In the Interest of J. R. W., a child--Appeal from 349th District Court of Anderson County

NO. 12-02-00117-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN THE INTEREST

 
APPEAL FROM THE 349TH
JUDICIAL DISTRICT COURT OF

OF J.R.W., A CHILD

 
ANDERSON COUNTY, TEXASMEMORANDUM OPINION

Appellant Alvin Westley ("Alvin") appeals the termination of his parental rights. In two issues, Alvin argues the trial court erred by finding that termination is in the best interest of the child. We affirm.

 

Background

Christi Pugh ("Christi") and Alvin were married on July 12, 1992. J.R.W., their son and the subject of this suit, was born on February 10, 1993. On June 1, 1995, Alvin pleaded nolo contendere to three counts of indecency with a child committed in 1993. Alvin was sentenced to ten years of deferred adjudication probation, a $1,500 fine, and 240 hours of community service. (1) Additionally, Alvin was ordered to submit to drug urinalysis testing and, as a condition of his probation, attend sex offender counseling. However, on August 30, 1996, Alvin was jailed for probation violations. On November 27, 1996, Alvin's probation was revoked. As grounds for revocation, the State alleged that Alvin violated the terms of his probation by sexually molesting a child under the age of fourteen. There were allegations of six separate incidents against the child in June and August of 1996. Further, the State alleged Alvin had unsupervised contact with a person under the age of seventeen, namely the same child he allegedly molested, during three weeks in June and August of 1996. There is no evidence in the record that these allegations were ever adjudicated. Although Alvin, at one point, acknowledged the court found these allegations true, he also stated that the court simply found the allegations "reasonable enough to adjudicate me." The court sentenced Alvin to imprisonment for seventeen years. (2) Alvin has been in continuous custody since August 30, 1996 and, according to his testimony, has a mandatory release date of October 15, 2003.

Approximately one year after Alvin's incarceration, Christi filed for divorce. The divorce was final in April of 1998. Alvin testified that he was appointed possessory conservator of J.R.W. with no restrictions placed on his visitation rights. Christi testified that she and Alvin were appointed joint managing conservators of J.R.W., but she was appointed primary conservator. Alvin was ordered to pay child support. However, Alvin testified that the divorce decree stated he was unable to pay child support because he had no income or resources. On June 5, 1998, Christi married Jerry Pugh ("Jerry"), and J.R.W. has resided with them since that date. The couple has a four-year-old daughter who also resides with them.

On July 5, 2001, Christi and Jerry filed a petition for termination and adoption, requesting that Alvin's parental rights be terminated and that Jerry be permitted to adopt J.R.W. Alvin answered and appeared for trial pursuant to a bench warrant. Additionally, the court ordered Charlotte Moore ("Moore") to prepare a social study regarding J.R.W.'s circumstances and condition and assessing Christi and Jerry's home. The termination proceeding was tried before the court. After examining and hearing all of the evidence, the judge found by clear and convincing evidence that Alvin "knowingly engaged in criminal conduct (indecency with a child-three counts) that resulted in his conviction of offenses and confinement or imprisonment and inability to care for the child for not less than two years from the date the Petition was filed." He also found that termination of the parent-child relationship between Alvin and J.R.W. was in the best interest of the child. On March 23, 2002, the court signed an order terminating the parent-child relationship between Alvin and J.R.W. and granting Jerry's adoption of J.R.W. Alvin appeals the termination of his parental rights and contends that the evidence is legally and factually insufficient to support the trial court's finding that termination is in the best interest of the child.

 

Termination of Parental Rights Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). A termination decree is "complete, final, irrevocable [and] divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit." Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.-El Paso 1998, no pet.). Thus, breaking the bonds between a parent and child "can never be justified without the most solid and substantial reasons." Wiley, 543 S.W.2d at 352. Because a termination action permanently sunders those bonds, the proceedings must be strictly scrutinized. Id.; In re Shaw, 966 S.W.2d at 179. However, parental rights are not absolute, and it is vital that the emotional and physical interests of the child not be sacrificed in preserving those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

Section 161.001 of the Family Code permits a court to order termination of parental rights if two elements are established. Tex. Fam. Code Ann. 161.001 (Vernon 2002); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.-Waco 1999, no pet.), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002). First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection of the statute. Tex. Fam. Code Ann. 161.001(1) (Vernon 2002); Green v. Texas Dep't of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. Tex. Fam. Code Ann. 161.001(2) (Vernon 2002); In re J.M.T., 39 S.W.3d at 237. Additionally, both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. Tex. Fam. Code Ann. 161.001 (Vernon 2002); Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.

