                                       IN THE
                               TENTH COURT OF APPEALS

                                        No. 10-15-00438-CV

                                IN THE INTEREST OF
                       K.M.S., C.L.J.,III AND K.B.J., CHILDREN



                                From the County Court at Law
                                     Ellis County, Texas
                                  Trial Court No. 89882CCL


                                MEMORANDUM OPINION

        Clinton J. appeals from a judgment that terminated the parent-child relationship

between him and his children, K.M.S, C.L.J., III., and K.B.J.1 After hearing all the

evidence, the trial court found by clear and convincing evidence that Clinton (1)

knowingly placed or knowingly allowed the children to remain in conditions or

surroundings that endanger the children, (2) engaged in conduct or knowingly placed

the children with persons who engaged in conduct that endangers the children, (3) failed

to comply with the provisions of a court order that specifically established the actions




1The trial court’s order of termination also terminates the parental rights of the children’s mother; however,
she is not a party to this appeal.
necessary to obtain the return of the child, and (4) knowingly engaged in criminal

conduct that resulted in the conviction of an offense and confinement or imprisonment

and inability to care for the child for not less than two years from the date of filing the

petition. TEX. FAM. CODE ANN. § 161.001 (1) (D) (E) (O) (Q) (West Supp. 2015). The trial

court further found by clear and convincing evidence that termination was in the best

interest of the children. We affirm.

        Clinton argues in his sole issue on appeal that the evidence is factually insufficient

to support termination of his parental rights. Only one predicate act under section

161.001(1) is necessary to support a judgment of termination in addition to the required

finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362

(Tex.2003). In a factual sufficiency review,

        [A] court of appeals must give due consideration to evidence that the
        factfinder could reasonably have found to be clear and convincing.... [T]he
        inquiry must be "whether the evidence is such that a factfinder could
        reasonably form a firm belief or conviction about the truth of the State's
        allegations." A court of appeals should consider whether disputed
        evidence is such that a reasonable factfinder could not have resolved that
        disputed evidence in favor of its finding. If, in light of the entire record, the
        disputed evidence that a reasonable factfinder could not have credited in
        favor of the finding is so significant that a factfinder could not reasonably
        have formed a firm belief or conviction, then the evidence is factually
        insufficient.

In re J.F.C., 96 S.W.3d 256, 266-67 (Tex.2002) (quoting In re C.H., 89 S.W.3d 17, 25

(Tex.2002)) (internal footnotes omitted) (alterations added).

        Clinton was convicted in 1998 at the age of twelve for the offense of attempted

aggravated sexual assault. As a result of the conviction, Clinton was required to register

as a sex offender for 10 years upon release. In March 2008, Clinton was convicted for the

In the Interest of K.M.S., C.L.J.,III and K.B.J.                                            Page 2
offense of failure to register as a sex offender and sentenced to 365 days in a state jail

facility. In November 2008, Clinton was again convicted of the offense of failure to

register as a sex offender and sentenced to 180 days confinement in a state jail facility. In

April 2010, Clinton was convicted of the offense of failure to register as a sex offender

and sentenced to 3 years confinement. In April 2013, Clinton was convicted for the fourth

time of the offense of failure to register as a sex offender and sentenced to 5 years

confinement.

        Section 161.001 (Q) allows for termination if the parent:

               knowingly engaged in criminal conduct that has resulted in the
        parent's:
               (i) conviction of an offense; and
               (ii) confinement or imprisonment and inability to care for the child
        for not less than two years from the date of filing the petition;

TEX. FAM. CODE ANN. § 161.001 (1) (Q) (West Supp. 2015). Subsection Q is to be applied

prospectively from the time the petition is filed allowing the State to act in anticipation

of a parent's abandonment of the child and not just in response to it. In re A.V., 113 S.W.3d

at 360. Thus, if the parent is convicted and sentenced to serve at least two years and will

be unable to provide for his or her child during that time, the State may use subsection Q

to ensure that the child will not be neglected. Id. Evidence of the availability of parole is

relevant to determine whether the parent will be released within two years. In re H.R.M.,

209 S.W.3d 105, 109 (Tex. 2006). Mere introduction of parole-related evidence, however,

does not prevent a factfinder from forming a firm conviction or belief that the parent will

remain incarcerated for at least two years. Id. Parole decisions are inherently speculative,



In the Interest of K.M.S., C.L.J.,III and K.B.J.                                       Page 3
and while all inmates doubtless hope for early release and can take positive steps to

improve their odds, the decision rests entirely within the parole board's discretion. Id.

