in the Interest of C.F.H. and J.C.H.

Affirmed and Memorandum Opinion filed January 29, 2009 Affirmed and Memorandum Opinion filed January 29, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-07-00720-CV ____________ IN THE INTEREST OF C.F.H. AND J.C.H. On Appeal from the 12th District Court Grimes County, Texas Trial Court Cause No. 2088 M E M O R A N D U M   O P I N I O N This case is an appeal from a trial court=s judgment terminating a father=s parental rights to two minor children and granting the children=s stepfather adoption of the children. The father claims the evidence is legally and factually insufficient to support the trial court=s judgment for termination. Under the applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the termination of the father=s parental rights. Accordingly, we affirm the trial court=s judgment. I. Factual and Procedural Background James and Sandy had two children, C.F.H. (hereinafter ACarl@) and J.C.H. (hereinafter AJohn@),[1] during their marriage. In February 2004, Sandy and James divorced. The trial court=s divorce decree appointed Sandy as the minor children=s sole managing conservator. The trial court ordered that James would have possession of the children Aat times and with the terms and conditions mutually agreed to in advance@ by Sandy. The trial court, upon a finding of good cause, did not order child support for the children. After the divorce, Sandy agreed to the children=s supervised visitation with James from December 2004 through March 2005. In February 2006, James was convicted on a charge for aggravated assault, and he was sentenced to confinement for a period of ten years. He was denied parole in April 2007. He has remained incarcerated since February 2006, and will again be eligible for parole in April 2009. Sandy later married Christopher, the children=s stepfather. In 2007, Sandy and Christopher petitioned the trial court to terminate James=s parental rights to the children and to allow Christopher to adopt the children. At the time of the termination proceeding, Carl and John were eight and seven years old, respectively. The trial court made the following findings of fact and conclusions of law: The Court finds by clear and convincing evidence that James [] hasB a. voluntarily left the children alone or in the possession of another without providing adequate support of the children and remained away for a period of at least six months; b. engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers the physical or emotional well-being of the children; c. failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; and d. knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date the petition was filed. The Court also finds by clear and convincing evidence that termination of the parent-child relationship between James [] and the children the subject of this suit is in the best interest of the children. The trial court ordered that the parent-child relationship between James and each of the children be terminated. The trial court granted Christopher=s request to adopt the children. In this appeal, James challenges the legal and factual sufficiency of the evidence supporting the trial court=s judgment in terminating his parental rights. II. Standards of Review Because termination of parental rights is a drastic remedy, due process and the Texas Family Code require the Department of Child Protective Services to prove the necessary elements by the heightened burden of proof of Aclear and convincing evidence.@ See Tex. Fam. Code Ann. ' 161.001 (Vernon 2008); In re B.L.D., 113 S.W.3d 340, 353B54 (Tex. 2003). In this case, Sandy and Christopher had to prove by clear and convincing evidence that James engaged one or more of the acts specified in section 161.001(1) as grounds for termination, and that termination of his parental rights is in the children=s best interest.[2] See Tex. Fam. Code Ann. ' 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). A>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 (Vernon 2002). In reviewing legal-sufficiency challenges to termination findings, this court must look at all the evidence in the light most favorable to the termination findings to determine whether a reasonable factfinder could have formed a firm belief or conviction that these findings are true. In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). Looking at the evidence in the light most favorable to the judgment means that a reviewing court must presume that the factfinder resolved disputed facts in favor of its findings if a reasonable factfinder could do so. Id. The reviewing court disregards any evidence that a reasonable factfinder could have disbelieved but does not disregard undisputed facts. Id. In reviewing the factual-sufficiency challenges to termination findings, we must give due consideration to evidence that the factfinder reasonably could have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The factual-sufficiency inquiry is whether the evidence is such that the factfinder reasonably could form a firm belief or conviction about the truth of the petitioners= allegations. Id. This court should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. 