                            NUMBER 13-08-00101-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


                    IN THE INTEREST OF E.A.R., A CHILD


   On appeal from the 24th District Court of Victoria County, Texas.



                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

      Appellant, Duane Avery Rawlins, appeals from the trial court’s order terminating his

parent-child relationship with E.A.R. He raises one issue on appeal. We affirm.

                                    I. BACKGROUND

      On September 8, 1995, E.A.R. was born at the University of Texas Medical Branch

at Galveston. Her mother, Susanna Parish, was incarcerated during the entire gestational

period. For the first several months of her life, E.A.R. lived with Susanna’s mother. In

approximately March 1996, Susanna was paroled, and she and Rawlins took E.A.R. to

their home in Pasadena, Texas, where E.A.R. lived with them until they separated in
August or September 1996.        Susanna took E.A.R. and moved out.         Subsequently,

Susanna dropped E.A.R. off with Rawlins, promising to pick her up the next day. Susanna

did not return, and Rawlins took E.A.R. to stay with his mother for a couple of weeks in

Goliad, Texas.

       In May 1997, Rawlins was sentenced to twenty-five days in jail for misdemeanor

possession of marijuana. During the time he was incarcerated, Rawlins arranged for

E.A.R. to stay with a daycare facility.

       Subsequently, when E.A.R. reached approximately 18 months of age, Rawlins’s

mother called Child Protective Services to report Rawlins. Child Protective Services told

Rawlins that he must voluntarily send E.A.R. to live with one of his half-nieces. He

eventually made arrangements for E.A.R. to live with his half-niece Rene Thomas and her

family. From approximately June 1997 until 2005, when the Thomases filed paperwork to

adopt E.A.R., Rawlins had no contact with her.

       In January 2005, Rawlins was arrested and charged with aggravated assault with

a deadly weapon. He learned of E.A.R.’s whereabouts during this incarceration when the

Thomases’ attorney sent him a letter requesting that he voluntarily relinquish his parental

rights to E.A.R. He refused, and suit was filed in Brazoria County, Texas regarding

termination of his parental rights and the proceedings for adoption. On March 18, 2005,

Rawlins pleaded guilty to the aggravated assault with a deadly weapon charge and was

sentenced to ten years in prison.

       Prior to the termination hearing, the Thomases had to forgo their adoption

proceedings because they were moving out of the country and did not have the legal rights

to E.A.R. that they needed to obtain the requisite travel documentation for her. In July

2006, the Thomases relinquished control over E.A.R. to Child Protective Services which,

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because E.A.R. suffers from a bipolar disorder, among other psychological problems,

placed her in a psychological treatment facility in the Texas Hill Country, outside Kerrville,

Texas.

       On December 12, 2007, the trial court held a hearing regarding the termination of

Rawlins’s parent-child relationship with E.A.R. On January 11, 2008, the trial court

terminated Rawlins’s parental relationship with E.A.R. on the grounds provided in section

161.001(1)(q) of the family code. See TEX . FAM . CODE ANN . § 161.001(1)(q) (Vernon 2008)

(stating that a parent’s rights can be terminated when the parent has “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.”). This appeal ensued.

                                II. PRESERVATION OF ERROR

       Before addressing Rawlins’s appellate issue, we must first decide whether he

properly preserved the issue for our review. The Texas Department of Family and

Protective Services (“TDFPS”) argues that Rawlins’s statement of points presented to the

lower court was too general and, therefore, did not satisfy family code section 263.405(i),

which provides:

       The appellate court may not consider any issue that was not specifically
       presented to the trial court in a timely filed statement of the points on which
       the party intends to appeal or in a statement combined with a motion for new
       trial. For purposes of this subsection, a claim that a judicial decision is
       contrary to the evidence or that the evidence is factually or legally insufficient
       is not sufficiently specific to preserve an issue for appeal.

Id. § 263.405(i) (Vernon 2008).

       In his statement of points, Rawlins asserted:

                                              V.

       The evidence introduced at the trial of this matter was legally insufficient to

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       support the trial court’s finding that Duane Avery Rawlins knowingly engaged
       in criminal conduct that resulted in Duane Avery Rawlins’ [sic] 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 the filing of the petition.

                                              VI.

       The evidence introduced at the trial of this matter was factually insufficient
       to support the trial court’s finding that Duane Avery Rawlins knowingly
       engaged in criminal conduct that resulted in Duane Avery Rawlins’ [sic]
       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 the filing of the
       petition.

