in the Interest of C.L.E.E.G., a Child

Supreme Court of Texas
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No. 21-0245
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In the Interest of C.L.E.E.G., a Child

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On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
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PER CURIAM

The Texas Family Code empowers trial courts to terminate
parental rights based on clear and convincing evidence that the parent
“knowingly engaged in criminal conduct,” was convicted of an offense,
and will be confined or imprisoned and “unable to care for the child for
not less than two years.” TEX. FAM. CODE § 161.001(b)(1)(Q). In this
case, the trial court made those findings and terminated G.G.’s
(Father’s) parental rights, but the court of appeals reversed, holding
Father presented uncontradicted evidence that he would be paroled in
the near future. 2021 WL 377254, at *8-9 (Tex. App.—Corpus Christi–
Edinburg Feb. 4, 2021). Because Father’s evidence was speculative and
the record contains ample controverting evidence that Father was
unlikely to be paroled any time soon, we reverse the court of appeals’
judgment and reinstate the trial court’s order terminating Father’s
rights.
C.L.E.E.G. (the Child) was born premature and spent several
months in the hospital. The Department of Family and Protective
Services received a referral for neglectful supervision because the
Child’s mother, who suffers from mental illness and a history of drug
addiction, tested positive for methamphetamines when the Child was
born. The Department was appointed temporary managing conservator
and placed the Child in foster care when she was released from the
hospital.
Father was imprisoned when the Child was born, but he was
released soon after and visited her in the hospital. When the Child was
six months old, however, Father returned to prison after he pleaded
guilty to two counts of possession of a controlled substance with intent
to deliver (a first-degree felony and a second-degree felony), one count of
possession of a controlled substance (a third-degree felony), and one
count of felon in possession of a firearm (a third-degree felony). He
received concurrent seven-year sentences and has not seen the Child
since.
When the Child was thirteen months old, the Department filed a
petition to terminate Father’s parental rights. 1 At the time of the bench
trial, the Child was nineteen months old, had continuously lived with
the same foster family, who wishes to adopt her, and had reached all
developmental milestones despite her premature birth. The trial court
terminated Father’s parental rights, finding clear and convincing
evidence that he would remain incarcerated and unable to care for the

The Department also sued to terminate the mother’s parental rights.
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The trial court terminated her rights, and she did not appeal.

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Child for at least two years from the date the petition was filed. TEX.
FAM. CODE § 161.001(b)(1)(Q). 2
Father argued on appeal that the evidence was legally and
factually insufficient to support the trial court’s findings. 2021 WL
377254, at *1. The court of appeals agreed and reversed, concluding the
Department “presented no evidence regarding availability of parole
under the circumstances of [Father’s] case,” failed to negate Father’s
testimony that he would be paroled “in the near future,” and thus failed
to carry its burden under subsection (Q). Id. at *8-9.
By allowing termination based on an extended prison sentence,
subsection (Q) “allows the State to act in anticipation of a parent’s
abandonment of the child and not just in response to it.” In re A.V., 113
S.W.3d 355, 360 (Tex. 2003) (emphasis added). In In re H.R.M., we
explained that the fact that a parent is serving a prison sentence that
does not expire for at least two more years “does not automatically meet
subsection Q’s two-year imprisonment requirement” because “evidence
of the availability of parole is relevant.” 209 S.W.3d 105, 108-09 (Tex.
2006). But we also made clear that the factfinder, “[a]s the sole arbiter
when assessing the credibility and demeanor of witnesses,” is “free to
disregard” the parent’s parole-related testimony, especially when it
constitutes “barely more than conjecture.” Id. at 109 (quoting In re J.L.,

2 As a separate ground for termination, the trial court also found that
Father had “engaged in conduct or knowingly placed the child with persons
who engage in conduct which endangers the physical or emotional well-being
of the child.” TEX. FAM. CODE § 161.001(b)(1)(E). The court of appeals
concluded the evidence was insufficient to support this finding. 2021 WL
377254, at *5-7. Because the Department only challenges the court of appeals’
reversal under subsection (Q), we do not address whether termination was
proper under subsection (E).