Due process requires a petitioner to justify termination by clear and convincing evidence because termination is such a drastic remedy. In re J.M.T., 39 S.W.3d at 237. The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. Tex. Fam. Code Ann. 161.001 (Vernon 2002); In re J.J., 911 S.W.2d at 439. Clear and convincing evidence means "the measure or degree of proof that 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 (Vernon 2002). There is a strong presumption that the best interest of the child is served by preserving the parent-child relationship. Wiley, 543 S.W.2d at 352; In re J.M.T., 39 S.W.3d at 240. Thus, the burden of proof is upon the person seeking to deprive the parent of their parental rights. In re J.M.T., 39 S.W.3d at 240.

 

Standard of Review

When confronted by both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no pet.). Because termination findings must be based on clear and convincing evidence, the standard of review is not the same on appeal as a finding based upon a preponderance of the evidence. In re J.F.C., 96 S.W.3d at 264. Therefore, in reviewing the legal sufficiency of the evidence to support termination findings, an appellate 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. Id. at 266. In order that proper deference is shown to the fact finder's role, an appellate court must presume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id. However, a reviewing court is not required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis. Id.

The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is 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. In re C.H., 89 S.W.3d at 25. In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court's findings. See id. at 28. Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id. An appellate court should specify its reasons for concluding that a reasonable trier of fact could not have resolved disputed evidence in favor of the finding. Id. at 266-67.

This standard retains the deference an appellate court must have for the fact finder's role. In re C.H., 89 S.W.3d at 26. Additionally, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st Dist.] 1997, pet. denied). Thus, our review must not be so rigorous that only fact findings established beyond a reasonable doubt could withstand review. In re C.H., 89 S.W.3d at 26. Additionally, where, as here, no findings of fact or conclusions of law were requested or filed, it is implied that the trier of fact made all the findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re T.J.S., 71 S.W.3d 452, 459 (Tex. App.-Waco 2002, pet. denied).

 

Best Interest of the Child

Alvin does not dispute the trial court's finding that he committed one of the predicate acts necessary to permit termination of his parental rights. (3) We therefore turn to the trial court's finding that termination is in the best interest of the child. In determining the best interest of the child, a number of factors have been considered including (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 to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent which 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).

This list is not exhaustive, but simply indicates considerations which have been or could be pertinent. Id. However, the best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.-Fort Worth 2001, no pet.). The Holley test focuses on the best interest of the child, not the parent's best interest. Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ). Additionally, a stepparent's desire for adoption is another consideration in determining the best interest of a child. In re J.M.T., 39 S.W.3d at 243. While incarceration is a factor in determining the best interest of a child, it is not dispositive. In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.-Houston [1st Dist.] 2002, no pet.). In determining the weight of this factor, the court should consider the expected length of an appellant's imprisonment and whether it can be inferred from an appellant's criminal conduct that he has endangered the safety of the child. Id.

 

Legal Sufficiency of the Evidence

In his first issue, Alvin argues that his conviction and sentence, allegations that he was not there as a father, and the good relationship that Christi and Jerry have with J.R.W. provide the only support for the trial court's finding. Therefore, he contends, the evidence is legally insufficient to support the trial court's finding. We use the Holley factors as a guide in conducting our review.

The desires of the child

J.R.W. did not testify. However, Christi testified that, from her observations, J.R.W. appears to enjoy his relationship with Jerry. In her report, Moore wrote that J.R.W. "was quick to tell me he wants to be adopted by his daddy (Jerry Pugh)."

