in the Matter of D.S.A. and P.J.A. ( 2008 )

Opinion filed March 13, 2008

Opinion filed March 13, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00219-CV

                                                    __________

                              IN THE MATTER OF D.S.A. AND P.J.A.

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                             Trial Court Cause No. CV 05-07-334

                                             M E M O R A N D U M   O P I N I O N

Morris Franklin Abernathy appeals from the trial court=s order terminating his parental rights to his children, D.S.A. and P.J.A.  We affirm.

 On July 22, 2005, the Texas Department of Family and Protective Services (the Department) filed a petition to terminate Abernathy=s parental rights.^[1] The petition alleged as grounds for termination that Abernathy:

(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;

(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children;

(3) failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the children who have been in the permanent or temporary managing conservatorship of [the Department] for not less than nine months as a result of the children=s removal from the parent . . .

(4) knowingly engaged in criminal conduct that has resulted in the father=s conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition.^[2]

The four grounds were submitted to the jury in broad-form.  The jury returned a verdict that Abernathy=s parental rights to D.S.A. and P.J.A. should be terminated.  The trial court entered an order terminating Abernathy=s rights to D.S.A. and P.J.A. 

In his sole issue on appeal, Abernathy argues that the trial court erred Ain submitting a broad-form question to the jury because one of the grounds for termination of parental rights submitted was invalid and not legally or factually supported by the evidence.@  The burden of proof at trial in parental‑termination cases is by clear and convincing evidence.  Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2007);  In re J.F.C., 96 S.W.3d 256, 263 (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 (Vernon 2002); J.F.C., 96 S.W.3d at 264.  This heightened burden of proof results in a heightened standard of review. 

When determining legal sufficiency, we review all the evidence in the light most favorable to the finding Ato determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.@ J.F.C., 96 S.W.3d at 266.  In conducting a legal sufficiency review in a parental‑termination case, we must consider all of the evidence, not only that which favors the verdict.  In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). 

In a factual sufficiency review, we will give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.  In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Phillips v. Texas Dept. of Protective and Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.). We determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State=s allegations.   Phillips, 149 S.W.3d at 817.  We also consider whether any disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.

Abernathy specifically complains that there was legally and factually insufficient evidence to support submitting as a ground for termination that he engaged in criminal conduct that has resulted in his confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition.  Section 161.001(1) provides that parental rights may be terminated if the parent:

(Q) 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.

Abernathy was incarcerated on several different occasions.  His most recent incarceration was August 23, 2004.  The Department filed the petition to terminate on July 22, 2005, and the trial court entered the order of termination on July 27, 2006. Abernathy contends that he was not confined for two years from the date of filing the petition to terminate as required by Section 161.001(1)(Q).

In In re A.V., 113 S.W.3d 355, 360 (Tex. 2003), the court found that the requirement of confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition set out in Section 161.001(1)(Q) is to be applied prospectively.  The court stated that:

            In reading subsection Q to apply prospectively, the subsection fills a gap left by other grounds for termination.  A prospective reading of subsection Q allows the State to act in anticipation of a parent=s abandonment of the child and not just in response to it.  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.

Id. at 360.  Abernathy=s projected release date from prison is September 2009.  Abernathy is sentenced to serve at least two years from the date the Department filed the petition. The evidence is legally and factually sufficient to support submitting as a ground for termination that Abernathy  engaged in criminal conduct that has resulted in his confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition. Abernathy=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 13, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]The petition also sought to terminate the parental rights of Edna Jean Hale, the mother of D.S.A. and P.J.A.  Hale voluntarily relinquished her rights prior to trial and is not a party to this appeal.

^[2]The petition alleged a fifth ground for termination; however, that ground was not submitted to the jury.