In the Interest of A.S., a Child, 02-25-00645-CV, April 16, 2026.
On appeal from 90th District Court, Young County, Texas
Synopsis
The Fort Worth Court of Appeals affirmed termination of Father’s parental rights under Texas Family Code § 161.001(b)(1)(F), holding that legally and factually sufficient clear-and-convincing evidence showed he failed to support the child in accordance with his ability during the relevant statutory period. The court also upheld the trial court’s best-interest finding under § 161.001(b)(2), reinforcing that failure-to-support cases turn on proof of actual ability to pay during each month of the twelve-month window, not merely the existence of a prior support order.
Relevance to Family Law
For Texas family-law litigators, this opinion is most significant in termination litigation arising out of prior SAPCR, modification, or custody disputes. The case underscores that a support-based termination claim under § 161.001(b)(1)(F) is not a contempt case and is not satisfied simply by proving arrearages or a prior child-support order; the petitioner must prove the parent’s actual ability to support the child throughout the relevant twelve-month period. Strategically, the opinion also matters in contested conservatorship and modification cases because it illustrates how a deteriorating co-parenting record, suspended possession, nonpayment, and weak credibility can combine to support both predicate-ground and best-interest findings.
Case Summary
Fact Summary
Mother and Father, who were never married, had one child, A.S. After their relationship ended, they lived in different cities, with Mother remaining near family in Graham and Father residing in Magnolia with his fiancée. A prior court order, later amended in 2022, appointed the parties joint managing conservators, gave Mother the exclusive right to designate A.S.’s primary residence in Graham, awarded Father a possession schedule, and required Father to pay $500 per month in child support.
The litigation escalated in 2023. Mother filed a modification action seeking to suspend Father’s possession pending a mental-health evaluation and to limit future access to supervised visitation. Father counterpetitioned to reduce his support obligation. The parties then entered into a Rule 11 agreement requiring psychological evaluations and suspending Father’s in-person access to A.S. pending the result of his mental-health evaluation. By the time of trial, Father had not seen A.S. in person since that agreement took effect.
In February 2025, Mother amended her pleading to seek termination of Father’s parental rights. Following a November 2025 bench trial, the trial court found by clear and convincing evidence that Father had failed to support A.S. in accordance with his ability during a one-year period ending within six months of the filing of the termination petition and that termination was in A.S.’s best interest. The trial court terminated Father’s rights, and Father pursued an ultra-accelerated appeal challenging both the predicate ground and best-interest finding.
Issues Decided
- Whether legally and factually sufficient clear-and-convincing evidence supported termination under Texas Family Code § 161.001(b)(1)(F) based on Father’s failure to support the child in accordance with his ability during the relevant twelve-month period.
- Whether legally and factually sufficient clear-and-convincing evidence supported the trial court’s finding that termination was in the child’s best interest under Texas Family Code § 161.001(b)(2).
Rules Applied
The court applied the familiar two-pronged termination framework under Texas Family Code § 161.001(b): the petitioner must prove by clear and convincing evidence both a statutory predicate ground under subsection (b)(1) and that termination is in the child’s best interest under subsection (b)(2). The opinion reiterates the constitutional seriousness of termination proceedings, citing the due-process cases requiring strict scrutiny of the record and strict construction of involuntary-termination statutes in the parent’s favor.
As to subsection (F), the court emphasized several specific rules:
- § 161.001(b)(1)(F) permits termination if the parent “failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition.”
- The “one year” is twelve consecutive months.
- Because the one-year period must end within six months of filing, the relevant window must fall within the eighteen months preceding the termination petition.
- The petitioner bears the burden to prove the parent’s ability to support the child during each month of the relevant twelve-month period.
- A prior child-support order, standing alone, is not evidence of the parent’s ability to pay for purposes of subsection (F).
The court also relied on the established legal- and factual-sufficiency standards from termination jurisprudence, including In re Z.N., In re J.F.C., In re J.P.B., In re J.O.A., In re A.B., and In re C.H. For best interest, the court invoked the nonexclusive Holley v. Adams factors while recognizing that the same evidence can bear on both the predicate ground and best interest.
Application
The decisive feature of the court’s analysis was not merely that Father had been ordered to pay support and had not done so, but that the trial record contained evidence from which the trial court could form a firm conviction that he had the ability to provide support during the relevant statutory period and nevertheless failed to do so. The opinion highlights the distinction Texas appellate courts continue to police in subsection (F) cases: nonpayment alone is not enough, and arrearage evidence is not a substitute for ability-to-pay proof.
Father’s appellate argument appears to have centered on insufficiency of the proof regarding his finances, including his testimony about limited earnings in 2024. But the court rejected that argument, indicating that the record, viewed under the required deferential standards, permitted the trial judge to disbelieve Father’s minimizing testimony and to infer an ability to pay from the broader financial evidence. In other words, this was a classic bench-trial credibility case. Once the trial court was entitled to discount Father’s account of his financial incapacity, the remaining evidence supported a finding that he had some ability to support A.S. during the statutory period and did not do so in accordance with that ability.
