Opinion issued June 26, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00041-CV

———————————

IN THE INTEREST OF K.D.B.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2012-0637J

MEMORANDUM OPINION

Appellant H.K.C. (hereinafter, Father or appellant) challenges the trial 

court’s termination of his parental rights to the minor child, K.D.B. Father 

contends the evidence is legally and factually insufficient to support the trial 

court’s findings that he engaged in the conduct described in subsections (O) and 
2

(Q) of Texas Family Code section 161.001(1).

1 Because we hold that the evidence 

is legally and factually sufficient to support the trial court’s finding that Father 

engaged in the conduct described in subsection (Q), we affirm the trial court’s 

judgment.

BACKGROUND

C.N.B. [hereinafter, Mother] has three children—L.K.C., K.D.B., and C.Y.S. 

K.L.C.’s father is unknown; appellant is the father of K.D.B. (hereinafter, the 

Child); C.J.S. is the father of C.Y.S. 

The Department of Family and Protective Services (hereinafter, the 

Department) first received a referral for this family in December 2007 when 

Mother tested positive for opiates, PCP, and cocaine after the birth of the Child. 

The Department did not seek custody at that time, but it offered a family services 

plan. However, the family moved and did not leave an address where they could 

be found.

In June 2008, the Department received another referral alleging neglectful 

supervision, and again the family moved without notifying the Department.

In December 2008—a year after the Child was born—the Department 

received a third referral alleging physical abuse and neglectful supervision. The 

 

1

See TEX. FAM. CODE ANN. § 161.001(1) (Vernon 2014).
3

Department found reason to believe the allegations and offered a family services 

plan, but again the family moved without notifying the Department.

On October 16, 2012, the Department received a fourth referral—which 

gives rise to the present appeal—alleging that the five-year-old Child had been left 

alone on many occasions by C.J.S., the father of one of the Child’s siblings, while 

Mother was at work. As a result of leaving the Child unattended, C.J.S. was later 

convicted of Abandoning or Endangering a Child.2

On November 8, 2012, the Department filed a petition seeking to be named 

temporary managing conservator of the Child and her siblings, L.K.C. and C.Y.S. 

After the trial court found that there was a continuing danger to the physical health 

or safety of the children and that remaining in their home was contrary to their 

welfare, the court placed all three children in the Department’s temporary 

conservatorship.

While the children were under the Department’s conservatorship, it created 

family service plans for each of the parents, including Father. During the entire 

time that the Child was under the Department’s conservatorship, Father was 

imprisoned in Louisiana on a 5 year, 2 month, 27 day sentence that began on 

December 29, 2011. Because of his incarceration, Father was not involved “in the 

circumstances that led up to the children being picked up.”

 

2

See TEX. PENAL CODE ANN. § 22.041 (Vernon 2011).
4

At trial, the Department presented evidence of Father’s extensive criminal 

history, including a six-year sentence for burglary, a three-year sentence for 

possession of cocaine, a two-year sentence for second degree battery committed 

against the Child’s mother, and a three-year sentence for possession of codeine. 

The record also showed several parole violations and at least one parole 

revocation.

After a bench trial on October 8, 2013, the trial court terminated the parental 

rights of Father, Mother, and C.J.S. This appeal concerns the propriety of the trial 

court’s order terminating the parent-child relationship between Father and K.D.B., 

the middle child.

PROPRIETY OF TERMINATION OF PARENTAL RIGHTS

In two issues, Father contends (1) the evidence was legally and factually 

insufficient to support termination under subsection (Q) of section 161.001(1), and 

(2) that the trial court erred in terminating his parental rights under subsection (O) 

because (a) there was legally and factually insufficient evidence to do so and (b) 

his right to procedural due process was violated. Because Father does not 

challenge the best-interest finding, we must uphold the order of termination if there 

is factually sufficient evidence to support either of the two predicate grounds 

alleged. See Hann v. Tex. Dep’t of Protective & Regulatory Servs., 969 S.W.2d 77, 

81 (Tex. App.—El Paso 1998, pet. denied).
5

Termination Under Subsection (Q)

In his first issue, Father contends the evidence is legally and factually 

insufficient to support termination under subsection (Q) of section 161.001(1). 

