In In re H.R.M, 209 S.W.3d 105 (Tex. 2006) the mother and stepfather of the child sought to terminate the rights of the incarcerated father under section 161.001(1) (Q) of the Texas Family Code.
A jury found the father's parental rights should be terminated. Id.
Reversing the trial court's order, the court of appeals concluded that the time remaining on the father's prison sentence was insufficient evidence from which a factfinder could reasonably form a firm belief or conviction that the father would be confined for at least two years. Id. at 107-08.
In reversing the court of appeals, the Texas Supreme Court recognized that "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. at 108.
The Court explained:
"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." Id. at 109.
The Court noted that the record showed that the father had multiple convictions and sentences and that he received a seven-year sentence for one offense and had thirteen years left to serve on a prior sentence. Id.
The record also reflected that the father had not provided for the child after his divorce from the child's mother. Id. at 110.
The Court found that the father failed to provide care for the child by leaving the child with his biological mother. Id. at 111.
While addressing Tex. Fam. Code Ann. § 161.001(1)(Q), the supreme court discussed the possibility of parole and the ability of a parent to care for a child while incarcerated.
The court determined that evidence of the availability of parole is relevant to determine whether the parent will be released within two years; however, the possibility of parole does not prevent a finding that the parent will remain incarcerated and unable to care for the child. Id. at 109.
The court noted that parole decisions are "inherently speculative" and that the final decision regarding parole belongs to the parole board. Id.
The court reasoned that if the possibility of parole prevented a factfinder from forming "a firm belief or conviction" that the parent would remain in jail and be unable to care for the child, termination under subsection (Q) could only occur when there was no possibility of parole. Id.
Thus, the party seeking termination would have to show that there is no chance of early release, which would change the burden of proof from clear and convincing to beyond a reasonable doubt. Id.