                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-16-00202-CV


                         IN THE INTEREST OF J.M.G., A CHILD

                           On Appeal from the 100th District Court
                                   Childress County, Texas
                  Trial Court No. 10521, Honorable Stuart Messer, Presiding

                                    October 27, 2016

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       J.A.C., the father of J.M.G.,1 appeals from a final order terminating his parental

rights to J.M.G.2   The proceeding was initiated by J.M.G.’s maternal grandmother,

appellee. Termination was sought under section 161.001(b)(1)(Q) of the Texas Family

Code after J.A.C. was sentenced to fourteen years in prison for a felony committed prior

to the conception of J.M.G. We will affirm the order of the trial court.




       1
           To protect the child’s privacy, we will refer to the father and the child by their
initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b).
       2
          The parental rights of the mother of J.M.G. were terminated after she filed an
affidavit of voluntary relinquishment. The mother has not appealed.
                                          Background


         In February 2014, J.A.C. pled guilty to the felony offense of burglary of a

habitation.      The court deferred a finding of guilt and placed J.A.C. on community

supervision for a term of six years.3         In August 2014, J.A.C.’s girlfriend became

pregnant with J.M.G.          Over several months, J.A.C. violated several terms and

conditions of his community supervision, resulting in the State filing a motion to

adjudicate J.A.C.’s guilt. In December 2014, J.A.C. was arrested and, in January 2015,

was adjudicated guilty of the felony offense and sentenced to a prison term of fourteen

years.       J.M.G. was born in April 20154 and placed with his maternal grandmother,

appellee.


         In August 2015, appellee filed an original petition for termination of parental rights

and adoption of grandchild. The court held a hearing in April 2016. J.A.C. testified,

acknowledging his guilty plea, community supervision, and multiple violations of the

conditions of his community supervision. He told the court he violated the conditions

multiple times by using illegal drugs. He also testified J.M.G.’s mother used drugs with

him before and during her pregnancy.           He told the court that after learning of his

girlfriend’s pregnancy, he stopped using drugs, but admitted he continued to violate the

terms of his community supervision by failing to report to his probation officer as

required. J.A.C. also testified to the fourteen-year prison sentence he was assessed

after the court adjudicated him guilty and revoked his community supervision.

         3
             See TEX. CODE CRIM. PROC. ANN. art. 42.12 (West 2015).
         4
         J.A.C. submitted to a DNA paternity test, the results of which confirmed he is
the father of J.M.G. He also admitted in open court he was the child’s biological father.


                                               2
       Following the presentation of evidence, the trial court terminated J.A.C.’s

parental rights to J.M.G. pursuant to section 161.001(b)(1)(Q) of the Texas Family

Code. TEX. FAM. CODE ANN. § 161.001(b)(1)(Q) (West 2016). The court further found

termination of J.A.C.’s parental rights was in the best interest of J.M.G. See TEX. FAM.

CODE ANN. § 161.001(b)(2).


                                         Analysis


       Through his sole issue on appeal, J.A.C. challenges the sufficiency of the

evidence supporting the trial court’s termination of his parental rights to J.M.G. He does

not challenge the evidence supporting the court’s finding that termination of his parental

rights is in the child’s best interest. He asserts only that because the criminal conduct

for which he was eventually sentenced, burglary of a habitation, occurred prior to

J.M.G.’s conception, it cannot form the basis for termination of his parental rights.


       The Constitution protects “[t]he fundamental liberty interest of natural parents in

the care, custody, and management” of their children. Santosky v. Kramer, 455 U.S.

745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it

is essential that the emotional and physical interests of a child not be sacrificed merely

to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due

Process Clause of the United States Constitution and section 161.001 of the Texas

Family Code require application of the heightened standard of clear and convincing

evidence in cases involving involuntary termination of parental rights. In re E.N.C., 384

S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and



                                             3
convincing evidence is that measure or degree of proof which 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 (West 2014); In re C.H., 89 S.W.3d at 25-

26.


       The Texas Family Code permits a trial court to terminate parental rights if the

petitioner proves by clear and convincing evidence that the parent committed an action

prohibited under section 161.001(b)(1) and termination is in the child’s best interest.

TEX. FAM. CODE ANN. § 161.001(b) (West 2015); Holley v. Adams, 544 S.W.2d 367, 370

(Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to

support an order of termination when there is also a finding that termination is in a

child’s best interests. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180

S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.). Thus a termination order may be

affirmed if it is supported by legally and factually sufficient evidence of any statutory

ground on which the trial court relied for termination, and the best interest finding. In re

E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).


