Opinions, June 16, 2015

The Fourteenth Court of Appeals released its published opinion in In re A.L.H., Cause Nos. 14-14-01029-CV and 14-104-01030-CV (Tex.App.–Houston [14th Dist.] Jun. 16, 2015) in which the Court of Appeals affirmed the termination of a mother’s parental rights but reversed as to the father. The mother had executed a notarized affidavit of relinquishment of her parental rights which stated termination would be in the best interest of the child. On appeal, she asserted the affidavit was executed involuntarily, but presented no evidence in support of that claim. Her issues were overruled. The father asserted that the evidence was legally and factually insufficient to support the trial court’s judgment of termination on either of the two statutory grounds for termination, i.e. Tex. Fam. Code sec. 161.001(1)((D) (placing the child in dangerous conditions) and (N)(constructive abandonment). As to endangerment, the Court of Appeals found DFPS presented no evidence of the child’s environment at the time of removal or that the father had knowledge of the child’s environment. Constructive abandonment requires clear and convincing evidence that the child has been in state custody for six months and three necessary elements (“(1) the Department made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained significant contact with the child; and (3) the parent has demonstrated an inability to provide the child with a safe environment.”). If the evidence is legally insufficient on any of the elements, the termination finding cannot be sustained. The Court of Appeals found that the evidence presented at trial was insufficient to support the trial court’s conclusion on the first element, that DFPS took reasonable efforts to return the child to the father. At trial, the caseworker testified that the father did not visit with the child throughout the case, did not request visitation, and did not provide anything for the child’s care or support. The father did not comply with court orders to establish paternity and did not appear at trial or any of the hearings. DFPS argued that its actions to serve the father with notice of the suit and the trial court’s orders to establish the father’s paternity were evidence of the department’s reasonable efforts. The Court of Appeals disagreed. Additionally, the department argues its efforts to place the child with an aunt in Arizona constituted reasonable efforts, but the record reflected the aunt testified she would not allow the parents to have any contact with the child, which the Court of Appeals found negated the department’s argument. The termination of the father’s rights was reversed.

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