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Appellant, father of J.L.J., appeals from an order involuntarily terminating his parental rights, and the trial court’s subsequent ruling that an appeal of the judgment would be frivolous. He raises two issues for this Court’s consideration, challenging the legal and factual sufficiency of the evidence, and the trial court’s ruling allowing J.L.J.’s mother to testify during the final termination hearing.

J.L.J. was born on November 28, 2008. The Texas Department of Family and Protective Services (hereinafter “the Department”) filed its original petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship against Appellant and J.L.J.’s mother on December 2, 2008.*fn1 On the same day, the trial court held an emergency removal hearing and appointed the Department temporary managing conservator of J.L.J. J.L.J. remained in the Department’s custody for the majority of the termination proceedings. The Department alleged multiple grounds for termination against both parents, including: (1) allowing the child to be in conditions or circumstances which threatened his physical and emotional well-being; (2) engaging in conduct which the parents knew or should have known endangered the child’s physical and emotional safety; (3) being convicted or placed on probation for being criminally responsible for the death or serious injury to a child; and (4) constructive abandonment.

Jane executed a affidavit voluntarily relinquishing her parental rights regarding J.L.J. in September 2009. Appellant, was incarcerated from December 1, 2008 through March 12, 2009, and returned to jail in June 2009. He was still incarcerated at the time of the final hearing for termination of his parental rights in the second week of December 2009. During a pretrial hearing, Appellant’s attorney objected to Jane being allowed to testify as a party witness, arguing that because she had executing the affidavit she was no longer a party to the case, and was not listed as a non-party witness in the Department’s discovery. The trial court overruled the objection, and permitted Jane to testify. The trial court entered a final judgment terminating parental rights as to both Appellant and Jane on December 10, 2009.

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