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

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 3

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 wellbeing," 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 
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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 wellbeing 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 
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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 9

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.
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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]