546 S.W.3d 346
Tex. App.2018Background
- Father (L.A.A.) was convicted of aggravated robbery with a deadly weapon in 2012 and sentenced to 15 years; he remained incarcerated at trial.
- Children (born 2009, 2011, 2012) were removed from mother's care in June 2015 after neglectful supervision and an incident in which a young child sustained a dog-bite scalp injury while the mother appeared intoxicated.
- DFPS investigated, obtained temporary conservatorship, established paternity by DNA, and developed service plans; mother later voluntarily relinquished her rights.
- DFPS sought termination of both parents; at the December 2016 trial DFPS presented caseworker and child-advocate testimony that children’s needs were being met in foster placements and that father had no contact with caseworker or children.
- Trial court found clear-and-convincing evidence of predicate grounds (including §161.001(b)(1)(Q) — incarceration) and that termination was in the children’s best interest; this court affirmed on rehearing.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (DFPS) | Held |
|---|---|---|---|
| Sufficiency of evidence for termination under §161.001(b)(1)(Q) (incarceration) | Father contends DFPS failed to prove inability to care for children for required period and that burden was improperly shifted to him | DFPS showed conviction and confinement exceeding two years from petition date; father produced no evidence of arrangements to care for children during incarceration | Affirmed: evidence legally and factually sufficient under (Q); father presented no arrangements and was incarcerated for required period |
| Sufficiency of evidence for other predicate grounds (D, E, N, O) | Father disputes endangerment/abandonment findings, arguing sparse record and lack of direct evidence tying him to neglect | DFPS points to father’s incarceration and leaving children with mother (history of neglect/drug use), lack of contact, and children in DFPS care >9 months | Affirmed: court found sufficient evidence to support at least one predicate (and evidence supported D/E/N/O as well) |
| Sufficiency of evidence that termination was in children’s best interest | Father argues DFPS failed to present clear-and-convincing evidence on Holley factors (sparse, conclusory testimony; no proof of kinship search, sibling separation, or permanency plan) | DFPS emphasizes children’s vulnerability, father’s long incarceration and lack of contact, and that current placements meet needs (particularly special needs child) | Affirmed: court held evidence (incarceration, lack of contact, harms, current placements meeting needs) sufficient under legal and factual-sufficiency standards |
| Whether DFPS bore full burden to prove (Q) or could shift burden to incarcerated parent to produce evidence of care-arrangements | Father argues DFPS retained full burden and could not shift proof to him, especially given statutory/administrative kinship duties and sparse trial proof | DFPS and some precedents treat conviction+confinement as prima facie, obligating parent to produce evidence of care arrangements; here father failed to do so | Held: Court applied existing precedent allowing expectation that incarcerated parent produce some evidence of arrangements; father produced none, so (Q) upheld |
Key Cases Cited
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (clear-and-convincing standard and sufficiency review in termination appeals)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (constitutional due-process standard for parental-rights termination)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (legal and factual sufficiency standards for termination reviews)
- In re A.V., 113 S.W.3d 355 (Tex. 2003) (single predicate finding plus best-interest finding is sufficient for termination)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (nonexclusive factors for determining children’s best interest)
- In re V.V., 349 S.W.3d 548 (Tex. App.—Houston [1st Dist.] 2010) (en banc) (upholding termination where incarcerated father had minimal/no contact and child bonded with foster family)
- In re E.C.R., 402 S.W.3d 239 (Tex. 2013) (trial court may consider prior orders/findings in same case when evaluating statutory elements)