in the Interest R.K.P-R., a Child

IN THE
TENTH COURT OF APPEALS

No. 10-21-00265-CV

IN THE INTEREST R.K.P-R., A CHILD

From the 74th District Court
McLennan County, Texas
Trial Court No. 2019-3239-3,2

MEMORANDUM OPINION

The father of R.K.P.-R. appeals from a judgment that terminated his parental rights

to R.K.P.-R. based on Section 161.001(b)(1)(E), (N), and (Q) and the best interest of the

child. In one issue, Father complains that evidence was legally and factually insufficient

for the trial court to have granted the termination. Because we find that the evidence was

not legally or factually sufficient to support the finding based on Section 161.001(b)(1)(E)

but was legally and factually sufficient to support the termination based on Section

161.001(b)(1)(Q) and the best interest finding, we delete the finding pursuant to Section

161.001(b)(1)(E) but otherwise affirm the judgment of the trial court.
STANDARD OF REVIEW

In order to sever a parent's rights to their children, there must be clear and

convincing evidence that legal grounds exist to terminate those rights and that the

termination is in a child's best interest. In re J.F.-G., 627 S.W.3d 304, 311 (Tex. 2021). That

is, the State must provide 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." In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). Only one predicate finding

under section 161.001(b)(1) of the Family Code is required when there is also a finding

that termination is in a child's best interest. See In re J.F.-G., 627 S.W.3d at 312.

When measuring the legal sufficiency of the evidence, the evidence must be

considered in the light most favorable to the finding to determine whether a factfinder

"could reasonably form a firm belief or conviction about the truth of the matter." In re

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Likewise, the reviewing court must "disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible." Id. If the court determines that no reasonable factfinder could form a firm

belief or conviction that the matter that must be proven is true, then the court must

conclude that the evidence is legally insufficient. Id.

It is only when the factual sufficiency of the evidence is challenged that the

reviewing court reviews disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336,

345 (Tex. 2009); In re J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the disputed

In the Interest R.K.P-R., a Child Page 2
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. 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).

In this case, the trial court found that Father had committed three of the acts listed

in Section 161.001(b)(1)—those found in subsections (E), (N), and (Q). Specifically, the

trial court found that Father had "engaged in conduct or knowingly placed the child with

persons who engaged in conduct that endangered the child's physical or emotional well-

being," that Father had constructively abandoned the child, and that Father had

"knowingly engaged in criminal conduct that resulted in his conviction of an offense and

confinement or imprisonment and inability to care for the child for not less than two years

from the date that the petition was filed." See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (N),

(Q). The trial court also found, pursuant to Section 161.001(b)(2), that termination of

Father's parental rights was in the best interest of the child.

The Texas Supreme Court has mandated that we must address Father's challenge

to the trial court's finding under Section 161.001(b)(1)(E) even if the termination is

affirmed on a separate ground, so we will address that part of Father's issue first. See In

re N.G., 577 S.W.3d 230, 234-35 (Tex. 2019) (addressing due process and due course of law

with respect to appellate review of grounds (D) and (E) and holding that an appellate

In the Interest R.K.P-R., a Child Page 3
court must provide a detailed analysis if affirming the termination on either of these

grounds).

FAMILY CODE SECTION 161.001(b)(1)(E)

Father argues that the evidence was legally and factually insufficient for the trial

court to have found that he "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." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). "Endanger" means "to expose a

child to loss or injury, or to jeopardize a child's emotional or mental health." In re M.C.,

917 S.W.2d 268, 269 (Tex. 1996) (per curiam). An endangerment finding often involves

physical endangerment, but it is not necessary to show that the parent's conduct was

directed at the child or that the child suffered actual injury. Tex. Dep't of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987). "Rather, the specific danger to the child's well-

being may be inferred from the parent's misconduct alone." Id. In our endangerment

analysis pursuant to Section 161.001(b)(1)(E), we may consider conduct both before and

after the Department removed the child from his or her parent. In re S.R., 452 S.W.3d 351,

360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). In general, a parent's conduct

that subjects a child to a life of uncertainty and instability endangers the physical and

emotional well-being of that child. Boyd, 727 S.W.2d at 531.

