Background
The Texas Department of Family and Protective Services sought termination of Father’s parental rights to J.A.V. and K.A.V. after the Department became involved because of Mother’s substance abuse. Father was incarcerated when the children were removed and therefore unavailable as a placement. His suggested alternative placement, his sister, did not respond to the Department’s calls or text message.
Father had pleaded guilty to offenses arising from domestic violence and to evading arrest with a vehicle, receiving concurrent prison sentences of twelve and fifteen years. He had not regularly visited or maintained significant contact with the children, his parole had been denied, and he would not be eligible for parole again for at least two years. The trial court terminated his parental rights for abandonment and for conviction, imprisonment, and inability to care for the children for at least two years, and found termination to be in the children’s best interest.
The Court’s Holding
The Seventh Court of Appeals affirmed. It held that legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(P). Father did not dispute that his criminal conduct resulted in incarceration for the required period, and he failed to produce evidence that he had arranged for someone to care for the children on his behalf. Merely leaving them with Mother was insufficient because there was no evidence she had agreed to care for them on Father’s behalf, she had relapsed, and her own parental rights were terminated.
The court also held that Father failed to preserve his constitutional argument that termination had to satisfy strict scrutiny under the recently amended Texas Constitution. He did not raise the argument in the trial court, and the fundamental-error doctrine did not excuse that failure. Because one predicate ground was sufficiently supported and Father did not challenge the best-interest finding, the court did not address the separate abandonment ground.
Key Takeaways
- Incarceration alone does not establish § 161.001(b)(1)(P); the Department must also prove the parent’s inability to care for the child for at least two years.
- An incarcerated parent who relies on another person to provide care must present evidence that the person agreed to assume the parent’s caregiving obligation.
- Constitutional objections in parental-rights termination cases generally must be raised in the trial court, and merely invoking a constitutional right does not create fundamental error.
Why It Matters
The decision illustrates the evidence needed to establish that an incarcerated parent cannot arrange care for a child. Identifying a relative as a possible placement does not suffice when the relative never agrees to provide care, and leaving children with their other parent is inadequate without evidence that the other parent agreed to care for them on the incarcerated parent’s behalf.
It also reinforces the importance of preserving constitutional challenges during termination proceedings. Even arguments involving fundamental parental rights may be forfeited if they are presented for the first time on appeal.