                                                      OPINION
                                                No. 04-11-00668-CV

                                    IN THE INTEREST OF D.J.H., a Child

                         From the 73rd Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2010-PA-01441
                                  Honorable Dick Alcala, Judge Presiding

Opinion by:         Karen Angelini, Justice

Sitting:            Karen Angelini, Justice
                    Steven C. Hilbig, Justice
                    Marialyn Barnard, Justice

Delivered and Filed: August 1, 2012

AFFIRMED

           Appellant Jose M. appeals the trial court’s judgment terminating his parental rights to his

son D.J.H. We affirm.

                                                    BACKGROUND

           In June 2010, the child the subject of this appeal, D.J.H., was living in his maternal

grandfather’s home. On June 20, 2010, his mother gave birth to his baby brother. Because his

mother and baby brother both tested positive for heroin, D.J.H. was removed from his

grandfather’s home. 1 At the time of his removal, his father, Appellant Jose M., was in prison.

Both D.J.H. and his baby brother were placed in foster care and later placed with their maternal

grandmother.
1
    D.J.H. and his baby brother have different fathers.
                                                                                    04-11-00668-CV


       On July 8, 2010, the State filed an original petition, seeking termination of Appellant Jose

M.’s parental rights to D.J.H. based on section 161.001(1)(D) of the Texas Family Code. On

April 21, 2011, the State amended its petition to add section 161.001(1)(Q) as a ground for

termination of Jose M.’s parental rights. On July 5, 2011, the trial court held a bench trial. Jose

M. testified by phone. He testified that he was D.J.H.’s father, he had been convicted of

aggravated assault with a deadly weapon, and he had been sentenced to three years of

imprisonment. His sentence began on March 1, 2010, and would end on February 28, 2013. He

testified that his conviction was a result of his shoplifting. According to Jose M., after running

from a security guard, he got into a physical altercation with the guard. Jose M. admitted that he

had been arrested seven times for theft, all of which occurred after his son was born. He testified

that he committed these thefts because he could not support himself. He also admitted that he

had used heroin with D.J.H.’s mother and that he had never received treatment for his drug

abuse. Jose M. testified that for most of D.J.H.’s life, D.J.H. had lived with his maternal

grandmother. While Jose M. had also lived with D.J.H.’s maternal grandmother off and on, he

had never paid rent to the grandmother. Nor had Jose M. ever paid child support or otherwise

supported his son. He testified he had held a few jobs, but admitted he could not testify about a

stable job history. Jose M. emphasized that he had taken some classes in prison to improve

himself as a person and parent, and had written to his son every week. Jose M. agreed that the

grandmother was a good caregiver and that he wanted his son to remain with his grandmother,

but only until he was released from prison.

       D.J.H.’s grandmother, Martha H., testified that D.J.H. had lived in her home eight-and-a-

half of his nine years. She testified that Jose M. had never provided any financial support for

D.J.H. and that she could not remember Jose M. ever having a job. She testified that Jose M. had



                                               -2-
                                                                                       04-11-00668-CV


stolen from her and that one time, he broke into her room and stole a DVD player she had bought

for D.J.H. According to Martha H., D.J.H. would not be safe with his father. She testified that

when D.J.H. was about three years old, Jose M. said he was taking D.J.H. to the store to buy ice

cream. Instead, Jose M. was seen taking heroin behind a dumpster while D.J.H. was present, and

D.J.H. was taken to a children’s shelter. Martha H. testified that the next morning, she went to

the shelter to get D.J.H. She further testified that she wanted to adopt both D.J.H. and his baby

brother.

       Kristin Barto, a counselor, testified that she had met with D.J.H. and that D.J.H. was very

happy with his grandmother and wanted to remain with her. According to Barto, it was in

D.J.H.’s best interests to remain living with his grandmother and baby brother. She testified that

D.J.H. did not feel safe with his parents and got the security he needed from his grandmother.

