Smith v. DFPS,  No. 01-07-00648-CV (Tex.App.- Houston [1st Dist.] June 19, 2008)(Higley)
(
termination of parental rights - drugs)
AFFIRM TC JUDGMENT: Opinion by
Justice Laura Carter Higley  
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00648-CV Earl Clarence Smith aka Clarence Earl Smith v. Department of Family and Protective
Services
Appeal from 314th District Court of Harris County
Trial Court: 314th District Court  
Trial Court Judge: Hon. John Phillips


MEMORANDUM OPINION


Following a bench trial, the trial court terminated the parental rights of appellant, Earl Clarence Smith
a/k/a Clarence Earl Smith, to his two minor children, B.H.M. and B.C.M. Presenting three issues, Smith
challenges the legal and factual sufficiency of the evidence to support the findings supporting
termination.

   We affirm.

Background

   B.H.M. and B.C.M., who are twin brother and sister, were born on September 8, 2005 to Debbie
Mace. Six days after their birth, the Department of Family and Protective Services (“DFPS”) filed a
petition initiating termination proceedings and seeking temporary custody of the twins. DFPS sought
to terminate the parental rights of Mace and the twins’ “unknown father.” An affidavit offered to
support the petition and signed by a DPFS representative revealed that, at the time of the twins’ birth,
Mace tested positive for cocaine and marijuana, and the twins tested positive for marijuana. The
affidavit also stated that Mace was “suffering from a severe cerebral hemorrhage,” which left her
“incapacitated” and unable to communicate. The DPFS representative also stated that it had been
reported that the father, whose identity was unknown, was incarcerated in a Huntsville prison. DPFS
amended its petition on April 26, 2006, naming Smith as the twins’ father.

   The case was tried to the bench on January 9, 2007. At trial, it was revealed that testing confirmed
that Smith was the twins’ biological father. Following the trial, the trial court signed a judgment
terminating Mace’s and Smith’s parental rights. The judgment reflects that Mace signed an affidavit of
relinquishment, giving up her parental rights to the twins. The judgment further reflects that the trial
court found that the parent-child relationship between Smith and the twins should be terminated
because he had “constructively abandoned” the twins, as defined in Family Code section 161.001(1)
(N). The court also found that termination was in the twins’ best interest.

   Smith filed a motion for new trial, which was granted by the trial court. On May 24, 2007, the trial
court conducted a second bench trial regarding the termination of Smith’s parental rights.

   At the conclusion of the termination proceeding, the trial court orally found that the parent-child
relationship between Smith and the twins should be terminated pursuant to Family Code subsections
161.001(1)(E) and (Q). One week later, the trial court signed a judgment in conformity with the oral
findings.

   In support of termination, the judgment recites that the trial court found, by clear and convincing
evidence, that terminating Smith’s parental rights was in the children’s best interest. The judgment
further recites that the trial court found, by clear and convincing evidence, that Smith (1) has
“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, pursuant to § 161.001(1)(E) of the
Texas Family Code” and (2) has “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 the filing the petition, pursuant to § 161.001(1)(Q) of the
Texas Family Code.”  
                             See Tex. Fam. Code Ann. § 161.001(1)(E),(Q) (Vernon Supp. 2007).


Close No findings of fact or conclusions of law were filed or requested.

   Smith timely filed a motion for new trial, statement of appellate points, and a notice of appeal.
Among the issues Smith identified in his statement of points were legal and factual sufficiency
challenges to the predicate and best interest findings supporting termination. The trial court denied
Smith’s motion for new trial and found Smith’s appeal not to be frivolous.  
                          See Tex. Fam. Code Ann. § 263.405(d) (Vernon Supp. 2007).


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   On appeal, Smith presents three issues. His first two issues raise challenges to the legal and
factual sufficiency of the evidence to support the predicate termination findings under subsections
161.001(1)(E) and (Q). Smith’s third issue challenges the legal and factual sufficiency of the evidence
to support the trial court’s finding that termination was in the twin’s best interest.

Legal and Factual Sufficiency Challenges

A.      Burden of Proof and Standards of Review

   The burden of proof at trial in parental-termination cases is by clear and convincing evidence. Tex.
Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Section 161.001 of the
Family Code provides the method by which a court may involuntarily terminate the parent–child
relationship. See Tex. Fam. Code. Ann. § 161.001. Under this section, a court may order the
termination of the parent–child relationship if the court finds, by clear and convincing evidence, that
(1) one or more of the acts enumerated in section 161.001(1) was committed and (2) termination is in
the best interest of the child. Id.