Under this subsection, the Department was required to prove by clear and 

convincing evidence that Father knowingly engaged in criminal conduct that has 

resulted in the Father’s (1) conviction of an offense and (2) confinement or 

imprisonment and inability to care for the Child for not less than two years from 

the date on which the Department filed the termination petition. See TEX. FAM.

CODE § 161.001(1)(Q); In re A.V., 113 S.W.3d 355, 360 (Tex. 2003) (construing 

phrase “two years from the date of filing the petition” to apply prospectively from 

date of filing petition). 

On appeal, Father does not argue that the evidence is legally or factually 

insufficient to support the trial court’s finding that the he knowingly engaged in 

criminal conduct that resulted in his conviction of an offense. Rather, Father 

argues that the evidence is legally and factually insufficient to support the finding 

that his criminal conduct resulted in his confinement or imprisonment for not less 

than two years from the date on which the Department filed the termination 

petition.3

 

3 Termination under subsection (Q) also requires that the Father’s criminal 

conduct would result in the his inability to care for the Child for not less than 

two years from the date on which the Department filed the termination 
6

Standard of Review

In a proceeding to terminate the parent-child relationship brought 

under section 161.001 of the Texas Family Code, the petitioner must establish by 

clear and convincing evidence one or more acts or omissions enumerated under 

subsection (1) of 161.001 and that termination is in the best interest of the child 

under subsection (2). See TEX. FAM. CODE § 161.001; In re J.L., 163 S.W.3d 79, 84 

(Tex. 2005). When, as here, a parent does not challenge the best-interest finding on 

appeal, the appellate court will affirm if any of the predicate acts or omission in 

subsection (1) of 161.001 are met. Hann, 969 S.W.2d at 81. 

Clear and convincing evidence is that 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 C.H., 89 S.W.3d 17, 25–26 (Tex.

2002). The heightened “clear and convincing evidence” burden of proof alters the 

appellate legal-sufficiency standard of review. See In re J.F.C., 96 S.W.3d 256, 

 

petition. See In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006). Once the 

petitioner has established that a parent’s knowing criminal conduct would 

result in his incarceration or confinement for at least this two-year period, 

the incarcerated or confined parent must produce some evidence showing 

how he would provide or arrange to provide care for the child during this 

period of incarceration. See In re H.R.M., No. 14-05-00281-CV, 2007 WL 

707553, at *3 (Tex. App.—Houston [14th Dist.] Mar. 8, 2007, no 

pet.) (mem. op.). Father essentially argues that this burden never shifted to 

him because the Department failed to show that he would be incarcerated for 

more than two years from the date the petition was filed.
7

264–66 (Tex. 2002). In conducting such a legal-sufficiency review, a court must 

look at all the evidence in the light most favorable to the termination findings to 

determine whether a reasonable trier of fact could have formed a firm belief or 

conviction that these findings are true. Id. at 266. “To give appropriate deference 

to the factfinder’s conclusions and the role of a court conducting a legalsufficiency review, looking at the evidence in the light most favorable to the 

judgment means that a reviewing court must assume that the factfinder resolved 

disputed facts in favor of its findings if a reasonable factfinder could do so.” 

Id. Furthermore, a reviewing court should disregard all evidence that a reasonable 

factfinder could have disbelieved or found to have been incredible. Id. This does 

not mean that a reviewing court must disregard all evidence that does not support 

the findings in question. Id. “Disregarding undisputed facts that do not support the 

finding could skew the analysis of whether there is clear and convincing 

evidence.” Id. “If, after conducting its legal-sufficiency review of the record 

evidence, a court determines that a reasonable factfinder could not form a firm 

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

conclude that the evidence is legally insufficient.” Id.; see also In re J.L., 163 

S.W.3d 79, 84–85 (Tex. 2005) (outlining legal-sufficiency standard of review).

In reviewing a factual-sufficiency challenge to termination findings, we give 

due consideration to evidence that the factfinder reasonably could have found to be 
8

clear and convincing. In re J.F.C., 96 S.W.3d at 266. 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 Department’s allegations. Id. We 

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 give 

due deference to fact findings, and we do not supplant the factfinder’s judgment 

with our own. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). In affirming 

the trial court’s ruling on a factual-sufficiency challenge, we need not detail all of 

the conflicting evidence. In re A.B., No. 13-0749, 2014 WL 1998440 at *6 (Tex. 

May 16, 2014).

