







Reversed and Remanded and Majority and Dissenting Opinions filed
February 14, 2006








Reversed and Remanded and Majority and Dissenting
Opinions filed February 14, 2006.
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-05-00281-CV
_______________
 
 
IN THE INTEREST OF H.R.M.
 
 
_______________________________________________
 
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 29559
_______________________________________________
 
M A J O R
I T Y   O P I N I O N
Appellant,
William Keith M. (AKeith@), appeals from an order terminating his parental rights to
his daughter, H.R.M.  Because we conclude
the evidence is factually insufficient to support termination of Keith=s parental rights on the only ground
alleged in the petition for termination, we reverse and remand for a new trial.




I.  Background
Keith
and Stacey W. (AStacey@) are the natural parents of H.R.M., who was born on October
13, 2000.  Keith and Stacey married in
December 2000.  In September 2001, Keith
and Stacey entered into an agreed divorce decree, under which Stacy was
appointed sole managing conservator of H.R.M., and Keith was appointed
possessory conservator with the right to supervised visitation.  Since January 2002, Keith has been
incarcerated in the Texas Department of Criminal Justice, serving concurrent
sentences for robbery and enticing a child.
In May
2004, Stacey married James W. (AJames@).  On July 6, 2004,
Stacey and James, appellees, filed a petition seeking termination of Keith=s parental rights and James=s adoption of H.R.M.[1]  The sole ground alleged for termination was
that Keith Aknowingly engaged in criminal conduct
that has resulted in his conviction of an offense and confinement or
imprisonment and inability to care for [H.R.M.] for not less than two years
from the date this petition is filed.@[2]
Trial
was to a jury, which found, in a ten-to-two verdict, that Keith=s parental rights should be
terminated.  The trial court subsequently
entered an order terminating Keith=s parental rights but reserved a
ruling on James=s request to adopt H.R.M. 
Keith then filed a motion for new trial, which the trial court denied by
written order.




On
appeal, Keith raises the following three issues: (1) whether his trial counsel=s performance was so highly deficient
Keith was deprived of effective assistance of counsel; (2) whether the evidence
is factually insufficient to support a finding Keith was going to be
incarcerated and fail to provide for the care of H.R.M. for two years from the
date of the filing of the termination petition; and (3) whether Keith provided
for the care of H.R.M. by leaving her with Stacey.  Because we conclude the evidence is factually
insufficient to support a finding Keith was going to be confined or imprisoned
for two years from the date of the petition, we sustain Keith=s second issue and do not address his
first and third issues.
II.  Standard
of Review
In
parental termination cases, the party seeking termination bears the burden of
proving its case by clear and convincing evidence.  Tex.
Fam. Code Ann. ' 161.001 (Vernon Supp. 2005); In re J.F.C., 96 S.W.3d
256, 263 (Tex. 2002); In re J.I.T.P., 99 S.W.3d 841, 843 (Tex. App.CHouston [14th Dist.] 2003, no
pet.).  A>Clear and convincing evidence= means the measure or degree of proof
that will 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.@ 
Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); In re
J.F.C., 96 S.W.3d at 264; In re J.I.T.P., 99 S.W.3d at 843.
When
reviewing factual sufficiency under this heightened standard, we determine Awhether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of
the [petitioner=s] allegations.@ 
In re J.F.C., 96 S.W.3d at 266; see In re J.I.T.P., 99
S.W.3d at 844.  We consider whether
disputed evidence is such that a reasonable factfinder could not have resolved
that disputed evidence in favor of its finding. 
In re J.F.C., 96 S.W.3d at 266; In re J.I.T.P., 99 S.W.3d
at 844.  AIf, 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 at 266; In re J.I.T.P., 99 S.W.3d
at 844.