   “‘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 “to 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. To give appropriate deference to the factfinder’s
conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all
evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, 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. See City of Keller v. Wilson, 168 S.W.3d 802, 817
(Tex. 2005).

   In determining a factual-sufficiency point, the higher burden of proof in termination cases also
alters the appellate standard of review. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). “[A] finding that must
be based on clear and convincing evidence cannot be viewed on appeal the same as one that may
be sustained on a mere preponderance.” Id. at 25. In considering whether evidence rises to the level
of being clear and convincing, we must consider whether the evidence is sufficient to reasonably form
in the mind of the factfinder a firm belief or conviction as to the truth of the allegation sought to be
established. Id. We consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. “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.

   The natural rights that exist between parents and their children are of constitutional dimension.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings should be strictly
scrutinized, and the involuntary termination statutes should be strictly construed in favor of the parent.
Id. at 20–21. However, “[j]ust 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.” C.H., 89 S.W.3d at 26.

B.      Challenge to Predicate Finding Under Subsection 161.001(1)(Q)

   In his second issue, Smith contends that the evidence was legally and factually insufficient to
support the trial court’s predicate finding under subsection 161.001(1)(Q).

   1.       Subsection 161.001(1)(Q) Principles

   Subsection Q permits termination when the clear and convincing evidence shows that the parent
“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)(Q) (Vernon Supp. 2007); see In re
A.V., 113 S.W.3d 355, 360–61 (Tex. 2003). We apply subsection Q prospectively. A.V., 113 S.W.3d
at 360. That is, subsection Q permits termination if the evidence shows that, during the two-year
period following the initiation of the termination proceedings, the parent will be confined or imprisoned
and unable to care for the child. See id. at 360–61.

   Establishing incarceration for the requisite period does not, by itself, justify termination pursuant to
subsection Q. In re B.M.R., 84 S.W.3d 814, 818 (Tex. App.—Houston [1st Dist.] 2002, no pet.); In re
Caballero, 53 S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied). The evidence must also
show the parent’s inability to care for the child for two years from the date of the petition’s filing. B.M.
R., 84 S.W.3d at 818. Thus, as separate requirements, incarceration and an inability to care for the
child must each be established by the evidence to support termination. See In re H.R.M., No. 14-05-
00281-CV, 2007 WL 707553, at*1 (Tex. App.—Houston [14th Dist.] Mar. 8, 2007, no pet.) (mem. op.);
see also B.M.R., 84 S.W.3d at 818.

   With these principles in mind, we now turn to Smith’s contentions regarding the subsection Q
finding.

   2.       Evidence Regarding Incarceration

   DFPS filed its original petition on September 14, 2005. It amended its petition on March 16, 2006 to
include a subsection Q ground to support termination of Smith’s parental rights. Thus, at the latest,
DFPS had to show that Smith would remain incarcerated on March 16, 2008.  
                             In In re B.M.R., we used the date that the petition was amended to include
asubsection Q ground. 84 S.W.3d 814, 817–18 (Tex. App.—Houston [1st Dist.] 2002,no pet.).


Close

   Smith contends that DFPS did not prove that he would remain incarcerated two years after the filing
of the petition. Smith asserts that DFPS “failed to introduce any evidence as to when Appellant was
going to be released . . . .” Contrary to Smith’s contention, DFPS introduced evidence establishing
that Smith was convicted of the felony offenses of burglary with intent to commit theft and aggregate
theft. Pursuant to plea agreements, Smith was sentenced to four years in prison for each offense.
The judgments of conviction indicate that appellant began serving the four-year sentences on
September 19, 2005. Simple math provides a release date of September 19, 2009.           Smith also
implies that the evidence was insufficient because he could possibly be paroled before the expiration
of the required subsection Q time period. Smith cites his own trial testimony in which he stated that he
would be “up for parole pretty soon.” He asserts that DFPS offered no evidence regarding his
eligibility for parole to controvert his testimony.