The best-interest analysis followed the same evidentiary arc. The court reviewed the full record and concluded that the evidence supporting Father’s failure to support, considered alongside the broader parent-child circumstances, was sufficient to support termination as being in A.S.’s best interest. Although the snippet does not set out every evidentiary detail the court relied upon, the posture of the case reflects several considerations commonly material under Holley: Father’s prolonged lack of in-person contact, the prior litigation over mental-health concerns and suspended access, instability in the parent-child relationship, and the trial court’s prerogative to evaluate credibility, sincerity, and future reliability. The court treated those circumstances, together with the support evidence, as adequate to uphold the trial court’s firm-belief determination.
Holding
The court held that legally and factually sufficient clear-and-convincing evidence supported the trial court’s finding under Texas Family Code § 161.001(b)(1)(F). Specifically, the evidence was sufficient to show that Father failed to support A.S. in accordance with his ability during the required twelve-month period ending within six months before Mother filed her termination pleading.
The court also held that legally and factually sufficient clear-and-convincing evidence supported the best-interest finding under § 161.001(b)(2). Having upheld both the predicate ground and best-interest determination, the Second Court of Appeals affirmed the order terminating Father’s parental rights.
Practical Application
This case is a useful reminder that subsection (F) cases are won or lost on record construction. If you represent the petitioner, do not try a failure-to-support termination as though you are simply proving a support arrearage. Build a month-by-month evidentiary record of the parent’s earning capacity, actual earnings, employment history, available resources, discretionary spending, living arrangements, and financial choices during the twelve-month statutory period. If your proof of ability is inferential rather than direct, make sure the inferences are anchored in documents and admissions, not just conclusions.
For respondents, the opinion is equally instructive. A bare assertion of low income will rarely carry the day if it is unsupported, internally inconsistent, or contradicted by lifestyle evidence. If inability to pay is the defense, counsel should present disciplined proof: tax returns, bank records, medical evidence, unemployment records, proof of job searches, evidence of business reversals, and a coherent explanation for every period of nonpayment. If there was a legitimate reason to seek a support reduction, that modification should be pursued early and aggressively; waiting to litigate “inability” in a termination trial is often too late.
The case also has implications beyond termination practice. In modification and conservatorship cases, the same facts that begin as support disputes can later become best-interest evidence. A record of unpaid support, suspended access, untreated mental-health concerns, and weak participation in the child’s life may not initially result in termination, but it can create the foundation for one. Practitioners should therefore treat interim orders, Rule 11 agreements, and compliance failures as potential building blocks in later end-game litigation.
Checklists
Petitioner’s Proof for a § 161.001(b)(1)(F) Claim
- Identify the precise twelve-month period you intend to rely on.
- Confirm that the period ends within six months before the filing of the termination petition.
- Prove ability to support for each month in that twelve-month period.
- Obtain payroll records, tax returns, bank statements, business records, and employment records.
- Develop testimony regarding housing costs, vehicle expenses, travel, gifts, entertainment, and other discretionary spending.
- Use admissions from prior modification or support proceedings where available.
- Do not rely solely on the existence of a prior child-support order.
- Tie the financial evidence directly to the statutory phrase “in accordance with the parent’s ability.”
Respondent’s Defense to a Failure-to-Support Termination
- Pin down the petitioner’s asserted twelve-month statutory window.
- Challenge any gaps in the month-by-month proof of ability.
- Object to efforts to substitute arrearage evidence for ability-to-pay evidence.
- Present documentary proof of actual income, not just testimony.
- Show medical, employment, or economic reasons for reduced earning capacity.
- Explain any periods of unemployment with corroborating evidence.
- Present evidence of other unavoidable financial obligations if relevant.
- If support was truly unmanageable, show that a modification was sought promptly and in good faith.
Preserving Error and Positioning the Appeal
- Request findings of fact and conclusions of law after a bench trial.
- Force specificity on the predicate ground and relevant time period.
- Make sure exhibits proving or disproving ability to pay are admitted.
- Preserve complaints about evidentiary gaps, burden shifting, and speculative inferences.
- On appeal, frame legal sufficiency and factual sufficiency separately.
- In a respondent’s brief, emphasize that subsection (F) requires proof of ability throughout the statutory period, not generalized evidence of employability.
- In a petitioner’s brief, center the deferential credibility standard and the trial court’s right to reject self-serving testimony.
Best-Interest Trial Preparation
- Connect financial neglect to the broader parent-child relationship.
- Address the Holley factors even when the predicate ground is financial.
- Develop evidence of the child’s present and future needs.
- Show the stability of the child’s current placement.
- Present evidence about the parent’s consistency, judgment, and follow-through.
- Anticipate the respondent’s excuses and rebut them with documents or third-party testimony.
- Avoid treating best interest as an afterthought once the predicate ground is proved.
Citation
In the Interest of A.S., a Child, No. 02-25-00645-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Fort Worth Apr. 16, 2026, no pet.) (mem. op.).
Full Opinion
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