OPINION Emmanuel Wiggins, pro se, Appellant appeals the denial of his motion for termination of his parental rights to S.V., the son he shares with Carr. The trial court denied the motion for termination due to his failure to comply with the legal requirements for termination. We affirm the trial court’s decision. BACKGROUND On February 19, 2020, Wiggins filed a petition for termination of his parental rights to S.V., the son he shared with Carr, demanding from Carr $80,000 in attorney’s fees, and an end to his support obligations based on Carr’s malice and intent to cause Wiggins harm by violating the law and a court order. In support, Wiggins’ stated in an affidavit Carr had failed to perform her court-ordered duties and obligations relative to his possession of their son by concealing S.V.’s whereabouts during the time Wiggins was legally entitled to possession of the child. He also proffered screenshots of cellphone messages purporting to show he was blocked from communication with Carr. On February 28, 2020, the court set a dismissal hearing on June 5, 2020 for want of prosecution. Thereafter, on March 16, 2020, Wiggins filed a motion for contempt, reiterating his allegations Carr was blocking access to and knowledge of S.V. in violation of a court order providing Wiggins with certain rights to S.V. and again requesting the same relief as requested in his February 19, 2020, motion, to include termination of his parental rights to S.V. With this motion for contempt, Wiggins filed an affidavit waiving interest in S.V., asking that it be attached to his February 19, 2020, petition for termination of parental rights. Wiggins stated in the affidavit waiving interest he was disclaiming any interest in the child described in his petition for termination of parental rights and providing this affidavit in support thereof. Wiggins further attested to Carr’s concealing of S.V.’s whereabouts from him from 2018 through 2020, in violation of Wiggins’ court-ordered possessory rights and intending to cause him harm, mental suffering, and anguish. Wiggins stated in the affidavit that more details were presented in the motion for termination of parental rights and that he was asking the court to hold Carr in contempt. In both his February 19, 2020, and his March 16, 2020, motions, Wiggins states “I witness . . . Carr is unfit to be a parent.” On March 24, 2020, Wiggins filed a request for hearing via telephone or video conference because he was in Ohio, and it was impracticable for him to appear in person due to the COVID-19 pandemic. On April 9, 2020, Carr filed her answer to Wiggins’ petition for termination of parental rights denying the allegations therein, asking the court to deny Wiggins’ petition, and asking for attorney’s fees and costs. On April 30, 2020, Carr filed an answer to Wiggins’ motion for contempt denying the allegations therein, asking the court to deny Wiggins’ petition, and asking for attorney’s fees and costs. Wiggins moved to strike both of her answers and moved to retain the cause on the docket. At the June 1, 2020, dismissal hearing, Wiggins stated he was seeking termination of his parental rights on the ground he had signed an affidavit of waiver of interest in the child, and the affidavit was sufficient to allow the court to grant the termination. The court made a finding Wiggins’ petition did not meet the statutory requirements; specifically that it “[did] not allege in the statutory language the ground for the termination and the termination is in the best interests of the child.” The court set a dismissal date of July 17, 2020. Wiggins amended his petition on June 2, 2020, stating his case was in the best interest of the child and “[a]n affidavit of waiver of interest in a child, in and of itself, is sufficient to find termination is in the best interest of the child.” Wiggins stated he was seeking termination of parental rights because Carr was concealing the whereabouts of their son. The amended petition again accused Carr of not following court orders relative to his possessory rights to his son and included another statement by Wiggins stating “I witness . . . Carr is unfit to be a parent,” and stated that “[e]vidence shows . . . Carr disobeys the court’s orders.” Wiggins’ affidavit attached to the amended petition did not speak to the child, S.V.’s best interest. On June 3, 2020, the court filed another notice of hearing for dismissal for want of prosecution. On June 17, 2020, the court held another dismissal hearing on the matter. During the hearing, the court took issue with Wiggins’ pleadings, stating, ” I don’t understand. You claim that . . . Carr is an unfit parent, but then you turn around and say, I want my rights terminated.” Wiggins again argued that “ an affidavit of waiver of interest in child in and of itself is sufficient to find termination is in the best interests of child.” The