









Opinion filed May 18, 2006












 








 




Opinion filed May 18, 2006
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                   __________
 
                                                          No. 11-05-00242-CV 
                                                    __________
 
                  IN THE INTEREST OF J.P.H. AND S.P.H., CHILDREN
 

 
                                          On
Appeal from the 29th District Court
 
                                                      Palo
Pinto County, Texas
 
                                                  Trial
Court Cause No. A01058
 

 
                                                                   O
P I N I O N
 
This is an involuntary termination of parental
rights action under Tex. Fam. Code Ann. ch.
161 (Vernon 2002 & Supp. 2005).  The
trial court terminated the parent-child relationship between appellant, Crystal
Goodnough, and her children, J.P.H. and S.P.H. 
We affirm.
                                                               Background
Facts




Goodnough gave birth to twins, J.P.H. and S.P.H.,
in July 2002.  Shortly after their birth,
Child Protective Services started an investigation based upon allegations of
neglect.  CPS took the children to the
hospital at fourteen days of age for testing and investigation of possible
dehydration.  Goodnough and her
common-law husband, Mark Alan Hennington, agreed to voluntarily place the
children with his aunt, Kim Gopffarth. 
When the children were released from the hospital, they were placed in
her care.  The trial court named
Gopffarth sole managing conservator of the children and Goodnough possessory
conservator.
Goodnough and Hennington faced criminal charges
for organized criminal activity at the time of the twins=
placement with Gopffarth in 2002.  They
were ultimately convicted and placed on community supervision.  They failed to comply with their community
supervision requirements and were arrested in January 2004.  Goodnough admitted that she had failed to
perform community service as ordered and had consumed amphetamines and
methamphetamine.  The trial court revoked
Goodnough=s and
Hennington=s
community supervision and sentenced each to a term of ten years in the
Institutional Division of the Texas Department of Criminal Justice. 
Gopffarth then filed suit seeking to terminate
Goodnough=s and
Hennington=s[1]
parental rights. Gopffarth and her husband also sought to adopt the twins.
The trial court conducted a bench trial and found
that Goodnough and Hennington knowingly engaged in criminal conduct that
resulted in their convictions, their incarcerations, and their inability to
care for the children for not less than two years from the date the petition to
terminate was filed. The trial court also found that termination of the
parent-child relationship was in the children=s
best interest. The trial court terminated the parent-child relationship and
granted the Gopffarths=
request to adopt the children.  Both
Goodnough and Hennington filed notices of appeal.  Only Goodnough filed a brief.  Counsel advised the court that Hennington has
decided not to pursue an appeal.  We also
affirm the judgment as to him.   
                                                                         Issues




Goodnough challenges the trial court=s judgment with three issues.  First, she contends there was no evidence to
support the trial court=s
finding that she was knowingly convicted of an offense resulting in her
incarceration and inability to care for the children for a period of two years
or more after the filing of the petition.[2]  Second, she alleges that the Gopffarths
failed to comply with Tex. Fam. Code
Ann. ' 160.422
(Vernon 2002).  Third, she contends that
she was denied due process because the same judge who granted termination of
her parental rights also presided over her criminal proceedings.
                                                              Standard
of Review
Texas courts have long recognized that the natural
right existing between a parent and child is of Aconstitutional
dimensions.@  Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976).  There is a strong
presumption that the best interest of a child is served by keeping the child
with the natural parent.  In re G.M.,
596 S.W.2d 846 (Tex. 1980).  Thus,
involuntary termination proceedings and statutes are strictly scrutinized in
favor of the parent.  Holick v. Smith,
685 S.W.2d 18, 20-21 (Tex. 1985).
Due process requires that the grounds for
termination be established by clear and convincing evidence.  This requires 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 (Vernon 2002); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31
(Tex. 1994).
 When
conducting a legal sufficiency review, we review the entire record in the light
most favorable to the finding and determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.  City of Keller v. Wilson, 168 S.W.3d
802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).  We must assume that the fact-finder resolved
disputed facts in favor of its finding.  Phillips
v. Texas Dep=t of
Protective and Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.).  We must also disregard all evidence that a
reasonable fact-finder could have disbelieved or found incredible, but we
cannot disregard undisputed facts.  In
re J.F.C., 96 S.W.3d at 266.
When conducting a factual sufficiency review, we
review the entire record, including evidence in support of and contrary to the
judgment, and give due consideration to evidence the trial court could have
found to be clear and convincing.  In
re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 
We then determine 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 also consider whether any disputed evidence is such that a reasonable
fact-finder could not have resolved that evidence in favor of its finding.  In re J.F.C., 96 S.W.3d at 266.




