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Click here for the full text of this decision FACTS:Appellant, the unnamed biological mother, had two children out of wedlock. D.S.P., the first child, was born in September 1998; H.R.P., the second child, was born in July 2000. On Oct. 16, 2000, after the birth of her second child, the trial court appointed appellant sole managing conservator of D.S.P. The trial court appointed child’s father possessory conservator, while both of the father’s parents, appellees, received limited visitation and possession rights. On Feb. 8, 2002, the trial court appointed the children’s paternal grandmother sole managing conservator of D.S.P. and H.R.P., while the trial court made the children’s parents possessory conservators. Two years later, on Feb. 5, 2004, the paternal grandparents petitioned to adopt the children and to terminate the parental rights of both parents. On Nov. 17, 2004, the trial court ruled in the paternal grandparents’ favor, finding by clear and convincing evidence that both parents failed to support the children in accordance with their ability during a period of one year ending within six months of the date of the filing of the petition, and that termination of the parent-child relationship was in the best interest of the children. HOLDING:Reversed and rendered. Before a trial court may terminate parental rights, the evidence must establish a statutory ground for termination and that termination is in the best interest of the child. Under Texas Family Code �161.001(1)(F), the court may order termination of the parent-child relationship, if the court finds by clear and convincing evidence that the parent has 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. One year means 12 consecutive months, and the ability to pay support must exist each month during the 12-month period. The paternal grandparents presented no evidence that the biological mother had the ability to support her children while she was unemployed. Though paternal grandparents contend that the biological mother’s inability to support is the result of her own doing, it was their burden to prove failure to support, “even where the inability to pay is the result of the parent’s conscious choice.” The court concluded that they failed to meet this burden. Accordingly, the court held that the evidence was legally insufficient for a reasonable fact finder to form a “firm belief or conviction” that the biological mother failed to support her children in accordance with her ability between Sept. 5, 2002, and Feb. 5, 2004. The court further held that the trial court erred in terminating appellant’s parental rights on the grounds that she violated �161.001(1)(F). OPINION:Yanez, J.; Hinojosa, Ya�ez and Rodriguez, J.J.

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