       In In re A.J.H., the Fort Worth Court of Appeals addressed a similar issue regarding

the specificity required to raise legal and factual sufficiency points on appeal. 205 S.W.3d

79, 80 (Tex. App.–Fort Worth 2006, no pet.). In that case, the parent’s statement of points

alleged:

       [T]he evidence is factually insufficient on his failure to establish his paternity
       (paragraphs 8.1 and 8.2 of the judgment), on grounds (D), (E), and (N) of
       section 161.001(1) of the Texas Family Code (paragraph 8, paragraph 8.3.1,
       paragraph 8.3.2, and paragraph 8.3.3 of the judgment), and on best interest
       (paragraph 8.4) of the judgment.

Id. In holding that the appellant properly preserved his argument, the Fort Worth Court of

Appeals noted that this “statement of points was certainly specific enough to allow the trial

judge (who presided over the entire trial and therefore was at least as familiar with the

evidence as the appellate attorney appointed six days after trial) to correct any erroneous

findings on the challenged grounds.” Id.

       Here, Rawlins directed the trial court to each ground of termination that he believed

was not supported by legally and factually sufficient evidence. We conclude that Rawlins’s

statement of points was sufficiently specific to satisfy the requirements of section

263.405(i); therefore, Rawlins properly preserved his issue for appeal. See TEX . FAM .

CODE ANN . 263.405(i); Lumpkin v. Dep’t of Family and Protective Servs., 260 S.W.3d 524,

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528-29 (Tex. App.–Houston [1st Dist.] 2008, no pet.); In re S.K.A., 236 S.W.3d 875, 899

(Tex. App.–Texarkana 2007, pet. denied); see also In re D.J.E., Nos. 13-08-00349-CV,

13-08-00350-CV, 2008 WL 5196608, at *2 (Tex. App.–Corpus Christi Dec. 11, 2008, no

pet.) (mem. op.) (holding that a statement of points asserting that the “evidence for each

termination ground was legally and factually insufficient” is sufficiently specific to preserve

the issue for appeal).

                             III. SUFFICIENCY OF THE EVIDENCE

       In his sole appellate issue, Rawlins argues that “the evidence was legally [and]

factually insufficient to support a finding that Duane Avery Rawlins is unable to care for the

child for not less than two years from the date of the filing of the petition.”

       A.     Standard of Review

       In hearings regarding the termination of parental rights, due process requires that

the State prove its case for termination by clear and convincing evidence. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re

G. M., 596 S.W.2d 846, 847 (Tex. 1980)). The clear and convincing standard is defined

as 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 2008).

       Taking this elevated standard of review into consideration, an appellate court

reviewing the legal sufficiency of the evidence in a parental termination case must

determine whether a fact-finder could reasonably form a firm belief or conviction that the

grounds for termination were proven. In re J.F.C., 96 S.W.3d at 265-66. All evidence

should be reviewed “in the light most favorable to the judgment.” Id. at 266. This means

that an appellate court must assume that the fact-finder resolved any disputed facts in

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favor of its finding if a reasonable fact-finder could have done so. An appellate court must

also disregard all evidence that a reasonable fact-finder could have disbelieved. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “If [an appellate court] determines that

no reasonable factfinder could form a firm belief or conviction that the matter that must be

proven is true, then that court must conclude that the evidence is legally insufficient.” In

re J.F.C., 96 S.W.3d at 266.

       Similarly, the clear and convincing standard of review in a parental termination

hearing requires a higher level of evidence in order to be factually sufficient. See In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002). The appellate factual sufficiency standard “for

reviewing termination findings is whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction about the truth of the State’s allegations.” Id.

       “We must determine whether, on the entire record, a fact-finder could reasonably

form a firm conviction or belief that the parent violated a provision of section 161.001(1)

and that the termination of the parent’s parental rights would be in the best interest of the

child.” In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.–Fort Worth 2008, no pet.) (citing In

re C.H., 89 S.W.3d at 28). “If, in light of the entire record, the disputed evidence that a

reasonable fact-finder could not have credited in favor of the finding is so significant that

a fact-finder could not have reasonably formed a firm belief or conviction in the truth of its

finding, then the evidence is factually insufficient.” Id. (citing In re H.R.M., 209 S.W.3d 105,

108 (Tex. 2006)).

       B.     Applicable Law

       Under section 161.001(1)(q), a parent’s rights may be terminated when termination

is in the child’s best interest and the parent has “knowingly engaged in criminal conduct

that has resulted in the parent’s: (i) conviction of an offense; and (ii) confinement or

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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); see W.B. v. Tex. Dep’t of

Protective & Regulatory Servs., 82 S.W.3d 739, 742 (Tex. App.–Corpus Christi 2002, no

pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267 & n.39 (Tex.