                                                         Grounds
For Termination
To terminate parental rights, the proponent must
prove by clear and convincing evidence that a parent committed one or more of
the acts or omissions set out in Tex.
Fam. Code Ann. '
161.001(1) (Vernon Supp. 2005) and that termination of parental rights is in
the child=s best interest.
Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). However, Goodnough
does not challenge the trial court=s
best interest finding, but focuses instead on the trial court=s finding that the Gopffarths proved
the statutorily-required predicate act.
Section 161.001 provides in relevant part:
The court may order termination of the
parent-child relationship if the court finds by clear and convincing evidence:
 
(1)
that the parent has:
 
.
. . .
                                                      
(Q) knowingly engaged in criminal conduct that has
resulted in the parent=s:
 
(i) conviction of an offense; and
 
(ii) confinement or imprison-ment and inability to
care for the child for not less than two years from the date of filing the
petition.
 
.
. . . and
 
(2)
that termination is in the best interest of the child.
 
The Texas Supreme Court considered subsection Q in In re A.V.,
113 S.W.3d 355 (Tex. 2003).  The precise
question before the court was whether the two-year requirement was measured
prospectively or retrospectively from the date of the filing of the petition
for termination.  The court held that the
period is measured prospectively based upon the statute=s
language and purpose.  Id. at
360.  The court=s
analysis of subsection Q=s
purpose is instructive. 




The court noted that subsection Q is a
preventative measure which allows the State to act in anticipation of a parent=s abandonment of the child and not just
in response to it.  Id.  The court concluded that, Aif 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.  The court also noted that the statute=s purpose was not to punish parents for
their conduct but to protect the child=s
best interest.  Id. at 361.  In re A.V. involved termination
proceedings instituted by the State. 
This proceeding was instituted by the Gopffarths.  That distinction does not alter the statute=s preventative purpose because the
ultimate concern is that children be protected.
Goodnough argues that subsection Q requires a
finding based upon clear and convincing evidence that the parent will be
incarcerated for at least two years and that merely because she received a
ten-year sentence is no evidence that she will actually be incarcerated for two
years.  Goodnough reasons that her
ten-year sentence merely reflects the maximum term she might serve.  Goodnough points to Hennington=s testimony that he expected to be out
of prison in less than a year from the date of trial, which if true would be
less than two years from the date the petition for termination was filed.[3]  Goodnough notes that both she and Hennington
had an intimate working knowledge of the parole system and its effect on them
personally and that this testimony was uncontradicted.  She contends that the Gopffarths were
required to rebut it with testimony from a parole officer, prison official, or
the like and that their failure to do so requires that we reverse and render
judgment in her favor.
First, Hennington=s
testimony was not as clear as Goodnough suggests.  When asked when he might get out of prison,
he testified that his Ashort
wave date@ is
2008.  He explained this was calculated
using time served and good time.  We
assume that this is his projected release date. 
He also testified that he would probably make parole before then
and that there was a possibility he could be out within a year.




Second, Hennington=s
release date is immaterial.  The issue is
Goodnough=s
incarceration.  Goodnough testified that
she expects to be out before the end of her ten-year sentence, but she did not
know when.  This date is problematic
because she acknowledged that she does not have a clean record in prison and
has gotten into further trouble while there.
Third, even if we consider Hennington=s testimony, the fact-finder is the
exclusive judge of the witnesses=
credibility.  Even under a heightened
standard of review, we must assume that the trial court resolved evidentiary
conflicts in favor of its judgment if it reasonably could have done so.  In re J.F.C., 96 S.W.3d at 266.  Hennington undoubtedly is familiar with the
parole system, but the trial court could still reasonably disregard Hennington=s release estimate.
Imprisonment alone is insufficient to justify
termination of the parent-child relationship. 
Tex. Dep=t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  Subsection Q recognizes this by requiring
both a two-year incarceration and proof of the parent=s
inability to care for the child while incarcerated.  At the same time, the statute provides for
the child=s best
interest by allowing proactive action.  A
lengthy sentence is a serious matter and requires that measures be taken to
ensure the child=s
care.  Goodnough=s
ten-year sentence creates at least a rebuttable presumption sufficient to
satisfy subsection Q=s
incarceration requirement.
We recognize that a ten-year sentence is not
synonymous with a ten-year period of incarceration.  Subsection Q affords parents the opportunity
to rebut its application.  See Hampton
v. Tex. Dep=t of  Protective and Regulatory Servs., 138
S.W.3d 564, 567 (Tex. App.CEl
Paso 2004, no pet.); In re Caballero, 53 S.W.3d 391, 396 (Tex. App.CAmarillo 2001, pet. denied).  While these cases concerned the parent=s ability to provide care while in
prison, a similar situation is presented by the length of a parent=s sentence.  A ten-year sentence satisfies subsection Q
because it raises the need to take proactive measures to ensure the child=s welfare.  If a parent wishes to challenge the statute=s applicability, then the parent must
produce evidence that he or she will be out of prison less than two years after
the filing of the petition of termination. 
Hennington=s
estimate of when he might be paroled is no evidence of when Goodnough would be
released.  Nor is her testimony that she
did not expect to serve her full ten-year sentence evidence that she would be
incarcerated less than two years from the date of the petition.  We find that the evidence is legally and
factually sufficient to support the trial court=s
finding that Goodnough would be incarcerated at least two years from the date
of the petition.  




