Full Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-26-00072-CV IN THE INTEREST OF J.M.H., A CHILD On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 25-0908 Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION Mother and Stepfather filed a petition to terminate Father’s parental rights to his child, John, and to permit Stepfather to adopt him.1 The trial court terminated Father’s parental rights after finding that (1) he “knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement or imprisonment and inability to care for [John] for not less than two years from the date the petition was filed,” and (2) termination of Father’s parental rights was in John’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(P), (b)(2) (Supp.). On appeal, Father argues that the evidence was insufficient to support the trial court’s findings. Because we conclude that legally and factually sufficient evidence supported the trial court’s ground P and best-interest findings, we affirm the trial court’s judgment. I. Standard of Review “Proceedings to terminate the parent-child relationship implicate rights of constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d 624, 626 (Tex. 2018). The United States Supreme Court has emphasized that “the interest of [a] parent[] in the care, custody, and control of their child[] . . . is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.). As a result, “[w]e strictly construe involuntary termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). For this reason, “[i]nvoluntary severance of parental rights thus requires ‘clear and convincing evidence’ that termination is warranted and in the child’s best interest[s].” In re 1 We use pseudonyms to protect the identity of the child. See TEX. R. APP. P. 9.8. 2 A.C., 560 S.W.3d at 626 (quoting TEX. FAM. CODE ANN. § 161.001; Santosky v. Kramer, 455 U.S. 745, 748 (1982)). “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.” TEX. FAM. CODE ANN. § 101.007 (Supp.); In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting TEX. FAM. CODE ANN. § 101.007). Therefore, this Court is “required to engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights.” In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). “Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, ‘“the rights of natural parents are not absolute; protection of the child is paramount.”’” In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))). “A child’s emotional and physical interests must not be sacrificed merely to preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.— Texarkana 2015, no pet.)). “[T]he appellate standard for reviewing termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of [Appellees’] allegations.” In re A.C., No. 06-25-00084-CV, 2026 WL 878798, at *2 (Tex. App.—Texarkana Mar. 31, 2026, pets. denied) (mem. op.) (first alteration in original) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “Both legal and factual sufficiency review deal with 3 whether ‘a reasonable factfinder could form a firm belief or conviction,’ but there is a difference between legal and factual sufficiency.” Id. (quoting In re A.C., 560 S.W.3d at 631). For legal sufficiency, “we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that” termination of the parent-child relationship was in the best interests of the child. In re L.E.S., 471 S.W.3d at 920 (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re J.P.B., 180 S.W.3d at 573). By comparison, when reviewing “factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine ‘“whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations.”’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d. at 25)). “If, in light of 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.” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 4 2002)). To make this determination, we “undertake ‘“an exacting review of the entire record with a healthy regard for the constitutional interests at stake.”’” Id. (quoting In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26)). II. The Evidence at Trial Mother and Stepfather filed an original petition for termination and adoption on October 16, 2025. At the time of the trial, John was seven years old and lived with Mother and Stepfather, whom Mother married on October 29, 2024. Mother had filed for divorce from Father on April 17, 2023, following Father’s arrest earlier that month for possession of child pornography. Father was released on bond approximately one month later. The agreed final decree of divorce, entered on November 22, 2023, provided for supervised visitation during the pendency of Father’s criminal case. It further provided that Mother had no obligation to allow prison visits in the event of Father’s incarceration. On August 26, 2024, Father was re-arrested. Father pled guilty on January 17, 2025, to ten felony counts of possession of child pornography and received three consecutive ten-year sentences, with 174 days of jail credit. Texas Department of Criminal Justice (TDCJ) records admitted at trial reflect a maximum sentence date of January 17, 2045, a projected release date of February 17, 2033, and a parole-eligibility date of February 18, 2030. With respect to contact and support, Father exercised thirteen supervised visits between December 2023, and his re-arrest and incarceration in August 2024, out of approximately eighteen available. Moreover, he used only about forty-one percent of available visitation hours. After August 10, 2024, Father had no in-person or electronic visitation with John. Mother 5 testified that, during Father’s incarceration, she received four letters from Father—dated November 25, 2024; July 29, 2025; September 9, 2025; and October 17, 2025—but provided none of them to John based on age-appropriateness concerns. Father conceded he ceased writing letters to John