        The record shows that Clinton was convicted for the fourth time of the offense of

failure to register as a sex offender in April 2013. The Texas Department of Family and

Protective Services filed its petition in July 2014. Clinton testified that his maximum

completion date for his five year sentence was November 2017, but he could be released

on parole in March 2016. We find that the evidence is factually sufficient to support the

trial court’s finding that Clinton was convicted of an offense that resulted in his

imprisonment and inability to care for the children for not less than two years from the

date of filing the petition. Because we find that the evidence is factually sufficient to

support the trial court’s finding of a predicate act pursuant to Section 161.001(1) (Q), we

need not discuss the other predicate grounds for termination.

        Having found one predicate act under section 161.001(1), we now will determine

whether there is sufficient evidence to support the finding that termination was in the

best interest of the children. TEX. FAM. CODE ANN. § 161.001 (2) (West Supp. 2015). In

determining the best interest of a child, a number of factors have been considered,

including (1) the desires of the child; (2) the emotional and physical needs of the child

now and in the future; (3) the emotional and physical danger to the child now and in the

future; (4) the parental abilities of the individuals seeking custody; (5) the programs

available to assist these individuals; (6) the plans for the child by these individuals; (7)

the stability of the home; (8) the acts or omissions of the parent that may indicate the

existing parent-child relationship is not a proper one; and (9) any excuse for the acts or

In the Interest of K.M.S., C.L.J.,III and K.B.J.                                      Page 4
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re S.L., 421

S.W.3d 34, 38 (Tex.App.-Waco 2013, no pet.). The Holley factors focus on the best interest

of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38. The goal of

establishing a stable permanent home for a child is a compelling state interest. Id. The

need for permanence is a paramount consideration for a child's present and future

physical and emotional needs. Id.

        K.M.S. is currently living with her maternal aunt and is doing well in her current

placement. K.M.S. has expressed a desire to be placed with any family member who

would take her. K.M.S’s therapist testified that K.M.S. seems confused about the absence

of Clinton in her life. The therapist testified that K.M.S. will need an outlet to discuss

what has happened with her family and possible counseling. K.M.S. needs consistency

and a normal schedule. K.M.S.’s maternal aunt has expressed a desire to adopt K.M.S.

        C.L.J. is currently living in a residential treatment center. C.L.J. receives weekly

counseling, but occasionally requires more frequent counseling.          He has exhibited

aggressive behaviors and has threatened to injure himself and others. He is currently

taking medication for behavioral issues. C.L.J. has not indicated a desire to live with

Clinton. C.L.J’s therapist testified that Clinton has not been involved in C.L.J.’s life and

that it would be challenging for him to have Clinton introduced in his life at this time.

C.L.J. needs stability and has benefitted from therapy. C.L.J will require long term

therapy, and his recommended placement is to remain in residential treatment at this

time.



In the Interest of K.M.S., C.L.J.,III and K.B.J.                                      Page 5
        K.B.J is currently placed in foster care. His foster family has indicated a desire to

adopt him. K.B.J. has only seen Clinton one time, and has not indicated a desire to live

with him. K.B.J. is an aggressive, hyper child who requires structure and consistency.

K.B.J. requires counseling and medication for his behavioral issues. His needs are being

met in his foster placement.

        At the time of trial, Clinton was incarcerated. His maximum completion date is

November 2017, but he could be released on parole in March 2016. Clinton testified that

he has not seen the children since 2011, and he has only seen K.B.J. one time. Clinton has

an extensive criminal history including a conviction for assault family violence in which

the children’s mother was the victim. Clinton plans for K.M.S. to remain living with her

aunt. He intends for the other two children to reside with his aunt until his release. His

aunt is 69 years-old, and she has medical needs. The aunt also has a son who is

incarcerated for murder who would possibly live with her upon his release. Viewing all

the evidence in relation to the Holley factors, we hold that a reasonable factfinder could

have reasonably formed a firm belief or conviction that termination was in the best

interest of K.M.S, C.L.J., III., and K.B.J. The evidence is sufficient to support the finding

on best interest, and we overrule the sole issue on appeal.

        We affirm the trial court’s order terminating the parental right of Clinton to his

children K.M.S, C.L.J., III., and K.B.J.




In the Interest of K.M.S., C.L.J.,III and K.B.J.                                       Page 6
                                                   AL SCOGGINS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 21, 2016
[CV06]




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