                                    NO. 07-00-0278-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                      MARCH 14, 2001

                           ______________________________


                 IN THE INTEREST OF ASHLEY CABALLERO, A CHILD


                         _________________________________

               FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                  NO. 15289; HONORABLE KELLY G. MOORE, JUDGE

                          _______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.


       In this appeal, appellant Omene Montano III, challenges a trial court judgment

terminating his parental rights to his daughter Ashley Caballero. In doing so, he presents

seven issues which, he contends, show error in the trial court’s judgment. In the first six of

those issues, appellant contends the evidence was both legally and factually insufficient

to support the termination. In the seventh issue, he challenges the denial of his motion for

new trial on the ground that he was prejudiced by evidence introduced against Melissa
Caballero, Ashley’s mother. Disagreeing that reversal is required, we affirm the judgment

of the trial court.


       On September 3, 1998, and in response to a complaint that six-year-old Ashley was

the victim of neglect, employees of the Texas Department of Protective and Regulatory

Services (the Department) went to the home of Ashley and her mother, Melissa. Upon

arriving, they found very little food in the house and little cooperation from Melissa. The

workers made appointments to meet with Melissa, but she did not keep those appointments.

With her consent, Melissa was given a blood test, which revealed her use of cocaine.

When asked with whom Ashley could stay, Melissa suggested Ashley’s grandparents.

However, because Ashley claimed to have been mistreated by those grandparents, the

Department took custody of her. Within a week after taking custody, the Department filed

this proceeding seeking to terminate the parental rights of both appellant and Melissa.


       In its amended petition, the Department alleged seven acts or omissions as grounds

for termination of parental rights under section 161.001(1) of Texas Family Code.1 As

alleged in the petition, those acts were that appellant had 1) left the child without providing

adequate support for at least six months, 2) knowingly placed or allowed the child to stay

in conditions which endangered the well-being of the child, 3) engaged in conduct or placed

the child with persons who engaged in conduct which endangered the child, 4) failed to

support the child in accordance with his ability for a period of one year, 5) relinquished his



        1
            Subsequent references are to the Family Code unless otherwise noted.

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parental rights, 6) constructively abandoned the child, and 7) engaged in criminal conduct

resulting in his incarceration and inability to care for the child for a period of not less than

two years.


       The termination proceedings against both parents were tried together. Evidence was

introduced about Melissa’s drug use. Evidence was also presented that in December 1996,

appellant pled guilty to the offense of robbery and was granted shock probation after his

service of 180 days confinement. Throughout 1997, appellant was either confined or

participating in correctional programs in Austin and Midland. His probation was revoked

as a result of his being charged with driving while intoxicated in May 1998 in Midland. As

a result of that revocation, he was sentenced to eight years confinement in the Institutional

Division of the Texas Department of Criminal Justice.


       After trial in the termination proceeding, the trial court terminated the parental rights

of both parents. In response to a request for findings of fact and conclusions of law, the

trial court found each of the Department’s allegations to be true with the sole exception that

it did not find appellant had relinquished his parental rights. In pursuing this appeal, and

in his first six issues, appellant avers that the evidence was legally and factually insufficient

to support any of the termination grounds found by the trial court. His seventh issue

assigns error to the denial of his motion for new trial alleging he was prejudiced by

evidence introduced against Melissa.




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       As we have noted, the statute governing termination of parental rights is section

161.001 of the Texas Family Code. It provides that parental rights may be terminated if the

trial court finds, by clear and convincing evidence, that the person has engaged in one or

more enumerated acts or omissions and that the termination is in the best interest of the

child. Clear and convincing evidence is “that measure or degree of proof which produce

in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established.” In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). This is an

intermediate standard falling between the preponderance of evidence standard of ordinary

civil proceedings and the “beyond a reasonable doubt” standard of criminal proceedings.

Id. Because the termination of parental rights is a matter of constitutional dimensions, this

heightened burden is necessary. Id. at 846.


       Our review of appellant’s legal sufficiency challenges requires us to consider only

the evidence supporting the trial court’s finding, disregard evidence to the contrary and

uphold the finding if there is any probative evidence to support it. In re King’s Estate, 150

Tex. 662, 244 S.W.2d 660, 661 (1951). The parties differ on whether the “clear and

convincing evidence” standard required to establish termination alters our standard of

review. We continue to adhere to the view that the standard of appellate review does not

change when the burden to establish a fact is by clear and convincing evidence. See In

re M.D.S., 1 S.W.3d 190, 197 (Tex.App.--Amarillo 1999, no pet.). Nevertheless, in applying

that standard, the weight of evidence necessary to support a verdict must be higher. In re

D.T., 34 S.W.3d 625, 632 (Tex.App.--Fort Worth 2000, no pet. h.). Therefore, in reviewing


                                              4
factual sufficiency challenges, we are to consider all the evidence to determine whether

reaching a “firm belief or conviction” that the allegation was true is contrary to the

overwhelming weight of the evidence. To hold otherwise would nullify the heightened

burden of proof required at trial. Additionally, termination proceedings should be strictly

scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).


       Because the trial court’s judgment may be affirmed if any of the grounds for

termination it found true, and that termination is in the best interest of the child, are

supported by the evidence, in its appellate brief, the Department only addresses three of

the grounds found by the trial court. They are, that appellant a) neglected Ashley by

knowingly placing, or allowing her to remain, in conditions which endangered her well-

being, b) engaged in conduct or placed her with persons who engaged in conduct which

endangered her well-being, and c) engaged in criminal conduct resulting in his

imprisonment and inability to care for Ashley. Because they are dispositive of this appeal,

we focus upon appellant’s sixth and seventh issues.


