Section 161.001(b)(1)(Q) Incarceration Ground | In re S.C. (2026)

In the Interest of S.C., Jr., J.A.V., and K.A.V., Children, 07-26-00158-CV, August 20, 2026.

On appeal from 251st District Court, Randall County, Texas

Synopsis

The Amarillo Court of Appeals reaffirmed that termination under Texas Family Code section 161.001(b)(1)(Q) is supported when the parent’s criminal conduct leads to conviction and imprisonment, and the record shows the parent cannot care for the children for at least two years from the petition’s filing date. Speculative parole prospects, waiting-list program participation, and generalized prison services do not defeat subsection (Q) when the evidence still establishes continued incarceration and no workable care plan for the children during the statutory period.

Relevance to Family Law

Although this is a termination case, its practical significance extends well beyond CPS litigation. For Texas family lawyers handling SAPCRs, conservatorship disputes, modifications, and divorce cases involving incarcerated parents, In re S.C. sharpens how courts evaluate incarceration-related inability to exercise parental responsibilities: not by abstract possibilities, but by concrete timelines, actual release prospects, and evidence of a realistic caregiving arrangement for the child. The case is especially useful where one party tries to leverage possible parole, prison-program participation, or family-member hypotheticals to resist restrictions on conservatorship, possession, or termination-related relief.

Case Summary

Fact Summary

The Department became involved after allegations of Mother’s substance abuse in May 2024. Mother left inpatient treatment, relapsed, and the Department filed its termination petition on July 9, 2024. At the time of removal, Father was jailed and unavailable as a placement option.

The Department’s evidence showed that, on August 6, 2024, Father pleaded guilty to multiple offenses, including domestic-violence assault involving pressure to the throat or neck or blocking the victim’s nose or mouth, assault against a pregnant victim, and evading arrest with a vehicle. Those charges were enhanced by a prior felony firearm conviction. He received concurrent twelve-year and fifteen-year TDCJ sentences.

Because Father was incarcerated, he could not complete most services. He was on a waiting list for batterer’s intervention classes. The caseworker testified Father had not maintained regular visitation or significant contact with the children, his parole had been denied, he was having difficulty adjusting favorably to prison, and it would be at least another two years before he would again be eligible for parole.

As to alternative care, Father gave the caseworker his sister’s contact information as a possible placement. The caseworker left a voicemail and sent a text message, but the sister did not respond. Meanwhile, the children were placed with a foster family, were thriving there, and the foster parents were willing to adopt.

Issues Decided

• Whether legally and factually sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(Q), based on Father’s conviction, imprisonment, and inability to care for the children for at least two years from the petition’s filing date.
• Whether potential parole, prison-program participation, or the existence of limited prison services prevented a finding under subsection (Q).
• Whether Father preserved a constitutional due-process challenge based on a strict-scrutiny theory under the Texas Constitution.
• Whether the court could review the unpreserved constitutional issue under a fundamental-error theory.

Rules Applied

The court relied on the standard two-part termination framework under Texas Family Code section 161.001(b): the Department must prove by clear and convincing evidence both a predicate ground and best interest. The opinion reiterated the familiar legal- and factual-sufficiency standards from In re J.O.A., In re C.H., and In re J.F.C.

As to the incarceration ground, the controlling statute is Texas Family Code section 161.001(b)(1)(Q), which authorizes termination when the parent knowingly engaged in criminal conduct that resulted in conviction and confinement or imprisonment and the parent is unable to care for the child for not less than two years from the date the termination petition was filed. The court’s framing is consistent with In re A.V., 113 S.W.3d 355 (Tex. 2003), and the established principle that one supported predicate ground is enough if best interest is also proved.

On the constitutional issue, the court applied preservation principles under Texas Rule of Appellate Procedure 33.1(a), along with In re L.M.I., 119 S.W.3d 707 (Tex. 2003), holding that constitutional complaints in termination cases must be raised in the trial court. The court also cited post-amendment authorities rejecting the notion that article I, section 37 creates an unpreserved strict-scrutiny complaint reviewable for the first time on appeal. And it relied on In re B.L.D., 113 S.W.3d 340 (Tex. 2003), in refusing to extend criminal-law fundamental-error doctrine to parental-rights termination appeals.

Application

The court treated subsection (Q) as a practical, date-driven inquiry. The critical benchmark was the petition’s filing date—July 9, 2024—and whether the record supported a firm belief or conviction that Father would be unable to care for the children for at least two years from that date. On that record, the answer was straightforward. Father had just received lengthy penitentiary sentences for multiple offenses, his parole had already been denied, and the Department presented testimony that it would be at least another two years before he would even again become eligible for parole. That made release within the statutory period not impossible in the abstract, but insufficiently concrete to displace the Department’s proof.

Just as important, the court looked beyond physical incarceration to the second component of subsection (Q): inability to care for the children. Father’s incarceration alone was not the whole story. The record showed he had not maintained regular contact, could not meaningfully engage in most services, and had no viable substitute caregiver arrangement in place. His suggested relative placement never materialized because the proposed caregiver did not respond to the Department’s outreach. That evidentiary gap mattered. A parent resisting subsection (Q) needs more than a theoretical family option; he needs proof of an actual, workable care plan during the statutory period.