According to Barto, D.J.H. had been hurt by his father’s absence and his parents’ bad choices.

She testified that D.J.H. felt much stress from the “legal limbo” he was placed in and from not

knowing where he would permanently reside. She recommended that Jose M.’s parental rights be

terminated and that D.J.H. be placed with his grandmother.

       A foster parent with whom D.J.H. had lived briefly after his removal testified that D.J.H.

wanted to live with his grandmother.

       Crystal Arevalo, a caseworker, testified that the needs of both D.J.H. and his brother were

being met with their grandmother and that D.J.H. wanted to be adopted by his grandmother.

According to Arevalo, it would be in D.J.H.’s best interest to terminate Jose M.’s parental rights

because D.J.H. needed someone he felt safe with and who could provide stability in his life:

       I’m asking that [Jose M.]’s rights be terminated as he has not been able to provide
       permanency for this child, stability for this child, basic care for this child. [D.J.H.]
       feels comfortable with his grandmother. He feels that that is the place for him to
       be. He feels stable there. And he’s bonded to his brother.

                                                 -3-
                                                                                       04-11-00668-CV




Arevalo testified that Jose M. had placed D.J.H. in circumstances that had endangered D.J.H.

because of his previous arrests for theft and possession of drugs, including the incident where

Jose M. was found using drugs in an alley while D.J.H. was in his care. She testified that

although Jose M. had complied with his service plan, his service plan was limited due to his

imprisonment. According to Arevalo, Jose M. had not demonstrated the ability to parent, and

show support and stability for his son. Thus, she testified that it was in D.J.H.’s best interest for

Jose M.’s parental rights to be terminated.

        After hearing all the evidence, the trial court terminated Jose M.’s parental rights

pursuant to section 161.001(1)(D), finding that Jose M. had engaged in conduct or knowingly

placed D.J.H. with persons who engaged in conduct that endangered the physical or emotional

well-being of the child. The trial court also terminated Jose M.’s parental rights pursuant to

section 161.001(1)(Q), finding that Jose M. had knowingly engaged in criminal conduct that has

resulted in his conviction for an offense and confinement or imprisonment and inability to care

for the child for not less than two years from the date of filing the petition. Additionally, the trial

court found it was in D.J.H.’s best interest for Jose M.’s parental rights to be terminated. After

Jose M. requested findings of fact and conclusions of law, the trial court made the following

findings of fact related to this appeal:

    (1) At the trial on the merits, Respondent Father [Jose M.] acknowledged that he is the father
        of [D.J.H.], the oldest child the subject of this suit.

    (2) At the trial on the merits, Respondent Father [Jose M.] acknowledged that he is currently
        serving time on a three year sentence for a felony, namely aggravated assault with a
        deadly weapon. He was sentenced for that crime on May 13, 2010, yet he testified at trial
        that his release date is in February of 2013.

    (3) At the trial on the merits Respondent Father [Jose M.] also admitted that he has at least
        two prior convictions for felony theft, as well as a prior conviction for possession of a
        controlled substance, admittedly heroin; all of these convictions occurred after the birth

                                                 -4-
                                                                                                 04-11-00668-CV


           of his child and resulted in him serving time in a state jail facility on each of the three
           separate convictions.

       (4) At the trial on the merits, Respondent Father [Jose M.] testified that he was arrested
           seven times for theft and they were all shoplifting charges because he could not support
           himself.

       (5) At the trial on the merits, Respondent Father [Jose M.] admitted that he has used illegal
           drugs, namely heroin, since the birth of his child. Respondent Father [Jose M.] further
           testified that he and the mother of his child were using heroin together and that he never
           received treatment for his drug problem.

       (6) At the trial on the merits, therapist Kristin Barto, who works therapeutically with child
           [D.J.H.] testified that said child is in “limbo” and needs some permanency for his life; the
           child is experiencing undue stress because he does not know if he will be able to remain
           in his current placement. The therapist went on to state that [D.J.H.] is happy in his
           current placement, he wishes to remain there, and adoption by the current placement
           would be in his best interest.