The
natural right between parents and their children is one of constitutional
dimension.  Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985); In re U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th Dist.] 2003, pet.
denied).  Therefore, a court should
strictly scrutinize termination proceedings, and strictly construe the
involuntary termination statutes in favor of the parent.  Holick, 685 S.W.2d at 20; In re
U.P., 105 S.W.3d at 229.
III.  Termination Under
Section 161.001(1)(Q)
Before a
trial court may terminate the parent-child relationship, there must be clear
and convincing evidence (1) the parent committed one of the acts enumerated in
section 161.001(1) of the Texas Family Code, and (2) termination is in the best
interest of the child.  Tex. Fam. Code Ann. ' 161.001; In re J.I.T.P., 99
S.W.3d at 844.  In the present case, the
appellees alleged Keith had committed the conduct set forth in subsection
(1)(Q).  The jury found Keith had committed
that conduct and also termination was in H.R.M.=s best interest.[3]  Keith contends the evidence is factually
insufficient to support the finding relative to section 161.001(1)(Q), but he
does not challenge the Abest interest@ finding.
Section
161.001(1)(Q) provides grounds for termination if the parent has Aknowingly 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) (Vernon Supp. 2005).  Subsection (1)(Q) is to be read
prospectively.  In re A.V., 113
S.W.3d 355, 360 (Tex. 2003).  Thus,
subsection (1)(Q) allows termination when the parent will be confined or
imprisoned and unable to care for the child for at least two years after
termination proceedings begin.  See
id. at 360B61.




Incarceration
alone does not justify termination. 
In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.CFort Worth 2004, no pet.); In re
B.M.R., 84 S.W.3d 814, 818 (Tex. App.CHouston [1st Dist.] 2002, no pet.); In
re Caballero, 53 S.W.3d 391, 395 (Tex. App.CAmarillo 2001, pet. denied) (citing Tex.
Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).[4]  Otherwise, termination of parental rights
could become an additional punishment automatically imposed along with
imprisonment for almost any crime.  In
re E.S.S., 131 S.W.3d at 639.  The
petitioner must also show the parent=s inability to care for the child for
at least two years from the date of filing the petition.  Id.; In re B.M.R., 84 S.W.3d at
818.  Therefore, incarceration and
inability to care are separate requirements for termination under section
161.001(1)(Q).  See In re
E.S.S., 131 S.W.3d at 639; In re B.M.R., 84 S.W.3d at 818.
In the
present case, Keith contends the evidence is factually insufficient to support
the finding he will be incarcerated for at least two years after the date the
petition was filed and the finding he will be unable to care for
H.R.M. for at least two years after the date the petition was filed.[5]  We conclude the evidence is factually
insufficient to support a finding he will be confined or imprisoned for at
least two years after the date the petition was filed and do not reach the
element of inability to care.
At
trial, as they do on appeal, appellees relied on the following evidence to
prove Keith will be confined or imprisoned until at least July 6, 2006, i.e.,
two years after appellees filed their petition:




$          a
twenty-five year sentence imposed on Keith in February 1996;[6]
$                  
a seven year
sentence imposed on Keith in October 2002, to run concurrently with the
twenty-five year sentence;[7]
and
$          Keith=s testimony that, at the time of trial in January
2005, he had Aa little less than 13 left@ on the twenty-five year sentence.
 
From this evidence, appellees argue, AAt the time of trial, [Keith] still
had thirteen years of confinement remaining. 
This evidence is sufficient to establish confinement or imprisonment for
a period of two years from the date of the filing of the petition.@ 
Appellees also state, ANo evidence was adduced to indicate he would be released
earlier.@ 
Thus appellees rely solely on the length of the Keith=s sentence as clear and convincing
evidence he would be confined or imprisoned on July 6, 2006.
Appellees acknowledge Keith testified
he would have a parole hearing the following June.  Nevertheless, they follow this acknowledgment
with the statement that Keith Adid not testify he would be paroled,@ and a citation to In re B.M.R.,
in which the appellate court rejected the appellant=s factual sufficiency challenge.  In re B.M.R., 84 S.W.3d at 818.  In In re B.M.R., however, the
appellant had testified the earliest he could be released was February 2003,
which was more than two years from the date of the relevant petition.  Id. at 817.  As characterized by the appellate court,
[T]he only evidence suggesting an earlier date was (1)
appellant=s testimony that he had told his other children he was
coming home within two years and (2) a June 2000 letter from appellant to
Veronica that stated, AI should be home by Feb. 2003, although there is a
chance I could be home within a year.@   No further elaboration was provided about
how appellant could be home within a year.
 
Id. at 818.