We apply the same legal-sufficiency and factual-sufficiency standards in 

reviewing the evidence regardless of whether we are reviewing a jury’s verdict or, 

as in this case, the trial court’s findings following a bench trial. Catalina v. 

Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
9

Analysis

Thus, we address the sufficiency of the evidence to support the trial court’s 

finding that Father’s criminal conduct would result in his confinement or 

imprisonment for not less than two years from the date on which the Department 

filed the termination petition. The Department filed the petition to terminate 

Father’s rights on November 8, 2012; accordingly, two years after filing the 

petition is November 8, 2014. See In re A.V., 113 S.W.3d at 359–60. 

At trial, Kayla Sorich, a caseworker for the Department testified as follows:

Q. Now [Father], the father of one child and not the father of the 

oldest that we thought he was the father of the oldest, was tested in 

jail, correct?

A. Correct.

Q And it took a long time for the test to come back but we finally got 

it back; is that correct?

A. Yes.

Q. And it shows that he is the father of [the Child] but not the father 

of [Mother’s eldest child]?

A. Yes.

Q. Okay. And he’s in jail in Louisiana and facing a release date of 

2016, and possibly under work release, he could be out in 2014 in

February; is that correct?

A. Yes, that’s correct.

* * * *
10

Q. Okay. Now then, you know that [Father] has an extensive criminal 

history as well; is that correct?

A. Yes.

Q. But that history, presently he’s in prison in Louisiana?

A. Yes.

Q. Serving a five year sentence, correct?

A. Correct.

Q. And his release date is in 2016. But if he’s lucky on his work 

release, he could be out in 2014?

A. Yes.

Q. But that’s possible?

A. That’s a possibility.

On cross-examination of Sorich, the following exchange took place:

Q. Thank you. Now Mr. McInnis asked you the grounds from which 

you wanted to proceed to terminate the parental rights of [Father] as to 

[the Child]?

A. Yes.

Q. And was that the (Q) grounds?

A. I believe so.

Q. He can advise you. I won’t object.

A. Yes. He can advise you.
11

Q. That’s what he told us anyway. Are you aware from talking with 

him, as I am, that the actual set date for [Father’s] release date is June 

24 of 2016?

A. Yes. That’s the actual date.

Q. But are you also aware that if he continues to progress in what he’s 

doing, good time and everything, he can be released—he can be 

released as early as January 9 of 2014. Did he make you aware of 

that?

A. Yes, he did. But it isn’t a guaranteed release date.

Q. Right. That’s right. But it’s neither not a guarantee that he will stay 

there and serve the full sentence, is it?

A. Yes.

Q. All right. So—and that—the file date on the original petition in this 

case was November 8th, 2014. Would you accept that? Or 2012, I 

mean.

A. Yes.

Q. Thank you for the correction. 2012. So looking ahead on that date, 

the file date, if he is paroled out or early released for any reason on 

January 9, ’14 as set out in the official records, that would be only a 

period of about 14 months, all together, wouldn’t it, from the date of 

the filing of the original petition?

A. Correct.

However, Father argues that, according to the Department’s Exhibit 17, 

which is a copy of his prison records from Louisiana, “the Louisiana documents 

indicates that appellant will most likely be released on January 9, 2014 rather than 

serve his full sentence[,]” and that “the exhibit itself raises a strong inference that 
12

appellant is more likely to be released on January 8, 2014 rather than after 

November 8, 2014.” The document to which Father refers provides that Father’s 

total sentence was for 5 years, 2 months, and 27 days. Under a section entitled 

“Release Dates” it contains the following information:

FTD: 06242016 PED: DISCB ORIGINAL DS DT: 01092014

ADJUSTED DS DT: 01092014

In considering the possibility of parole,

4

the Supreme Court of Texas has 

provided the following guidance in how we must review a finding that a parent’s 

criminal conduct would result in the parent's confinement for not less than two 

years from the date on which the termination petition was filed:

We recognize that a two-year sentence does not automatically meet 

subsection Q’s two-year imprisonment requirement. In some cases, 

neither the length of the sentence nor the projected release date is 

dispositive of when the parent will in fact be released from prison. A 

parent sentenced to more than two years might well be paroled within 

two years. Thus, evidence of the availability of parole is relevant to 

determine whether the parent will be released within two years. Mere 

introduction of parole-related evidence, however, does not prevent a 

factfinder from forming a firm conviction or belief that the parent will 

remain incarcerated for at least two years. Parole decisions are 

inherently speculative, Ex Parte Moussazadeh, 64 S.W.3d 404, 413 

(Tex. Crim. App. 2001) (citing Ex Parte Evans, 690 S.W.2d 274, 278 

(Tex. Crim. App. 1985)), 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. See In re 

