Opinion
No. 05-15-01298-CV
03-01-2016
IN THE INTEREST OF A.G. AND A.G., MINOR CHILDREN
On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-30094-2014
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Fillmore, and Justice Stoddart
Opinion by Justice Stoddart
This appeal arises from the termination of Mother's and Father's parental rights to their two minor children, A.G. and A.G. Although Mother filed a notice of appeal, she did not file a brief with this Court; we dismiss her appeal. As to Father, the trial court found by clear and convincing evidence that termination of Father's rights is in the best interest of the children because, among other reasons, Father was convicted of a criminal offense and he will be confined or imprisoned and unable to care for the children for not less than two years from the date the petition for termination was filed. Father challenges this conclusion on appeal. We affirm.
A. Mother
Mother filed a notice of appeal. After she failed to file a brief, this Court sent a letter to Mother informing her that her time for filing her brief had expired. The letter told Mother that if she did not file her brief and an extension motion within ten days, "this appeal will be dismissed." See TEX. R. APP. P. 38.8(a)(1). Mother never filed a brief. Therefore, we dismiss her appeal.
B. Father
The trial court may terminate the parent-child relationship if it finds by clear and convincing evidence that the parent committed one of the acts prohibited under section 161.001(b)(1) of the Texas Family Code and the termination is in the child's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2015). Clear and convincing evidence means "the measure or degree of proof that 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." Id. § 101.007 (West 2014).
In a legal sufficiency review, we look at 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 is true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the trial court acting as the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id.
In his third issue, Father challenges the legal sufficiency of the evidence supporting the trial court's finding under section 161.001(b)(1)(Q). To support a finding under subsection (Q), the record must show that the parent engaged in criminal conduct that has resulted in the parent's conviction of an offense and 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. See TEX. FAMILY CODE ANN. § 161.001(b)(1)(Q). In this appeal, Father does not challenge that the termination is in the best interest of the children.
The petition for termination was filed on February 3, 2015. At that time, Father was incarcerated because he had been convicted of aggravated assault against Mother. Mother testified before the trial court that Father would be incarcerated for twelve to twenty-five years. However, at the time of the termination proceedings, Father's conviction was not final.
On May 13, 2015, the El Paso Court of Appeals affirmed Father's conviction. See Green v. State, No. 08-13-00308-CR, 2015 WL 2265084 (Tex. App.—El Paso May 13, 2015, pet. ref'd) (not designated for publication). The El Paso court's opinion in Green states Father did not make any arguments on appeal relating to the guilt-innocence phase of his criminal trial, and that the jury sentenced Father to 25 years' confinement. The trial court entered the final order terminating Father's and Mother's parental rights on October 26, 2015. The court of criminal appeals refused Father's petition for review on November 4, 2015. --------
Father testified at the termination proceeding that he had been incarcerated for the preceding three years because of the aggravated assault conviction, and he had not been able to care for his children during that time. Until the Department of Family and Protective Services became involved with his children, Father did not know where they were living. He testified he believed Mother had the ability to care for the children and he desired the children live with Mother. However, as part of the termination proceedings, the trial concluded that Mother: (1) engaged in conduct that endangered the physical and emotional well-being of the children; (2) knowingly placed and allowed the children to remain in conditions or surroundings that endangered their physical and emotion well-being; (3) failed to comply with provisions of a court order that specifically established the actions necessary for her to obtain return of the children who had been in the temporary conservatorship of the Department of Family and Protective Services as a result of the children's removal from her for abuse or neglect of the children; and (4) used a controlled substance in a manner that endangered the children's health and safety and failed to complete a court-ordered substance abuse treatment program.
The evidence shows Father was convicted of aggravated assault and would be imprisoned for more than two years from the date the petition for termination was filed. See TEX. FAMILY CODE ANN. § 161.001(b)(1)(Q). Although he argues his conviction was not final when the trial court entered its final order in the termination proceeding, a final conviction is not required. Several courts, including this one, have concluded convictions constituting grounds for termination under section 161.001 need not be final. See In re L.B., No. 05-13-01615-CV, 2014 WL 1102050, at *7-8 (Tex. App.—Dallas Mar. 20, 2014, no pet.) (mem. op.) (citing Rian v. State, No. 03-08-00155-CV, 2009 WL 2341868 (Tex. App.—Austin July 31, 2009, pet. denied) (mem.op.)); In re W.B.W., 11-11-00269-CV, 2012 WL 2856067, *14 (Tex. App.—Eastland July 12, 2012, pet. denied) (mem. op.); In re T.C.C.H., No. 07-11-00179-CV, 2011 WL 6757409, *9 (Tex. App.—Amarillo Dec. 22, 2011, no pet.)(mem. op.); see also In re D.N., Jr., No. 07-15-00041-CV, 2015 WL 2255954, at *5 (Tex. App.—Amarillo May 13, 2015, no pet.) (mem. op.) ("finality of a conviction is not required to support termination under paragraph (Q)."). There was clear and convincing evidence from which the trial court could have reasonably formed a firm belief that Father knowingly engaged in criminal conduct and was convicted and imprisoned for that conduct.
Once it was established by clear and convincing evidence that Father knowingly engaged in criminal conduct resulting in his conviction and confinement for at least the two-year period after the filing of the petition, the burden shifted to Father to produce some evidence showing he made arrangements for the care of the children during his imprisonment. See In re H.B.C., No. 06-15-00092-CV, 2016 WL 71942, at *4 (Tex. App.—Texarkana Jan. 6, 2016, no pet.) (citing In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied)). Although Father testified that his mother and other family members could care for the children, his family did not offer supporting testimony. Father's testimony alone does not render the evidence insufficient to support a finding of inability to care for the children. See In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (citing In re Caballero, 53 S.W.3d at 396) (stating the incarcerated parent's testimony that family members could care for the child did not render the evidence insufficient to support a finding of inability to care).
It is undisputed Father was incarcerated from the date the petition for termination was filed and was sentenced to 25 years' confinement. There was no evidence Father made any arrangements to care for the children during his confinement. Father left the children with Mother. Mother's rights were terminated in this proceeding after the trial court concluded she failed to properly care for the children. "Absent evidence that the non-incarcerated parent agreed to care for the child on behalf of the incarcerated parent, merely leaving a child with a non-incarcerated parent does not constitute the ability to provide care." Id. Father did not meet his burden to produce evidence showing he made arrangements for the care of the children during his imprisonment.
We conclude the evidence is legally sufficient to support the trial court's finding under subsection (Q). We overrule Father's third issue.
In light of our disposition of Father's third issue, we need not address his first and second issues, which relate to the sufficiency of the evidence with respect to the trial court's other findings. See TEX. R. APP. R. 47.1. We affirm the trial court's judgment as to Father.
/Craig Stoddart/
CRAIG STODDART
JUSTICE 151298F.P05
JUDGMENT
On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-30094-2014.
Opinion delivered by Justice Stoddart. Chief Justice Wright and Justice Fillmore participating.
In accordance with this Court's opinion of this date, the appeal filed by Mother is DISMISSED.
In accordance with this Court's opinion of this date, we AFFIRM the trial court's judgment as to Father.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 1st day of March, 2016.