       Under the legal sufficiency analysis, we examine all of the evidence in the light

most favorable to the challenged finding, assuming the “factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96

S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably

disbelieved or found incredible. Id. However, we take into account undisputed facts

that do not support the finding, so as not to “skew the analysis of whether there is clear

and convincing evidence.” Id. If the record presents credibility issues, we must defer to



                                               4
the factfinder’s determinations provided they are not unreasonable. In re J.P.B., 180

S.W.3d 570, 573 (Tex. 2005).


       In a factual sufficiency review, a court of appeals must give due consideration to

the evidence the factfinder could reasonably have found to be clear and convincing. In

re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction about the truth of the petitioner’s

allegations. Id. In doing so we consider whether disputed evidence is such that a

reasonable factfinder could not have resolved that disputed evidence in favor of its

finding. Id. 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 at 266.


       Section 161.001(b)(1)(Q) permits termination if the parent “knowingly engaged in

criminal conduct that 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(b)(1)(Q); In re

A.V., 113 S.W.3d at 358 (quoting former version of subsection); see In re H.R.M., 209

S.W.3d 105 (Tex. 2006) (addressing sufficiency of evidence supporting subsection Q

finding).


       In this case, the evidence on which the trial court relied for its subsection Q

finding is undisputed. It shows: (1) J.A.C. admittedly committed a felony offense,

burglary of a habitation; (2) admittedly committed numerous violations of the terms and



                                              5
conditions of his community supervision; (3) was sentenced to fourteen years of

imprisonment; and (4) fourteen years exceeds two years from the date of the filing of

the petition for termination of his parental rights. The record shows J.A.C. expects to be

released from prison in July 2020. He also acknowledged on the record he has never

cared for J.M.G., has never had any contact with the child, and has never made any

efforts or arrangements for the child’s care.       J.A.C. argues only that because the

criminal conduct that resulted in his incarceration occurred before J.M.G.’s conception,

it   cannot    provide      sufficient   evidence    to   support    termination    under

section 161.001(b)(1)(Q);    he does not contend the evidence supporting the court’s

subsection Q finding was insufficient in any other respect.


      We agree with appellee that consideration of the language of subsection Q

requires that we overrule appellant’s contention.         Appellee argues the statute’s

language is unambiguous, and contains no requirement that the criminal conduct

leading to conviction and confinement occur after conception of the child with respect to

whom rights are being terminated. Appellee is correct. Subsection Q simply does not

speak to the relationship between the time of conception of the child and the time of

occurrence of the criminal conduct. The Supreme Court of Texas observed in In re

A.V., also addressing subsection Q, that the Legislature has been clear in

section 161.001 when it intends a specific time period must elapse before a particular

subsection may apply to the parent’s conduct. 113 S.W.3d at 360. The same can be

said with respect to the sequence of events required to prove particular predicate acts

under subsections of 161.001(b). See, e.g., TEX. FAM. CODE ANN. §§ 161.001(b)(1)(H),

(O). Had the Legislature intended the criminal conduct required by subsection Q to


                                             6
post-date the conception of the child, it easily could have so provided. As in In re A.V.,

the Legislature has not expressed in subsection Q the requirement appellant posits, and

we see no “indication the Legislature meant anything other than what it said.” In re

A.V., 113 S.W.3d at 360; see In re Lee, 411 S.W.3d 445, 451 (Tex. 2013) (statute’s

plain language “is the surest guide to the Legislature’s intent”).


       Our conclusion is supported also by the focus and aim the Supreme Court has

observed in subsection Q. It noted in In re A.V. that the subsection “focuses on the

parent’s future imprisonment and inability to care for the child, not the criminal conduct

that the parent committed in the past.” Id. While the court was concerned in In re A.V.

with a termination proceeding initiated by the State, its holding regarding the focus of

subsection Q is equally applicable in this private-party termination.


       Appellee also correctly points out that acts by parents prior to the birth of a child

have been held sufficient to support termination of parental rights under other

subsections of section 161.001. See, e.g., TEX. FAM. CODE ANN. § 161.001(b)(1)(E); In

re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.).


       The evidence was legally and factually sufficient to permit the trial court to find by

clear and convincing evidence J.A.C. knowingly engaged in criminal conduct that

resulted in his conviction of an offense for which he was imprisoned and unable to care

for J.M.G. for not less than two years from the date of filing the petition. His sole issue

contending otherwise is overruled.




                                              7
                                       Conclusion


        Having overruled J.A.C.’s sole issue on appeal, we affirm the final order of the

trial court.


                                                      James T. Campbell
                                                         Justice




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