K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no 

 

4 We recognize that this case does not involve parole, but appears to concern the 

possible diminution of Father’s sentence because of accrued “good time” under a 

Louisiana statute. See LA. REV. STAT. ANN. § 15:571.3 (West Supp. 2012). We, 

nonetheless, find the supreme court’s analysis regarding parole to be instructive.
13

pet.) (stating that a father’s “hope that he might be granted early 

release is pure speculation”). If the mere possibility of parole prevents 

a jury from ever forming a firm belief or conviction that a parent will 

remain incarcerated for at least two years, then termination under 

subsection Q will occur only when the parent has no possibility of 

parole. By that rationale, the party seeking termination would have to 

show that there is zero chance of early release. This would 

impermissibly elevate the burden of proof from clear and convincing 

to beyond a reasonable doubt.

In re H.R.M., 209 S.W.3d at 108–09. Further, evidence of participation in a prerelease program available to inmates within two years of parole does not preclude a 

finding the parent will remain incarcerated. Id. at 109.

Here, Father argues that “the Louisiana documents indicates that appellant 

will most likely be released on January 9, 2014 rather than serve his full sentence.” 

(emphasis added). However, the only testimony about the meaning of the terms 

“ORIGINAL DS DT: 01092014” and “ADJUSTED DS DT: 01092014” came 

from Sorich, who acknowledged that “if [Father is] lucky on his work release, he 

could be out in 2014[,]” but that the “actual set date for [Father’s] release date is 

June 24, of 2016[.]” Sorich also testified that early release was merely a 

“possibility.” Father did not challenge the source of Sorich’s knowledge, nor did 

he cross-examine her about the same. Thus, the record is silent about the source of 

Sorich’s knowledge. However, appellant’s own counsel acknowledged the 

uncertainty of early release when he asked Sorich, “[I]f he continues to progress in 
14

what he’s doing, good time and everything, he can be released—he can be released

as early as January 9 of 2014?”

While the evidence illustrated the possibility of Father’s release prior to 

November 2014, as the court determined in H.R.M., such evidence did not prevent 

the trial court from forming a firm belief or conviction he would remain 

incarcerated after that date. In re H.R.M., 209 S.W.3d at 109. The trial court was 

free to credit and give greater weight to the fact that Father was serving a 5–year 

sentence that had a release date of June 24, 2016. See id. Likewise, the factfinder 

could reasonably conclude that Exhibit 17’s projected release date of January 2014 

was speculative, especially in light of the testimony that early release because of 

“good time” was merely a “possibility.” See In re K.R.M., 147 S.W.3d 628, 630 

(Tex. App.—San Antonio 2004, no pet.) ([“Appellant’s] hope that he might be 

granted early release is pure speculation.”); In re J.L.R., No. 11-05-00094-CV, 

2006 WL 728069, at *2 (Tex. App.—Eastland Mar. 23, 2006, no pet.) (holding 

evidence sufficient under subsection Q despite testimony that petitioner could be 

released early because of “good time” credits). The trial court could also have 

considered appellant’s criminal history and his unsuccessful completion of 

probation in determining whether it was likely that he would successfully obtain 

early release. See In re H.R.M., 209 S.W.3d at 109.
15

Summary

Viewing the evidence under the proper standards, we find the evidence 

before the trial court was legally and factually sufficient to permit the court to form 

a firm conviction or belief that Father would remain incarcerated until at least two 

years after the petition was filed, i.e., until November 2014. See In re H.R.M., 209 

S.W.3d at 109.

Accordingly, we overrule Father’s first issue.

CONCLUSION

Having found legally and factually sufficient evidence to support the trial 

court’s finding that the Father engaged in the conduct described in subsection (Q) 

of section 161.001, and because appellant does not challenge the best-interest 

finding, we need not address the trial court’s finding that Father also engaged in 

the conduct described in subsection (O) and decline to do so. See In re A.V., 113 

S.W.3d at 362 (affirming termination decree based on one ground without reaching 

second ground found by fact finder and challenged by appellant).

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice 
16

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