IN THE INTEREST OF v. <<

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Court of Appeals of Texas, San Antonio.

IN THE INTEREST OF F.M., a Child

No. 04-17-00355-CV

Decided: October 04, 2017

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice

F.M., Jr. appeals the trial court's order terminating his parental rights to F.M. The sole issue presented on appeal is whether the evidence is sufficient to support the predicate grounds for termination because the evidence did not establish F.M., Jr. was the parent of F.M. We affirm the trial court's order.

STANDARD OF REVIEW

To terminate parental rights pursuant to section 161.001 of the Code, the Texas Department of Family and Protective Services has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “ ‘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.

In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must “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.” In re J.F.C., 96 S.W.3d at 266. In conducting a factual sufficiency review of a trial court's order terminating parental rights, we “must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” Id. The evidence is only factually insufficient if “the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction” about the truth of the State's allegations. Id. “The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses.” In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (mem. op.).

PREDICATE FINDINGS

As previously noted, the only argument F.M., Jr. raises with regard to the sufficiency of the evidence to support the predicate statutory findings is that the evidence is insufficient to establish that he was F.M.'s parent. As the Department notes in its brief, F.M., Jr. did not raise this issue in the trial court where his appointed attorney argued against the termination of his parental rights.

“When the record is silent, as here, [a] trial court may be presumed to have taken judicial notice of the records in the court's file without any request being made and without an announcement in the record that it has done so.” In re J.E.H., 384 S.W.3d 864, 869-70 (Tex. App.—San Antonio 2012, no pet.). “Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions.” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (internal quotation omitted). “A judicial admission that is clear and unequivocal has conclusive effect and bars the admitting party from later disputing the admitted fact.” Id.

In the underlying cause, the Department sought to terminate the “parent-child relationship” between F.M., Jr, and F.M., and the trial court's order terminated that parent-child relationship.” The term “parent-child relationship” is statutorily defined to include “the father and child relationship.” TEX. FAM. CODE ANN. § 101.025 (West 2014). One of the pleadings F.M., Jr. filed in the underlying cause was an “Affidavit of Respondents Testimony” in which F.M., Jr. refers to himself as F.M.'s father, stating he “does not deny that he is the father of son [F.M.].” This statement constitutes a judicial admission that F.M., Jr. is F.M.'s father.1 See In re K.P., No. 09-13-00404-CV, 2014 WL 4105067, at *13 (Tex. App.—Beaumont Aug. 21, 2014, no pet.) (mem. op.) (holding father's pleadings representing himself to be the father of the children constituted a judicial admission); In re K.W., 138 S.W.3d 420, 429-30 (Tex. App.—Fort Worth 2004, pet. denied) (holding statements in pro se letter filed with the trial court constituted admissions of paternity). Because we assume the trial court took judicial notice of this pleading which contains a judicial admission that F.M., Jr. is F.M.'s father, the evidence is legally and factually sufficient to support the existence of a parent-child relationship between F.M., Jr. and F.M. Accordingly, the trial court's order terminating that parent-child relationship is also supported by sufficient evidence.

CONCLUSION

The trial court's order is affirmed.

FOOTNOTES

1.   We also note that F.M., Jr. testified at trial that F.M. is his son and he did not believe it was in F.M.'s best interest for his parental rights be terminated. See In re U.B., No. 04-12-00687-CV, 2013 WL 441890, at *2 (Tex. App.—San Antonio Feb. 6, 2013, no pet.) (mem. op.) (holding father's testimony at trial constituted an admission of paternity); see also Burns v. Burns, 434 S.W.3d 223, 228 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (noting testimonial admissions can also constitute judicial admissions).

Irene Rios, Justice