The emotional and physical needs of the child now and in the future

Christi testified that J.R.W.'s physical and emotional needs are being met in her current marriage. J.R.W. takes Ritalin because he has ADD (Attention Deficit Disorder). Jerry testified that he and Christi are able to meet J.R.W.'s emotional needs and believed that they are doing a good job. Further, Jerry testified that no one in Alvin's family has contacted him to help provide financial support for J.R.W., but admits he does not know if Alvin asked his family to help support the child. Alvin does not have a relationship with J.R.W. and has no resources to contribute to J.R.W.'s support. Alvin did not specifically address J.R.W.'s future needs or his plans for meeting those needs.

The emotional and physical danger to the child now and in the future

Initially, Alvin pleaded nolo contendere to three counts of indecency with a child committed in 1993, and was assessed punishment at ten years of deferred adjudication. Approximately three years later, Alvin's parole was revoked after the State alleged he had violated the terms of his probation. The State alleged that he sexually molested a child under the age of fourteen, and had unsupervised contact with a person under the age of seventeen. The allegations described six separate incidents of molestation over two months, and unsupervised contact for three separate weeks over the same two-month period.

Christi believes Alvin is still a danger to J.R.W. despite his incarceration. Her greatest fear, based on Alvin's conviction, is that something would happen to J.R.W. if he were to stay with Alvin. However, Christi is not aware of any physical or emotional danger to J.R.W. in her current marriage. Alvin's mother, Kathleen Corbitt ("Kathleen"), testified that, if her husband had been incarcerated for sexual molestation of children, she would allow visitation, but under supervision. Likewise, she testified that it would be "okay" if Alvin's visits with his children were supervised.

The parental abilities of the individual seeking custody

Christi testified that Jerry is a father-figure to J.R.W., participates in his school activities, and treats J.R.W. like his own son. She stated that Jerry helps J.R.W. with his homework and goes hunting and fishing with him. Jerry testified that he considers J.R.W. to be his own and does not show partiality to his biological daughter. He stated that he and J.R.W. are very close and that he attends to J.R.W.'s everyday school needs.

Moore testified that Jerry and J.R.W. have had a father-son relationship for some time and that the family interacts well together. Additionally, she testified that J.R.W. is disciplined properly. Two of Jerry's friends testified that Jerry treats J.R.W. like a father would a son and no differently than he treats his daughter. Further, one friend also testified that Jerry and J.R.W. interact well together and have a very good relationship.

The programs available to assist the individual seeking custody

In order to deal with his problems, Alvin testified that he has contacted Christian people willing to help him with moral and physical support. Counseling is available at the prison eighteen months before release. Also, he has contacted a "free world" counselor about continuing counseling.

The plans for the child

There was no testimony regarding Jerry's plans for J.R.W. other than his desire to adopt J.R.W. Alvin testified that he plans to establish a relationship with J.R.W. when he is released from prison. He stated that he wants to tell J.R.W. what occurred and that it was wrong, and "to be the father that I . . . was always intending to be." Further, Alvin testified that he wants to "get on with my life."

The stability of the home

Christi testified that she believes J.R.W. has a stable home life which carries over to his school life. She believes that she and Jerry are providing a good environment for J.R.W. Both Jerry and Christi are employed by the Texas Department of Criminal Justice ("TDC"). In her written report, Moore stated that Jerry and Christi are buying their home, that it is in a rural location, and is neat and clean. Additionally, Christi and Jerry have medical and life insurance through their employer.

The acts or omissions of Alvin Westley which may indicate that the existing parent-child

relationship is not a proper one and any excuse for the acts or omissions

 

Alvin pleaded nolo contendere to three counts of indecency with a child committed in 1993 and was sentenced to deferred adjudication probation. His probation was revoked in 1996 for allegations that he sexually molested a child under the age of fourteen and had unsupervised contact with a person under the age of seventeen. He was sentenced to imprisonment for seventeen years and has been incarcerated since August 30, 1996. Alvin will be released on or about October 15, 2003. Alvin testified that only two of the original three counts of indecency with a child occurred. Alvin denied that he committed the acts alleged in the adjudication hearing. Further, Alvin testified that the children he molested were older and not his own. He testified that he realized he committed a serious offense and feels he has been punished for his crimes.

