NO. 12-16-00246-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST

OF H.N.B.,

A CHILD

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

C.L.B. appeals the termination of his parental rights. In two issues, he challenges the 

legal and factual sufficiency of the evidence to support the trial court’s termination order. We 

affirm.

BACKGROUND

C.L.B. is the father of H.N.B.1 On August 10, 2015, the Department of Family and 

Protective Services (the Department) filed an original petition for protection of H.N.B., for 

conservatorship, and for termination of C.L.B.’s parental rights. The Department was appointed 

temporary managing conservator of the child, and C.L.B. was allowed limited access to, and 

possession of, the child. 

At the conclusion of the trial on the merits, the trial court found, by clear and convincing 

evidence, that C.L.B. had engaged in one or more of the acts or omissions necessary to support 

termination of his parental rights under subsections (O) and (Q) of Texas Family Code Section 

161.001(b)(1). The trial court also found that termination of the parent-child relationship 

between C.L.B. and H.N.B. was in the child’s best interest. Based on these findings, the trial 

 

1 The trial court found that the mother of the child, A.N.D., executed an unrevoked or irrevocable affidavit 

of relinquishment of parental rights, found that termination between A.N.D. and the child was in the child’s best 

interest, and ordered that the parent-child relationship between A.N.D. and the child be terminated. The mother is 

not a party to this appeal.
2

court ordered that the parent-child relationship between C.L.B. and H.N.B. be terminated. This 

appeal followed.

TERMINATION OF PARENTAL RIGHTS

Involuntary termination of parental rights embodies fundamental constitutional rights. 

Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53 

S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ 

denied). Because a termination action “permanently sunders” the bonds between a parent and 

child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 

(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).

Section 161.001 of the family code permits a court to order termination of parental rights 

if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re 

J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have 

engaged in any one of the acts or omissions itemized in the second subsection of the statute. 

TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep’t of Protective & 

Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 

S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE 

ANN. § 161.001(b)(2) (West Supp. 2016); In re J.M.T., 39 S.W.3d at 237. Both elements must 

be established by clear and convincing evidence, and proof of one element does not alleviate the 

petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 

351; In re J.M.T., 39 S.W.3d at 237. 

The clear and convincing standard for termination of parental rights is both 

constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 

S.W.2d at 439. 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 (West 2014). The burden of proof is 

upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240. 

STANDARD OF REVIEW

When confronted with both a legal and factual sufficiency challenge, an appellate court 

must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 
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S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no 

pet.). In conducting a legal sufficiency review, we must look at 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). 

We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable 

fact finder could do so and disregard all evidence that a reasonable fact finder could have 

disbelieved or found incredible. Id. 

The appropriate standard for reviewing a factual sufficiency challenge to the termination 

findings is whether the evidence is such that a fact finder could reasonably form a firm belief or 

conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 

2002). In determining whether the fact finder has met this standard, an appellate court considers 

all the evidence in the record, both that in support of and contrary to the trial court’s findings. 

Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a 

reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In 

re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the 

witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 

575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied). 

TERMINATION UNDER SECTION 16.001(b)(1)(Q)

In his second issue, C.L.B. argues that the evidence is legally and factually insufficient to 

terminate his parental rights pursuant to Texas Family Code Section 161.001(b)(1)(Q). More 

specifically, he contends that the trial court did not properly consider the relevancy and weight of 

the likelihood that he would be paroled. He does not challenge the trial court’s finding that 

termination is in the child’s best interest.

Applicable Law

The court may order termination of the parent-child relationship if it finds by clear and 

convincing evidence that the 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 filing the petition. TEX. FAM. CODE 

ANN. § 161.001(b)(1)(Q) (West Supp. 2016). “[I]f a parent is convicted and sentenced to serve 

at least two years and will be unable to provide for his or her child during that time, the 
4

[Department] may use subsection Q to ensure that the child will not be neglected.” In re A.V., 

113 S.W.3d 355, 360 (Tex. 2003).

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. In re H.R.M., 209 S.W.3d 

105, 108 (Tex. 2006). Thus, evidence of the availability of parole is relevant to determine 

whether the parent will be released within two years. Id. at 109. Mere introduction of parole 

related evidence, however, 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 the decision rests entirely within the parole board’s discretion. See 

id.; In re R.A.L., 291 S.W.3d 438, 443 (Tex. App.—Texarkana 2009, no pet.); In re K.R.M., 147 

S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.) (stating that a father’s “hope that he 

might be granted early release is pure speculation”). If the mere possibility of parole prevents 

the fact finder 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. In re H.R.M., 209 S.W.3d at 109. This would impermissibly 

elevate the Department’s burden of proof from clear and convincing to beyond a reasonable 

doubt. Id.

