







COURT OF APPEALS








COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 



 
DARRYL HAMPTON,
 
                            Appellant,
 
v.
 
TEXAS DEPARTMENT OF
  PROTECTIVE AND REGULATORY SERVICES,
 
                            Appellee.


 
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                No. 08-03-00474-CV
 
Appeal from the
 
65th District Court
 
of El Paso County, Texas 
 
(TC# 2002CM779) 
 



 
O P I N I O N
 
Darryl Hampton, father of the minor
child D.H., appeals the trial court=s judgment terminating his parental
rights, following a bench trial.  In
three issues, he challenges the legal and factual sufficiency of the evidence
to support the termination.  We affirm.
Facts




Darryl Hampton is the father, and Ryan
Davenport the mother, of D.H., a girl born in October 2000.  In February 2002, the Texas Department of
Protective and Regulatory Services (the Department) removed D.H. from her
mother=s custody.  Ryan Davenport has relinquished parental
rights to both children.  The father of
D.H.=s half-sister has also had his parental rights
terminated.  D.H. and her sister now live
with foster parents who wish to adopt them both.  Darryl Hampton was in prison at the time D.H.
was removed from her mother=s home.
Standard
of review
A trial court may terminate parental
rights if it finds that (1) the parent has engaged in any of the conduct
enumerated in the Family Code as grounds for termination; and (2) termination
is in the best interest of the child.  Tex. Fam. Code Ann. ' 161.001 (Vernon 2002); In re W.E.C., 110
S.W.3d 231, 236 (Tex. App.--Fort Worth 2003, no pet.).  The State has the burden to prove these
elements by clear and convincing evidence. 
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); Salas
v. Texas Department of Protective and Regulatory Services, 71 S.W.3d 783,
788 (Tex. App.--El Paso 2002, no pet.). 
AClear and convincing@ means the measure or degree of proof
producing in the mind of the fact finder a firm belief or conviction as to the
truth of the allegation sought to be established.  J.F.C., 96 S.W.3d at
264.




In reviewing a legal sufficiency
challenge, we consider 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 finding was
true.  Id. at
266.  We must assume that the fact
finder resolved disputed facts in favor of its finding if a reasonable fact
finder could do so.  Id.  While we consider undisputed evidence
against the finding, we disregard all evidence that a reasonable fact finder
could have disbelieved or found to have been incredible.  Id.  The evidence is legally insufficient only
if no reasonable fact finder could form a firm belief or conviction that the
thing to be proven is true.  Id.
In reviewing a factual sufficiency
challenge, we consider all the evidence, both for and against the finding, in a
neutral light.  We determine whether a
fact finder could reasonably form a firm belief or conviction about the truth
of the Department=s allegations.  In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).  We do not substitute our judgment for that of
the fact finder, merely because we might reach a
different conclusion, nor do we assay the credibility of witnesses.  See id. at 26
(admonishing that fact finders and appellate courts must maintain respective
constitutional roles).
Imprisonment
and inability to care for child




In his second issue on appeal,
Hampton contends that there was legally and factually insufficient evidence to
support the trial court=s finding that Hampton knowingly engaged in conduct that
resulted in his conviction of an offense and confinement or imprisonment and
inability to care for the child for not less than two years from the date the
petition for termination was filed, a ground for termination under Tex. Fam. Code Ann. ' 161.001(1)(Q)
(Vernon 2002).  Hampton acknowledges that
the first prong of this ground is met, as evidence showed that he was
incarcerated at the time the Department=s original petition was filed on
February 8, 2002, and his projected release date was April 2004.[1]  He disputes only that the Department proved
by clear and convincing evidence his inability to care for the child during his
incarceration.
It is true, as Hampton asserts, that incarceration alone cannot support a
termination of parental rights.  Tex. Dept. of Human Services v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987); In re Caballero, 53 S.W.3d 391, 395 (Tex. App.--Amarillo
2001, pet. denied).  By including
the element that the incarcerated parent have the Ainability to care for the child,@ the legislature clearly recognized
this.  See Caballero, 53 S.W.3d at 396.  The
Amarillo Court of Appeals, in analyzing the burden of proof presented by this
subsection, found that once the Department has established the incarceration
element, the burden shifts to the parent to produce some evidence of how he or
she will arrange care during that period. 
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.  Caballero, 53 S.W.3d at
396.  We agree that this is a
reasoned approach, and we adopt it here.




Thus, it fell to Hampton to produce
evidence of his arrangements for care of D.H. during his imprisonment.  He points to the following as having met his
burden.  He wrote to the court and
suggested his mother and sister as potential placements for the care of his
daughter.  He wrote nine letters to the
Department regarding his daughter.  When
his mother and sister were determined to be unsuitable placements, Hampton
provided (during trial) the names of other potential relative placements for
D.H.  He supported his daughter by
signing over his IRS refund and six paychecks to D.H.=s mother, a total of approximately
$2,000.  Finally, he submitted a written
permanency plan for D.H. to the Department, although the content of this plan
is not part of the appellate record.