court explained to Wiggins that an affidavit of waiver of interest in child, pursuant to Family Code section 161.106, was applicable only prior to a court order establishing Wiggins as the father of the child with parental rights to the child. The court explained the vehicle by which to relinquish would be a motion to relinquish parental rights supported by an affidavit of relinquishment of parental rights (under Section 161.103) because by court order, he already has parental rights. Wiggins argued with the court, stating that he had a fundamental, constitutional right to waive interest in his child. The court dismissed Wiggins’ petition for failure to comply with the statutory requirements. Wiggins filed a notice of objection to the dismissal order on July 20, 2020, and a motion to retain the case on the docket on August 7, 2020 again asking the court to grant Wiggins’ waiver of interest in S.V. On September 8, 2020, the court dismissed Wiggins’ petition to terminate parental rights and motion for contempt. Wiggins requested findings of fact and conclusions of law on September 21, 2020, indicating he disagreed with the trial court’s findings and ruling. On November 25, 2020, Wiggins filed a notice of appeal as to trial court’s determination of his termination petition. There was some confusion as to the timeliness of the appeal, however, based on Wiggins’ previous motions, on February 19, 2021, the appeal was accepted for review. DISCUSSION Issue On appeal, Wiggins challenges the factual sufficiency of the evidence, arguing the court erred by excluding critical evidence that supported the termination when it failed to accept his affidavit of waiver of interest in child as sufficient grounds for termination of parental rights.[1] Wiggins argues that because Texas Family Code section 161.106(b) states “the affidavit [of waiver] may be signed [at any time] before [or after] the [child's] birth[.]” Wiggins asserts it is an appropriate vehicle to relinquish his parental rights and it provides clear and convincing evidence, including supporting termination of his parental rights is in S.V.’s best interest, because an affidavit of waiver of interest is enough, in and of itself, to prove best interest. Wiggins’ brief did not address the issue of the failure of the affidavit to recount how termination is in his son’s best interest to support termination of Wiggins’ parental rights. Standard of Review Because the burden of proof in a termination case is clear and convincing evidence, on appeal we examine whether the disputed evidence is such that a reasonable fact finder could not have reasonably formed a firm belief or conviction that it could support the findings; if so, then the evidence is factually insufficient. In re C.H., 89 S.W.3d 17, 18–19 (Tex. 2002); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Interest of M.L.L., 573 S.W.3d 353, 361 (Tex.App.—El Paso 2019, no pet.). More plainly stated, if the trial court could not have reasonably formed a firm conviction that the disputed evidence supported the denial of the termination, then the evidence is factually insufficient. See In re K.A.C., 594 S.W.3d 364, 372 (Tex.App.—El Paso 2019, no pet.); Interest of A.L.H., 624 S.W.3d 47, 54–55 (Tex.App.—El Paso 2021, no pet.). Analysis When it comes to parents’ rights and access to their children, the family code articulates Texas public policy: “[t]he best interest of the child shall always be the primary consideration of the court” to assure children will have frequent and continuing contact with parents “who have shown the ability to act in the best interest of the child” and to provide “a safe, stable, and nonviolent environment for the child.” See TEX.FAM.CODE ANN. §§ 153.001(a)(1)-(2), 153.002; In re K.G., 350 S.W.3d 338, 352 (Tex.App.—Fort Worth 2011, pet. denied). Section 161.204 confirms that “the court may render an order terminating the parent-child relationship between a child and a man who has signed an affidavit of waiver of interest in the child, if the termination is in the best interest of the child.” TEX.FAM.CODE ANN. § 161.204 [Emphasis added]. Rather than scrutinize the form of an affidavit attached in support of a pro se motion to terminate parental rights, we look to the substance of the affidavit and what Wiggins asserted in the record. Wiggins submitted Carr has a proclivity for inimical behavior when it comes to following the court orders pertaining to their son and is an “unfit parent.” Wiggins then proceeded to petition for the termination of his parental rights through an affidavit for waiver of interest, which did not itself speak to S.V.’s best interest. Nor did Wiggins at any time testify to S.V.’s best interest; he simply argued in a hearing and in his brief an affidavit of waiver of interest was, in and of itself, sufficient to show best interest. In support of that argument, Wiggins cites to In re A.G.C., 279 S.W.3d 441, 452 (Tex.App.