       (7) At the trial on the merits, therapist Kristin Barto further testified that child [D.J.H.] feels
           safe in his current placement, but would not feel safe with either parent; further, said
           child does not want to be separated from his younger sibling, as they are currently placed
           together.

       (8) At the trial on the merits, therapist Kristin Barto concluded her testimony by stating that
           the choices made by Respondent [Jose M.] have hurt his child.

       (9) There was clear and convincing evidence that the child [D.J.H.] is adoptable and that it is
           in the child’s best interest to terminate the parental rights of both respondent parents in
           this case.

     (10) Placement of the child [D.J.H.] into the physical or legal custody of any of the biological
          parents in this case is contrary to the safety and welfare of the child and is not in the best
          interest of said child.

                                      TERMINATION OF PARENTAL RIGHTS

           Parental rights may be terminated only upon proof of clear and convincing evidence that

the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and

that termination is in the best interest of the child. 2 See TEX. FAM. CODE ANN. § 161.001 (West

Supp. 2010). Here, Jose M.’s parental rights were terminated because the trial court found that he


2
    We note that Jose M. has not challenged the trial court’s best interest finding on appeal.

                                                            -5-
                                                                                                        04-11-00668-CV


committed acts prohibited by subsection D and Q of section 161.001(1). Subsection D allows

parental rights to be terminated if the trial court finds by clear and convincing evidence that the

parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings

that endanger the physical or emotional well-being of the child. TEX. FAM. CODE ANN.

§ 161.001(1)(D) (West Supp. 2010). Subsection Q allows parental rights to be terminated if the

trial court finds by clear and convincing evidence that the parent 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. Id. § 161.001(1)(Q). 3 If, as here, the trial court terminated the parent-child

relationship on multiple grounds under section 161.001(1), we may affirm on any one ground

because, in addition to finding that termination is in the child’s best interest, only one predicate

violation under section 161.001(1) is necessary to support a termination decree. In re A.V., 113

S.W.3d 355, 362 (Tex. 2003).

                          TERMINATION BASED ON SUBSECTION (Q) GROUNDS

         In his first issue, Jose M. argues that the trial court erred in terminating his parental rights

based on subsection (Q) grounds because he will be released from prison less than two years

from the date the State’s amended petition for termination was filed. According to Jose M., the

date of the amended petition for termination should control because it was the amended petition

that added subsection (Q) as a ground for termination. In response, the State argues that the date

its original petition for termination was filed should control, and that if such date is used, Jose M.

3
  We note that incarceration alone does not justify termination of parental rights. Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Thus, the “care” contemplated by subsection (Q) encompasses arranging
for care to be provided by another. In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied).
Once the Department has established the first prong of subsection (Q), the parent must produce some evidence as to
how he or she would provide or arrange to provide care for the child during the period of incarceration. Id. When
that burden of production is met, the Department then has the burden of persuasion that the arrangement would fail
to satisfy the parent’s duty to the child. Id. Jose M. has not argued on appeal that the trial court erred in finding that
he was incapable of caring for D.J.H.

                                                          -6-
                                                                                      04-11-00668-CV


will be released from prison more than two years from the date of the filing of the original

petition. In support of its position that the filing date of the original petition should control, the

State emphasizes that the plain wording of subsection (Q) discusses when “the petition” is filed,

not when an allegation is pled. See TEX. FAM. CODE ANN. § 161.001(1)(Q) (West Supp. 2010).

Further, the State criticizes Jose M.’s argument, explaining that his argument is not logical

because subsection (Q) is not a notice provision. We agree with the State.

