Opinion
NO. 14-16-00120-CV
07-19-2016
IN THE INTEREST OF D.W.R., A CHILD
On Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2015-01240J
MEMORANDUM OPINION
R.W.R. ("Father") appeals the trial court's final decree terminating his parental rights, and appointing the Department of Family and Protective Services (the "Department") as sole managing conservator of D.W.R. ("the Child"). In a single issue Father challenges the factual sufficiency of the evidence to support the trial court's finding under subsection 161.001(b)(1)(Q) of the Texas Family Code. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Child's Removal and Conservatorship
The Child was born December 15, 2002. When the Child was five days old he was removed from his parents due to neglectful supervision, mother's positive drug tests, and domestic violence. The Child was placed with his maternal grandparents in 2002. The Child was diagnosed with chronic lung disease, Beck-Wiedman syndrome, myotonic muscular dystrophy, gastrointestinal-tube dependence, developmental delay, congenital cataracts, and partial nephrectomy. The Child lived with his grandparents, who were named his permanent managing conservators. Between 2011 and 2013 both grandparents passed away. Upon the second grandparent's death, the Child was placed with his maternal aunt and uncle.
On September 17, 2013, the Department received a report that the Child was at risk of sexual abuse by his mother. The Child's mother died one month later. The Department subsequently received a report that the Child, while living with his aunt and uncle, was "near death" due to lack of "essential nutrition and oxygen." When the Department investigated, it asked the aunt and uncle to submit to drug testing. The aunt tested positive for methamphetamine, and the uncle refused a drug test.
On February 24, 2015, the Department filed an original petition for protection of the Child and termination of Father's parental rights. On that date, the trial court entered temporary orders removing the Child from the home of his aunt and uncle and naming the Department temporary managing conservator.
B. Evidence of Father's Criminal History and Incarceration
At trial, appellant moved for a continuance to allow him time to challenge the admissibility of an extraneous offense in one of his penitentiary packets. The trial court denied appellant's motion.
The trial court admitted five penitentiary packets into evidence over appellant's objections. The contents of the penitentiary packets reflected that appellant was most recently convicted of burglary of a habitation on September 22, 2003, and sentenced as part of a plea bargain to thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant previously had been convicted of burglary of a habitation, burglary of a vehicle, and twice convicted of theft. The trial court further admitted judgments of conviction for burglary of a building and driving while intoxicated.
Father testified that he pleaded guilty to burglary of a habitation in 2003, receiving a thirty-year sentence. Father has been incarcerated since that time. In 2006, he first became eligible for parole. Since that time he has been denied parole several times. Father testified that he is not sure how many times he has been denied parole. Listed in the penitentiary packet for Father's burglary offense is a "projected minimum release date" of January 12, 2017. Father has served more than twelve years of his thirty-year sentence, and accrued good conduct time. When Father's actual time served and his good conduct time are added they equal more than his thirty-year sentence. For that reason, Father is no longer eligible for parole, but is eligible for release to mandatory supervision. Based on the discretionary mandatory release statute, Father believes he may be released in September 2016.
Father alleges that the penitentiary packet for his burglary offense contains a summary of an offense on which charges were dropped. In the packet, the offense summarized is a burglary of a habitation in which Father is alleged to have illegally entered a home and physically attacked the residents, hitting one of the residents in the head with a five-pound weight, causing the resident serious bodily injury. Father testified that this summary was directed toward a robbery offense for which appellant was charged but never convicted.
The Board of Pardons and Parole has denied Father release on discretionary mandatory supervision once. Father believes the incorrect summary of the offense is the only reason the Board denied his release. Father also presented evidence that the rate of discretionary mandatory supervision granted by the Board for non-violent offenders was 60.9 percent in 2012, 56.82 percent in 2013, and 53.85 percent in 2014. Father's next review before the Board is September 2016.
During Father's cross-examination, the trial court admitted into evidence a copy of the Board's last review of Father for discretionary mandatory supervision. The review states that Father is denied release for the following reasons:
Criminal History-the record indicates that the inmate has repeatedly committed criminal episodes or has a pattern of similar offenses that indicates a predisposition to commit criminal acts when released; or the record indicates that the inmate is a leader or active participant in gang or organized criminal activity; or the record indicates a juvenile or an adult arrest or investigation for felony and misdemeanor offenses.
Drug or Alcohol Involvement-the record indicates excessive drug or alcohol involvement which includes possession, use or delivery in the instant offense or criminal history.
Adjustment During Periods of Supervision-the record indicates unsuccessful periods of supervision on previous probation, parole, or mandatory supervision that resulted in incarceration, including parole-inabsentia revocations.
Discretionary Mandatory Supervision-the record indicates that the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation.
Discretionary Mandatory Supervision-the record indicates that the inmate's release would endanger the public.
Following testimony by the Department's investigator and caseworker, the trial court found clear and convincing evidence to support termination of Father's parental rights under Family Code section 161.001(b)(1)(Q), and further found that termination of Father's rights was in the best interest of the Child.
II. ANALYSIS
The trial court's judgment recites that Father's parental rights were terminated based on predicate findings under subsection (Q) of Texas Family Code Section 161.001(b)(1). Under this subsection, termination is warranted if the trial court finds by clear and convincing evidence that the parent has:
(Q) knowingly engaged in criminal conduct that has resulted in the parent's:Tex. Fam. Code Ann. § 161.001(b)(1)(Q). In his sole issue, Father argues the evidence is factually insufficient to support termination under subsection (Q) of section 161.001(b)(1).