In contrast, Keith=s testimony he had thirteen years
remaining referred to the length of his sentence, not his earliest release date.  Additionally, Keith testified not only that
he had a parole hearing the forthcoming June, but that he had signed up for a
pre-release course, which required the participants to be within two years of
parole and he should complete the course in May, when he returned.  This evidence was uncontroverted.  On cross-examination, Keith testified there
was no assurance he would be granted or denied parole.[8]  Nevertheless, he also testified that in his
fifteen years in the Texas Department of Corrections, he had Anever had a case doing any
wrongdoings,@ and affirmed Afrom 
previous appearances in [sic] parole board in other cases,@ the timing was right for him to be
released.[9]  This evidence, too, was uncontroverted.




Appellate courts analyzing the
sufficiency of the evidence on the element of incarceration two years from the
date of the petition usually refer to evidence of the projected release date,
rather than evidence of the length of the sentence alone.  See, e.g., In re D.D.J.,
178 S.W.3d 424, 428 (Tex. App.CFort Worth 2005, no pet.) (holding, in context of deciding
ineffective assistance of counsel issue, evidence was legally insufficient when
appellant, at time of trial, was serving four concurrent five year sentences,
but it was undisputed there was no evidence regarding when he would be released
from prison); In re R.F., 89 S.W.3d 258, 260 (Tex. App.CCorpus Christi 2002, no pet.)
(holding evidence legally insufficient when appellant began serving a nine year
sentence in August 1999, the petition was filed in July 2001, and the only
evidence of when appellant would be released was a letter in which he stated he
hoped to be released in May 2003); see also In re E.A.G., No.
09-04-365-CV, 2005 WL 1038723, at *2 (Tex. App.CBeaumont May 5, 2005, no pet.) (mem.
op.) (referring to mandatory release date). 
But see In re J.C., 151 S.W.3d 284, 289 (Tex. App.CTexarkana 2004, no pet.) (rejecting
factual sufficiency challenge when State had to prove appellant would be
incarcerated until March 27, 2004, appellant=s convictions became final August
9, 2001, State submitted final convictions, for which appellant was
sentenced to ten years, and there was nothing to show appellant not still
incarcerated during appeal, more than two years after the petition was
filed).  The approach of looking to
evidence of release date, rather than length of sentence, is consistent with
the statutory language which Afocuses on the parent=s future imprisonment and inability
to care for the child, not the criminal conduct that the parent committed in
the past.@ 
In re A.V., 113 S.W.3d at 360.[10]




In the present case, the only
evidence Keith will still be in prison or confined on July 6, 2006, are the
judgments of conviction and sentences and Keith=s testimony that, as of January 2005,
he still had thirteen years left on his sentence.  Even if we consider sentence length as some
evidence of probable release date,[11]
a reasonable factfinder could not have resolved the following uncontroverted
evidence as supporting a finding Keith would still be imprisoned or confined on
July 6, 2006:  Keith=s testimony he had two parole
hearings before that date; his testimony he had signed up for a program
available only to prisoners within two years of release and would be completing
the program in May 2005; and his testimony he had committed Ano wrongdoings@ while in prison.  In light of the entire record, we conclude a
factfinder could not have reasonably formed a firm belief or
conviction Keith would still be imprisoned or confined as of July 6, 2006.  See In re J.F.C., 96 S.W.3d at
266; see In re J.I.T.P., 99 S.W.3d at 844.
We sustain Keith=s second issue.
IV.  Conclusion
Having sustained Keith=s second issue, we reverse the order
terminating his parental rights and remand for a new trial.  Because of our disposition of Keith=s second issue, we need not address
his first and third issues.
 
/s/        Charles
W. Seymore
Justice
 
Judgment rendered and Majority and
Dissenting Opinions filed February 14, 2006.
Panel consists of Justices Yates,
Hudson, and Seymore.  (Yates, J.,
dissenting.)
 
 




[1]  When referring
to Stacey or James individually, we use the person=s first name; when referring to both of them, we use Athe appellees.@


[2]  See Tex. Fam. Code Ann. ' 161.001(1)(Q) (Vernon Supp. 2005).


[3]  In a single
broad-form question, the jury was asked whether the parent-child relationship
should be terminated.  The jury, however,
was instructed, for the parent-child relation to be terminated in this case, it
must be proved by clear and convincing evidence that Keith violated section
161.001(1)(Q) and that termination would be in H.R.M.=s best interest.