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 about the truth of the petitioners= allegations, then the evidence is factually insufficient. Id. We must give due deference to fact findings, and we should not supplant the factfinder=s judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). III. Analysis In their petition for termination, Sandy and Christopher alleged the grounds in subsections (C), (E), (F), and (Q) of section 161.001(1), and alleged that termination was in the children=s best interest. In its decree for termination, the trial court relied upon all four of the subsections cited by Sandy and Christopher and found that termination of James=s parental rights was in the best interest of each of the children. The acts specified in subsections (C), (E), (F), and (Q) of section 161.001(1) are that a parent has: (C) voluntarily left the child alone or in possession of another without providing adequate support of the child and remained away for a period of at least six months; . . . (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; (F) failed to support the child in accordance with the parent=s ability during a period of one year ending within six months of the date of the filing of the petition; . . . (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; Tex. Fam. Code Ann. '' 161.001(1)(C), (E), (F), (Q). In order to satisfy the first prong of section 161.001, Sandy and Christopher were required to prove only one of these grounds. See In re C.M.C., __ S.W.3d __, __, No. 14-07-00881-CV, 2008 WL 5244929, at *8 (Tex. App.CHouston [14th Dist.] 2008, no pet.). A. Texas Family Code Section 161.001(1)(Q) Subsection (Q) warrants termination of parental rights when a parent knowingly engaged in criminal conduct, resulting in the parent=s conviction of an offense, and the parent is both incarcerated and unable to care for the child for at least two years from the date the termination petition was filed. Tex. Fam. Code Ann. ' 161.001(1)(Q); In re A.V., 113 S.W.3d 355, 360 (Tex. 2003) (construing phrase Atwo years from the date of filing the petition@ to apply prospectively from the date of filing a petition). Incarceration and a parent=s inability to care are separate requirements for termination of parental rights under section 161.001(1)(Q)(ii). See In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.CFort Worth 2004, no pet.); In re B.M.R., 84 S.W.3d 814, 818 (Tex. App.CHouston [1st Dist.] 2002, no pet.). 1. Evidence of Incarceration To support termination under subsection (Q), Sandy and Christopher must prove that James=s criminal conviction would result in confinement for at least two years from the date the petition was filed. See In re D.R.L.M., 84 S.W.3d 281, 295 (Tex. App.CFort Worth 2002, pet. denied). Sandy and Christopher filed their original termination petition on April 25, 2007, and amended the petition on June 18, 2007. Under subsection (Q), Atwo years from the date of filing the petition@ would be April 25, 2009. See In re A.V., 113 S.W.3d at 359B60. In this case, James testified that he was convicted of aggravated assault. He is currently incarcerated, serving a ten-year sentence on that conviction. He began his sentence in February 2006, and he has a projected release date in December 2015. In some cases, neither the length of the sentence nor the anticipated release date determines when an incarcerated parent will be released from prison. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). An incarcerated parent who is sentenced to more than two years= confinement may be paroled in less than two years. Id. at 109. Therefore, evidence of eligibility for parole is relevant to determine whether the parent will be released within two years. Id. James conceded he was denied parole in April 2007. However, James anticipated being eligible for parole again in April 2009, as long as he can Astay out of trouble.@ However, merely introducing parole-related evidence does not prevent a factfinder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years, because parole decisions are Ainherently speculative.@ Id. (A[W]hile 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.@). James acknowledged the possibility that he may not be granted parole in April 2009. Sandy and Christopher produced evidence at trial that James had received eight reports for misconduct and discipline problems since his sentence began in February 2006. The mere presentment of parole-related evidence does not prevent a factfinder from forming the firm conviction or belief that the parent will remain incarcerated for at least two years. Id. (acknowledging that parole decisions rest within a parole board=s decision). Under the applicable standards of review, the record evidence is legally and factually sufficient for a factfinder reasonably to have formed a firm belief that James would remain imprisoned or confined on April 25, 2009, two years from the date the termination petition was filed. See In re R.S., 252 S.W.3d 550, 552B53 (Tex. App.CTexarkana 2008, no pet.) (reviewing factual and legal sufficiency); In re H.R.M., No. 14-05-00281-CV, 2007 WL 707553, at *2 (Tex. App.CHouston [14th Dist.] Mar. 14, 2007, no pet.) (mem. op.) (concluding evidence was factually sufficient). 2. Evidence of the Incarcerated Father=s Inability to Care for the Children Termination under subsection (Q) also requires that an incarcerated parent will be unable to care for the child for two years from the date when the termination petition is filed. See In re H.R.M., 209 S.W.3d at 110. A reviewing court may consider the availability of financial and emotional support from the incarcerated parent in deciding an incarcerated parent=s ability to care for his child. See Brazoria Co. Children=s Prot. Servs. v. Frederick, 176 S.W.3d 277, 279 (Tex. App.CHouston [1st Dist.] 2004, no pet.). Once evidence has established that a parent=s knowing criminal conduct resulted in incarceration for more than two years, the incarcerated parent must produce some evidence showing how he would provide or arrange to provide care for the child during that period. In re Caballero, 53 S.W.3d 391, 396 (Tex. App.CAmarillo 2001, pet. denied). If the incarcerated parent meets that burden, then the petitioner holds the burden of proving the arrangement would not satisfy the parent=s duties to the child. See id. James acknowledged he is serving a sentence for his aggravated-assault conviction. He acknowledged difficulty in being able to discipline the children, provide for their financial and emotional needs, read to them at bedtime, or be involved with their sports teams if he is incarcerated. However, James did not indicate, and no other evidence suggests, that anyone else was willing to care for the children on James=s behalf