   In the context of subsection Q termination, the Texas Supreme Court discussed the effect of
evidence showing that an incarcerated parent would be considered for parole in In re H.R.M., 209 S.
W.3d 105 (Tex. 2006). The H.R.M. court explained, “Mere introduction of 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.” Id. at 109. The supreme court continued, “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.” Id.
(citations omitted). Indeed, the evidence here, showed that, at most, Smith would be considered for
parole.

   The H.R.M. court also observed that the jury was free to disregard the father’s testimony regarding
parole. Id. Likewise, here, the trial court, as factfinder, was entitled to disregard Smith’s testimony
regarding parole. See id.

   3.       Evidence Regarding Ability to Care for the Twins

   Smith also contends that DFPS has failed to offer sufficient evidence to show his inability to care for
the twins. Smith claims that the only evidence offered by DFPS regarding his inability to care for the
children was the DFPS caseworker’s testimony that she believed termination was in the children’s best
interest because Smith had not completed his service plan. Smith asserts the caseworker’s testimony
in this regard is “conclusory.” Contrary to Smith’s contention, additional testimonial evidence was
elicited during trial that supports a finding that Smith did not have the ability to care for the children
during the requisite period of incarceration.

   “[F]actors to be considered when deciding inability to care include the availability of financial and
emotional support from the incarcerated parent.” Brazoria County Children’s Protective Servs. v.
Frederick, 176 S.W.3d 277, 279 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing B.M.R., 84 S.W.
3d at 818). Here, the evidence shows that, since learning that he was the twins’ biological father,
Smith has made no attempt to assist the children financially or to contact them either directly or
through a family member. Smith claimed that he owned a home, but offered no evidence that he has
made any effort to use the property or any other resource he may have to assist the children
financially. Smith confirmed that he had been in contact with DFPS but admitted that he had not
identified for the agency any relatives who could care for the twins.

   Smith implies that it was DFPS’s burden to show that it had asked him for the names of relatives
who could care for the children. We disagree. Requiring DFPS to prove that it had affirmatively asked
Smith for the names of persons who could care for the children while he was incarcerated would not
be reasonable. See Caballero, 53 S.W.3d at 396 (refusing to place burden on TDPRS to disprove
existence of anyone with whom parent’s child could be placed during his incarceration because
adopting such rule would place an unreasonable burden on agency and judicial resources); see also
Thompson v. Texas Dep’t of Family & Protective Servs., 176 S.W.3d 121, 127 (Tex. App.—Houston
[1st Dist.] 2004, pet. denied) (rejecting as unreasonable parent’s argument that TDPRS had duty “to
continually inquire as to a prisoner’s efforts and accomplishments in regard to a service plan”),
overruled on other grounds by, Cervantes-Peterson v. Texas Dep’t of Family & Protective Servs., 221
S.W.3d 244, 252 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

   Smith also cites his own testimony to show that he had the ability to care for the twins. He testified
that, when not incarcerated, he worked as landscaper making $300 a week. As mentioned, Smith also
testified that he owned a home.

   At trial, Smith stated that he believed one of his nieces could care for the twins while he was in
prison. Smith claimed that he planned to contact his brother to make the necessary arrangements
with his niece. He testified that he had not taken the steps to determine whether a family member
could care for the twins because, until the first trial, neither he nor his family were certain that the
twins were his biological children. While the record supports this claim, it does not explain why, in the
four months between the first trial and the instant proceeding, Smith had taken no steps to show an
ability to care for his children.

   Significantly, no evidence showed that Smith had actually arranged for someone to care for the
twins while he was incarcerated. Nor was evidence presented that anyone from Smith’s family was
willing or able to care for the children during his incarceration. See In re H.R.M., 2007 WL 707553,
at*3 (noting significance of father’s inability to testify that he had arranged for someone to care for
child during his incarceration in conducting factual-sufficiency analysis in subsection Q case);
Caballero, 53 S.W.3d at 396 (explaining that, because incarcerated father presented no evidence to
show that someone was available to care for his child during his incarceration, trial court’s finding
regarding inability to care could not be against overwhelming weight of evidence); In re C.E.V., No. 09-
03-468-CV, 2004 WL 1902537, at *3 (Tex. App.—Beaumont Aug. 26, 2004, pet. denied) (mem. op.)
(concluding trial court’s finding that incarcerated parent’s conviction resulted in his inability to care for
child was supported by clear and convincing evidence when incarcerated parent did not refer court to
any evidence his mother could and would provide care for child during his incarceration and
petitioners had no burden to disprove mother’s capacity to care for child); cf. In re E.S.S., 131 S.W.3d
632, 640 (Tex. App.—Fort Worth 2004, no pet.) (reversing termination order, in part, because
evidence showed that parent had arranged for care during incarceration by naming incarcerated
parent’s mother and brother as possessory conservators with visitation rights).

