by Matthew T. Clarke
A Texas court of appeals held that when terminating a prisoner's parental rights the two-year period of incarceration used to justify the termination begins after the petition to terminate parental rights has been filed.
Eric Maiwald, a Texas state prisoner, was served with a petition initiated by his former girlfriend, Stacey Moon. Moon sought termination on four grounds based on Texas Family Code 161.001(C), (F), (H) and (Q): (1) knowingly engaging in criminal conduct resulting in incarceration and inability to care for the child for "not less than two years from the date of filing the petition," Subsection Q; (2) failure to support the child within the parent's ability for one year ending within six months of the date the petition is filed, Subsection F; (3) leaving the child in the possession of another without providing adequate support of the child and remaining away for at least six months, Subsection C; and (4) voluntarily and with knowledge of the pregnancy abandoning the mother beginning at the time of her pregnancy, Subsection H. The trial court terminated Maiwald's parental rights, finding against him on all four termination grounds. Maiwald appealed.
The court of appeals held that the two-year period used to justify termination had to occur after the petition was filed. In this case, the termination occurred less than two years after the petition was filed and there was no proof that Maiwald would still be incarcerated two years after its filing. Therefore, the evidence was insufficient to support termination under Subsection Q.
At trial, Maiwald proved he could not support the child during his incarceration because Texas prisoners are not paid for their labor and he had insufficient independent funds to support the child. Termination under Subsection F requires that the period of nonsupport be one year ending within six months prior to the filing of the petition, and Maiwald proved he was incarcerated during the entire period. Subsection F also requires proof that the parent had the ability to support the child.
Maiwald proved that his incarceration robbed him of any such ability. Thus, his parental rights could not be terminated under Subsection F.
To support termination under Subsection C, Moon had to prove Maiwald voluntarily left the child alone or in the possession of another without providing adequate support for the child and remained away for at least six consecutive months. The court of appeals held that, although an "on-again, off-again" years-long relationship was proven in the trial court, it was not proven that Maiwald ever abandoned the child for six consecutive months. It further held that proof of Maiwald's attempts to contact the child while in prison, which were thwarted by Moon, rendered his incarceration insufficient to satisfy the voluntarily-remaining-away requirement. Therefore, termination was not justified under Subsection C.
The court of appeals held that termination was not supported under Subsection H, since Moon testified that she terminated her relationship with Maiwald during her pregnancy and even had her home number changed to keep him from contacting her because "he wouldn't leave us alone." There was also evidence that Maiwald was at the hospital for the birth and that he and Moon reconciled afterwards. Thus, the record did not contain factually sufficient evidence to support termination. Consequently the order terminating Maiwald's parental rights was reversed and the case was returned to the trial court for further proceedings. See: In the Interest of T.B.D., Tex.App.-Amarillo, Case No. 07-06-0008-CV (2006), 2006 WL 2433468 (unpublished).
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Related legal case
In the Interest of T.B.D.
|Cite||Tex.App.-Amarillo, Case No. 07-06-0008-CV (2006)|
|Level||State Court of Appeals|