                                Engaged in Criminal Conduct


       Reiterated, appellant argues the evidence was legally and factually insufficient to

support a finding he knowingly engaged in criminal conduct that resulted in his conviction,

confinement in prison, and inability to care for the child for at least two years. See Tex.




                                               5
Fam. Code Ann. § 161.001(Q) (Vernon Supp. 2001). Appellant reasons that he could

properly care for Ashley by placing her with his mother or fiancee during his incarceration.


       The Department presents several arguments in response. It initially contends

appellant admitted he could not care for Ashley during the time he would be in prison. In

doing so, it relies on his affirmative response to the question: “by committing that offense,

you knew that you could go to prison and not be able to take care of your daughter, didn’t

you?” Implicit in this compound question and the Department’s argument is the notion that

the term “care” in section 161.001(1)(Q) is limited to the parent’s personal care of the child.

We do not agree with that view.


       Subsection (Q) was added to section 161.001(1) by the 75th Legislature. See Act

of June 2, 1997, H.B. 1826, § 9, 75th Leg., R.S. 1997 Tex.Gen.Laws 2012, 2014 (1997).

We have found no published opinion construing the term “care” in subsection (Q).

However, a long line of cases have recognized the rule that incarceration alone cannot

support a termination of parental rights. See, e.g., Tex. Dept. of Human Svcs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re B.T., 954 S.W.2d 44 (Tex.App.--San Antonio 1997, pet.

denied). The Department argues these cases are inapplicable because they were decided

prior to the adoption of subsection (Q). We disagree. There is nothing in the text of

subsection (Q) or in the bill analysis that would indicate the legislature intended to change

or alter the established rule. Because incarceration is inherently inconsistent with providing

personal care for a child, the legislature’s inclusion of the phrase “and inability to care for



                                              6
the child” would be meaningless unless care encompassed arranging for care to be

provided by another. Without a clear indication of legislative intent to alter the established

rule, we decline to adopt the Department’s position.


       As we noted, appellant argues on appeal that he could provide parental care for

Ashley by placing her with his mother, JoAnn Gomez, or his fiancee, Patricia Ann Sanchez,

and that the Department failed to disprove these options. However, neither JoAnn or

Patricia testified that they were willing to care for Ashley or that they had the resources to

provide for her care. Patricia’s testimony concerning her relationship with appellant was

that it only lasted for one summer and ended two years before trial.


       Appellant has failed to present any authority supporting his position that the

Department had the burden to disprove the existence of anyone with whom Ashley could

be placed during his incarceration. Adopting such a rule would place an unreasonable

burden on the Department and judicial resources. Under the rule advocated by appellant,

the Department would not only be required to locate every relative or other person with

whom the parent had a close relationship, but to establish that none of them would provide

care for the child. The better reasoned rule is that once the Department has established

a parent’s knowing criminal conduct resulting in their incarceration for more than two years,

the parent must produce some evidence as to how they would provide or arrange to provide

care for the child during that period.      When that burden of production is met, the




                                              7
Department would have the burden of persuasion that the arrangement would not satisfy

the parent’s duty to the child.


       Because the record does not contain any evidence that appellant’s mother or former

fiancee could and would provide care for Ashley during his incarceration, the Department

had no burden to disprove the capacity of those people to care for Ashley.


       Inasmuch as appellant failed to present any evidence as to the availability of

someone else to take care of Ashley during his incarceration, the trial court’s finding in that

regard could not be against the overwhelming weight of the evidence. We find the

evidence supporting this trial court finding both legally and factually sufficient and overrule

appellant’s sixth issue.


       As we noted above, in his seventh and final issue, appellant argues the trial court

erred in denying his motion for new trial because the evidence introduced against Melissa

was unfairly prejudicial to him because he had no knowledge of her conduct. The decision

whether to sever the portion of the Department’s action concerning appellant from that

involving Melissa was within the trial court’s decision. See Tex. R. Civ. P. 41; McGuire v.

Commercial Union Ins. Co. Of New York, 431 S.W.2d 347, 351 (Tex. 1968). In contending

the trial court erred, appellant cites Guerra v. Texas Dept. Of Protective and Regulatory

Svcs., 940 S.W.2d 295, 299 (Tex.App.--San Antonio 1997, no writ), and State Dept. of

Highways v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993), for the proposition that a severance

would have been proper. However, the cases are distinguishable because the question


                                              8
presented by this issue is not whether the trial court could have severed the portion of the

Department’s action seeking termination of appellant’s rights from that seeking termination

of Melissa’s rights. It is, rather, whether the trial court abused its discretion in denying such

a severance.


       The test for determining whether the trial court abused its discretion is not whether,

in the opinion of the reviewing court, the facts present an appropriate case for the trial

court’s action. Rather, it is a question whether the court acted without reference to any

guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-

42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).


       Texas Rule of Civil Procedure 40, in relevant part, provides, “[a]ll persons may be

joined in one action as defendants if there is asserted against them jointly, severally, or in

the alternative any right to relief in respect of or arising out of the same transactions,

occurrence, or series of transactions or occurrences and if any questions of law or fact

common to all of them will arise in the action.” Tex. R. Civ. P. 40. Appellant’s knowledge

of Melissa’s activities was a disputed fact question at trial. Under the evidence, the trial

court could well have concluded that the questions concerning the welfare and care of

Ashley by both parents were sufficiently intertwined to justify a joint trial. Accordingly, the

trial court did not abuse its discretion in refusing to sever. Appellant’s seventh issue is

overruled.




                                               9
       As we held in our discussion of appellant’s sixth issue, the evidence was sufficient

to justify the trial court finding that appellant had engaged in criminal conduct that resulted

in his imprisonment and inability to care for Ashley. That being true, we must, and do,

affirm the judgment of the trial court.


                                                   John T. Boyd
                                                    Chief Justice

Publish.




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