(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.
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear-and-convincing-evidence standard. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "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." Tex. Fam. Code Ann. § 101.007; In reJ.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the factual sufficiency of the evidence, we consider all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. "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." Id. We give due deference to the factfinder's findings and we cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109.
Relevant to this issue, the Department was required to prove by clear and convincing evidence that Father knowingly engaged in criminal conduct that has resulted in Father's (1) conviction of an offense, and (2) confinement or imprisonment and inability to care for the Child for not less than two years from the date on which the Department filed the termination petition. See Tex. Fam. Code § 161.001(b)(1)(Q); In re A. V., 113 S.W.3d 355, 360 (Tex. 2003) (construing phrase "two years from the date of filing the petition" to apply prospectively from the date of filing a petition).
The evidence contains the judgment reflecting Father's felony conviction and thirty-year sentence for burglary of a habitation. On appeal, Father argues the evidence is factually sufficient to allow a rational factfinder to form a firm belief or conviction that he will still be incarcerated on February 24, 2017, two years after the Department filed the petition for termination. Father concedes the evidence is legally and factually sufficient to support the other elements under subsection (Q) as well as the finding that termination is in the best interest of the Child.
For subsection (Q) to apply, Father must be both incarcerated or confined and unable to care for the Child for at least two years from the date on which the Department filed the termination petition. See In re H.R.M., 209 S.W.3d at 109-10. The Department filed the petition for termination on February 24, 2015. According to the judgment reflecting Father's burglary conviction, Father was sentenced to serve thirty years' confinement on September 22, 2003; his maximum release date is March 7, 2033. Father argues, however, that we must consider his testimony that he could be released on discretionary mandatory supervision before February 24, 2017. Father asserts that, based on this uncontroverted testimony, the trial evidence is factually insufficient to support a finding that Father's criminal conduct would result in his confinement through February 24, 2017.
In addressing the manner in which an appellate court should review a finding that a parent's criminal conduct would result in the parent's confinement or imprisonment for not less than two years from the date on which the termination petition was filed, the Supreme Court of Texas has provided the following guidance:
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, 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.In re H.R.M., 209 S.W.3d at 109-10 (citations omitted).
In this case, Father is not entitled to be released on parole prior to March 7, 2033. Father, however, could be released on discretionary mandatory supervision, which is also at the discretion of the Board of Pardons and Parole. Father testified that he was denied mandatory supervision in September 2015, but will be considered by the Board again for mandatory supervision in September 2016.
The Texas Government Code does not permit an inmate to be released on mandatory supervision under the following circumstances:
(b) An inmate may not be released to mandatory supervision if a parole panel determines that:Tex. Gov't Code Ann. § 508.149; see also Ex parte Geiken, 28 S.W.3d 553, 556 (Tex. Crim. App. 2000).
(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmate's release would endanger the public.
The record reflects that Father began serving a thirty-year sentence in 2003. The Department established that Father's release date is March 7, 2033. However, this sentence "does not automatically meet subsection Q's two-year imprisonment requirement." In re H.R.M., 209 S.W.3d 105,109 (Tex. 2006). Instead, we consider parole-related evidence in the record to determine whether there is sufficient evidence to support a finding that Father will remain incarcerated until February 24, 2017. Id. In conducting this review, we bear in mind the Supreme Court's admonishment that the Department need not establish "that there is a zero chance of early release." Id.
As outlined above, Father has been incarcerated since 2003 on a thirty-year sentence. Father was denied parole several times after 2006 when he first became eligible. Father is no longer eligible for parole, but is eligible for release to mandatory supervision. The Board of Pardons and Parole has denied Father release on discretionary mandatory supervision once, but Father believes he may be released at his next review in September 2016.
Father argues that the only reason the Board denied mandatory supervision was because his peniteniary packet contains an inaccurate reference to a violent offense for which he was not convicted. However, contrary evidence was admitted that the Board denied Father's mandatory release because the Board found that Father's accrued good conduct time is not an accurate reflection of his potential for rehabilitation, and his release would endanger the public. Specifically, as to the potential for rehabilitation, the Board stated that "the record indicates unsuccessful periods of supervision on previous probation, parole, or mandatory supervision that resulted in incarceration, including parole-in-absentia revocations." As the sole arbiter of the credibility and demeanor of witnesses, the trial court, acting as factfinder, was free to discredit and disregard Father's testimony that he expected to be released before February 24, 2017. See In re H.R.M., 209 S.W.3d at 109; In re D.Z.R.-M., No. 14-13-01084-CV; 2014 WL 1390289 at *8 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014) (mem. op.). To have found that Father would be released prior to that date, the trial court would have to have engaged in speculation as to the Board's decision.
Under the applicable standards of review, the trial evidence is factually sufficient to allow the trial court to have formed a firm belief or conviction that Father's criminal conduct would result in Father's confinement through February 24, 2017. See In re H.R.M., 209 S.W.3d at 109. We overrule Father's sole issue.
We affirm the trial court's judgment.
/s/ Marc W. Brown
Justice Panel consists of Chief Justice Frost and Justices McCally and Brown.