In this proceeding, the evidence established that Father was incarcerated for a

felony DWI in April of 2017 when the mother was approximately three months pregnant

In the Interest R.K.P-R., a Child Page 4
with R.K.P.-R. There was no evidence that Father knew that the mother was pregnant at

the time he committed the DWI or at the time of his incarceration. Father was incarcerated

from April of 2017 until the time of the final trial, and a document introduced into

evidence relating to his imprisonment showed a release date in August of 2023. Father

had a criminal history that went back many years prior to his current incarceration and

included 6 to 8 DWI offenses and other convictions for possession of a controlled

substance. There was no evidence that Father had other children. Father found out that

R.K.P.-R. had been removed from his mother when he was served with the petition in

prison in 2018.

At the termination trial, the Department did not seek termination pursuant to

Section 161.001(b)(1)(E). The child's attorney ad litem requested that the trial court

terminate pursuant to subsection (E). The Department concedes in its brief to this Court

on appeal that the facts of this proceeding are unique in that Father did not commit any

criminal conduct after learning about the child's existence and that the evidence to

support this ground was "not strong."

The Texas Supreme Court has recently discussed the interplay between

imprisonment and a finding pursuant to Section 161.001(b)(1)(E) as follows:

In Texas Department of Human Services v. Boyd, we acknowledged that "Texas
cases have considered the involuntary termination of the rights of an
imprisoned parent, and have held that mere imprisonment will not,
standing alone, constitute engaging in conduct which endangers the
emotional or physical well-being of a child," but we nevertheless held that
incarceration does support an endangerment finding "if the evidence,
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 including the imprisonment, shows a course of conduct which has the effect
of endangering the physical or emotional wellbeing of the child." Tex. Dep't
of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987). A parent's
criminal history—taking into account the nature of the crimes, the duration
of incarceration, and whether a pattern of escalating, repeated convictions
exists—can support a finding of endangerment. See In re J.O.A., 283 S.W.3d
336, 345-46 (Tex. 2009). Imprisonment thus "is certainly a factor" the trial
court may weigh when considering endangerment. Boyd, 727 S.W.2d at 533.

In re J.F.-G., 627 S.W.3d 304, 312-13 (Tex. 2021). However, while the facts regarding the

lengthy criminal history of the parent, lengthy incarceration, and escalation of offenses

are somewhat similar to J.F.-G., there is a significant distinction in that in J.F.-G., the

parent's criminal conduct took place both before and after the parent was aware of the

birth of the child. However, in this proceeding there is no evidence that Father even knew

that he was to be a parent at the time of his last criminal offense and imprisonment. There

must be some connection between the timing of some part of Father's criminal offenses

and Father's knowledge of paternity to support a finding that a child, whether it be the

child whose relationship is terminated or some other child in Father's life, has been

endangered by Father's criminal behavior. Because there is no evidence of any connection

in time between any of Father's criminal offenses and the endangerment of R.K.P.-R. or

any other child, we find that the evidence was legally and factually insufficient for the

trial court to have found that he endangered R.K.P.-R. based solely on conduct that

occurred prior to his knowledge that the mother was pregnant and that did not affect the

mother or the child, such as using drugs with the mother might.

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 Section 161.001(b)(1)(E) also allows for termination if the parent "knowingly

placed the child" with a person who endangered the child. See TEX. FAM. CODE ANN. §

161.001(b)(1)(E). However, there was no evidence that Father knowingly placed R.K.P.-

R. with anyone who endangered him, and the Department does not argue that the

evidence was sufficient to support the termination on this basis.

Because we find that the evidence was legally and factually insufficient pursuant

to Section 161.001(b)(1)(E), we modify the judgment of the trial court to delete the finding

under this section.

FAMILY CODE SECTION 161.001(b)(1)(Q)

Father complains that the evidence was legally and factually insufficient for the

trial court to have found that his rights should be terminated pursuant to Section

161.001(b)(1)(Q). Under subsection 161.001(b)(1)(Q), a parent's rights can be terminated

when a parent has "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 the filing of the petition."

TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). Subsection Q applies prospectively in

anticipation of a parent's inability to care for the child and not just in response to it. In re

A.V., 113 S.W.3d 355, 360 (Tex. 2003). This provision is not an additional punishment for

a parent's criminal conduct; instead, it is used to "ensure that the child will not be

neglected" while the parent is incarcerated. Id. Proof that the parent is unable to care for

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the child is an additional requirement that is not met by showing incarceration alone. In

re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (per curiam) ("Terminating parental rights

under subsection Q requires that the parent be both incarcerated or confined and unable

to care for the child for at least two years from the date the termination petition is filed.").

We employ a burden-shifting analysis to assess an incarcerated parent's ability to

care for a child. In re J.G.S., 574 S.W.3d 101, 118-19 (Tex. App.—Houston [1st Dist.] 2019,

pet. denied). The party seeking termination must first establish that the parent will

remain in confinement for the requisite period. In re B.D.A., 546 S.W.3d 346, 358 (Tex.