Once the Department has established a parent’s knowing criminal conduct resulting in his 

incarceration for more than two years, the burden shifts to the parent to produce some evidence 

as to how he will arrange to provide care for the child during that period. Hampton v. Tex. 

Dep’t of Protective & Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004, no 

pet.); In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). When that 

burden of production is met, the Department is then required to persuade the court that the stated 

arrangements would not satisfy the parent’s burden to the child. Hampton, 138 S.W.3d at 567; 

In re Caballero, 53 S.W.3d at 396.

Analysis

C.L.B. challenges only the part of subsection (b)(1)(Q) that requires he be imprisoned for 

not less than two years from the date of filing the petition. He does not challenge that part of the 

subsection that requires his inability to care for the child during that period. The record shows 

that the Department’s original petition for termination of C.L.B.’s parental rights was filed on 
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August 10, 2015. It also shows that C.L.B. was charged with the felony offense of burglary of a 

habitation, pleaded guilty, and was sentenced to eight years of imprisonment on January 6, 2016. 

At trial, a Department caseworker stated that to her knowledge, C.L.B.’s earliest 

projected parole date was April 2018. However, C.L.B. testified that his next parole date was 

March 2017. It would be his second parole date, having been denied parole in March 2016. He 

stated that at the time of trial, he was in a trustee camp and working as a janitor. According to 

C.L.B., being in a trustee camp would increase his chances with the parole board. However, the 

evidence also showed that he had been confined, incarcerated, or in “SAFP,” a substance abuse 

felony punishment facility, from October 2014 until the time of trial. Finally, C.L.B. appears to 

argue in his brief that his time credits would increase the likelihood that he would be released 

before the two year statutory period. The record showed that he was credited with approximately 

511 days at the time of his adjudication. 

From this evidence, a reasonable fact finder could have determined that the Department 

filed its petition on August 10, 2015, that C.L.B. was convicted of burglary of a habitation on 

January 6, 2016, and that he was sentenced to eight years of imprisonment. See TEX. FAM. CODE 

ANN. § 161.001(b)(1)(Q). The fact finder could have also formed a firm belief or conviction that 

C.L.B.’s earliest projected paroled date was April 2018, that he had already been denied parole 

once, and that his belief that he would be granted parole before the two year statutory limit 

expired was unlikely and speculative at best. See id. Therefore, we hold that the evidence, 

viewed in the light most favorable to the finding, was sufficiently clear and convincing that a 

reasonable trier of fact could have formed a firm belief or conviction that C.L.B. knowingly 

engaged in criminal conduct that has resulted in his conviction of an offense, and imprisonment 

and inability to care for H.N.B. for not less than two years from the date of filing the petition. 

See In re J.F.C., 96 S.W.3d at 266.

Although there is conflicting evidence that C.L.B. had over a year of time credits, and 

that being housed in a trustee camp could increase his chances with the parole board, a 

reasonable fact finder could have resolved these conflicts in favor of its finding. See TEX. FAM.

CODE ANN. § 161.001(b)(1)(Q). While there is some disputed evidence, this evidence is not so 

significant that a reasonable trier of fact could not have reconciled this evidence in favor of its 

finding and formed a firm belief or conviction that C.L.B. knowingly engaged in criminal 

conduct that has resulted in his conviction of an offense, and imprisonment and inability to care 
6

for his child for not less than two years from the date of filing the petition. See In re C.H., 89 

S.W.3d at 25.

Therefore, we hold that the evidence is legally and factually sufficient to support 

termination of C.L.B.’s parental rights under Section 161.001(b)(1)(Q). Accordingly, we 

overrule C.L.B.’s second issue.2

DISPOSITION

Having overruled C.L.B.’s second issue, we affirm the trial court’s judgment.

GREG NEELEY

Justice

Opinion delivered February 15, 2017.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

 

2 Because we have concluded that the evidence is legally and factually sufficient to support termination of 

C.L.B.’s parental rights under subsection (b)(1)(Q), we need not address his first issue regarding subsection 

(b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(b)(1); TEX. R. APP. P. 47.1. 
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 15, 2017

NO. 12-16-00246-CV

IN THE INTEREST OF H.N.B., A CHILD

Appeal from the County Court at Law 

of Anderson County, Texas (Tr.Ct.No. CCL-15-14827)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.