In re H.R.M.

Decision Date01 December 2006
Docket NumberNo. 06-0270.,06-0270.
Citation209 S.W.3d 105
PartiesIn the Interest of H.R.M.
CourtTexas Supreme Court

PER CURIAM.

Section 161.001(1)(Q) of the Texas Family Code provides that parental rights may be terminated if 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." A divided court of appeals determined that the time remaining on a parent's prison sentence was insufficient evidence from which a factfinder could reasonably form "a firm belief or conviction" that a parent would be imprisoned or confined for at least two years. Because the court of appeals misapplied the standard for reviewing the evidence, we reverse and remand.

William Keith M. ("Keith") and Stacey W. are the biological parents of H.R.M., who was born October 13, 2000. Keith and Stacey married in December 2000, then divorced in 2001. Under an agreed divorce decree, Stacey was H.R.M.'s sole managing conservator, and Keith was possessory conservator with the right to supervised visitation. Since January 2002, Keith has been incarcerated in the Texas Department of Criminal Justice, serving concurrent sentences for robbery and enticing a child. See TEX. PEN. CODE §§ 29.02, 25.04.1

In 2004, Stacey married James W., and on July 6, 2004, they filed a petition seeking to terminate Keith's parental rights under subsection (Q) and to allow James to adopt H.R.M.

A jury found that Keith's parental rights should be terminated, and the trial court entered an order doing so, but the court reserved a ruling on James's request to adopt H.R.M.2 The trial court denied Keith's motion for a new trial. The court of appeals reversed the order terminating Keith's parental rights, concluding that the evidence was factually insufficient to support "a firm belief or conviction [that] Keith would still be imprisoned or confined as of July 6, 2006." ___ S.W.3d ___, 2006 WL 1147806.

In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a jury's factfindings, In re C.H., 89 S.W.3d 17, 27 (Tex.2002), and should not supplant the jury's judgment with its own, Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). The court should inquire "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [] allegations." In re C.H., 89 S.W.3d at 25. "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 applying this standard, "[a]n appellate court's review must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." In re C.H., 89 S.W.3d at 26 (citing Santosky v. Kramer, 455 U.S. 745, 767-69, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).

In In re A.V., we decided that section 161.001(1)(Q) of the Texas Family Code applies prospectively and said, "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." 113 S.W.3d 355, 360 (Tex. 2003). We recognize that a two-year sentence does not automatically meet subsection Q's two-year imprisonment requirement. 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. A parent sentenced to more than two years might well be paroled within two years. Thus, evidence of the availability of parole is relevant to determine whether the parent will be released within two years. Mere introduction of parole-related evidence, however, does not prevent a factfinder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years. Parole decisions are inherently speculative, Ex Parte Moussazadeh, 64 S.W.3d 404, 413 (Tex. Crim.App.2001) (citing Ex Parte Evans, 690 S.W.2d 274, 278 (Tex.Crim.App.1985)), and while all inmates doubtless hope for early release and can take positive steps to improve their odds, the decision rests entirely within the parole board's discretion. See 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 a jury 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. By that rationale, the party seeking termination would have to show that there is zero chance of early release. This would impermissibly elevate the burden of proof from clear and convincing to beyond a reasonable doubt.

Although the court of appeals properly stated the standard for reviewing factual sufficiency in parental termination cases, ___ S.W.3d at ___, 2006 WL 1147806 at *2-3, it misapplied it. The court of appeals concluded that the jury could not have reasonably formed a firm belief that Keith would remain imprisoned or confined on July 6, 2006, because Keith testified that he would be up for parole each year and that he was participating in a pre-release program available to inmates within two years of parole. As "the sole arbiter when assessing the credibility and demeanor of witnesses," In re J.L., 163 S.W.3d 79, 86-87 (Tex.2005), the jury was free to disregard Keith's testimony, which was barely more than conjecture. Indeed, as Keith conceded, whether he would be released within two years was "up to the parole board." The record showed that Keith had multiple convictions and sentences. He had been on parole for a robbery conviction, but his parole was revoked in 2002, when he was convicted of enticing a child.3 He received a seven-year sentence for that offense, and he had just under thirteen years left to serve of his robbery sentence. Moreover, Keith acknowledged that the parole board had twice denied him parole already.

By basing its decision on Keith's testimony that he had a possibility of parole, the court of appeals focused on one factor pertinent to deciding whether Keith would remain imprisoned. Rather than weighing all of the evidence, see In re J.F.C., 96 S.W.3d at 266, the court of appeals balanced Keith's testimony against evidence of two of Keith's convictions and the time remaining on one of his sentences. ___ S.W.3d at ___, 2006 WL 1147806 at *3-4. In so doing, the court did not fully account for evidence that supported the jury's verdict, nor did it give due deference to the jury's factfindings; instead, it merely substituted its judgment for that of the jury.

Keith argues that we should affirm the court of appeals' decision on the alternate ground that the evidence is factually insufficient to support the finding that Keith would be unable to care for H.R.M. for at least two years from the date the petition was filed. Terminating parental rights under subsection Q requires that the parent be both incarcerated or confined and unable to care for the child for at least two years from the date the termination petition is filed. TEX. FAM. CODE § 161.001(1)(Q)(ii). Keith did not provide for H.R.M. financially following his divorce from Stacey. Keith argues that he tried to provide financial support by writing to the Attorney General, but he was informed that there was no listing of him owing any child support for H.R.M., so he provided no money for her. He contends, however, that he was involved in H.R.M.'s upbringing for the first year of her life and that he attempted to provide emotional support by sending letters. He argues that there is too little evidence on this issue to support a finding that he would be unable to care for H.R.M. for two years. In the alternative, he contends that he provided care for H.R.M. by leaving her with Stacey.

Subsection Q looks at whether the incarcerated parent will be unable to care for the child for two years from the date when the termination petition is filed. In re A.V., 113 S.W.3d at 360. The evidence showed that Keith had sent H.R.M. a few letters and a Bible cover. Keith also testified that if he had to, he could go to his mother for help and support. But neither his mother nor anyone else testified that they were willing to care for H.R.M. on Keith's behalf during his incarceration. See In re Caballero, 53 S.W.3d 391, 396 (Tex.App.-Amarillo 2001, pet. denied) (stating that the incarcerated parent's testimony that family members could care for the child did not render the evidence factually insufficient to support a finding of inability to care). Because we do not have jurisdiction to conduct a factual sufficiency...

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