K.R. v. E.M.O.

Reversed and Remanded and Memorandum Opinion filed June 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00157-CV

K. R., Appellant
V.
E. M. O., Appellee

On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2022-01970

MEMORANDUM OPINION

In this appeal from a final order denying K.R.’s (Mother’s) petition for the
termination of the parental rights of alleged father, E.M.O. (Father), with respect to
his alleged daughter Z.S.R. (Zara),1 who was five years old at the time of the final
hearing, Mother’s sole issue on appeal is that the trial court erred because its denial
of her request for termination was not supported by legally or factually sufficient

1
To protect the minor’s identity, we have not used the actual names of the child, parents,
or other family members. See Tex. R. App. P. 9.8.
evidence.2 We conclude the trial court erred and remand the case to the trial court
for proceedings limited to the rendition of a final order terminating E.M.O.’s
parental rights as an alleged father. See Tex. R. App. P. 43.3(a).

I. BACKGROUND 3

Mother gave birth to Zara in February 2017 when Mother was thirteen years
old. Mother and Father were in a relationship at the time Mother became pregnant;
however, Mother alleges that Father was 22 years old at the time.

In January 2022, Mother filed a petition seeking the termination of Father’s
parental rights. As grounds, Mother alleges that Father (1) executed an affidavit of
voluntary relinquishment and (2) engaged in conduct that constitutes an offense

2
Mother’s description of her issues on appeal is internally inconsistent. However, we
construe her appellate brief to raise a single overarching issue supported by several
subarguments. See Tex. R. App. P. 38.9 (briefing rules construed liberally); Perry v. Cohen, 272
S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs are to be construed reasonably, yet liberally, so
that the right to appellate review is not lost by waiver.”). However, her subarguments do not
assign error on the part of the trial court:
ISSUE 1: Did [Mother] establish as a matter of law that [Father]
committed an aggravated sexual assault, resulting in her pregnancy with [Zara]?
In the alternative, was the trial court’s finding that [Mother] did not establish by
clear and convincing evidence that [Father] sexually assaulted her contrary to the
overwhelming weight of the evidence?
ISSUE 2: Did [Mother] establish as a matter of law that termination of
[Father’s] parental rights is in [Zara’s] best interest? In the alternative, was the
trial court’s finding that termination was not in [Zara’s] best interest contrary to
the overwhelming weight of the evidence?
ISSUE 3: Was [Mother] required to formally establish [Father’s] paternity
before his parental rights could be terminated?
Mother focuses heavily in her brief on her argument that termination was appropriate
because of Father’s alleged sexual assault of Mother when she was a minor. However, Mother’s
appellate arguments are also expressed in her summary of the argument which clearly articulates
that the final order of the trial court is contrary to the evidence.
3
Father has not filed an appellee’s brief; accordingly, we accept as true the facts stated in
Mother’s appellant’s brief if those facts are supported by the appellate record because Father has
not contradicted them. Tex. R. App. P. 38.1(g).

2
under Penal Code section 22.021. She further alleges that termination is in the best
interest of Zara, who was five years old at the time of the final hearing in
November 2022.4 Father did not appear or answer, although he provided to Mother
an affidavit voluntarily relinquishing his parental rights, of which the trial court
took judicial notice.5 The trial court appointed an amicus attorney to represent the
interests of the child.

Mother testified at trial that Father has not seen Zara since Zara was two
years old. Father has never provided regular financial support for Zara. Mother
also testified to her concern that Father poses a threat to Zara’s safety, because of
his history with Mother and because of unusual behavior Zara displayed when
Father was around. Mother also testified that Father has long been involved in
criminal activity and used controlled substances.

The amicus attorney, although not called as a witness, also made a statement
at trial. The amicus attorney believed that termination of Father’s parental rights
was in Zara’s best interest because of Father’s lack of interest in a relationship with
her, his inability to support Zara, as well as Father’s alleged criminal and gang
history. The amicus attorney stated that Zara appears to be “happy and well taken
care of by [Mother].”

After trial, the trial court signed an order denying Mother’s petition to
terminate Father’s parental rights. Although the trial court acknowledged that
Father signed a voluntarily relinquishment of his parental rights, the trial court
concluded: (1) “Termination of Respondent’s parental rights based on the Father’s
Affidavit for Voluntary Relinquishment of Parental Rights is not in the best

4
We refer to the final hearing as the “trial.”
5
The Department of Family Protective Services was not involved in this case in the trial
court and is similarly not involved in this appeal.

