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In re D.L.B.

Court of Appeals of Texas, Eleventh District

July 18, 2019

IN THE INTEREST OF D.L.B., A CHILD

          On Appeal from the 318th District Court Midland County, Texas Trial Court Cause No. FM 63, 945

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          JOHN M. BAILEY CHIEF JUSTICE

         This is an appeal from an order in which the trial court terminated the parental rights of D.L.B.'s father after a de novo hearing. The mother's parental rights had previously been terminated based upon her voluntary relinquishment of those rights. On appeal, the father presents two issues in which he challenges the legal and factual sufficiency of the evidence. We affirm.

         Termination Findings and Standards

         The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) and that termination is in the best interest of the child. Id.

         In this case, the trial court found that Appellant had committed two of the acts listed in Section 161.001(b)(1)-those found in subsections (E) and (Q). Specifically, the trial court found that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being and that Appellant had knowingly engaged in criminal conduct that resulted in his conviction and imprisonment and inability to care for the child for not less than two years from the date that the petition was filed in this cause. The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant's parental rights would be in the best interest of the child.

         In his issues on appeal, Appellant challenges the legal and factual sufficiency of the evidence of the trial court's findings under subsections (E) and (Q), but he does not challenge the best interest finding. To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).

         Background Facts

         The Department of Family and Protective Services removed D.L.B. and the mother's other children from the mother's care due to the deplorable conditions of the mother's home. D.L.B. was five years old at the time of removal. Evidence regarding the child's best interest was introduced at trial, but we will not detail that evidence here as Appellant does not challenge the best interest finding made by the trial court.

         Due to his incarceration, Appellant appeared by phone at the final hearing on termination. Appellant had been incarcerated throughout D.L.B.'s entire life. In August 2012, Appellant was convicted of the offense of aggravated assault with a deadly weapon and was sentenced to serve a term of confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice. In September of 2012, Appellant was convicted of the offense of debit card abuse and sentenced to a term of confinement for two years in a state jail facility. The Department's conservatorship caseworker testified that, to her knowledge, Appellant's release date is April 2022. During his testimony, Appellant acknowledged that the "max" on his sentence is April 2022. Appellant testified that he would be eligible for parole soon (in March 2019). However, at the time of trial, Appellant had already been denied parole on two occasions.

         Appellant listed his mother as a potential placement for D.L.B., but Appellant's mother was in jail in California. After this case had been pending for several months, Appellant's mother returned to Texas and attempted to intervene in this case. The trial court subsequently found, among other things, that Appellant's mother's intervention was not in D.L.B.'s best interest, and the trial court struck the petition in intervention. At the time of the final hearing on termination, Appellant's mother had recently provided information for a home study, and she was still being considered by the Department as a potential placement. Her home study and evaluation had not been approved at the time of trial. Appellant's mother had a criminal history that was a concern, including theft, fraud, and debit/credit card abuse. An adult relative that lived in Appellant's mother's home also had a criminal history; the adult relative's criminal history involved an assault with bodily injury. Appellant had no other relatives that could assist in taking care of D.L.B. While Appellant was incarcerated. When asked if he had other relatives that the Department could consider as a placement for D.L.B., Appellant responded: "Nobody that doesn't have a criminal history, no."

         Analysis

         In his second issue on appeal, Appellant challenges the finding made pursuant to subsection (Q) of Section 161.001(b)(1). To support a finding under subsection (Q), the record must show that the parent will be incarcerated or confined and unable to care for the child for at least two years from the date the termination petition was filed. Fam. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006). Appellant does not dispute that he has been convicted of a crime and incarcerated. However, he does dispute that the Department proved that he would remain incarcerated for at least two years ...


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