In the Interest of C.M.C., W.K.D., Jr. & K.V.D., children--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

In the Interest of C.M.C., W.K.D., Jr., & K.V.D., children

No. 11-02-00270-CV C Appeal from Palo Pinto County

W.K.D., Jr. and K.V.D. are the biological children of Wesley Keith Davidson, Sr. The trial court entered an order terminating Davidson=s parental rights to his two children and granting the adoption of them by their stepfather.[1] Davidson appeals from the trial court=s order terminating his parental rights to W.K.D. and K.V.D., Jr. We affirm.

Davidson and the mother of W.K.D., Jr. and K.V.D. were divorced on November 3, 1999. Davidson was ordered to pay $270 per month for support of the children beginning December 1, 1999. The trial court found that Davidson had failed to pay any child support. The original petition to terminate Davidson=s parental rights to W.K.D., Jr. and K.V.D. was filed on November 2, 2001. The trial court found that Davidson failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition for termination. TEX. FAM. CODE ANN. ' 161.001(1)(F) (Vernon 2002).

In his sole issue on appeal, Davidson argues that there is no evidence that he had the ability to support his children during a one year period ending within six months of the date the petition to terminate his parental rights was filed. In reviewing a challenge to the legal sufficiency of the evidence, we consider only the evidence and inferences that tend to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. See Sherman v. First National Bank in Center, Texas, 760 S.W.2d 240 (Tex.1988); In the Interest of Z.W.C., 856 S.W.2d 281 (Tex.App. - Fort Worth 1993, no writ). We must affirm the judgment if there is any probative evidence supporting the judgment. Jacobs v. Danny Darby Real Estate, Inc., 750 S.W.2d 174 (Tex.1988); Yepma v. Stephens, 779 S.W.2d 511 (Tex.App. - Austin 1989, no writ).

The original petition for termination was filed on November 2, 2001. Therefore, the evidence must show that Davidson did not support W.K.D., Jr. and K.V.D. for one year beginning no earlier than May 2, 2000. Section 161.001(1)(F); In the Interest of Z.W.C., supra. In its findings of fact and conclusions of law, the trial court found that appellant was incarcerated August 2000 through October 2000; January 2001 through April 2001; and August 2001 through the date of the hearing, May 28, 2002. Davidson argues that, because he was incarcerated much of the time between May 2, 2000, and November 2, 2001, there is no evidence that he had the ability to pay child support during this time.

Davidson cites In the Interest of Z.W.C. as authority. In In the Interest of Z.W.C., the court noted that the record was silent as to the father=s ability to pay child support during the periods of time he was not incarcerated. Davidson also cites Yepma v. Stephens, supra, as authority. In Yepma, the court noted that less than six months of the period of nonsupport found by the trial court fell within the required time limits. Yepma v. Stephens, supra. The court also stated that the father in that case was incarcerated for more than 12 months of the relevant time period. Yepma v. Stephens, supra. The court stated that the father was unable to provide support during the time he was incarcerated but did not indicate whether he was able to pay support in the few months that he was not incarcerated. Yepma v. Stephens, supra.

However, in the present case, the trial court found that Davidson had the ability to support his children May through July 2000, November and December 2000, and May 2001 through August 2001. Davidson testified at the hearing that, in April 2000 through August 2000, he lived in Nevada and did janitorial work. From April 2001 through July 2001, he worked for his brother. During that time, Davidson was able to get his own apartment and pay insurance on his pickup. Inability to provide support during some months will not interrupt the running of the one year period if no effort is made to pay support during the other months. In the Interest of S.K.S., 648 S.W.2d 402 (Tex.App. - San Antonio 1983, no writ); McGowen v. State, 558 S.W.2d 561 (Tex.Civ.App. - Houston [14th Dist.] 1977, writ ref=d n.r.e.); see also Brazier v. Brazier, 597 S.W.2d 442 (Tex.Civ.App. - Beaumont 1980, no writ). We find that the evidence is legally sufficient to support the trial court=s findings. Davidson=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

March 6, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The trial court=s order also grants the adoption of C.M.C. by his stepmother. C.M.C. is not the biological child of Davidson, and the order granting the adoption of C.M.C. is not the subject of this appeal.