Section 161.001(b)(1)(F) Requires Proof of Ability to Support | In re A.A.S. (2026)

In the Interest of A. A. S., 03-26-00177-CV, June 03, 2026.

On appeal from 478th District Court of Bell County

Synopsis

Termination under Family Code § 161.001(b)(1)(F) requires more than proof that the parent paid nothing. The Third Court held that the petitioner must present clear and convincing evidence that the parent had the ability to support the child during each month of the relevant twelve-month statutory period, and because that proof was missing from the face of the record, the termination order could not stand.

Relevance to Family Law

This opinion matters well beyond stand-alone termination suits. For Texas family-law litigators handling SAPCR modifications, private termination-and-adoption cases, conservatorship disputes, and support enforcement matters, In re A.A.S. reinforces that a support-based termination theory is not a shortcut built on arrearage evidence alone. If you intend to pursue termination under subsection (F), you must prove month-by-month ability to support during the statutory period; if you are defending, this case gives you a precise sufficiency attack against any record built only on a prior support order and evidence of nonpayment.

Case Summary

Fact Summary

The child had lived with Grandmother since shortly after birth. In a prior SAPCR, the trial court appointed Grandmother sole managing conservator and ordered Mother to pay $230 per month in child support. Grandmother later filed a private suit seeking termination of Mother’s parental rights and adoption of the child.

Mother answered but did not appear at the final hearing, and the case proceeded as a post-answer default. At that hearing, Grandmother testified that Mother had not been part of the child’s life, had not attempted to see the child after the SAPCR order, and had not paid “a dime” in support or otherwise provided anything for the child. The trial court orally referenced several predicate grounds, but the written termination order rested on subsection (F): failure to support the child in accordance with the parent’s ability during the statutory period.

Mother brought a restricted appeal. Because she did not participate in the hearing and no post-judgment filings altered the appellate posture, the central question became whether error appeared on the face of the record, including whether the evidence was legally and factually sufficient to support the subsection (F) predicate finding.

Issues Decided

• Whether a parent may obtain review by restricted appeal of the legal and factual sufficiency of the evidence supporting a termination order.
• Whether termination under Texas Family Code § 161.001(b)(1)(F) requires proof that the parent had the ability to support the child during each month of the relevant twelve-month period.
• Whether evidence that the parent was previously ordered to pay support, coupled with evidence of nonpayment, is sufficient to support termination under subsection (F).
• Whether the face of the record showed reversible error when the written termination order rested solely on subsection (F) and the record contained no evidence of Mother’s ability to pay during the statutory period.

Rules Applied

The court applied the familiar termination framework under Texas Family Code § 161.001(b): a petitioner must prove by clear and convincing evidence both a predicate ground and best interest.

As to subsection (F), the controlling statutory text is Texas Family Code § 161.001(b)(1)(F), which authorizes 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 court also relied on restricted-appeal principles, including:

• Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020)
• Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam)
• Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex. 2004)
• Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam)

On the merits of subsection (F), the court followed the First Court’s analysis requiring proof of ability to support during each month of the twelve-month period:

• In re I.M.S., 679 S.W.3d 704, 716 (Tex. App.—Houston [1st Dist.] 2023, no pet.)
• In re J.G.S., 574 S.W.3d 101, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied)

The court further relied on authority holding that a prior child-support order is not itself evidence of actual ability to pay for subsection (F) purposes:

• In re D.M.D., 363 S.W.3d 916, 920–21 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
• In re E.M.E., 234 S.W.3d 71, 73 (Tex. App.—El Paso 2007, no pet.)

Application

The Third Court treated the case as a sufficiency review within the restricted-appeal framework. Because the written order rested only on subsection (F), the court confined its merits review to whether the evidence clearly and convincingly established that Mother failed to support the child in accordance with her ability during a one-year period ending within six months before the filing of the petition.

Grandmother filed the termination petition on March 18, 2025, so the relevant statutory window ran between September 18, 2023, and March 18, 2025. The court recognized that the record established nonpayment: Mother had been ordered to pay support, and Grandmother testified Mother paid nothing and provided nothing else. But that only proved failure to support, not failure to support in accordance with ability.

That distinction drove the outcome. The court rejected the idea that the prior support order itself supplied evidence of Mother’s ability to pay during the relevant period. To accept that premise would effectively shift the burden to Mother to disprove ability, which subsection (F) does not permit. The burden remained on Grandmother, as the petitioner, to produce clear and convincing evidence of Mother’s ability to support the child during each month of the statutory twelve-month span.

The problem was evidentiary, and it was fundamental. Grandmother did not testify about Mother’s employment, earnings, assets, expenses, health, housing, or any other facts bearing on ability to pay at any point in the relevant period, much less throughout each month of a qualifying twelve-month period. In a private termination case proceeding by default, that omission was fatal. On the face of the record, there was simply no evidence filling the statutory gap required by subsection (F).