[4]  In Boyd,
the court did not address termination under section 161.001(1)(Q).  See Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 532B34 (Tex.
1987).  Rather, the court
addressed termination on a different statutory groundCwhether the parent engaged in conduct which endangers
the emotional or physical well‑being of a child.  See id.  The court held mere imprisonment, standing
alone, will not establish endangerment.  Id.
at 533.  In In re Caballero, the
court concluded this principle is equally applicable when considering
termination under section 161.001(1)(Q). 
See In re Caballero, 53 S.W.3d 391, 395 (Tex. App.C Amarillo 2001, pet. denied).


[5]  Keith admits
that he has knowingly engaged in criminal conduct that has resulted in
conviction of an offense.


[6] In the judgment for ARobbery-Enhanced,@ dated February 7, 1992, the court imposed a
twenty-five year sentence, with A131 days
from date of sentence@ as time credited.


[7] In the judgment for enticing a child, dated October
21, 2002, the court imposed a seven year sentence with A279 days credit from date of sentence.@


[8]  Appellees
elicited the following testimony on cross-examination:
 
Q.  How many
times have you been up for parole on your 25-year sentence?
A.  This is my
third time coming up on my violation.
Q.  There=s no assurance that you=ll be
granted parole; is there?
A.  There=s no assurance that I=ll be
denied.
Q.  But there=s no assurance that you=ll be
granted parole; is that correct?
A.  Right.
Q.  And if your
parole was not granted, then when would you come up for parole again?
A.  June of 2005
[sic].
Q.  You come up
every year?
A.  Yes.


[9]  Thus, the
present case is also distinguishable from In re K.R.M., in which the
appellate court rejected the appellant=s
factual sufficiency challenge despite appellant=s
testimony he was scheduled for a parole hearing and could be released within
four months of trial.  147 S.W.3d 628,
630 (Tex. App.CSan Antonio 2004, no pet.)  In In re K.R.M., the appellant
admitted he had been subjected to disciplinary actions while in prison and had
been denied early release on three previous occasions.  Id.


[10]  The dissent
quotes In re A.V. to support its conclusion that evidence of the
date of conviction and a sentence length of over two years from the petition
date is sufficient to meet the petitioner=s burden
of proof.  Dissenting op. at 2 (quoting In
re A.V., 113 S.W.3d 355, 360 (Tex. 2003)). 
The quoted sentence, however, appears in the context of the supreme
court=s interpreting the two-year period in subsection Q to
apply prospectively, an interpretation the supreme court acknowledged could
lead to incarcerated parents raising the possibility of early parole.  See In re A.V., 113 S.W.3d at 359.
 
The dissent also cites In re E.S.S. in support
of its conclusion.  Dissenting op. at 1B2 (citing In re E.S.S., 131 S.W.3d 632, 639B40 (Tex. App.CFort
Worth 2004, no pet.)).  In In re
E.S.S., the Fort Worth Court of Appeals ultimately held the evidence was
insufficient to support termination of the appellant/father=s parental rights under subsection Q:
 
We conclude that Appellant=s statement at trial regarding his prison term [his
admission he is serving a life sentence] is sufficient to establish Appellee=s initial burden to prove that Appellant is incarcerated
for more than two years.  Likewise,
Appellant met his burden of production regarding how he would arrange for the
care of E.S.S. in that the agreement reached by the parties included naming
Appellant=s mother and brother possessory conservators with
visitation rights.  Appellee consequently
had the burden of persuasion to establish that this arrangement would not meet
Appellant=s duty to E.S.S. 
Because no evidence was presented by Appellee regarding Appellant=s plan to care for E.S.S., Appellee has not met her
burden of persuasion.  Consequently, the
evidence is insufficient to establish that Appellant=s conduct falls within the grounds for involuntary
termination enumerated in subsection Q.
 
131 S.W.3d at 640 (citation omitted).  In short, evidence regarding length of
incarceration was clearly not determinative of the appellate court=s resolution of the case.  Also, unlike the present case, there is no
indication E.S.S.=s father (who was serving a life sentence) introduced
evidence of a possible release date.


[11]  Because Keith
is not challenging the legal sufficiency of the evidence, we need not reach
this question.


