S. was visiting.

         Considering all of the evidence discussed above and the remainder of the

record, we conclude that the trial court reasonably could have formed a firm belief or

conviction that terminating Father’s parental rights was in A.S.’s best interest.

Accordingly, the evidence is legally and factually sufficient to support the trial court’s

best-interest finding. See C.H., 89 S.W.3d at 18–19.

         We overrule Father’s second issue.

                                    III. CONCLUSION

         Having overruled both of Father’s issues, we affirm the trial court’s termination

order.



                                              16
                                 /s/ Elizabeth Kerr
                                 Elizabeth Kerr
                                 Justice

Delivered: April 16, 2026




                            17