In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00202-CV
IN THE INTEREST OF J.M.G., A CHILD
On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 10521, Honorable Stuart Messer, Presiding
October 27, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
J.A.C., the father of J.M.G.,1 appeals from a final order terminating his parental
rights to J.M.G.2 The proceeding was initiated by J.M.G.’s maternal grandmother,
appellee. Termination was sought under section 161.001(b)(1)(Q) of the Texas Family
Code after J.A.C. was sentenced to fourteen years in prison for a felony committed prior
to the conception of J.M.G. We will affirm the order of the trial court.
1
To protect the child’s privacy, we will refer to the father and the child by their
initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b).
2
The parental rights of the mother of J.M.G. were terminated after she filed an
affidavit of voluntary relinquishment. The mother has not appealed.
Background
In February 2014, J.A.C. pled guilty to the felony offense of burglary of a
habitation. The court deferred a finding of guilt and placed J.A.C. on community
supervision for a term of six years.3 In August 2014, J.A.C.’s girlfriend became
pregnant with J.M.G. Over several months, J.A.C. violated several terms and
conditions of his community supervision, resulting in the State filing a motion to
adjudicate J.A.C.’s guilt. In December 2014, J.A.C. was arrested and, in January 2015,
was adjudicated guilty of the felony offense and sentenced to a prison term of fourteen
years. J.M.G. was born in April 20154 and placed with his maternal grandmother,
appellee.
In August 2015, appellee filed an original petition for termination of parental rights
and adoption of grandchild. The court held a hearing in April 2016. J.A.C. testified,
acknowledging his guilty plea, community supervision, and multiple violations of the
conditions of his community supervision. He told the court he violated the conditions
multiple times by using illegal drugs. He also testified J.M.G.’s mother used drugs with
him before and during her pregnancy. He told the court that after learning of his
girlfriend’s pregnancy, he stopped using drugs, but admitted he continued to violate the
terms of his community supervision by failing to report to his probation officer as
required. J.A.C. also testified to the fourteen-year prison sentence he was assessed
after the court adjudicated him guilty and revoked his community supervision.
3
See TEX. CODE CRIM. PROC. ANN. art. 42.12 (West 2015).
4
J.A.C. submitted to a DNA paternity test, the results of which confirmed he is
the father of J.M.G. He also admitted in open court he was the child’s biological father.
2
Following the presentation of evidence, the trial court terminated J.A.C.’s
parental rights to J.M.G. pursuant to section 161.001(b)(1)(Q) of the Texas Family
Code. TEX. FAM. CODE ANN. § 161.001(b)(1)(Q) (West 2016). The court further found
termination of J.A.C.’s parental rights was in the best interest of J.M.G. See TEX. FAM.
CODE ANN. § 161.001(b)(2).
Analysis
Through his sole issue on appeal, J.A.C. challenges the sufficiency of the
evidence supporting the trial court’s termination of his parental rights to J.M.G. He does
not challenge the evidence supporting the court’s finding that termination of his parental
rights is in the child’s best interest. He asserts only that because the criminal conduct
for which he was eventually sentenced, burglary of a habitation, occurred prior to
J.M.G.’s conception, it cannot form the basis for termination of his parental rights.
The Constitution protects “[t]he fundamental liberty interest of natural parents in
the care, custody, and management” of their children. Santosky v. Kramer, 455 U.S.
745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20
(Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it
is essential that the emotional and physical interests of a child not be sacrificed merely
to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due
Process Clause of the United States Constitution and section 161.001 of the Texas
Family Code require application of the heightened standard of clear and convincing
evidence in cases involving involuntary termination of parental rights. In re E.N.C., 384
S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and
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convincing evidence is that measure or degree of proof which 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 (West 2014); In re C.H., 89 S.W.3d at 25-
26.
The Texas Family Code permits a trial court to terminate parental rights if the
petitioner proves by clear and convincing evidence that the parent committed an action
prohibited under section 161.001(b)(1) and termination is in the child’s best interest.
TEX. FAM. CODE ANN. § 161.001(b) (West 2015); Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to
support an order of termination when there is also a finding that termination is in a
child’s best interests. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180
S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.). Thus a termination order may be
affirmed if it is supported by legally and factually sufficient evidence of any statutory
ground on which the trial court relied for termination, and the best interest finding. In re
E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).