during his incarceration. See In re H.R.M., 2007 WL 707553, at *3. Reviewing all the evidence in the light most favorable to the finding, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that James, as a result of his incarceration, would be unable to care for the children for two years from the date when the termination petition is filed. In viewing the evidence in the light most favorable to the judgment, a reasonable factfinder could have formed a firm belief or conviction that the trial court=s findings under section 161.001(1)(Q) are true. See In re R.S., 252 S.W.3d 550, 552B53 (Tex. App.CTexarkana 2008, no pet.). Therefore, the evidence is legally sufficient to support the trial court=s finding under section 161.001(1)(Q). See In re Caballero, 53 S.W.3d at 396. In light of the entire record, we conclude the evidence is factually sufficient to support the trial court=s finding under section 161.001(1)(Q), because a reasonable factfinder could have formed a firm belief or conviction that James is both incarcerated and unable to care for the children for at least two years from the date the termination petition was filed. See id.; In re H.R.M., 2007 WL 707553, at *3. B. Best Interests of the Children A statutory act or omission under section 161.001(1) also must be coupled with a finding that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam. Code Ann. ' 161.001; Yonko v. Dep=t of Family and Prot. Servs., 196 S.W.3d 236, 242 (Tex. App.CHouston [1st Dist.] 2006, no pet.). In reviewing the sufficiency of the evidence to support the second prong, a reviewing court examines a number of factors, including (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody in promoting the best interest of the child; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent=s act or omissions. See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976). A finding in support of Abest interest@ does not require proof of any unique set of factors, nor does it limit proof to any specific factors. Id. The children=s attorney ad litem indicated that the children expressed a preference to terminate James=s parental rights and allow Christopher to adopt them. Both Sandy and Christopher testified about the children=s physical and emotional well-being and financial security in their household, in which the children related well with other children in the household. Christopher=s parents have accepted the children as their own grandchildren and treated them as such. Sandy and Christopher, upon the advice of John=s pediatrician, sought psychiatric therapy for John=s emotional issues in school. John has continued this therapy and takes medication to counteract behavioral problems. James has expressed his belief to Sandy that John does not need medication. John has been enrolled in a counseling program through his school, and his counselor noted his improvement and progress. The counselor, who met with Sandy, Christopher, and John, indicated that they represented a strong family unit. A pre-adoption social study indicated that Sandy and Christopher have made plans for the children=s future. James complains that there is no evidence of how his imprisonment affects the children=s day-to-day lives; however, James acknowledged his inability to provide for the children=s financial and emotional needs while incarcerated. Furthermore, James admits to having engaged in criminal conduct since he was seventeen years old. He has been incarcerated on multiple occasions. James concedes that, when he is again eligible for parole in 2009, he will have been imprisoned for half of the children=s lives. James accepted responsibility for his choices and indicated he could have made better choices in his past. Conduct that routinely subjects a child to the likelihood that the child will be left alone because a parent is jailed endangers the child=s emotional and physical well-being. See Smith v. Texas Dep=t of Prot. & Reg. Servs., 160 S.W.3d 673, 682 (Tex. App.CAustin 2005, no pet.). A parent=s criminal actions are a factor in determining the children=s best interest, providing that termination of parental rights is not an additional punishment for a parent=s crime. See In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). Reviewing all the evidence in the light most favorable to the termination findings, we conclude that a reasonable factfinder could have formed a firm belief or conviction as to the truth of the trial court=s findings that termination of James=s parental rights is in the best interests of the children. See Smith, 160 S.W.3d at 680B83 (concluding evidence is legally sufficient to support best-interest finding). In light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the trial court=s best-interest findings is not so significant that a reasonable factfinder could not reasonably have formed a firm belief or conviction as to the truth of these findings. See In re J.F.C., 96 S.W.3d at 266. Giving due consideration to the evidence, the trial court reasonably could have formed a firm belief or conviction about the truth of its findings that termination of James=s parental rights is in the best interests of the children. See Smith, 160 S.W.3d at 680B83 (concluding evidence is factually sufficient to support best-interest finding); In re J.F.C., 96 S.W.3d at 266. IV. Conclusion Under the applicable standards, set forth above, the evidence is both legally and factually sufficient to support the trial court=s finding that James=s parental rights should be terminated. Therefore, we overrule James=s sole issue on appeal and affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Panel consists of Justices Frost, Seymore, and Guzman. [1] To protect the privacy of the parties in this case, we identify the children by fictitious names and the parents by their first names only. See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2008). [2] Unless otherwise specified, all statutory citations in this opinion are to the Texas Family Code.