after service of the petition, citing difficulty adapting to prison and a concern that his words would be used against him, while acknowledging he could have written more frequently than he did. The evidence was undisputed that Father provided no financial support, food, clothing, or medical care for John during Father’s incarceration, and that Mother and Stepfather have provided daily care and stability for John. Mother testified that Stepfather has a father-son relationship with John, is actively involved in John’s school, activities and medical needs, and that John calls Stepfather “Dad” by his own choice. Stepfather intends to adopt John upon termination, and Mother testified to the permanence and stability adoption would provide. As for time of release, Father testified that his parole eligibility was sooner than reflected in the admitted TDCJ record because of good-time/work-time credits and anticipated nunc pro tunc corrections. III. Sufficient Evidence Supports the Ground P Finding In his first point of error, Father argues that the trial court erred in its ground P finding. A. Termination of Parental Rights Under Statutory Ground P In order to terminate parental rights under statutory ground P, Mother and Stepfather must show, “based on clear and convincing evidence[,] that [Father] ‘knowingly engaged in criminal conduct,’ was convicted of an offense, and will be confined or imprisoned and ‘unable 6 to care for the child for not less than two years.’” In re C.L.E.E.G., 639 S.W.3d 696, 697–98 (Tex. 2022) (per curiam) (quoting TEX. FAM. CODE ANN. § 161.001(b)(1)(Q)).2 The Texas Supreme Court has “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 [P’s] two-year imprisonment requirement’ because ‘evidence of the availability of parole is relevant.’” Id. at 699 (quoting In re H.R.M., 209 S.W.3d at 108–09). Nevertheless, “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. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 109). Further, because of the speculative nature of parole decisions, “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. (quoting In re H.R.M., 209 S.W.3d at 109). B. Analysis Father first contends that Mother and Stepfather “failed to present adequate evidence that his incarceration was for not less than two years from the date of filing of the petition.” Specifically, Father argues that “[b]ecause parole eligibility does enter into the court’s consideration, the sentence imposed at final judgment is not the simple answer to the question.” As the Texas Supreme Court has noted, “[E]vidence of the availability of parole is relevant to 2 The predicate ground now covered by subsection 161.001(b)(1)(P) was previously covered by subsection 161.001(b)(1)(Q). See Act of May 14, 2025, 2025, 89th Leg., R.S., ch. 211, § 2, 2025 Tex. Gen. Laws 573, 575 (current version at TEX. FAM. CODE § 161.001(b)(1)(P) (effective Sept. 1, 2025)). 7 determine whether the parent will be released within two years.” In re H.R.M., 209 S.W.3d at 109. However, “[m]ere introduction of parole-related evidence . . . does not prevent a factfinder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years.” Id. The evidence shows that Father pleaded guilty to ten felony counts of possession of child pornography and received three consecutive ten-year sentences. TDCJ records admitted at trial show a first parole-eligibility date of February 18, 2030, a maximum-release date of January 17, 2045, and a projected-release date of February 17, 2033, all exceeding two years from the October 2025 filing date. Furthermore, Father admitted that the posted parole-eligibility date was February 18, 2030. Father’s only contrary evidence was his testimony that the TDCJ miscalculated credits and that he believed he should be eligible sooner.3 However, [p]arole decisions are inherently speculative, . . . and while all inmates doubtless hope for early release and can take positive steps to improve their odds, the decision rests entirely within the parole board’s discretion. . . . If the mere possibility of parole prevents a jury from ever forming a firm belief or conviction that a parent will remain incarcerated for at least two years, then termination under [ground P] will occur only when the parent has no possibility of parole. By that rationale, the party seeking termination would have to show that there is zero chance of early release. This would impermissibly elevate the burden of proof from clear and convincing to beyond a reasonable doubt. Id. (citations omitted). In this case, although the trial court could take into account that it was possible that Father could be released within a two-year period, it was also free to disregard that 3 Father attaches to his brief a document purporting to be a snapshot of the TDCJ website showing that he is now eligible for parole. However, this document is not included in the record before this Court and does not include a file mark. “[W]ith limited exceptions not material here, an appellate court may not consider matters outside the appellate record.” Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 394 (Tex. App.—Texarkana 2002, no pet.) (citing Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex. 1979) (per curiam) (orig. proceeding)). 