       Subsection (Q) was enacted, not as a notice provision, but instead for the protection of

children. In holding that subsection (Q) can apply prospectively, the supreme court explained the

purpose of subsection (Q):

       [S]ubsection Q 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. By
       looking at future imprisonment and inability to care for the child, subsection (Q)
       purports to protect children whose parents will be incarcerated for periods
       exceeding two years after termination proceedings begin. Indeed, the purpose of
       the State’s intervention in the parent-child relationship is to protect the best
       interests of the children, not to punish parents for their conduct. Although the
       termination suit can result in a parent’s loss of his or her legal relationship with
       the child, the primary focus is protecting the best interests of the child. . . .
       Further, in securing what is in the best interests of the child, the State is not
       pursuing a retributive or punitive aim, but a “purely remedial function: the
       protection of minors.” We recognize that parental-rights termination proceedings
       also affect a parent’s constitutionally-protected relationship with his or her
       children, a right that presumably cannot be altered through retroactive application
       of laws. But this Court has stated that “the rights of natural parents are not
       absolute; protection of the child is paramount. . . . The rights of parenthood are
       accorded only to those fit to accept the accompanying responsibilities.” Therefore,
       in parental-rights termination proceedings, though parents face losing this highly-
       protected legal relationship, courts cannot ignore the statute’s remedial purpose
       of protecting abused and neglected children.

In re A.V., 113 S.W.3d at 360-61 (citations omitted) (emphasis added). The court then explained

that by reading subsection (Q) to apply prospectively, “the subsection fills a gap left by other

grounds for termination.” Id. at 360. According to the court,




                                                 -7-
                                                                                      04-11-00668-CV


       [a] prospective reading of subsection (Q) allows the State to act in anticipation of
       a parent’s abandonment of the child and not just in response to it. Thus, if the
       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 State may use subsection (Q) to
       ensure that the child will not be neglected.

Id.

       Given that the purpose of subsection (Q) is to protect children from being neglected, and

not to provide notice, it is logical to conclude that when subsection (Q) refers to “the petition,” it

is referring to the original petition for termination, and not a subsequently amended one adding

an allegation for termination under subsection (Q). Thus, we hold that Jose M.’s parental rights

were properly terminated under subsection (Q).

                            TERMINATION BASED ON SUBSECTION (D)

       In his second issue, Jose M. argues that there was factually insufficient evidence to

support termination of his parental rights under subsection (D). When a parent challenges the

factual sufficiency of the evidence on appeal, we look at all the evidence, including disputed or

conflicting evidence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “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 256, 266 (Tex.

2002). In reviewing termination findings for factual sufficiency, we give due deference to the

factfinder’s findings and do not supplant its judgment with our own. In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006).

       As noted, subsection D allows for termination of parental rights if the parent knowingly

placed or allowed the child to remain in conditions or surroundings that endangered the child’s

physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(D) (West Supp. 2010).



                                                 -8-
                                                                                        04-11-00668-CV


“Under subsection D, the child’s environment, including the environment produced by the

parent’s conduct, is the source of endangerment to the child.” In re D.C., 128 S.W.3d 707, 715

(Tex. App.—Fort Worth 2004, no pet.). “As a general rule, conduct that subjects a child to a life

of uncertainty and instability endangers the physical and emotional well-being of a child.” In re

R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied); see In re S.D., 980

S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). And, while incarceration alone

does not justify termination, see Boyd, 727 S.W.2d at 533, a parent’s repeated criminal acts may

constitute sufficient evidence of conduct that endangers the well-being of a child, see Zieger v.

Tex. Dep’t of Family & Protective Servs., No. 03-03-00690-CV, 2005 WL 2043812, at *3 (Tex.

App.—Austin 2005, pet. denied). Further, a fact-finder may infer from past conduct endangering

the well-being of a child that similar conduct will recur if the child is returned to the parent. Id.

       Jose M. argues that the evidence is factually insufficient to show that he knowingly

placed or knowingly allowed D.J.H. to remain in conditions or surroundings that endangered

D.J.H.’s physical or emotional well-being because there was no evidence of Jose M.’s abuse or

neglect “at any time during the pendency of the case or immediately prior to” D.J.H.’s removal.

