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Click here for the full text of this decision FACTS:William Keith M. (Keith) and Stacey W. are the biological parents of H.R.M., who was born Oct. 13, 2000. Keith and Stacey married in December 2000, then divorced in 2001. Under an agreed divorce decree, Stacey was H.R.M.’s sole managing conservator, and Keith was possessory conservator with the right to supervised visitation. Since January 2002, Keith has been incarcerated, serving concurrent sentences for robbery and enticing a child. In 2004, Stacey married James W., and on July 6, 2004, they filed a petition seeking to terminate Keith’s parental rights under subsection Q and to allow James to adopt H.R.M. A jury found that Keith’s parental rights should be terminated, and the trial court entered an order doing so, but the court reserved a ruling on James’s request to adopt H.R.M. The trial court denied Keith’s motion for a new trial. The court of appeals reversed the order terminating Keith’s parental rights, concluding that the evidence was factually insufficient to support “a firm belief or conviction [that] Keith would still be imprisoned or confined as of July 6, 2006.” HOLDING:Reversed and remanded. Section 161.001(1)(Q) of the Texas Family Code provides that parental rights may be terminated if the parent has “knowingly engaged in criminal conduct that has resulted in the parent’s: 1. conviction of an offense; and 2. confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition.” Although the 14th Court of Appeals properly stated the standard for reviewing factual sufficiency in parental termination cases, it misapplied it, the Texas Supreme Court stated. The 14th Court concluded that the jury could not have reasonably formed a firm belief that Keith would remain imprisoned or confined on July 6, 2006, because Keith testified that he would be up for parole each year and that he was participating in a pre-release program available to inmates within two years of parole. As “the sole arbiter when assessing the credibility and demeanor of witnesses,” the jury was free to disregard Keith’s testimony, which was barely more than conjecture. Keith acknowledged that the parole board had twice denied him parole already, the court noted. By basing its decision on Keith’s testimony that he had a possibility of parole, the court found that the 14th Court did not fully account for evidence that supported the jury’s verdict, nor did it give due deference to the jury’s factfindings. Instead, the court found that the 14th Court merely substituted its judgment for that of the jury. Keith argued that the court should affirm the 14th Court’s decision on the alternate ground that the evidence was factually insufficient to support the finding that Keith would be unable to care for H.R.M. for at least two years from the date the petition was filed. Terminating parental rights under subsection Q, the court stated, requires that the parent be both incarcerated or confined and unable to care for the child for at least two years from the date the termination petition is filed. Because the court lacked jurisdiction to conduct a factual sufficiency review, it remanded the case to the 14th court for such a review. The court also stated that absent evidence that the nonincarcerated parent agreed to care for the child on behalf of the incarcerated parent, merely leaving a child with a nonincarcerated parent does not constitute the ability to provide care. The court also examined Keith’s assertion that he was deprived of effective assistance of counsel. Assuming Keith has a right to effective assistance of counsel, the court found that he did not show that his counsel was ineffective. OPINION:Per curiam.

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