8 evidence as “barely more than conjecture.” See id. Therefore, the trial court could have reasonably formed a firm conviction or belief that Father would be incarcerated for at least two years. Father next challenges the legal and factual sufficiency of the evidence supporting the finding that he would be unable to care for John during the relevant period of incarceration. Father contends that the agreed final decree, which placed the responsibility of John’s day-to-day care with Mother, constituted an arrangement for John’s care. Father then relied on evidence that John was well cared for during Father’s incarceration as demonstrating the adequacy of this purported arrangement. However, Father’s argument conflates whether John had in fact received adequate care with whether Father provided or arranged for that care. See id. at 110. The agreed final decree established the conservatorship rights and duties of Mother, not an agreement by Mother to assume Father’s parental obligations on his behalf. Indeed, Father identified no substitute caregiver or financial arrangement by which another individual undertook Father’s parental responsibilities during his incarceration. Father also admitted that he could not directly provide food, shelter, transportation, medical care, school attendance, or daily care for John while in prison. Accordingly, we find that the evidence was legally and factually sufficient to support the trial court’s ground P finding and overrule Father’s first point of error. 9 IV. Sufficient Evidence Supports the Best-Interest Finding In his second point of error, Father argues that the trial court erred in its best-interest finding. In determining the best interests of a child, courts consider the following Holley4 factors: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) their plans for the child; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. In re A.A., 670 S.W.3d 520, 534 n.57 (Tex. 2023) (citing Holley, 544 S.W.2d at 372); see In re E.N.C., 384 S.W.3d at 807. However, “the Holley factors are not a checklist.” In re C.C., 720 S.W.3d 41, 59 (Tex. App.—Texarkana 2025, no pet.) (quoting In re C.H., 89 S.W.3d at 27). “Consequently, the fact-finder may choose to give greater weight to one factor over others.” Id. (citing In re C.H., 89 S.W.3d at 27). Further, in the best-interest analysis, we may consider evidence used to support the grounds for termination of parental rights. In re C.H., 89 S.W.3d at 28. The record does not expressly address John’s desires. However, it does show that he was thriving in Mother and Stepfather’s home, that he was bonded to Stepfather, and that Stepfather wished to adopt John. Moreover, Mother testified that, of his own choice, John called Stepfather “Dad.” At the same time, both Mother and Father testified that Father was a present and active parent in John’s life before their divorce, and Father further testified to the close relationship he 4 Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). 10 had with John. As a result, we find the first Holley factor neutral. See In re K.O., 488 S.W.3d 829, 840–41 (Tex. App.—Texarkana 2016, pet. denied). As for the next three factors, we consider “that a parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment.” In re M.C., 482 S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied). Father admitted that, during his incarceration, he could not provide food, clothing, shelter, transportation, or daily caregiving, and that he had not done so. Mother also expressed concern about the impact on John, both socially and emotionally, from Father’s offense and lifetime sex-offender registration, including foreseeable limitations on Father’s presence at school and youth activities. See In re J.L.C., No. 09-14- 00466-CV, 2015 WL 575420, at *3–4 (Tex. App.—Beaumont Feb. 12, 2015, no pet.) (mem. op.) (considering father’s child-pornography offenses in the best-interest analysis). Accordingly, we find that there was sufficient evidence for the trial court to have determined that the second, third, and fourth Holley factors weighed in favor of terminating Father’s parental rights. As for the fifth factor, Father testified that he took advantage of the programs available to assist him. Specifically, Father participated in programs intended to rehabilitate and encourage his integration back into society. As a result, we find that the fifth Holley factor did not weigh in favor of terminating Father’s parental rights. The sixth and seventh factors consider the plans for the child and stability of the home. Father did not present any evidence of his plans for John beyond his desire “to be an amazing dad” upon release. Moreover, Father was unable to answer what effect his status as a sex offender would have on John, reiterating only that it would all depend on how John was 11 parented. See In re L.C., No. 02-24-00510-CV, 2025 WL 1774759, at *4 (Tex. App.— Fort Worth June 26, 2025, pet. denied) (mem. op.) (noting that Father’s status as a sex offender “would complicate any plans for him to raise” his child). Alternatively, Mother and Stepfather intended permanence through adoption, and Mother testified adoption would provide the legal clarity and stability that John needed. We find that there was sufficient evidence for the trial court to determine that the sixth and seventh factors weighed in favor of terminating Father’s parental rights. As for the last two factors, Father’s written communications were minimal—four letters in roughly twenty months—and then ceased upon service of the petition. Moreover, prior to his incarceration, Father only used approximately forty-one percent of the visits allotted to him by the agreed final decree. Accordingly, we find that there was sufficient evidence for the trial court to determine that the remaining Holley factors weighed in favor of terminating Father’s parental rights. After viewing all of the evidence in the light most favorable to the best-interest finding, we conclude that it was sufficiently clear and convincing such that a reasonable fact-finder could have formed a firm belief or conviction that termination of the parent-child relationship between Father and John was in John’s best interests. As a result, we overrule Father’s second point of error. 12 V. Conclusion We affirm the trial court’s judgment. Charles van Cleef Justice Date Submitted: July 27, 2026 Date Decided: August 13, 2026 13