In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-26-00158-CV
IN THE INTEREST OF S.C., JR., J.A.V., AND K.A.V., CHILDREN
On Appeal from the 251st District Court Randall County, Texas
Trial Court No. 85097C, Honorable Jack M. Graham, Associate Judge Presiding
August 20, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
In this accelerated appeal, appellant, Father, seeks reversal of the trial court’s judgment terminating his parental rights to his children, J.A.V. and K.A.V., in a suit brought by the Texas Department of Family and Protective Services. 1 By his appeal, Father challenges the sufficiency of the evidence to support the statutory grounds for termination and asserts a due process violation. We affirm the trial court’s judgment.
1 To protect the privacy of the parties involved, we will refer to the appellant as “Father,” to the
children’s mother as “Mother,” and to the children by their initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b).
BACKGROUND
Mother and Father have two children, three-year-old J.A.V. and two-year-old K.A.V. Mother has another child the subject of this suit, eight-year-old S.C. The father of S.C. was alleged to be “T.T.” but was ultimately unknown. Neither Mother nor the unknown father appeal.
The Department became involved with Mother and the children in May of 2024 after receiving allegations of Mother’s substance abuse. One month later, Mother left an inpatient drug treatment program and relapsed. The Department filed its petition for termination on July 9, 2024. At the time the children were removed from Mother’s care, Father was in jail and unavailable to serve as a placement option. He provided his sister’s phone number to the caseworker for possible placement of the children. The caseworker left a voice mail and sent a text message to Father’s sister, but she did not return the caseworker’s phone call or reply to the text message.
The Department presented evidence concerning Father’s criminal history. On August 6, 2024, Father pleaded guilty to two offenses arising from acts of domestic violence against a female victim. Those offenses included assault causing bodily injury by applying pressure to the throat or neck and/or blocking the nose or mouth of the victim and striking the pregnant victim with his hand. He also pleaded guilty to the offense of evading arrest with a vehicle. These offenses were enhanced by a previous conviction for unlawful possession of a firearm by a felon. He received concurrent sentences of twelve years’ and fifteen years’ incarceration, respectively, in the Institutional Division of the Texas Department of Criminal Justice (TDCJ).
3
A Department caseworker prepared a service plan for Father. Because of his incarceration, Father was unable to participate in most services. As of the time of trial, he was on a waiting list to attend the batterer’s intervention and prevention program classes. Father has not regularly visited or maintained significant contact with the children during the pendency of this case. According to the caseworker, Father’s parole was denied and he has had difficulty adjusting to the institutional environment in a favorable way. Because of his lengthy sentences, it would be at least another two years before Father would again be eligible for parole.
The children were placed with a foster family on July 8, 2024. They have thrived in their placement, and the foster parents have a great relationship with them. The foster mother testified that she and her husband could meet the children’s physical, emotional, therapeutic, and medical needs and would continue to facilitate sibling visits. The foster parents are willing to adopt the children if parental rights are terminated.
The trial court terminated Father’s parental rights to the children on the grounds of abandonment and engaging in criminal conduct resulting in his conviction, imprisonment, and inability to care for the children for at least two years from the original petition’s file date. See TEX. FAM. CODE § 161.001(b)(1)(N), (P). 2 The trial court also found termination was in the best interest of the children. See § 161.001(b)(2). The Department was appointed permanent managing conservator of the children. Father timely filed this appeal of the resulting judgment.
2 Further references to provisions of the Texas Family Code will be by reference to “section ___”
or “§ ___.”
4
APPLICABLE LAW
A parent’s right to the “companionship, care, custody, and management” of his or her child is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). We strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child’s best interests. See id.
In a case to terminate parental rights under section 161.001 of the Family Code, the petitioner must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is “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.” § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “Only one predicate finding under section 161.001[(b)](1) is necessary to support a
5
judgment of termination when there is also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362. We affirm a termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating parental rights if the evidence also establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894–95.
STANDARD OF REVIEW
In reviewing for legal sufficiency, we 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 the finding was true. In re J.O.A., 283 S.W.3d 336, 344−45 (Tex. 2009). In reviewing for factual sufficiency, we give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). If, considering the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266.
The clear and convincing evidence standard does not mean the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the right to resolve credibility issues and conflicts within the evidence and may freely choose to believe all, part, or none of the testimony espoused by any witness. Id. Where conflicting evidence is present, the factfinder’s determination on such matters is generally
6
regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no writ).
The appellate court cannot weigh witness credibility issues that depend on demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the written transcript, the appellate court must defer to the factfinder’s determinations, if those determinations are not themselves unreasonable. Id.
ANALYSIS
CONSTITUTIONAL CHALLENGE
We address Father’s third issue first because if it is sustained, it would give him the greatest relief. Valk v. Copper Creek Distribs., Inc., 733 S.W.3d 9, 13 (Tex. 2026). Relying on a recent amendment to the Texas Constitution, see TEX. CONST. art. I, § 37, Father contends that termination of his parent-child relationship under the predicate grounds (N) and (P) must satisfy strict scrutiny, that is, the parent-child relationship cannot be terminated unless termination is the least restrictive means to satisfy a compelling governmental interest.