Of course, immediately prior to D.J.H.’s removal and during the pendency of his removal, Jose

M. was incarcerated. Further, although the incident was not recent, there was evidence at trial

that when D.J.H. was three years old, Jose M. said he was taking D.J.H. to the store and instead

used heroin behind a dumpster with D.J.H. present. As a result, D.J.H. was taken to a children’s

shelter. There was also evidence that after D.J.H.’s birth, Jose M. had been convicted twice for

felony theft and once for possession of heroin, all of which resulted in Jose M.’s incarceration.

There was evidence that Jose M. had been arrested seven times for theft, all shoplifting charges

resulting from his inability to support himself. Jose M.’s current incarceration for aggravated



                                                 -9-
                                                                                         04-11-00668-CV


assault with a deadly weapon was also related to Jose M.’s propensity for shoplifting, as the

aggravated assault with a deadly weapon charge stemmed from his encounter with a security

guard. In addition to his shoplifting issues, there was also evidence presented of Jose M.’s drug

problem. Jose M. admitted that since the birth of D.J.H., Jose M. had used heroin, sometimes

with D.J.H.’s mother, and that he had never received treatment for his drug problem. Given the

evidence presented, the fact finder could conclude that Jose M.’s pattern of criminal activity

subjected him to the possibility of incarceration, and thereby negatively impacted D.J.H.’s living

environment and emotional well-being. See In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (explaining that because when a parent is incarcerated, he is

absent from a child’s daily life and is unable to provide support, a parent’s pattern of intentional

criminal activity that exposes the parent to incarceration is conduct that can negatively impact a

child’s living environment and emotional well-being); see also In re V.V., 349 S.W.3d 548, 554-

55 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). This pattern of intentional criminal

conduct, coupled with Jose M. actually endangering D.H.J. when D.H.J. was three years-old, is

factually sufficient evidence to support termination pursuant to subsection (D).

                                      PARENTAL PRESUMPTION

        Jose M. argues that the trial court erred in not appointing him joint or sole managing

conservator of D.J.H. pursuant to the parental presumption enunciated in Troxel v. Granville, 530

U.S. 57 (2000), and codified in section 153.131 of the Texas Family Code. In Troxel, 530 U.S. at

68-69, the Supreme Court explained that “there is a presumption that fit parents act in the best

interests of their children” and that “so long as a parent adequately cares for his or her children

(i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of

the family to further question the ability of that parent to make the best decisions concerning the



                                                  - 10 -
                                                                                                   04-11-00668-CV


rearing of that parent’s children.” Section 153.131 of the Family Code codifies the parental

presumption, requiring a parent to be appointed sole managing conservator or both parents to be

appointed joint managing conservators of a child unless the trial court finds that appointment of

the parent or parents would not be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development. See TEX. FAM. CODE

ANN. § 153.131 (West 2008). 4

         First, we note that there was no pleading before the trial court requesting that Jose M. be

appointed joint or sole managing conservator of D.J.H. Further, Jose M. testified at the hearing

that he was not trying to take D.J.H. from his grandmother’s custody. And, his attorney argued

the following in closing argument: “We’re not asking the court for placement of the child with

my client. That’s not what this case is about. This isn’t a custody case, Your Honor.” Thus, it is

difficult to conclude how the trial court erred in not appointing Jose M. sole or joint managing

conservator. Moreover, for the reasons discussed previously, there was sufficient evidence

presented at trial from which the trial court could find that the parental presumption had been

rebutted by clear and convincing evidence.

                                                  CONCLUSION

         We affirm the judgment of the trial court.



                                                                Karen Angelini, Justice




4
 This parental presumption is subject to “the prohibition in section 153.004,” which relates to a history of domestic
violence in the home. See TEX. FAM. CODE ANN. §§ 153.004, 153.131 (West 2008).

                                                       - 11 -
