in the Interest of H.R.M. ( 2006 )

Reversed and Remanded and Majority and Dissenting Opinions filed February 14, 2006

Reversed and Remanded and Majority and Dissenting Opinions filed February 14, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00281-CV

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IN THE INTEREST OF H.R.M.

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 29559

D I S S E N T I N G   O P I N I O N

I respectfully disagree with the majority=s conclusion that the evidence is factually insufficient to support a finding that Keith will be imprisoned for at least two years from the date the petition was filed.  Typically, evidence showing the date of conviction and a sentence length over two years from the petition date is sufficient to meet the petitioner=s burden of proof.  See In re J.C., 151 S.W.3d 284, 289 (Tex. App.CTexarkana 2004, no pet.) (finding evidence of conviction date and sentence length sufficient to prove incarceration for two years from petition date); In re E.S.S., 131 S.W.3d 632, 639B40 (Tex. App.CFort Worth 2004, no pet.) (concluding that father=s trial statement that he was currently serving a prison term to exceed two years sufficient to prove incarceration for two years); see also In re A.V., 113 S.W.3d 355, 360 (Tex. 2003) (A[I]f the parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the State may use subsection Q to ensure that the child will not be neglected.@).

I disagree with the cases cited by the majority that require a petitioner also to prove when the incarcerated parent will be released, particularly when parole is at issue.  The grant or denial of parole lies within the parole board=s discretion and is thus inherently uncertain.  A parent=s hope of early release is merely speculative.  See In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.CSan Antonio 2004, no pet.) (A[Appellant]=s hope that he might be granted early release is pure speculation.@); In re B.M.R., 84 S.W.3d 814, 817B18 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (holding that father=s comments to family members that he could be coming home early did not render evidence insufficient to prove incarceration for two years).  This case aptly demonstrates this point.  Keith has been denied parole twice before but nonetheless believed this time that he would be released based on his past experience with the parole board in other cases, his lack of any Awrongdoings@ in prison, and his scheduled completion of a pre-release course.  Though he may have had high hopes, Keith admitted there was no assurance he would be granted parole.  I conclude that Keith=s optimism does not render insufficient appellees= evidence regarding the length of his incarceration.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Majority and Dissenting Opinions filed February 14, 2006.

Panel consists of Justices Yates, Hudson, and Seymore (Seymore, J. majority).