Holding

The court held that termination under Texas Family Code § 161.001(b)(1)(F) requires clear and convincing evidence that the parent had the ability to support the child during each month of the relevant twelve-month period. Evidence of nonpayment alone does not satisfy the statute.

The court further held that a prior child-support order is not evidence of actual ability to pay for subsection (F) purposes. Because the written termination order relied solely on subsection (F), and because the face of the record contained no legally or factually sufficient evidence of Mother’s ability to support the child during the statutory period, error was apparent on the face of the record in this restricted appeal.

Accordingly, the court reversed the termination order and remanded the case for a new trial.

Practical Application

For petitioners, In re A.A.S. is a warning against trying a subsection (F) case as though it were a simple arrearage prove-up. In private termination suits filed by relatives, foster parents, or prospective adoptive parties, practitioners should assume that evidence of a support order plus zero payments will be insufficient unless the record also establishes actual ability to pay during each month of the qualifying period. That likely means developing evidence of employment, wages, work history, benefits, assets, living arrangements, spending patterns, and any admissions reflecting financial capacity.

For respondents, the case is a clean appellate and trial-level target. Where the petitioner relies primarily on nonpayment and an old support order, the defense should attack both the legal theory and the evidentiary gap. At trial, that means objections, cross-examination, and a directed-verdict posture where appropriate. On appeal, especially in a post-answer default or restricted-appeal setting, the absence of evidence regarding ability may be dispositive.

The opinion also matters strategically in blended cases involving conservatorship, support, and adoption. Lawyers sometimes treat subsection (F) as an administratively easy predicate because support records are concrete and easy to obtain. A.A.S. shows that subsection (F) is often harder to prove than it appears. In many cases, another pleaded predicate may be stronger, or the record may need substantial pretrial development before subsection (F) is viable.

Finally, the case is a drafting reminder. If the trial court orally references multiple predicates but the written order includes only one, the appellate court will review the order actually signed. Petitioners should ensure the written judgment tracks all supported findings, and respondents should scrutinize that disconnect carefully.

Checklists

Building a Subsection (F) Record for Petitioners

• Identify the exact statutory twelve-month period ending within six months before the petition was filed.
• Prove the parent’s ability to support during each month of that period, not just generally or intermittently.
• Offer evidence of employment history, wages, self-employment income, benefits, assets, and regular financial resources.
• Develop testimony regarding the parent’s housing, transportation, utilities, and discretionary spending to show available funds.
• Use admissions, text messages, social media, discovery responses, and financial records to establish earning capacity and available resources.
• Distinguish inability from unwillingness; subsection (F) requires proof of the latter through evidence of actual ability.
• Do not rely solely on a prior child-support order as proof of ability to pay.
• Confirm that the final written order includes every predicate ground actually proved.

Defending Against a Subsection (F) Termination Claim

• Force the petitioner to identify the exact twelve-month period relied upon.
• Test whether the evidence addresses each month in that period.
• Object when the petitioner attempts to equate a support order with proof of actual ability to pay.
• Highlight gaps regarding employment, income, illness, incarceration, disability, or other barriers to earning.
• Emphasize that the petitioner, not the parent, bears the burden to prove ability.
• Preserve legal- and factual-sufficiency challenges, even in default-sensitive settings where available.
• Compare the written judgment to the oral pronouncements and attack unsupported written findings.

Preparing a Default or Post-Answer Default Prove-Up

• Treat the hearing as a true evidentiary trial despite the opposing party’s absence.
• Prove every statutory element with admissible testimony or exhibits.
• Avoid conclusory testimony that the parent “could have paid” without factual support.
• Introduce documentary evidence where possible rather than relying exclusively on generalized narrative testimony.
• Make sure judicially noticed records actually support the required statutory elements.
• Confirm that the reporter’s record clearly captures the evidence supporting each predicate ground.
• Review the proposed termination order line by line before submission.

Appellate Screening for Restricted Appeals

• Verify the appellant satisfied the timing and participation requirements for restricted appeal.
• Examine the face of the record for legal- and factual-sufficiency defects.
• Identify whether the written order rests on a single predicate or multiple grounds.
• If subsection (F) is the sole written predicate, scrutinize the record for actual evidence of ability to support during each month of the statutory period.
• Do not assume omitted evidence can be inferred from the existence of a support order.
• Frame the issue as a burden-of-proof failure under clear-and-convincing review.

Citation

In the Interest of A. A. S., No. 03-26-00177-CV, 2026 WL ___ (Tex. App.—Austin June 3, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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