### IN THE TENTH COURT OF APPEALS
No. 10 - 09 - 00007 - CV
IN THE INTEREST OF K .B.C., A CHILD

From the 170th District Court McLennan County, Texas Trial Court No. 2008 - 1731 - 4

MEMORANDUM OPINION
Ashley, K.B.C.’s mother, filed a petition to terminate the parental rights of K.B.C.’s father, John , alleging that termination of his parental rights would be in the child’s best interest and that he knowingly engaged in criminal conduct that resulted in (i) his conviction of an offense and (ii) confinement or imp risonment and inability to care for the child for not less than two years from the date of filing the petition. See T EX
. F AM
. C ODE A NN
. § 161.001(1)(Q) & (2) (Vernon 2009)

. Ashley also requested that the court grant K.B.C. a name change so that K.B.C. an d Ashley would have the same last

name. At a hearing at which John did not appear, the trial court granted the name change for K.B.C. After a subsequent termination hearing, the court terminated John’s parental rights. John, who has been appearing pro s e throughout these proceedings,In the Interest of K.B.C., a Child Pag e 2

appeals the trial court’s termination order. We will reverse the trial court’s termination order

. The natural right that exists between parents and their children is one of constitutional dimension. In re J.W.T., 872 S.W.2 d 189, 194

- 95 (Tex. 1994). A parent’ s right to “ the companionshi p, care, custody and management” of his or her children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758

- 59, 102 S.Ct. 1388, 13 97, 71 L.Ed.2d 599 (1982) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). Therefore, in a case terminating parental rights, the proceedings are strictly scrutinized , and the involuntary
termination statutes ar e strictly construed in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by “clear and convincing evidence.” Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.

— Waco 1998, no pet.). This standard is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or c onviction as to the truth of the allegations sought to be established.” Id. In a proceeding to terminate the parent

- child relationship brought under section 161.001 of the Texas Family Code, the movant must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001; and (2) that termination is in the best interest of the child. T EX
. F AM
. C ODE A NN
. § 161.001; Swate v.
Swate , 72 S.W.3d 763, 766 (Tex. App.

— Waco 2002, pet. de nied). The factfinder mustIn the Interest of K.B.C., a Child Pag e 3

find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams , 544 S.W.2d 367, 370 (Tex. 1976); Swate , 72 S.W.3d at 766.
I n his first and third issue s , John contends that the evidence is legally and factually insufficient to support termination of his parental rights.

In a legal sufficiency review, a court should look at all the evidence in the light most fa vorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal suffic iency 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 finding if a reasonable factfinder could do so. A corollary to this requ irement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). Subsection 161.001(1)(Q) warrants termination of parental rights whe n 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. T EX
. F AM
. C ODE A NN
. § 161.001(1)(Q)

. Incarceration and a parent’s inability to care are separate requirements for termination of parental rights under subsection 161.001(1)(Q)(ii). See In re E.S.S. , 131 S.W.3d 632, 639 (Tex. App.

— Fort Worth 2004, no pet.); In re B. M.R. , 84 S.W.3d 814, 818 (Tex. App.

— Houston [1st Dist.] 2002, no pet.). In In re A.V. , 113 S.W.3d 355, 360 (Tex. 2003), t he supreme court held that subsection Q ’s time period applies prospectively and stated, “Thus, if the parent is convicted and sentence d to serve at least two years andIn the Interest of K.B.C., a Child Pag e 4

will be unable to provide for his or her child during that time, the State may use subsection Q to ensure that the child will not be neglected.”
A two

- year prison sentence does not automatically meet subsection Q’s two

- ye ar imprisonment requirement, however. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). 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. Id. A parent

s entenced to more than two years might well be paroled within two years. Id. at 108

- 09. Thus, evidence of the availability of parole is relevant to determine whether the parent will be released within two years. Id. at 109. However, mere introduction of parole

related evidence does not prevent a fact

- finder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years. Id. Parole decisions are inherently speculative, and while all inmates doubtless hope for ea rly release and can take positive steps to improve their odds, th e decision rests entirely with the parole board

. Id. To support termination under subsection Q, Ashley must thus prove that John’s criminal conviction would result in confinement for at leas t two years from the date the petition was filed. See T EX
. F AM
. C ODE A NN
. § 161.001(1)(Q). Ashley filed her original termination petition on May 6, 2008, and amended the petition on July 3, 2008. Under subsection Q, “two years from the date of filing th e p etition” would be May 6, 2010. The final termination hearing in this case was held on November 21, 2008. John appeared via teleconference. During the hearing, Ashley testified that John wa s currently incarcerated and that he had been incarcerated nume rous times. On cross

-In the Interest of K.B.C., a Child Pag e 5

examination, John testified that he had been arrested for theft in 1996, terroristic threat
in 1997, burglary of a habitation in 1999, evading arrest in 2001, evading arrest and injury to a person with a motor vehicle in 2003, and fai lure to stop and render aid in
2003. John stated that failure to stop and render aid was “what I got my time for.” He testified that he is up for parole every year and “see[s] parole in February [of 2009] now.” He stated that he had gone through some pr oblems when he was first incarcerated, but he had since been “trying to get it together.” He stated that he is involved with a lot of programs, getting a lot of help, and knows he i s now a different
person. N o evidence was presented regarding the length o f John’s sentence or his projected release date. Furthermore, although it is clear that John was incarcerated at the time of the termination hearing, it is not c lear from the record of the hearing whether he was continuously confined or imprisoned from th e date the petition was filed until the date of the termination hearing. For these reasons, w e hold that the evidence was legally insufficient for a reasonable factfinder to form a “firm belief or conviction” that John’s criminal conviction would result in confinement for at least two years from the date the petition was filed , and we sustain this issue

. We further hold that the trial court erred in terminating John’s parental rights under subsection 161.001(1)(Q). We need not address John’s other issues. See T EX
. R. A PP
. P. 47.1. We reverse the trial court’s termination of John’s parental rights. In the interest of justice, we remand the cause for another trial. See T EX
. R. A PP
. P. 43.3(b).In the Interest of K.B.C., a Child Pag e 6 REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyn a , and Justice Davis (Chief Justice Gray dissents. A separate opinion will not issue. He notes, however, the principle problem with the majority’s analysis is the refusal to accept reasonable inferences from the evidence presented and the requirement of direct evidence to rise to the level of clear and convincing evidence. Reasonable inferences from the evidence presented can rise, as they do in this case, to meet the requirement of clear and convincing evidence. I respectfully dissent. Further, the co urt has failed to address the issue regarding the name change which does not appear to be in any way impacted by the new trial.) Reversed and remanded Opinion delivered and filed September 30, 2009 [C V06]