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interest of the child” and (2) “No grounds for involuntary termination of the
parent-child relationship recognized by the laws of this state were pled.”

The trial court later filed additional findings of fact and conclusions of law
stating: (1) “Termination of Respondent’s parental rights based on Texas Family
Code 161.007, was not in the best interest of the child” and (2) “Petitioner did not
prove by clear and convincing evidence that Respondent has engaged in conduct
that constitutes an offense under Section 22.021 of the Penal Code.”

II. ANALYSIS

A. Standard of review

Suits to terminate parental rights can be filed by multiple parties, including a
governmental entity—such as the Department of Family and Protective Services—
and the child’s other parent. See Tex. Fam. Code Ann. § 102.003(a)(1), (5), (6).

Involuntary termination of parental rights is a serious proceeding implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); see In re M.S., 115 S.W.3d 534,
547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and
strictly construe the involuntary termination statutes in favor of the parent. Holick,
685 S.W.2d at 20.

When reviewing the legal sufficiency of the evidence in a termination case,
the appellate court should look at all the evidence in the light most favorable to the
trial court’s 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., 96
S.W.3d 256, 266 (Tex. 2002). To give appropriate deference to the fact-finder’s

4
conclusions, we must assume that the fact-finder resolved disputed facts in favor of
its finding if a reasonable fact-finder could do so. Id. We disregard all evidence
that a reasonable fact-finder could have disbelieved or found to have been not
credible, but we do not disregard undisputed facts. Id. If, after conducting a
legal-sufficiency review, we determine that no reasonable fact-finder could have
formed a firm belief or conviction that the matter that must be proven was true,
then the evidence is legally insufficient, and we must reverse. In re K.M.L., 443
S.W.3d 101, 113 (Tex. 2014) (citing In re J.F.C., 96 S.W.3d at 266).

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
J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a
fact-finder could reasonably form a firm belief or conviction about the truth of the
petitioner’s allegations. Id. We must also consider whether disputed evidence is
such that a reasonable fact-finder could not have resolved the disputed evidence in
favor of its finding. Id. If, in light of the entire record, the disputed evidence that a
reasonable fact-finder could not have credited in favor of the finding is so
significant that a fact-finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient. Id.

B. Alleged father

Mother’s pleadings describe Father as an alleged father, not a presumed
father or an adjudicated father. Mother’s testimony at trial further establishes this
characterization as (1) she was never married to Father, (2) Father did not live with
Mother and Zara for the first two years of Zara’s life, and (3) there has been no
paternity testing establishing Father’s paternity. See Tex. Fam. Code Ann.
§ 101.0015 (“‘Alleged father’ means a man who alleges himself to be, or is alleged
to be, the genetic father or a possible genetic father of a child, but whose paternity

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has not been determined.”); see also Tex. Fam. Code Ann. § 160.204(1), (5) (“A
man is presumed to be the father of a child if . . . he is married to the mother of the
child and the child is born during the marriage” or “during the first two years of the
child’s life, he continuously resided in the household in which the child resided
and he represented to others that the child was his own.”).

The Family Code allows the rights of an alleged biological father to be
terminated without confirmation of paternity. See Tex. Fam. Code Ann. § 161.002.
Although generally subject to the same “procedural and substantive standards” as
apply to the termination of parental rights, termination of the rights of an alleged
father are governed by separate procedural rules. Tex. Fam. Code Ann.
§ 161.002(a). As relevant here, the rights of an alleged father may be terminated if
“after being served with citation, he does not respond by timely filing an admission
of paternity or a counterclaim for paternity under Chapter 160[.]” Tex. Fam. Code
Ann. § 161.002(b)(1). 6

C. Grounds

Although Father was never served, Mother’s petition was accompanied by
an affidavit for voluntary relinquishment of parental rights which contained the
following waiver of service:

I fully understand that a lawsuit will be promptly filed in a court of
competent jurisdiction to terminate forever the parent-child
relationship between me and the child named above. . . . Because I do

6
If the child is over one year of age when the petition is filed, an alleged father’s parental
rights may be terminated if the alleged father “has not registered with the paternity registry under
Chapter 160.” Tex. Fam. Code Ann. § 161.002(b)(2); see Interest of L.N.A.H., 665 S.W.3d 907,
911 (Tex. App.—Houston [14th Dist.] 2023, no pet.). “The termination of the rights of an
alleged father . . . does not require personal service of citation or citation by publication . . . and
there is no requirement to identify or locate an alleged father who has not registered with the
paternity registry under Chapter 160.” Tex. Fam. Code Ann. § 161.002(c-1). However, Mother
offered no evidence or argument concerning the paternity registry.