   Moreover, with regard to Smith’s testimony, the trial court, as the sole arbiter when assessing the
credibility and demeanor of witnesses, was free to disregard all or part of it. See H.R.M., 209 S.W.3d
at 109. Thus, the trial court may have disbelieved Smith’s testimony that he owned a home, made
$300 when working, and had family members who could possibly care for the twins.

   4.       Knowing Requirement

   As mentioned, subsection Q permits termination if the parent “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)(Q). Smith reads subsection Q to require a showing that
he knew that he was the twins’ father before he committed the criminal conduct that resulted in his
inability to care for his children.  
                             We note that, although Smith has placed this argument within his discussion of
thelegal and factual sufficiency of the evidence, this sub-issue presents as one ofstatutory
construction, which, as a question of law, we review de novo. See City ofRockwall v. Hughes, 246 S.W.
3d 621, 625 (Tex. 2008).


Close Smith points out that the evidence indicates that he did not know that he was the twins’ father at
the time he committed the criminal offenses for which he was ultimately convicted and imprisoned.

   We disagree with Smith’s interpretation of subsection Q and find no legal authority to support it.
The Government Code requires that, when reading a statutory provision,“Words and phrases shall be
read in context and construed according to the rules of grammar and common usage.” Tex. Gov’t
Code Ann. § 311.011(a) (Vernon 2005). Employing a grammatically correct reading of the statute
leads to only one conclusion: the knowing requirement in subsection Q pertains to a showing that the
parent knowingly engaged in the underlying criminal conduct that resulted in his conviction,
imprisonment, and inability to care for his child. Subsection Q cannot be reasonably read to require a
showing that the parent knew he was the child’s parent at the time he engaged in the criminal conduct.

   Smith has made no assertion that the evidence was insufficient to show that he knowingly engaged
in the criminal conduct that resulted in his incarceration. Indeed, we note that the indictments for the
offenses underlying his convictions allege knowing and intentional criminal conduct by Smith. The
record further shows that Smith pleaded guilty to and was convicted of these offenses.

   5.       Conclusion Regarding Subsection Q Finding

   Given the record, we conclude that the evidence, viewed in the light most favorable to the section
161.001(1)(Q) finding, was sufficiently clear and convincing that a reasonable factfinder could have
formed a firm belief or conviction that Smith knowingly engaged in criminal conduct that has resulted
in his (i) conviction of an offense and (ii) confinement or imprisonment and an inability to care for the
children for not less than two years from the date of the filing the petition. We further conclude that,
viewed in light of the entire record, any disputed evidence could have been reconciled in favor of the
section 161.001(1)(Q) finding or was not so significant that the factfinder could not reasonably have
formed a firm belief or conviction that the elements of subsection Q were shown. Accordingly, we hold
that the evidence was legally and factually sufficient to support the section 161.001(1)(Q) finding.

   We overrule Smith’s second issue.  
                             Because there is sufficient evidence to support the subsection Q finding, we need
notaddress Smith’s first issue challenging the sufficiency of the evidence to support asubsection
161.001(1)(E) endangerment finding.


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C.      Best Interest Finding

   In his third issue, Smith challenges the trial court’s finding that termination would be in the twins’
best interest. See Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp. 2007). Some of the factors that
an appellate court may consider in ascertaining the best interest of a child include the non-exhaustive
list set forth in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors include the
following: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these individuals to
promote the best interest of the child; (6) the plans for the child by these individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the
parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Id. These factors are not exhaustive. C.H., 89 S.W.3d
at 27. “Best interest” does not require proof of any unique set of factors, nor does it limit proof to any
specific factors. Holley, 544 S.W.2d at 371–72.           The Holley test focuses on the best interest of
the child, not the best interest of the parent. In re R.F., 115 S.W.3d 804, 812 (Tex. App.—Dallas
2003, no pet.). The need for permanence is the paramount consideration for a child’s physical and
emotional needs. Id.