The court was likewise unmoved by arguments tied to prison programming or generalized rehabilitative opportunities. Being on a waiting list for batterer’s intervention did not alter Father’s present inability to care for the children, and prison services did not transform continued incarceration into an available parenting arrangement. In short, the court focused on record evidence, not contingencies.

On the constitutional claim, the court took the orthodox route. Because Father did not raise the strict-scrutiny argument in the trial court, error was not preserved. His attempt to repackage the complaint as fundamental error failed because Texas termination cases do not import the criminal-law fundamental-error doctrine.

Holding

The court held that the evidence was sufficient to support termination under Texas Family Code section 161.001(b)(1)(Q). Father’s criminal conduct resulted in conviction and imprisonment, and the Department presented clear and convincing evidence that he could not care for the children for at least two years from the July 9, 2024 petition date. The court’s reasoning underscores that speculative parole possibilities do not negate subsection (Q), particularly where parole has already been denied and the evidence shows continuing incarceration throughout the relevant window.

The court also held that the absence of a viable care arrangement during the statutory period supported subsection (Q). Father’s identification of his sister as a possible placement did not amount to evidence of an actual caregiving plan because she never responded to the Department’s contact efforts. Limited prison services and waiting-list status for programming likewise did not overcome the proof of continued inability to care for the children.

Finally, the court held that Father’s constitutional challenge was not preserved for appellate review because it was not raised below. It further rejected the argument that fundamental-error doctrine excused preservation in a parental-rights termination appeal.

Practical Application

For Department counsel and child advocates, In re S.C. is a reminder to build subsection (Q) proof around the petition date and to present precise incarceration evidence: conviction date, sentence length, current confinement status, parole denial history, next parole-review date, and the absence of a realistic release within two years. Just as important, do not stop at imprisonment. Develop evidence negating any viable care plan during that same two-year period. Relative names in the abstract are not enough; the record should show what outreach occurred, whether the proposed caregiver responded, and whether that person was actually available and suitable.

For parents’ counsel, the case shows where subsection (Q) defenses most often fail. A hope of parole, an enrollment request, or a claim that prison programming exists will rarely carry the day without hard evidence. If the defense theory is that the parent can arrange care despite incarceration, counsel must present a concrete alternative: a willing caregiver, demonstrated contact with the child, evidence of the caregiver’s suitability, and a developed plan for day-to-day care. If the argument is that release may occur within the statutory window, counsel needs competent evidence of a realistic release date, not a merely theoretical parole possibility.

For private family-law litigators outside CPS practice, the opinion has value in conservatorship and modification cases involving incarcerated parents. Courts are likely to assess incarceration-related parenting claims through the same evidentiary lens: actual release prospects, actual ability to perform parental functions, and actual third-party support arrangements. In custody litigation, that can affect managing conservatorship, possession restrictions, step-up schedules, and whether a parent’s requested orders are grounded in present reality rather than future contingencies.

Checklists

Proving a Subsection (Q) Case

• Identify the petition filing date and calculate the full two-year statutory window from that date.
• Offer certified judgments, penitentiary packets, or other competent evidence of conviction and sentence.
• Establish current incarceration status at trial.
• Present testimony or records regarding parole denial, next parole-review date, and realistic release expectations.
• Show that any proposed release scenario is speculative rather than probable.
• Develop evidence that the parent cannot personally care for the child during the statutory period.
• Develop evidence that no substitute caregiver arrangement is actually in place.

Defending Against a Subsection (Q) Case

• Tie the defense to the petition date, not to generalized future optimism.
• Present admissible evidence of a concrete and realistic release date, if one exists.
• If relying on parole, offer evidence showing more than mere eligibility.
• Present a specific caregiving plan for the child during incarceration.
• Call the proposed caregiver as a witness or provide affidavits and supporting documentation.
• Show the caregiver’s willingness, suitability, relationship to the child, and practical ability to assume care.
• Document the parent’s efforts to maintain contact, support, and decision-making involvement.

Building the Record on Alternative Care

• Provide the Department or opposing party with full contact information for proposed caregivers early.
• Confirm that the caregiver responds to outreach.
• Gather home-study, background, and suitability information where available.
• Show the caregiver understands the expected duration and scope of care.
• Present evidence of financial, logistical, and emotional capacity to care for the child.
• Avoid relying on an undeveloped “my family can help” theory.

Preserving Constitutional Complaints

• Raise constitutional objections in the trial court with specificity.
• Obtain a ruling or make sure the refusal to rule is preserved.
• Identify whether the complaint is facial, as-applied, procedural, or evidentiary.
• Do not assume parental-rights cases import criminal preservation exceptions.
• Brief constitutional theories in written motions when possible.
• Re-urge the issue at trial if the context changes.

Using In re S.C. in Private Family-Law Cases

• Use the opinion to argue that speculative future availability should carry little weight in conservatorship disputes.
• Frame parenting-capacity arguments around concrete timelines and actual caregiving ability.
• Challenge unsupported claims that relatives can simply “step in” absent proof.
• Use incarceration evidence strategically in modification proceedings involving material and substantial change.
• Pair incarceration evidence with best-interest factors rather than treating confinement as self-proving.

Citation

In the Interest of S.C., Jr., J.A.V., and K.A.V., Children, No. 07-26-00158-CV, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo Aug. 20, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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