6
not want to testify in person before the Court, I freely and voluntarily
waive and give up my right to the issuance, service, and return of
citation, notice, and all other process in any suit to terminate my
parental rights or in any suit to terminate my parental rights joined
with a suit to adopt.
See Tex. Fam. Code Ann. § 161.103(c)(1) (affidavit of voluntary relinquishment of
parental rights “may contain . . . a waiver of process in a suit to terminate the
parent-child relationship filed under this chapter or in a suit to terminate joined
with a petition for adoption”); see also Tex. Fam. Code Ann. § 161.109(b) (“In a
proceeding to terminate parental rights in which the alleged or probable father has
not been personally served with citation or signed an affidavit of relinquishment or
an affidavit of waiver of interest, the court may not terminate the parental rights of
the alleged or probable father” unless certificate from vital statistics unit states that
diligent search has been made of paternity registry).

Mother’s live pleading identified Father as an alleged Father and sought
termination of his rights because of his voluntary relinquishment and his conduct
that resulted in Mother’s pregnancy.7 At trial, Mother asked the trial court to
terminate Father’s parental rights based on the grounds in her live pleadings, which
were also discussed at trial in Mother’s testimony. Father never signed an
admission of paternity or a counterclaim for paternity. To the contrary, Father
agreed to waive service of Mother’s petition for termination and agreed to
voluntarily relinquish any parental rights he might have as an alleged father. 8

7
Mother’s live pleading does not limit her termination grounds to any specific statutory
grounds.
8
Father’s affidavit was not admitted into evidence at trial. However, Mother testified that
Father voluntarily relinquished his parental rights and the sworn voluntary relinquishment was
filed in the court’s records. The trial court took judicial notice of the relinquishment stating in its
findings of fact that Father executed an “Affidavit for Voluntary Relinquishment of Parental
Rights before the suit was filed” and that the relinquishment “complied with Texas Family Code
161.103.”

7
Section 161.002(b), allowing for termination of the rights of an alleged
father, does not have a requirement that termination be in the best interests of the
child. Tex. Fam. Code Ann. § 161.002(b)(1). Therefore, Mother met her burden to
terminate any parental rights Father had as an alleged father by producing and
filing his affidavit relinquishing his parental rights and waiving service. 9, 10

There was no disputed evidence at trial. The only evidence received at trial
could only have supported a firm belief or conviction about the truth of the
petitioner’s allegations—that the termination of Father’s rights was warranted, as
an alleged biological father.11 See In re J.F.C., 96 S.W.3d at 266; Tex. Fam. Code
Ann. § 161.002. Therefore, no evidence was adduced that supports the trial court’s
final order denying termination of Father’s rights as an alleged father.

We sustain Mother’s sole issue on appeal.

9
We need not address Mother’s grounds that Father’s parental rights should be
terminated pursuant to Family Code section 161.007 on the basis that Father sexually assaulted
Mother when she was a minor. Further, we also note that section 161.007 applies only to the
termination of the rights of a “parent,” which is statutorily defined to include “a man presumed
to be the father, a man legally determined to be the father, a man who has been adjudicated to be
the father by a court of competent jurisdiction, a man who has acknowledged his paternity under
applicable law, or an adoptive mother or father.” See Tex. Fam. Code Ann. § 161.007. The
definition of parent does not include an alleged father, who has not acknowledged his paternity.
See id.
10
A presumed father or a father who has acknowledged his paternity can relinquish his
rights under section 161.001(b(1))(K), which provides grounds for termination so long as
termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2),
.103.
11
Although the trial court signed findings of fact and conclusions of law, as well as
additional findings of fact and conclusions of law, the trial court’s conclusions conflict with its
findings of fact because the trial court’s findings of fact support the conclusion termination was
warranted.

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III. CONCLUSION

Having sustained Mother’s appellate issue, we reverse the final order of the
trial court. Because the evidence before the trial court could only have supported a
firm belief or conviction that termination was warranted, we reverse the final order
and remand the case to the trial court for proceedings limited to (1) the rendition of
a final order terminating E.M.O.’s parental rights as an alleged father and (2) any
ancillary proceedings and orders necessary to render that final order. See Tex. R.
App. P. 43.3(a).

/s/ Charles A. Spain
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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