Additional evidence that termination is in the best interest of the child

Christi testified that it was in J.R.W.'s best interest for Alvin's parental rights to be terminated because, among other reasons, of the activity that caused him to be convicted of sexual molestation. In her report, Moore wrote that Jerry is the only father J.R.W. has ever known because he has had no contact with Alvin since he was three years old. Moore testified that, in her opinion, J.R.W. needed to remain in his present home and that it is in J.R.W.'s best interest for Alvin's parental rights to be terminated based on Alvin's imprisonment and the nature of his crimes, and J.R.W.'s home, background, and personality. Jerry testified that Alvin's parental rights should be terminated because J.R.W. has a clean mind and they want him "to keep it that way." Alvin admitted that he does not know his son's likes or dislikes or how he has been raised for the past five years.

Evidence that termination is not in the best interest of the child

There is some undisputed evidence that does not support a finding that termination is in the best interest of the child. Christi testified that there had never been improper behavior between Alvin and J.R.W. Christi admitted that if Alvin's parental rights were not terminated, Jerry would continue to be a father image to J.R.W. Alvin testified that, in his divorce from Christi in 1998, he was appointed possessory conservator of J.R.W. with no restrictions placed on his visitation rights. Further, although he was ordered to pay child support, the decree also noted that Alvin was unable to do so because he had no income or resources.

Alvin testified that, while in prison, he has acquired all the good time he is entitled to earn, is assigned to the utility squad, and works in the chaplain's office. Alvin has earned a computer science degree from Alvin Community College while incarcerated. While he was in the Anderson County Jail during the termination hearing, he was a trustie and worked for the sheriff. Estelle Nick, Alvin's pastor, testified she has observed tremendous growth in Alvin during the past five years.

Moore testified that she does not believe everyone incarcerated for Alvin's crime should have their parental rights terminated. Further, she never contacted Alvin or his family because such actions were not included in the court order. Jerry admitted he would not want his parental rights terminated if he were incarcerated.

Viewing the evidence in a light most favorable to the finding, a reasonable fact finder could have concluded that J.R.W. wanted to be adopted by Jerry, that Christi and Jerry were meeting all J.R.W.'s physical and emotional needs, that their home was stable and provided a good environment for J.R.W., and that Jerry was a suitable adoptive parent. Further, the court could have determined that Alvin was a future danger to J.R.W. because of the nature of his crimes, sexual molestation of children, and that he no longer had a relationship with J.R.W. Therefore, we conclude that the evidence, viewed in the light most favorable to the finding, was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief or conviction that termination of Alvin's parental rights was in J.R.W.'s best interest. Accordingly, Appellant's first issue is overruled.

 

Factual Sufficiency of the Evidence

In his second issue, Alvin argues that the evidence is factually insufficient to support a finding by clear and convincing evidence that termination was in the best interest of J.R.W. In addition to the evidence reviewed above, evidence favorable to Alvin was presented. In conducting our review of this evidence, we again use the Holley factors as a guide, disregarding those factors without disputed evidence. See In re J.F.C., 96 S.W.3d at 266-67.

The parental abilities of the individual seeking custody

Alvin's parental abilities were disputed. Alvin testified that he loves J.R.W. with "all [his] heart" and that he wants to be a father. Before his incarceration, Alvin and J.R.W. had a great relationship. He and J.R.W. went on weekend trips at least once a month. Alvin acknowledged that he did not change a lot of diapers but did feed J.R.W. Prior to his incarceration, Alvin's two children from a previous marriage resided with him, and he had full custody of them. Alvin regularly attended church at Trinity Church in Palestine before being incarcerated and Christi and J.R.W. attended with him.

Additionally, Alvin's family testified regarding his parental abilities. His brother, James Westley ("James"), believes Alvin was a good parent to J.R.W., that he interacted well with his children, and was an involved and loving father. Alvin disciplined J.R.W. within proper bounds. His mother, Kathleen, testified that she believes Alvin was a good father and parent, and that he and J.R.W. had a good relationship. His sister, Susan Trim ("Susan"), testified that Alvin was an attentive and loving father, and met J.R.W.'s day-to-day needs. Susan would describe Alvin as a good parent.