2002). “Incarceration alone cannot support a termination of parental rights.” W.B., 82

S.W.3d at 742 (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987); In re Caballero, 53 S.W.3d 391, 395-96 (Tex. App.–Amarillo 2001, pet. denied)).

If TDFPS establishes that the parent’s knowing criminal conduct has resulted in his

confinement or incarceration for more than two years, the burden of production shifts to the

parent to “produce some evidence as to how he would provide or arrange to provide care

for the child during that period.” W.B., 82 S.W.3d at 742 (citing Caballero, 53 S.W.3d at

396).   Some factors to be considered when evaluating ability to care “include the

availability of financial and emotional support from the incarcerated parent.” Brazoria

County Children’s Protective Servs. v. Frederick, 176 S.W.3d 277, 279 (Tex.

App.–Houston [1st Dist.] 2004, no pet.).

        C.     Discussion

        In his appeal, Rawlins does not challenge the trial court’s findings that termination

of his rights is in E.A.R.’s best interest, or that his knowing criminal conduct resulted in his

incarceration for more than two years. He only attacks the trial court’s finding that he

would be unable to care for E.A.R. for not less than two years from the date the petition for

termination was filed.

        Once TDFPS established, through Rawlins’s own testimony, that his knowing




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criminal conduct resulted in his incarceration for more than two years,1 the burden of

production shifted to Rawlins to provide some evidence as to how he intended to care for

or arrange for E.A.R.’s care during his incarceration. W.B., 82 S.W.3d at 742; see In re

E.S.S., 131 S.W.3d 632, 640 (Tex. App.–Fort Worth 2004, no pet.) (concluding that

defendant’s own statement at trial regarding his prison term was sufficient to meet

TDFPS’s initial burden). Rawlins failed to produce any such evidence.

        Thomas testified that from the end of May 1997 until after the Thomases began

proceedings to adopt E.A.R. during 2004, Rawlins had no contact with E.A.R. He did not

contribute any money towards E.A.R.’s support during the entire time she lived with the

Thomases. Rawlins acknowledged that, during the time E.A.R. lived with the Thomases,

he did not contact Child Protective Services to schedule visits with her, and that, due to a

work restriction, he is unable to earn money while incarcerated. Starting in June 2007,

however, Rawlins mailed some letters to E.A.R. through the care of Child Protective

Services. Out of concern that the letters, which addressed subjects like E.A.R.’s absent

mother and E.A.R.’s psychological issues, were not “quite appropriate for her to have,”

Child Protective Services decided not to give the letters to E.A.R.

        Rawlins did not produce any evidence that he had made arrangements with a family

member to keep and care for E.A.R. during his incarceration. See W.B., 82 S.W.3d at

742-43 (noting that a parent’s request that the child be placed in his sibling’s custody

“would be evidence supporting preservation of the parent-child relationship.”). Rawlins also

failed to present evidence regarding how he would be able to financially and emotionally

care for E.A.R. during his incarceration and presented limited information regarding his


        1
         The petition to term inate Rawlins’s parental rights was filed on July 19, 2006. Rawlins testified that
he would be eligible for parole on March 18, 2010, m ore than two years after the filing of the petition.

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post-incarceration plans.

         Rawlins testified that, were he paroled, he would be paroled to a halfway house and

would remain there as long as he was required to do so.             Once he satisfied the

requirements of the halfway house, he would “get a job or probably have to get a job before

I get the house or apartment . . . and if possible, have [E.A.R.] live with [him].” He is an

automotive mechanic who can “work on boats, motorcycles, small engines, lawn mower

care, just anything that runs basically on gasoline . . . .” Rawlins asserts that he wants

what is best for E.A.R. and does not want his rights to be terminated.

         Considering the factors suggested in Frederick, a fact-finder could reasonably form

(1) a firm belief or conviction that the grounds for termination were proven, and (2) a firm

belief or conviction about the truth of the State’s allegations. Frederick, 176 S.W.3d at

279; see In re J.F.C., 96 S.W.3d at 265-66; In re C.H., 89 S.W.3d at 25. We conclude that

the evidence supporting the trial court’s decision to terminate Rawlins’s parent-child rights

was both legally and factually sufficient. We overrule Rawlins’s sole appellate issue.

                                      IV. CONCLUSION

         Having overruled Rawlins’s issue on appeal, we affirm the judgment of the trial

court.

                                                     ______________________________
                                                     GINA M. BENAVIDES,
                                                     Justice


Memorandum Opinion delivered and
filed this the 27th day of August, 2009.




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