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163 S.W.3d 79, 86-87 (Tex. 2005)). And we clarified that because parole
decisions “are entirely speculative,” the parent’s “introduction of
parole-related evidence” establishing “the mere possibility of parole”
does not “prevent a factfinder from forming a firm conviction or belief
that the parent will remain incarcerated for at least two years.” Id.
(citation omitted). Otherwise, we explained, subsection (Q) would apply
“only when the parent has no possibility of parole.” Id. (emphasis
added). Requiring the Department “to show that there is zero chance of
early release,” we reasoned, “would impermissibly elevate the burden of
proof from clear and convincing to beyond a reasonable doubt.” Id.
As in H.R.M., we conclude this record contains sufficient evidence
to support the trial court’s finding regarding Father’s ineligibility for
parole. Father testified at trial telephonically from prison. He initially
stated that it was “unlikely” he would serve his entire sentence because
he had joined a gang-disassociation program, was studying to obtain his
GED, and had good behavior since being incarcerated. He then testified
that he knew “for a fact” he would not serve the full seven years because:
The system is packed. I mean I’m here on a drug charge.
They’re kicking drug charges—The only thing that’s—I
would have already been out if I didn’t have the gang—the
gang tag on me. You know that’s the thing that I signed
up for. I signed up for [the gang-disassociation program].
And I—I should be out this year, if not next year for sure.
Father said that he would appear before the parole board “either this
mon[th] or next month” and “get an answer” within four months. He
agreed with his counsel that the COVID-19 pandemic could also increase
his likelihood of parole due to “Texas prisons being a hotspot.” Like the
father’s testimony in H.R.M., this testimony regarding the likelihood of

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parole was “barely more than conjecture,” and the trial court was free to
credit or disbelieve it as the trial court saw fit. Id.
Contradicting this testimony, Father conceded that the parole
board would consider his criminal history and convictions, which
included burglary of a habitation, possession of controlled substances
with intent to distribute, and felon in possession of a firearm. He
admitted he became involved in criminal activity after joining a gang at
a young age and that he had consistently engaged in criminal activity
until his most recent conviction and incarceration. And he conceded that
he had previously had community supervision revoked and had
previously been denied parole. Father acknowledged the parole board
would also take the nature of his past crimes into account. The court of
appeals thus erred by concluding that “[t]he Department presented no
evidence regarding availability of parole.” 2021 WL 377254, at *8
(emphasis added).
In short, the court of appeals impermissibly substituted its
judgment for that of the trial court and further erred by failing to defer
to the trial court’s assessment of the witnesses’ credibility. See H.R.M.,
209 S.W.3d at 109. And by essentially requiring the Department to
show Father had “zero chance of early release,” the court of appeals
erred by “impermissibly elevat[ing] the burden of proof from clear and
convincing to beyond a reasonable doubt.” Id. Neither H.R.M. nor
subsection (Q)’s clear language requires such a showing.
The evidence also supported the trial court’s finding that Father
would be unable to care for the Child for at least two years, satisfying
subsection (Q)’s second requirement. See TEX. FAM. CODE

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§ 161.001(b)(1)(Q)(ii). 3 Father introduced no evidence of his efforts to
arrange for the Child’s care during his remaining imprisonment. He
conceded he had no family members with whom he would want the Child
to be placed, and he never provided any names to the Department for
background checks. He testified that he was “willing to consider”
placing the Child with his mother (Grandmother), although he
acknowledged that he and Grandmother were in “a rough patch” that
strained their relationship. Although Father had written to
Grandmother, he had not received a response at the time of trial. And
although he requested that the Department “look[] into” Grandmother
“by some kind of expedited home study,” he admitted he never made this
request before the final day of trial. Based on these facts, and with no
contrary evidence, the trial court could reasonably have formed a firm
belief or conviction that Father was unable to care for the Child during
his imprisonment, either individually or through family surrogates.
The court of appeals erred by crediting Father’s testimony
regarding parole, which the trial court permissibly disbelieved, and by
failing to account for the Department’s extensive contrary evidence,
which the trial court found persuasive. It impermissibly elevated the
burden of proof by essentially requiring the Department to show Father
had zero chance of parole. It misinterpreted subsection (Q) and
misapplied our holding in H.R.M. We grant the Department’s petition

3 Father argues that we should not consider his ability to care for the
Child at this point because the court of appeals based its conclusion solely on
his eligibility for parole within two years. But the court of appeals expressly
concluded that the Department’s evidence was insufficient to support a finding
that Father was unable to care for the Child. 2021 WL 377254, at *8 n.7.

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for review and, without hearing oral argument, reverse the court of
appeals’ judgment. TEX. R. APP. P. 59.1. Because subsection (Q)
provides an independent ground to terminate a parent’s rights, see
J.F.C., 96 S.W.3d 256, 261 (Tex. 2002), we reinstate the trial court’s
judgment.

OPINION DELIVERED: February 4, 2022

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