Subsection Q requires not only a period of
incarceration of two years but also that the parent be unable to provide care
for the child while incarcerated. 
Goodnough does not challenge the trial court=s
finding that she would be unable to provide care for the children while in
prison.  Subsection Q was satisfied; and,
therefore, Goodnough=s
first issue is overruled.
                                                                 Section
160.422
Goodnough contends in her second issue that the
Gopffarths failed to comply with Tex.
Fam. Code Ann. '
160.422 (Vernon 2002).  This statute
requires a search of the registry of paternity before a proceeding for the
termination of parental rights is concluded. 
The statute=s purpose
is to provide a potential father the opportunity to protect his rights by
receiving notice before termination or adoption.  Goodnough lacks standing to raise a challenge
under this statute.  She argues that,
where the rights of an appealing party and a non-appealing party are
inseparable and dependent upon each other, the appellate court must reverse the
entire judgment to give an appellant an effective remedy.  This principle applies only if reversible
error is otherwise shown.  It does not
operate to provide the mother standing when no other error is present.  Moreover, the statute does not apply to this
case.  Hennington admitted that he was
the father and acknowledged that his name is on the twins= birth certificates.  Finally, even if Goodnough has standing, she
waived this issue by not raising it before the trial court.  Tex.
R. App. P. 33.1.  Goodnough=s second issue is overruled.
                                                                    Due
Process
Goodnough alleges in her third issue that her due
process rights were violated because the same judge presided over both her
termination case and her criminal case. 
Goodnough contends that, because she and Hennington both expected to be
out of prison before the end of their ten-year sentence and no witness
contradicted their testimony, the trial court by necessity inferred the length
of their incarceration from something beyond the record.
Goodnough also argues that, while the original
proceedings which resulted in Gopffarth being named managing conservator and
she being placed on community supervision were in progress, the trial court
could not have conditioned a ruling in her criminal case on her agreement to
waive any right she might have in the civil proceeding.  But she contends that, by revoking her
community supervision, the trial court made available the sole basis upon which
the termination was subsequently granted.




Our review of the record indicates no suggestion
of improper action by the trial court. 
Goodnough=s
community supervision was revoked because, by her own admission, she failed to
perform community service and consumed amphetamines and methamphetamine.  Goodnough=s
community supervision was revoked months before the trial of this matter.  She knew the judge who would preside over the
termination case was the same judge who had presided over her criminal case.  If she was concerned about the judge=s ability to fairly and impartially
consider her case, she had the opportunity to file a motion for recusal
pursuant to Tex. R. Civ. P.
18a.  Not only did she not object to the
judge=s
presence, she did not ask for a jury trial. 
Goodnough does not allege the judge was constitutionally disqualified to
serve.  Consequently, she has waived any
complaint.  In re Union Pac. Res. Co.,
969 S.W.2d 427, 428 (Tex. 1998). 
Goodnough=s third
issue is overruled.  
                                                                        Holding
The trial court=s
judgment is affirmed.
 
 
RICK STRANGE
JUSTICE
 
May 18, 2006
Panel
consists of: Wright, C.J., and
McCall,
J., and Strange, J.




     [1]Goodnough
and Hennington have an older daughter who lives with Goodnough=s parents in California and who is not involved in this
proceeding.


     [2]We
will treat Goodnough=s alternative contention that there was no clear and
convincing evidence as a factual insufficiency challenge.


     [3]The
trial was held on March 18, 2005.  The
Gopffarths= petition was filed on September 10, 2004.