   With the foregoing legal precepts in mind, we review the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination was in the children’s best interest.

   The evidence discussed above supporting the subsection Q determination is also probative of
whether termination of Smith’s parental rights is in the twin’s best interest. See C.H., 89 S.W.3d at 28.
That is, the evidence showing that (1) Smith is incarcerated with a release date of September 19,
2009; (2) Smith has not arranged for someone to care for the children while he is incarcerated, nor
could he testify with certainty that anyone in his family would care for the twins; (3) Smith has not
contacted the twins during the four months since his paternity was confirmed; and (4) Smith has not
provided any financial support to the twins supports the best interest finding.

   At trial, other evidence was also probative of whether termination would be in the children’s best
interest. Significantly, the evidence showed that Smith has an extensive criminal history spanning
more than 30 years. Specifically, in addition to the two offenses for which Smith was serving time in
prison at the time of trial, the evidence showed that Smith had the following criminal convictions: (1)
burglary in 1972 for which Smith served over three years in prison; (2) aggravated robbery in 1974
for which he served eight years in prison; (3) “burglary of a motor vehicle” in 1989, for which he was
sentenced to twenty-five years but served 34 months in prison; and (4) unauthorized use of a motor
vehicle in early 2005 for which he served eleven months in jail.

   The evidence also showed that the 21-month old twins were placed with their current foster parents
when they were six weeks old. The DFPS caseworker testified that the twins are “very, very attached”
to the foster parents.

   DFPS also presented evidence that Smith had received a copy of his family service plan. The
caseworker testified that DFPS had not received any documentation from Smith to show that he had
taken steps toward completing the services identified in the service plan.

   Smith testified that he had not completed the services because he did not know he was the twins’
father until the first trial. He offered no explanation why he had not completed any services in the four
months since the first trial. Smith acknowledged that parenting classes are available in prison. He
stated that there was a waiting list for the parenting classes but did not indicate whether he was on
the waiting list.

   In arguing against the best-interest finding, Smith points out that DFPS presented no evidence
regarding many of the Holley factors. We note absence of evidence regarding some of the Holley
factors is not determinative. The supreme court has made clear that the absence of evidence
regarding some of these factors does not preclude a factfinder from reasonably forming a strong
conviction or belief that termination is in the child’s best interest. C.H., 89 S.W.3d at 27.

   As evidence weighing against the best-interest finding, Smith also cites his own testimony that he
owns a home and would earn $300 a week after his release. Smith also expressed a willingness to
care for the children.

   Smith also generally points out that the evidence shows his paternity had been confirmed only for a
short time, thus preventing him from demonstrating his abilities to provide adequate care and a
suitable home for the children. We note that the evidence showed that paternity was confirmed four
months before trial. We also note, however, that nothing in the record indicates that Smith made any
efforts during that time to demonstrate a desire or an ability to be a parent to the children.

   In sum, the record contains some evidence showing that Smith expresses a desire to be a parent to
the twins and demonstrating that he has given some thought regarding how he would care for the
twins. Nonetheless, evidence cannot be read in isolation; it must be read in the context of the entire
record. Given the evidence, the trial court could have reasonably inferred that the twins were at risk
for neglect and abuse if they were placed with Smith and that Smith could not provide them with a
stable home. We conclude that the evidence, viewed in the light most favorable to the best-interest
finding, was sufficiently clear and convincing that a reasonable factfinder could have formed a firm
belief or conviction that termination of the parent-child relationship between Smith and the twins was
in the children’s best interest.

   We further conclude that, viewed in light of the entire record, any disputed evidence could have
been reconciled in favor of the trial court’s finding that termination of the parent-child relationship
between appellant and the twins was in the children’s best interest or was not so significant that the
trial court could not reasonably have formed a firm belief or conviction that termination was in the
children’s best interest. Thus, we hold that the evidence was legally and factually sufficient to support
the best-interest finding.

   We overrule Smith’s third issue.

Conclusion

   We affirm the judgment of the trial.

Laura Carter Higley

                                                      Justice



Panel consists of Chief Justice Radack and Justices Keyes and Higley.