App.—Houston [1st Dist.] 2018, pet. denied). The burden then shifts to the parent to

produce "some evidence" as to how he would provide or arrange to provide care for the

child during his incarceration. Id. "Cases discussing the incarcerated parent's provision

of support through other people contemplate that the support will come from the

incarcerated parent's family or someone who has agreed to assume the incarcerated

parent's obligation to care for the child." In re H.R.M., 209 S.W.3d at 110. When the

incarcerated parent meets that burden of production, the petitioner has the burden of

persuasion to show by clear and convincing evidence that the parent's arrangement

would not satisfy the parent's duty to the child. In re Caballero, 53 S.W.3d 391, 395 (Tex.

App.—Amarillo 2001, pet. denied).

Here, Father does not dispute that he knowingly engaged in criminal conduct

resulting in his incarceration for at least two years from the date of the filing of the

In the Interest R.K.P-R., a Child Page 8
petition in 2018 and that he is unable to physically care for the child while he is in prison.

Father argues that since R.K.P.-R. has been placed with his sister that he has met his

burden to show that he has provided care for R.K.P.-R. However, R.K.P.-R. was placed

with Father's sister at the request of R.K.P.-R.'s mother, and Father was not involved in

that decision. Father's sister and mother both testified that R.K.P.-R. was not placed with

or that he remained with the sister at the request of Father. Further, Father's sister asked

for termination so that she could adopt R.K.P.-R. Father had not provided any support

for the child and had minimal contact with the child, but not since sometime in 2019

through Father's mother. Father presented no evidence to the contrary.1

We find that Father did not satisfy his burden after it shifted to him to show "some

evidence" that he had arranged or provided care for R.K.P.-R. while he was in prison, and

therefore, the evidence was legally and factually sufficient for the trial court to have

granted the termination pursuant to Section 161.001(b)(1)(Q). Because we have found

sufficient evidence as to one ground in support of the termination, it is not necessary to

address Section 161.001(b)(1)(N).

BEST INTEREST OF THE CHILD

Father argues that the trial court erred in its finding that termination was in the

best interest of the child. With respect to the best interest of a child, no unique set of

1
Father did not appear at the trial although it was conducted remotely by Zoom for reasons that are not stated in the
record. He was represented by counsel at the trial.
In the Interest R.K.P-R., a Child Page 9
factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet.

denied). We use the non-exhaustive Holley factors to shape our analysis. Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976). Additionally, evidence that proves one or more

statutory grounds for termination may also constitute evidence illustrating that

termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

Father argues that because he will likely have some relationship with the child

after his release from prison and because he has taken classes in prison to attempt to

better himself and address the reasons for his incarceration renders the evidence

insufficient for the trial court to have found that termination was in the best interest of

R.K.P.-R. However, the evidence showed that Father had not had contact with R.K.P.-R.

since 2019. In 2019, Father's mother called Father in prison and would hold the phone up

to R.K.P.-R.'s ear but R.K.P.-R. would push it away. He had not had contact with R.K.P.-

R. since 2019. He had not provided support, letters, or gifts for R.K.P.-R. Father's mother

testified that Father had "no relationship" with R.K.P.-R. at the time of the trial. According

to a friend of Father that testified on his behalf, Father plans to live with his mother after

his release from prison, but his mother had already testified that he could not live with

her because it would violate her lease. There was no other evidence of Father's plans for

the child in the future.

R.K.P.-R. was living with Father's sister and they were very bonded to each other.

While the sister was not opposed to the idea of Father having some relationship with

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R.K.P.-R. in the future, she wanted to give R.K.P.-R. the permanency and stability of

adopting him. She was meeting all of R.K.P.-R.'s physical and emotional needs and

R.K.P.-R. was happy living with her. There were no concerns regarding the sister's ability

to care for and protect R.K.P.-R.

Viewing the evidence through the prism of the Holley factors, we find that the

evidence was legally and factually sufficient for the trial court to have found that

termination was in R.K.P.-R.'s best interest. We overrule Father's sole issue.

CONCLUSION

Having found that the evidence was legally and factually insufficient pursuant to

Section 161.001(b)(1)(E), we modify the judgment to delete that finding from the

judgment. Because we have overruled the rest of Father's sole issue, we affirm the

judgment of the trial court as modified.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed as modified
Opinion delivered and filed January 19, 2022
[CV06]

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