—Houston [14th Dist.] 2009, no pet.); Lumbis v. Tex. Dep’t of Protective & Regul. Servs., 65 S.W.3d 844, 851 n.1 (Tex.App.—Austin 2002, pet. denied); and Ivy v. Edna Gladney Home, 783 S.W.2d 829, 833 (Tex.App.—Fort Worth 1990, no writ). These cases support that a trial court may find best interest, based on a voluntary, irrevocable affidavit of relinquishment, but none of them require a court to make a finding of best interest or grant a termination based on an affidavit alone. In In re A.G.C., mother sued to terminate the father’s parental rights to their child and the father agreed to termination by an affidavit relinquishing his rights upon entering into a mediated settlement agreement. In re A.G.C., 279 S.W.3d at 443.There, the mother testified she was moving for the father’s termination because he had endangered the child and it was in the child’s best interest father’s parental interests be terminated. Id. at 449. Besides the proposed court order and mediated settlement agreement, the father attested, in the affidavit of relinquishment itself, termination of his rights was in the child’s best interest. Id. at 450. The In re A.G.C. court confirmed, mentioning both the Lumbis and Ivy cases Wiggins uses here, that a properly executed, irrevocable affidavit relinquishing parental rights can support a court finding that termination is in the child’s best interest and a judgment of termination, but that does not necessarily equate to a requirement a trial court lacks discretion to decline a termination petition when best interest has not been proved. Id. at 452-53. That discretion rests with the trial court based on the trial record and evidence presented. See, e.g., In Interest of K.D., 471 S.W.3d 147, 164 (Tex.App.—Texarkana 2015, no pet.)(“[W]e agree with the San Antonio Court of Appeals that while the execution of an affidavit of relinquishment ‘is relevant to the best interest inquiry[,] … such a relinquishment is not ipso facto evidence that termination is in the child’s best interest.’”); see also In re E.J.R., 503 S.W.3d 536, 543–45 (Tex.App.— Corpus Christi 2016, pet. denied)(holding that trial court is not required to give “conclusive effect” to affidavit of relinquishment in determining child’s best interest). In Lumbis, the court affirmed the trial court’s finding termination was in the children’s best interest, which Lumbis attested in her affidavit, and which was further supported by the Department of Family and Protective Services caseworker’s testimony. Lumbis, 65 S.W.3d at 851. The record contained evidence of violence and drug use on the part of both parents. Id. at 846.The Lumbis court stated that “[t]here [was] no evidence that termination is not in the children’s best interest.” Id. at 851. The Ivy court, which addressed a putative father’s waiver of interest and a mother’s relinquishment of parental rights for adoption purposes, asserted the trial court did not err when it failed to separately weigh the Holley factors in determining whether the termination was in the child’s best interest because “affidavit of waiver of interest in child, in and of itself, is sufficient to find termination is in the best interest of the child.” Ivy, 783 S.W.2d at 833. As in the other cases Wiggins cites to, the record in Ivy contained evidence from witnesses—the mother and the adoption agency social worker—that termination of parental rights and placing the child for adoption was in the child’s best interest. Id. Finally, the Ivy court, like the Lumbis court, also noted that “[t]here was no evidence presented at the termination hearing that termination of parental rights and adoption would not be in the best interest of the child[ren].” Id. All three cases are distinguishable from the present case. Here, Wiggins himself presents conflicting statements regarding S.V.’s best interest. While he argues that termination of his rights is in S.V.’s best interest, terminating Wiggins’ parental rights to S.V. would leave the child to Carr, the parent Wiggins declares is unfit to be a parent and has violated court orders with regard to S.V. Given the dearth of evidence supporting the child’s best interest to terminate Wiggins’ parental rights, the trial court did not abuse its discretion. See In re C.H., 89 S.W.3d at 18–19. It is enough to say that the trial court reasonably could have formed a firm belief the record supported the denial of Wiggins’ request for termination of his parental rights to S.V. The six issues Appellant raises, which we understand to be subsumed in the issue of whether the trial court’s judgment is factually supported by the evidence, are overruled. CONCLUSION Because the evidence is factually sufficient, the trial court’s judgment is affirmed. August 05, 2022 YVONNE T. RODRIGUEZ, Chief Justice Before Rodriguez, C.J., Palafox, and Alley, JJ.