However, Christi testified that Alvin was lying to the court regarding his relationship with his son. Christi testified that Alvin was an absent father and did not pay attention to J.R.W. Christi stated that Alvin may have spent one full day of quality time with J.R.W. throughout the years. Alvin did not take care of J.R.W. and did not participate in any activities with him. If he did so, it was to put on a show in front of people. Christi testified that Alvin never attended any school activities or paid attention to his other children. Further, when she met with Alvin at the prison to serve him with divorce papers, Alvin did not inquire about J.R.W.'s well-being, where he was, or why he had not heard from J.R.W. Christi stated that Alvin attended church only sporadically after she decided not to pursue a divorce action in 1994. She admitted that the family took a couple of trips together.

The acts or omissions of Alvin Westley which may indicate that the existing parent-child

relationship is not a proper one, and any excuse for those acts or omissions

 

Alvin's lack of communication with J.R.W. since his incarceration and his excuse was also in dispute. Alvin testified that he wrote a letter to J.R.W. approximately once a month, beginning with his incarceration or approximately February of 1997. (4) Alvin explained that his letters were not received by J.R.W. because Christi moved and did not leave a forwarding address. According to Alvin, he was unable to locate Christi's address. At first, Alvin sent his letters to the post office box address in Elkhart supplied by Christi. He also sent letters to the post office box address listed in the divorce decree. Alvin testified that some of his letters were returned and, when letters were sent to the address listed in the divorce decree, one or two were refused. However, Alvin also stated that only one letter was refused in 1997 from Christi's address in the divorce decree. Additionally, one letter was refused in 2001 from the same address. Alvin wrote a letter to the district clerk requesting Christi's address, but did not receive a response.

Because his letters were being returned or refused, Alvin sent letters for J.R.W. to his mother's address, hoping she would one day see J.R.W. He also sent birthday and Christmas cards to J.R.W. in care of his mother, but these cards were never received by J.R.W. (5) Although Alvin knew Christi was an officer at TDC, he testified that he was not allowed to contact an officer or get information concerning an officer at TDC. Additionally, Alvin testified that if he had asked his brother, a justice of the peace, to help him find an address for J.R.W., it would have been a misappropriation of his job.

However, Christi does not believe Alvin wrote letters monthly as he claimed. Christi testified that she did not receive any cards or letters from Alvin after he was adjudicated and sent to TDC. After she left their residence in Elkhart, Alvin had her post office box address which was maintained for approximately one year after his incarceration. Subsequently, she had a post office box address in Tennessee Colony for two years. This is the address from which she refused a letter and is the address that is listed in the divorce decree. Christi testified that she left forwarding addresses when she moved.

After she filed for termination, Christi testified that Alvin wrote one letter to J.R.W. but she refused it. She never refused a letter from Alvin in 1997. Christi testified that her position at TDC was in the divorce papers, her name was in the telephone book, and Kathleen knew where she worked. She stated that there was never a time that Alvin did not have her address and that Alvin was not truthful when he testified that he did not have her address. However, she was not aware that she was supposed to give any address change to the district clerk. Jerry testified that his name was listed in the telephone book, together with Christi's name.

Further, Christi stated that any offender can locate the social security number, name and address of an officer at TDC. Jay Lively, a friend and former co-worker of Jerry's, testified that an inmate can get an address for any officer in TDC from the writ room or law library. The law library contains a list of all officers working for TDC with information from their employment application.

Additionally, Alvin testified that Christi sent him a couple of letters and pictures that J.R.W. made, but these contacts ceased after about a year. Alvin stated that Christi brought J.R.W. to see him at least twice a week while he was at the Anderson County Jail before being transferred to the TDC system. However, once he was in the TDC system, Christi no longer brought J.R.W. to see him. Christi acknowledged that she sent Alvin a picture of J.R.W. and a picture that he drew. She denied attempting to make any contact with Alvin for J.R.W. or taking him to see Alvin at the county jail or prison.