Under the legal sufficiency analysis, we examine all of the evidence in the light
most favorable to the challenged finding, assuming the “factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96
S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably
disbelieved or found incredible. Id. However, we take into account undisputed facts
that do not support the finding, so as not to “skew the analysis of whether there is clear
and convincing evidence.” Id. If the record presents credibility issues, we must defer to
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the factfinder’s determinations provided they are not unreasonable. In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005).
In a factual sufficiency review, a court of appeals must give due consideration to
the evidence the factfinder could reasonably have found to be clear and convincing. In
re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the petitioner’s
allegations. Id. In doing so we consider whether 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, then the evidence is
factually insufficient. In re J.F.C., 96 S.W.3d at 266.
Section 161.001(b)(1)(Q) permits termination if the parent “knowingly engaged in
criminal conduct that 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(b)(1)(Q); In re
A.V., 113 S.W.3d at 358 (quoting former version of subsection); see In re H.R.M., 209
S.W.3d 105 (Tex. 2006) (addressing sufficiency of evidence supporting subsection Q
finding).
In this case, the evidence on which the trial court relied for its subsection Q
finding is undisputed. It shows: (1) J.A.C. admittedly committed a felony offense,
burglary of a habitation; (2) admittedly committed numerous violations of the terms and
5
conditions of his community supervision; (3) was sentenced to fourteen years of
imprisonment; and (4) fourteen years exceeds two years from the date of the filing of
the petition for termination of his parental rights. The record shows J.A.C. expects to be
released from prison in July 2020. He also acknowledged on the record he has never
cared for J.M.G., has never had any contact with the child, and has never made any
efforts or arrangements for the child’s care. J.A.C. argues only that because the
criminal conduct that resulted in his incarceration occurred before J.M.G.’s conception,
it cannot provide sufficient evidence to support termination under
section 161.001(b)(1)(Q); he does not contend the evidence supporting the court’s
subsection Q finding was insufficient in any other respect.
We agree with appellee that consideration of the language of subsection Q
requires that we overrule appellant’s contention. Appellee argues the statute’s
language is unambiguous, and contains no requirement that the criminal conduct
leading to conviction and confinement occur after conception of the child with respect to
whom rights are being terminated. Appellee is correct. Subsection Q simply does not
speak to the relationship between the time of conception of the child and the time of
occurrence of the criminal conduct. The Supreme Court of Texas observed in In re
A.V., also addressing subsection Q, that the Legislature has been clear in
section 161.001 when it intends a specific time period must elapse before a particular
subsection may apply to the parent’s conduct. 113 S.W.3d at 360. The same can be
said with respect to the sequence of events required to prove particular predicate acts
under subsections of 161.001(b). See, e.g., TEX. FAM. CODE ANN. §§ 161.001(b)(1)(H),
(O). Had the Legislature intended the criminal conduct required by subsection Q to
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post-date the conception of the child, it easily could have so provided. As in In re A.V.,
the Legislature has not expressed in subsection Q the requirement appellant posits, and
we see no “indication the Legislature meant anything other than what it said.” In re
A.V., 113 S.W.3d at 360; see In re Lee, 411 S.W.3d 445, 451 (Tex. 2013) (statute’s
plain language “is the surest guide to the Legislature’s intent”).
Our conclusion is supported also by the focus and aim the Supreme Court has
observed in subsection Q. It noted in In re A.V. that the subsection “focuses on the
parent’s future imprisonment and inability to care for the child, not the criminal conduct
that the parent committed in the past.” Id. While the court was concerned in In re A.V.
with a termination proceeding initiated by the State, its holding regarding the focus of
subsection Q is equally applicable in this private-party termination.
Appellee also correctly points out that acts by parents prior to the birth of a child
have been held sufficient to support termination of parental rights under other
subsections of section 161.001. See, e.g., TEX. FAM. CODE ANN. § 161.001(b)(1)(E); In
re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.).
The evidence was legally and factually sufficient to permit the trial court to find by
clear and convincing evidence J.A.C. knowingly engaged in criminal conduct that
resulted in his conviction of an offense for which he was imprisoned and unable to care
for J.M.G. for not less than two years from the date of filing the petition. His sole issue
contending otherwise is overruled.
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Conclusion
Having overruled J.A.C.’s sole issue on appeal, we affirm the final order of the
trial court.
James T. Campbell
Justice
8
in the Interest of J.M.G., a Child
Combined Opinion