

 











 
 
 
 
 
 
 
                                           NUMBER
13-02-026-CV
 
                                 COURT
OF APPEALS
 
                     THIRTEENTH
DISTRICT OF TEXAS
 
                                    CORPUS
CHRISTI
___________________________________________________________________
 
                IN THE INTEREST OF R.F., JR. AND B.U.D., CHILDREN
___________________________________________________________________
 
                             On
appeal from the 156th District Court
                                    of
San Patricio County, Texas.
__________________________________________________________________
 
                                          O
P I N I O N
 
            Before
Chief Justice Valdez and Justices Dorsey and Rodriguez
                                       Opinion
by Justice Rodriguez
 
Appellant, the biological father of R.F.,
Jr. and B.U.D., minor children, brings this appeal following the trial court=s order
terminating his parental rights.  By five
issues, appellant generally contends: (1) the evidence is neither factually,
nor legally sufficient to support the verdict; and (2) the trial court erred by
failing to act on his request for a bench warrant.  We reverse and render.
 




I.  Background
In March 1998, the Texas Department of
Protective and Regulatory Services (DPRS) brought suit affecting the
parent-child relationship against appellant and E.D.,[1]
as parents of R.F., Jr.  Ultimately,
R.F., Jr.=s
maternal aunt was named permanent managing conservator.  Appellant and E.D. were appointed possessory
conservators.
In August 1999, appellant was incarcerated
for burglary of a habitation and began serving a nine year sentence.  In July 2001, DPRS brought a suit affecting
the parent-child relationship against appellant and E.D., as parents of R.F.,
Jr. and B.U.D.  Following a bench trial,
appellant=s and
E.D.=s
parental rights were terminated as to R.F., Jr. and B.U.D.  DPRS was named permanent managing
conservator.  This appeal ensued.[2]
II. 
Legal Sufficiency of the Evidence
By his second issue, appellant contends the
evidence is legally insufficient to support the trial court=s
determination to terminate his parental rights.
A.  Standard




In reviewing a legal sufficiency
challenge, we consider all of the evidence in the light most favorable to the
party in whose favor the verdict was rendered and indulge every reasonable
inference in that party=s favor. 
See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d
276, 285 (Tex. 1998); W.B. v. Tex. Dep=t of
Protective  & Regulatory Servs., 82
S.W.3d 739, 741 (Tex. App.BCorpus Christi 2002, no pet.).  We sustain a legal sufficiency challenge when
the record discloses that: (1) there is a complete absence of evidence of a
vital fact; (2) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the
evidence conclusively establishes the opposite of the vital fact.  Norwest Mortgage, Inc. v. Salinas, 999
S.W.2d 846, 853 (Tex. App.BCorpus Christi 1999, pet. denied).  AMore than a scintilla of evidence exists
when the evidence supporting the finding, as a whole, rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.@  Id. (citing Associated Indem. Corp.,
964 S.W.2d at 286).
B.  Analysis
The Texas Family Code allows for
involuntary termination of parental rights when: (1) the parent has engaged in
conduct described in section 161.001; and (2) the termination would be in the
best interests of the child.  See Tex. Fam. Code. Ann. '
161.001(1), (2) (Vernon 2002); W.B., 82 S.W.3d at 742.




Appellant challenges the sufficiency of
the evidence establishing that section 161.001(1)(Q) of the Texas Family Code
was satisfied, the only ground presented by DPRS to the trial court.  This section provides that the court may
order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has knowingly engaged in criminal
conduct that resulted in his conviction of an offense, 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 2002).
In this case, DPRS offered the following
testimony of a DPRS caseworker concerning appellant=s
incarceration:  
Attorney:                      Is
the father of the children [appellant]?
 
Caseworker:                 Yes.
 
Attorney:                      And
where is he now?
 
Caseworker:                 In prison.
 
Attorney:                      For
how long?
 
Caseworker:     I don=t know that.
 
Attorney:                      How
long has he been in prison?
 
Caseworker:     I don=t know that either.
 
E.D. [non-witness]:        Going to be three years.
 
Caseworker:     Three Years.
 
Attorney:                      Because
of his incarceration has he knowingly engaged in criminal conduct that has
resulted in his conviction of an offense and confinement or imprisonment and
inability to care for the children for not less than two years from the date of
the filing of the petition in this case?
 
Caseworker:     That=s true.
 




The only other evidence of appellant=s
incarceration came from a letter written by appellant to the trial court while
serving his sentence.  In the letter,
appellant stated he had been in jail since August 4, 1999, and was sentenced to
serve nine years in prison.  However,
appellant stated that he hoped to be released by May 2003, or earlier.  The original petition in this case was filed
on July 27, 2001.  If appellant is
released in May 2003 he would not be incarcerated or imprisoned for over two
years from the date the petition was filed. 
See id.; see also In re B.M.R., 01-01-00211-CV, 2002 Tex.
App. LEXIS 6267, *7 (Houston [1st Dist.] Aug. 29, 2002, no pet.); In re I.V.,
61 S.W.3d 789, 798 (Tex. App.BCorpus Christi 2001, no pet.); but see
In re B.S.W., 06-01-00111-CV, 2002 Tex. App. LEXIS 6729, *9 (Texarkana
Sept. 18, 2002, no pet. h.) (applying section 161.001(1)(Q) of family code by
looking backward from filing of petition to determine if parent had been
incarcerated for two years prior to filing of petition).




With appellant=s letter
as the only evidence indicating when he would be released from incarceration,
DPRS failed to establish that appellant will serve more than two years from the
date the petition was filed.  See In
re I.V., 61 S.W.3d at 798.  Not only
did DPRS fail to provide any evidence to support the trial court=s
judgment that section 161.001(1)(Q) of the family code was satisfied, but
appellant=s letter
conclusively established the opposite, that it was not.  See Tex.
Fam. Code. Ann. ' 161.001(1)(Q).  We conclude the evidence was not legally
sufficient to support the trial court=s findings under section 161.001(1)(Q) of
the Texas Family Code.  See id.;
see also Norwest Mortgage, Inc., 999 S.W.2d at 853 (elements listed to
sustain legal sufficiency challenge). 
Thus, the first element required to terminate appellant=s
parental rights has not been fulfilled.  See
id. '
161.001(1), (2). Appellant=s second issue is sustained.[3]         
Accordingly, we reverse the judgment of
the trial court and render judgment in favor of appellant.          
ENNELDA V. RODRIGUEZ
Justice
 
Publish.
Tex.
R. App. P.
47.3.
 
Opinion delivered and
filed
this 17th day of
October, 2002.
 




[1]E.D.
is the biological mother of the minor children.


[2]E.D.
is not a party to this appeal.


[3]Because
of our disposition of appellant=s
second issue, we need not address the remaining issues.  See Tex.
R. App. P. 47.1. 


