                                        NO. 12-16-00246-CV

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

IN THE INTEREST                                           §       APPEAL FROM THE

OF H.N.B.,                                                §       COUNTY COURT AT LAW

A CHILD                                                   §       ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
          C.L.B. appeals the termination of his parental rights. In two issues, he challenges the
legal and factual sufficiency of the evidence to support the trial court’s termination order. We
affirm.


                                                 BACKGROUND
          C.L.B. is the father of H.N.B.1 On August 10, 2015, the Department of Family and
Protective Services (the Department) filed an original petition for protection of H.N.B., for
conservatorship, and for termination of C.L.B.’s parental rights. The Department was appointed
temporary managing conservator of the child, and C.L.B. was allowed limited access to, and
possession of, the child.
          At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that C.L.B. had engaged in one or more of the acts or omissions necessary to support
termination of his parental rights under subsections (O) and (Q) of Texas Family Code Section
161.001(b)(1).      The trial court also found that termination of the parent-child relationship
between C.L.B. and H.N.B. was in the child’s best interest. Based on these findings, the trial


          1
           The trial court found that the mother of the child, A.N.D., executed an unrevoked or irrevocable affidavit
of relinquishment of parental rights, found that termination between A.N.D. and the child was in the child’s best
interest, and ordered that the parent-child relationship between A.N.D. and the child be terminated. The mother is
not a party to this appeal.
court ordered that the parent-child relationship between C.L.B. and H.N.B. be terminated. This
appeal followed.


                               TERMINATION OF PARENTAL RIGHTS
       Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action “permanently sunders” the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
       Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re
J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have
engaged in any one of the acts or omissions itemized in the second subsection of the statute.
TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep’t of Protective &
Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39
S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(b)(2) (West Supp. 2016); In re J.M.T., 39 S.W.3d at 237. Both elements must
be established by clear and convincing evidence, and proof of one element does not alleviate the
petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at
351; In re J.M.T., 39 S.W.3d at 237.
       The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. 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 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.


                                       STANDARD OF REVIEW
       When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619



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S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
        The appropriate standard for reviewing a factual sufficiency challenge to the 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 petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).


                          TERMINATION UNDER SECTION 16.001(b)(1)(Q)
        In his second issue, C.L.B. argues that the evidence is legally and factually insufficient to
terminate his parental rights pursuant to Texas Family Code Section 161.001(b)(1)(Q). More
specifically, he contends that the trial court did not properly consider the relevancy and weight of
the likelihood that he would be paroled. He does not challenge the trial court’s finding that
termination is in the child’s best interest.
Applicable Law
        The court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that 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. TEX. FAM. CODE
ANN. § 161.001(b)(1)(Q) (West Supp. 2016). “[I]f a parent is convicted and sentenced to serve
at least two years and will be unable to provide for his or her child during that time, the



                                                  3
[Department] may use subsection Q to ensure that the child will not be neglected.” In re A.V.,
113 S.W.3d 355, 360 (Tex. 2003).
       In some cases, neither the length of the sentence nor the projected release date is
dispositive of when the parent will in fact be released from prison. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006). Thus, evidence of the availability of parole is relevant to determine
whether the parent will be released within two years. Id. at 109. Mere introduction of parole
related evidence, however, does not prevent a fact finder from forming a firm conviction or
belief that the parent will remain incarcerated for at least two years. Id. Parole decisions are
inherently speculative, and the decision rests entirely within the parole board’s discretion. See
id.; In re R.A.L., 291 S.W.3d 438, 443 (Tex. App.—Texarkana 2009, no pet.); In re K.R.M., 147
S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.) (stating that a father’s “hope that he
might be granted early release is pure speculation”). If the mere possibility of parole prevents
the fact finder from ever forming a firm belief or conviction that a parent will remain
incarcerated for at least two years, then termination under subsection Q will occur only when the
parent has no possibility of parole. In re H.R.M., 209 S.W.3d at 109. This would impermissibly
elevate the Department’s burden of proof from clear and convincing to beyond a reasonable
doubt. Id.
       Once the Department has established a parent’s knowing criminal conduct resulting in his
incarceration for more than two years, the burden shifts to the parent to produce some evidence
as to how he will arrange to provide care for the child during that period. Hampton v. Tex.
Dep’t of Protective & Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004, no
pet.); In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). When that
burden of production is met, the Department is then required to persuade the court that the stated
arrangements would not satisfy the parent’s burden to the child. Hampton, 138 S.W.3d at 567;
In re Caballero, 53 S.W.3d at 396.
Analysis
       C.L.B. challenges only the part of subsection (b)(1)(Q) that requires he be imprisoned for
not less than two years from the date of filing the petition. He does not challenge that part of the
subsection that requires his inability to care for the child during that period. The record shows
that the Department’s original petition for termination of C.L.B.’s parental rights was filed on




