A. W. v. K. R.

NUMBER 13-05-00312-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI B EDINBURG A.W., Appellant, v. K.R., Appellee. On appeal from the 94th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Rodriguez, and Garza Memorandum Opinion by Justice Hinojosa This is an appeal from the trial court=s judgment terminating the parent-child relationship between appellant, A.W., and his daughter, Z.R. In six issues, appellant contends (1) the evidence is legally and factually insufficient to support the trial court=s judgment of termination, (2) the trial court erred in denying appellant the opportunity to prove ineffective assistance of counsel, (3) the trial court erred in denying reasonable visitation periods, and (4) the trial court erred in terminating visitation between appellant and Z.R. We reverse the trial court=s judgment, render in part, and remand in part. A. Factual Background Appellant and appellee, K.R., are the natural parents of Z.R., who was born on September 5, 2001. Appellant and appellee dated for approximately five years. Appellee moved to the Houston area while appellant remained in Corpus Christi. When appellee discovered that she was pregnant, she telephoned appellant and told him of the pregnancy. Appellant questioned the paternity of the child because appellee had previously claimed appellant was the father of another child, and he paid for the medical expenses. However, after the birth of that child, appellee informed appellant that he was not the father. Nonetheless, in April 2001, appellant traveled to the Houston area, where appellee was then residing, to see her. When appellee discovered that appellant was living with another woman in Corpus Christi, she demanded that he leave and told him that she never wanted to see him again. Appellant left and did not return to Houston until the birth of Z.R. in September 2001. He did, however, send appellee a Mother=s Day card while she was pregnant. Upon the birth of Z.R., appellant sent flowers to appellee, congratulating her on the birth of Aour child.@ He then traveled to appellee=s residence in Houston, and once again was ordered to leave or the police would be summoned. Appellee filed suit to terminate appellant=s parent-child relationship with Z.R. on August 5, 2002. Appellant filed a counterclaim requesting paternity testing to establish parentage, and if determined that he was the father of Z.R., that orders of conservatorship and child support be established. DNA testing confirmed appellant was the father of Z.R., and on January 9, 2003, temporary orders were signed declaring appellant to be the father of Z.R., granting him possession of Z.R., and ordering him to pay child support for the child. Following a jury trial on appellee=s petition for termination, the jury found by clear and convincing evidence that appellant Avoluntarily, and with knowledge of the pregnancy, abandoned the child=s mother beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth,@ and that Atermination of the parent-child relationship between [appellant] and the child . . . is in the best interest of the child.@ See Tex. Fam. Code Ann. ' 161.001(1)(H), (2) (Vernon 2002). In conformity with the jury=s verdict, the trial court terminated appellant=s parental rights. B. Sufficiency of the Evidence In his first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury=s finding on the issue of abandonment. Thus, appellant argues, the trial court erred in signing a judgment terminating his parental rights. To terminate parental rights, the fact finder must find by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. ' 161.001(1)‑(2) (Vernon 2002). In conducting a legal sufficiency review in a parental-termination case: [A] court should 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. To give appropriate deference to the fact finder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Therefore, in conducting a legal sufficiency review in a parental-termination case, we must consider all of the evidence, not just that which favors the verdict. In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). A legal sufficiency challenge may be sustained when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by the rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. In re D.J.J., 178 S.W.3d 424, 428 (Tex. App.BFort Worth 2005, no pet.). Abandonment by a parent is the intentional relinquishment of a known right B it must be voluntary, absolute, and must amount to total desertion. Lashbrook v. Altum, 391 S.W.2d 549, 552 (Tex. Civ. App.BAustin 1965, no writ). Appellant asserts there is no evidence in the record that he voluntarily and intentionally abandoned Z.R. and her mother. Appellant testified that when appellee informed him of the pregnancy, he questioned whether he was the father because appellee had previously told him that he was the father of another child; he paid the expenses for the birth of that child, only to find out after the child=s birth that he was not the father. Appellant told appellee that because she had already lied to him about the other child, he wanted a paternity test, and appellee responded that she would be willing to cooperate. Appellant testified that at one point during appellee=s pregnancy, she ordered him to leave her residence or she would call the police. He stayed away until the birth of Z.R., when he again attempted to visit appellee; again he was told by appellee to leave or the police would be summoned. After this incident, he felt it was in his best interest to utilize the legal system to get access to the child and establish child support. He testified that he filed proceedings through the Texas Attorney General=s office in Nueces County in October 2001, but the case was transferred to Harris County, where the child was residing. Appellant received notification of appellee=s petition to terminate when he read it in the newspaper. He testified that he then retained counsel to file a counterclaim to determine if he was the father and, if so, that he wanted to be involved in his child=s life. Appellant=s testimony regarding the above facts was uncontroverted. In fact, appellee admitted that she told appellant to leave her alone and that she never wanted to see him again. Appellee testified that she discovered he was living with another woman in Corpus Christi, and AI wasn=t going to be pregnant with his child up there [in Houston] when he was living with somebody else here [in Corpus Christi].@ Because section 161.001(1)(H) of the family code is written in the conjunctive, the jury was required to find by clear and convincing evidence that appellant did all of the following: (1) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through birth, (2) failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and (3) remained apart from the child or failed to support the child since the birth. See Tex. Fam. Code Ann. ' 161.001(1)(H) (Vernon 2002). In addition, the jury was required to find by clear and convincing evidence that termination of the parent-child relationship was in the best interest of the child. See Tex. Fam. Code Ann. ' 161.001(2) (Vernon 2002). The evidence in the record shows (1) that appellee told appellant to leave her alone, (2) that she never wanted to see him again, and (3) if he returned, she would call the police. The evidence conclusively establishes that appellant did not voluntarily abandon appellee during her pregnancy. Because there is no evidence of voluntary abandonment, we hold the evidence is legally insufficient to support the jury=s finding of voluntary abandonment. Accordingly, appellant=s first and second issues are sustained. C. Temporary Orders In his fifth and sixth issues, appellant complains the trial court erred by not allowing reasonable visitation periods and by terminating visitation. However, the orders appellant complains of were temporary orders, and temporary orders are superceded by the entry of a final judgment and cease to be valid subsisting orders. See Rafferty v. Finstad, 903 S.W.2d 374, 378 (Tex. App.BHouston [1st Dist.] 1995, writ denied). Because the temporary orders appellant complains of are no longer valid, we need not address appellant=s fifth and sixth issues. D. Remaining Issues In light of our disposition of the above-discussed issues, it is not necessary to address appellant=s third and fourth issues. See Tex. R. App. P. 47.1. E. Conclusion We reverse the trial court=s judgment terminating the parent-child relationship between appellant and Z.R. and render judgment that appellee take nothing by her suit. We remand the case to the trial court for consideration of appellant=s counterclaim for conservatorship and child support. FEDERICO G. HINOJOSA Justice Memorandum Opinion delivered and filed this the 20th day of July, 2006.