The Department responds that its
application under the Interstate Compact for the Placement of Children to North
Carolina, where Hampton=s mother and sister live, was denied.  The Department=s North Carolina counterpart rejected
these relatives as potential caregivers because Hampton=s mother Awas well known by [the North
Carolina] agency, that she had had some children placed with her who were
subsequently removed from her care,@ and his sister had a pending
criminal charge for assault.  The
Department further points out that Hampton did not present any testimony or
other evidence from anyone--his mother, sister, or the other two relatives he
named during trial--showing a willingness or ability to care for D.H for the
remainder of Hampton=s imprisonment.  The
Department contends that this mere naming of relatives, without some showing of
willingness, capacity, and competence, is not sufficient to meet Hampton=s burden of production on this
issue.  The Department also maintains
that neither writing letters to the department nor signing over his IRS refund
check and final paychecks are any evidence of ability to care for D.H.[2]  Finally, the Department urges that no
conclusions can be drawn from the permanency plan apparently filed by Hampton,
as the plan is not in this record and thus cannot be evidence of arrangements
to care for D.H.
Viewing this evidence in the light
most favorable to the judgment of termination, we find the fact finder could
reasonably form a firm belief that Hampton was unable to care for D.H. during
the period of his incarceration.  There
is legally sufficient evidence to support the finding.  Moreover, viewing the entire record in a
neutral light, we find that the disputed evidence which could not have been
credited by the fact finder is not so significant that the court could not
reasonably form a firm belief.  Thus,
there is likewise factually sufficient evidence supporting the trial court=s finding that Hampton had knowingly
engaged in criminal conduct resulting in his incarceration and inability to
care for D.H. during two years following the filing of the Department=s petition.  Hampton=s second issue on appeal is
overruled.
Best
interest of the child
In his third issue, Hampton argues
that the evidence was legally and factually insufficient to support the finding
that termination of his parental rights was in D.H.=s best interest.




Although the trial court starts from
a strong presumption that a child=s best interests are served by
keeping the child with her natural parents, that presumption disappears when
confronted by evidence to the contrary.  In re A.I.G., 2003 WL 1611426, at *4 (Tex. App.--San Antonio
March 31, 2003, no pet.).  In
determining a child=s best interest, the trial court may consider many factors,
including but not limited to (1) the child=s desires; (2) the emotional and
physical needs of the child now and in the future; (3) the emotional and
physical danger to the child now and in the future; (4) the parental abilities
of the individuals seeking custody; (5) the plans for the child by these
individuals; (6) the stability of the home; (7) the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one; and (8) any excuse for the acts or omissions of the parent.  Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976). 
While incarceration alone is not sufficient to show that termination is
in the child=s best interests, it can be part of a
course of conduct demonstrating that termination is in the child=s best interests.  See In re J.N.R., 982 S.W.2d 137,
142-43 (Tex. App.--Houston [1st Dist.] 1998, no pet.), disapproved on other
grounds, In re J.F.C., 96 S.W.3d 256 (Tex. 2002).




The evidence supporting the trial
court=s conclusion that termination was in
D.H.=s best interest includes the following.  Hampton left his first two children with
their mother in North Carolina in 1995 and has not visited them again.  Hampton had a long history of entanglements
with the law, including assaultive conduct,
culminating in his three-year sentence for burglary.  Before his arrest in 2001, Hampton reported
he drank five to eight alcoholic beverages Aon a day off.@ 
Hampton has not provided financial support for D.H. since July 2001,
other than three paychecks from Luby=s signed over to Davenport.  D.H. had not seen her father regularly since
she was nine months old.  D.H. and her
half-sister are very close, have lived together since the sister=s birth, and love each other.  Separating them would be detrimental to
both.  Their foster parents wish to adopt
both girls.  The emotional, physical, and
financial needs of D.H. are being met by her foster parents.
In arguing that the evidence does not
support the best interest finding, Hampton points to the following.  Hampton wrote to the court immediately upon
learning that D.H. had been removed from her mother=s care, asking that she be returned
to her mother or alternatively be placed with his relatives if Davenport was
not competent to care for D.H.  He wrote
numerous letters to the Department regarding his daughter.  After his incarceration, he signed over an
IRS check and three paychecks for D.H.=s support.  Later, he signed over three additional
paychecks.  He submitted a plan for D.H.=s care, as required by the Department.  He also points out that he has taken classes
while in jail, that he would take parenting classes if they were available, and
that he asked the Department to arrange visitation with D.H.
Clearly, a reasonable fact finder
could reach a firm belief or conviction that termination of Hampton=s parental rights are in D.H.=s best interest, viewing the evidence
in the light most favorable to termination. 
Viewing the evidence in a neutral light, we also conclude that there was
sufficient evidence to support the trial court=s conclusion that termination of
Darryl Hampton=s parental rights was in D.H.=s best interest, and disputed evidence is not so strong as to
cast doubt on the trial court=s conclusions.  Hampton=s third issue on appeal is overruled.
Conclusion
We may affirm the trial court=s judgment upon finding any of the
alleged grounds for termination is a proper one, together with a proper finding
that termination is in the best interest of the child.  Caballero, 53 S.W.3d
at 395.  Thus, we need not reach
Hampton=s first issue on appeal.  The trial court=s judgment terminating Darryl Hampton=s parental rights to the child D.H.
is affirmed.
 
SUSAN
LARSEN, Justice
June 10, 2004
 
Before Panel No. 1
Larsen, McClure, and Chew,
JJ.
 




[1]On
January 28, 2001, Hampton was arrested for burglary of a habitation.  He was placed on deferred adjudication
probation on May 22, 2001.  He remained
on probation until July 3, 2001, when he was arrested again for burglary.  His probation was revoked and he received a
three-year sentence on his initial burglary charge.  He began serving the three-year sentence on
September 27, 2001.


[2]Under
the circumstances here, where the child=s
mother is not caring for her and has relinquished her parental rights, we agree
that a fact finder could reasonably give this evidence little weight.  Where a responsible mother or other caretaker
was receiving the funds and caring for the child, however, we might view it
very differently.