                                                 4
August 10, 2015. It also shows that C.L.B. was charged with the felony offense of burglary of a
habitation, pleaded guilty, and was sentenced to eight years of imprisonment on January 6, 2016.
       At trial, a Department caseworker stated that to her knowledge, C.L.B.’s earliest
projected parole date was April 2018. However, C.L.B. testified that his next parole date was
March 2017. It would be his second parole date, having been denied parole in March 2016. He
stated that at the time of trial, he was in a trustee camp and working as a janitor. According to
C.L.B., being in a trustee camp would increase his chances with the parole board. However, the
evidence also showed that he had been confined, incarcerated, or in “SAFP,” a substance abuse
felony punishment facility, from October 2014 until the time of trial. Finally, C.L.B. appears to
argue in his brief that his time credits would increase the likelihood that he would be released
before the two year statutory period. The record showed that he was credited with approximately
511 days at the time of his adjudication.
       From this evidence, a reasonable fact finder could have determined that the Department
filed its petition on August 10, 2015, that C.L.B. was convicted of burglary of a habitation on
January 6, 2016, and that he was sentenced to eight years of imprisonment. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(Q). The fact finder could have also formed a firm belief or conviction that
C.L.B.’s earliest projected paroled date was April 2018, that he had already been denied parole
once, and that his belief that he would be granted parole before the two year statutory limit
expired was unlikely and speculative at best. See id. Therefore, we hold that the evidence,
viewed in the light most favorable to the finding, was sufficiently clear and convincing that a
reasonable trier of fact could have formed a firm belief or conviction that C.L.B. knowingly
engaged in criminal conduct that has resulted in his conviction of an offense, and imprisonment
and inability to care for H.N.B. for not less than two years from the date of filing the petition.
See In re J.F.C., 96 S.W.3d at 266.
       Although there is conflicting evidence that C.L.B. had over a year of time credits, and
that being housed in a trustee camp could increase his chances with the parole board, a
reasonable fact finder could have resolved these conflicts in favor of its finding. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(Q). While there is some disputed evidence, this evidence is not so
significant that a reasonable trier of fact could not have reconciled this evidence in favor of its
finding and formed a firm belief or conviction that C.L.B. knowingly engaged in criminal
conduct that has resulted in his conviction of an offense, and imprisonment and inability to care



                                                5
for his child for not less than two years from the date of filing the petition. See In re C.H., 89
S.W.3d at 25.
         Therefore, we hold that the evidence is legally and factually sufficient to support
termination of C.L.B.’s parental rights under Section 161.001(b)(1)(Q).                       Accordingly, we
overrule C.L.B.’s second issue.2


                                                   DISPOSITION
         Having overruled C.L.B.’s second issue, we affirm the trial court’s judgment.

                                                                           GREG NEELEY
                                                                              Justice

Opinion delivered February 15, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




         2
          Because we have concluded that the evidence is legally and factually sufficient to support termination of
C.L.B.’s parental rights under subsection (b)(1)(Q), we need not address his first issue regarding subsection
(b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(b)(1); TEX. R. APP. P. 47.1.




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         FEBRUARY 15, 2017


                                         NO. 12-16-00246-CV


                           IN THE INTEREST OF H.N.B., A CHILD


                                Appeal from the County Court at Law
                     of Anderson County, Texas (Tr.Ct.No. CCL-15-14827)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
