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Parental Termination due to Incarceration

Watching last season of Netflix’s series Orange is the New Black, I was relieved when inmate Maria Ruiz’s transfer was canceled, meaning her young daughter would still be able to visit her with the baby’s father. But in the first episode of the latest season, the show tugged on my heartstrings when the baby’s father decided that he didn’t want their daughter to visit the mother in prison anymore, stating “I don’t want her to see her mother in prison thinking this is normal.” Ruiz was powerless to do anything as the father carried off their daughter.

            Seeing Ruiz so powerless got me thinking about the parental rights of incarcerated parents in Texas. A prison or jail sentence alone will not terminate a parent’s rights—see In re Caballero, 53 S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied)—but a lengthy sentence and a parent’s inability to care for the child are grounds for termination. Tex. Fam. Code § 161.001(1)(Q). A court must find, by clear and convincing evidence, that the parent has “knowingly engaged in criminal conduct that has resulted in the parent’s: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition.” Id.

            Termination under this statute after a sentence to two years or more is not automatic. A court must first form a firm belief or conviction that the parent will still be imprisoned two years from the date the petition to terminate the parent’s rights was filed. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). As a parent may be eligible for early release, “neither the length of the sentence nor the projected release date is dispositive of when the parent will in fact be released from prison” and will not fulfill the statute’s requirement. Id. The court may therefore look at evidence of the availability of parole and steps the parent is taking to improve his or her chances of parole. Id.

            If it is established that the parent will likely be incarcerated for two years or more, the court must then consider whether the parent can care for the child while incarcerated. The incarcerated parent must then “produce some evidence as to how [the parent] would provide or arrange to provide care for the child during that period.” In re Caballero, 53 S.W.3d at 396. This should include evidence of a family member caring for the child on the incarcerated parent’s behalf—see id.—and a showing of the incarcerated parent’s ability to provide emotional and financial support. See In re B.M.R., 84 S.W.3d 814, 818 (Tex. App.—Houston [1st Dist.] 2002, no pet.). It is not enough that the incarcerated parent merely show that the child’s other parent—who also has a legal duty to care for the child—is caring for the child. See In re H.R.M., 209 S.W.3d at 110. There, the child’s mother sought to terminate the incarcerated father’s parental rights. It could not be said then that she was caring for her child on the incarcerated father’s behalf. So too in Orange is the New Black, that the baby’s father was unwilling to continue visitation suggests that he was caring for his child because it was his own duty and not on behalf of Ruiz.

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