To preserve a complaint for appellate review, the record must show, among other things, that the party timely complained to the trial court and “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a). Nothing in the record demonstrates that Father raised his constitutional complaint in the trial court. Consequently, this issue is not
7
preserved for our review. In re L.M.I., 119 S.W. 3d 707, 710–11 (Tex. 2003) (constitutional claim relating to termination of parental rights was waived when not raised in trial court); In re T.R., No. 01-25-00924-CV, 2026 Tex. App. LEXIS 3275, at *71–72 (Tex. App.—Houston [1st Dist.] Apr. 9, 2026, no pet. h.) (parent must complain to trial court to preserve argument that termination must satisfy strict scrutiny); In re Z.D., Nos. 05-25-00138-CV, 05-25-00139-CV, 2025 Tex. App. LEXIS 5731, at *24 (Tex. App.— Dallas Aug. 4, 2025, pet. denied) (mem. op.) (same). Further, even if the issue had been preserved, we would decline to apply strict-scrutiny review to the trial court’s termination order because existing protections sufficiently safeguard Father’s constitutional rights. In re R.G., No. 02-25-00703-CV, 2026 Tex. App. LEXIS 4799, at *16 (Tex. App.—Fort Worth May 21, 2026, pet. denied) (mem. op.).
After acknowledging his failure to preserve this complaint, Father asserts that the doctrine of fundamental error allows review of his constitutional challenge. We construe Father’s argument to contend that he need not object or complain to preserve this issue on appeal because the doctrine of fundamental error applies. 3 However, the Texas Supreme Court has specifically declined to extend the criminal fundamental error doctrine to parental rights termination cases. In re B.L.D., 113 S.W.3d 340, 350–51 (Tex. 2003). The court reasoned that “because termination cases do not apply criminal procedural or evidentiary rules (that are only applicable to criminal cases), they do not necessarily incorporate the concomitant criminal fundamental-error doctrine.” Id. at 351. Fundamental errors may only be raised on appeal when not first raised in the trial court
3 In his brief, Father states that he “recognizes that the above due process argument is not the law
of the land” but he presents it in case the Texas Supreme Court were to alter that fact while this case is pending. The Texas Supreme Court has not done so.
8
“in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993). “The simple fact that a constitutional right is involved is not sufficient to render an issue one of fundamental error.” In re M.T., 290 S.W.3d 908, 910 (Tex. App.— Tyler 2009, no pet.) (op. on reh’g). We overrule Father’s third issue.
CONVICTION AND IMPRISONMENT AND INABILITY TO CARE FOR CHILDREN
Father’s second issue challenges the sufficiency of the evidence to support the trial court's finding under subsection (P), which permits termination if the court finds, by clear and convincing evidence, that the parent has been convicted of an offense and imprisoned and unable to care for his child for not less than two years. § 161.001(b)(1)(P); In re A.V., 113 S.W.3d at 360. The Department must prove both that the parent will be incarcerated or confined and unable to care for the child for at least two years. In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (per curiam); see In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.) (“Proof that [the incarcerated parent] is unable to care for [the child] is an additional requirement not met by showing incarceration alone.”).
In In re Caballero, we held that a three-step process is employed to assess a parent’s ability to care for a child while the parent is incarcerated. In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). First, the party seeking termination must establish that the parent’s knowing criminal conduct resulted in incarceration for more than two years. Id. Second, the parent must produce some evidence as to how he would provide or arrange to provide care for the child during that
9
period. Id. Finally, the party seeking termination would then have the burden of persuasion that the arrangement would not satisfy the parent’s duty to the child. Id.
Here, Father does not dispute that he engaged in criminal conduct resulting in his incarceration for at least two years from the date of the filing of the petition. He contends, however, that at the time of his incarceration, he satisfied his duty of arranging care by leaving the children with Mother, who already had physical possession of them and was working family-based safety services with the Department. Because the Department had allowed the children to remain with Mother while she addressed her substance abuse issues, Father argues leaving the children in her care was an appropriate arrangement. We disagree.
The record shows that at the time the Department filed its termination suit, Father was incarcerated, and Mother had relapsed after leaving a drug rehabilitation facility. Mother’s rights were terminated in this proceeding after the trial court concluded that she endangered and abandoned the children. See § 161.001(b)(1)(D), (E), (N). “Absent evidence that the non-incarcerated parent agreed to care for the child on behalf of the incarcerated parent, merely leaving a child with a non-incarcerated parent does not constitute the ability to provide care.” In re H.R.M., 209 S.W.3d at 110. “Cases discussing the incarcerated parent’s provision of support through other people contemplate that the support will come from the incarcerated parent’s family or someone who has agreed to assume the incarcerated parent’s obligation to care for the child.” Id.; see, e.g., In re E.S.S., 131 S.W.3d at 640. Father needed to produce some evidence of his ability to arrange for care for the children other than Mother’s care. Such evidence appears
10
nowhere in this record. No one testified that they were willing to care for the children on Father’s behalf during his incarceration. See In re Caballero, 53 S.W.3d at 396. 4
Under the applicable legal and factual sufficiency standards, we conclude that the evidence is sufficient to support the trial court’s finding under subsection (P) and overrule Father’s second issue. Only one predicate ground is required to support termination when there is also a finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d at 362. Consequently, we need not address Father’s challenge in his second issue regarding subsection (N). See TEX. R. APP. P. 47.1. As Father does not challenge the sufficiency of the evidence supporting the best-interest finding, we affirm the trial court’s order terminating Father’s parental rights to the children.
CONCLUSION
Having overruled Father’s appellate issues, we affirm the judgment of the trial court terminating Father’s rights.
Judy C. Parker
Chief Justice
4 A Department caseworker testified that, at the time the children were removed, she contacted
Father at the county jail for placement options. Father provided his sister’s name and phone number for possible placement of the children. The caseworker testified that the Department attempted more than once to contact the aunt and she never returned any phone call or text message.