There was extensive and conflicting testimony from Christi, Kathleen, Susan, and Jerry regarding attempts by Alvin's family to contact J.R.W. and locate his address. Although Kathleen and Susan saw J.R.W. at chance meetings over the years, both testified that Christi refused to give them her address or telephone number and ignored requests to see J.R.W. Further, Kathleen testified that she gave Christi letters from Alvin to J.R.W. at one meeting, but Christi denies she received these letters. Christi testified that Kathleen never called and requested a visit with J.R.W. If she had, Christi would have consented. Further, Christi has allowed Kathleen contact with J.R.W. whenever they met. Also, Susan testified that she left numerous messages on the answering machines of each "Jerry Pugh" in the telephone book, requesting visitation with J.R.W. However, Jerry denied receiving any messages on his answering machine from Alvin or his family.

Evidence that termination is not in the best interest of the child

James, Kathleen, and Susan all testified that terminating Alvin's parental rights would not be in the best interest of J.R.W. Additionally, Kathleen testified that Alvin is J.R.W.'s father and that he should have a right to see his child. Susan testified that Alvin loves J.R.W., has never endangered him, and, hopefully, will be able to resume that relationship.

Although there was conflicting testimony regarding Alvin's parental abilities, the court could have resolved this conflict in favor of its finding based on Christi's testimony that Alvin was an absentee father. The court could have disbelieved Alvin's excuse for his lack of communication with J.R.W. since his incarceration and his contention that he was unable to locate Christi's address. Further, a reasonable fact finder could have believed Christi's testimony that Alvin knew her address or could have found it without difficulty. Moreover, the court could have concluded that Alvin's letters to J.R.W. were not written monthly as Alvin contended. Consequently, we find that the disputed evidence was not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that termination of Alvin's parental rights was in J.R.W.'s best interest. Therefore, Appellant's second issue is overruled.

 

Conclusion

Based upon our review of the record, we conclude that the trial court did not err in finding that terminating Alvin's parental rights was in the best interest of J.R.W. Therefore, the judgment of the trial court is affirmed.

 

SAM GRIFFITH

Justice

 

Opinion delivered April 2, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

 
(PUBLISH)

1. According to attachments filed with Appellees' Original and First Amended Petition for Termination and Adoption of Stepchild, Alvin violated Section 21.11 of the Texas Penal Code, Indecency With a Child. Tex. Pen. Code Ann. 21.11 (Vernon 1994). The offenses were second degree felonies with a punishment range of not more than twenty years or less than two years in the Texas Department of Criminal Justice, Institutional Division, and a fine not exceeding $10,000. Tex. Pen. Code Ann. 12.33 (Vernon 1994). According to documents included in the Clerk's Record, Alvin was sentenced to deferred adjudication probation pursuant to Section 42.12 of the Code of Criminal Procedure. Tex. Crim. Proc. Code Ann. 42.12 (Vernon Supp. 2003).

2. While the record is unclear regarding the reason for Alvin's arrest on August 30, 1996, Alvin's jail time after his arrest was credited to his sentence.

3. According to the court's order, Alvin violated section 161.001(1)(Q) of the Texas Family Code. The Family Code states that an involuntary termination of the parent-child relationship may be ordered if the court finds that the parent has "knowingly engaged in criminal conduct that has resulted in the parent's conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition." Tex. Fam. Code Ann. 161.001(1)(Q) (Vernon 2002).

4. Letters from Alvin to J.R.W. were admitted at trial for the limited purpose of showing that Alvin wrote the letters, and that they were returned. Forty-six letters were admitted, dated from August 10, 1997 through October 6, 2001. Alvin acknowledged that some of the letters were written and dated after he was served with the petition for termination when he discovered J.R.W.'s address. However, Alvin specifically testified that letters from August of 1997 through Christmas of 1999 were never received by J.R.W., but were sent to Alvin's mother's address because he was unable to "make contact" with Christi. The rest of the letters were admitted all together for the prior limited purposes.

5. Birthday and Christmas cards to J.R.W. were admitted at trial for the limited purpose of showing that the cards were sent.