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In re T.A.D.

Court of Appeals of Texas, Fourteenth District

March 7, 2017

IN THE INTEREST OF T.A.D., A CHILD

         On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2015-04802J

          Panel consists of Justices Boyce, Jamison, and Donovan.

          MEMORANDUM OPINION

          Martha Hill Jamison Justice.

         Appellant Father appeals the trial court's final decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of his child Tracy.[1] On appeal, Father brings three issues asserting (1) the trial court erred in granting a partial summary judgment on the predicate termination ground; (2) the trial court erred in granting a partial summary judgment on the child's best interest; and (3) the trial court erred by refusing Father access to all court proceedings. Because we conclude the trial court erred in granting a partial summary judgment on the predicate termination ground, we reverse the portion of the trial court's judgment terminating Father's parental rights and remand for trial. We affirm in all other respects.[2]

         I. Factual and Procedural Background

         In July 2015, the Department received a referral for neglectful supervision of Tracy by Mother. Mother left Tracy with her paternal grandmother for three days and had failed to return. According to the referral, Mother was having transportation problems and no one knew when she would retrieve Tracy. Grandmother could not continue caring for Tracy. The referral further alleged that Mother was using codeine and Xanax daily. At the time of the referral, Father was incarcerated.

         On August 14, 2015, following an investigation, the Department filed its original petition seeking termination of the parents' rights to Tracy.

         On July 1, 2016, the Department moved for a partial summary judgment as to termination of Father's parental rights pursuant to sections 161.001(b)(1)(Q) and 161.001(b)(2) of the Texas Family Code. Subsection Q provides that a court may terminate the parent-child relationship upon a finding by clear and convincing evidence that the parent has knowingly engaged in criminal conduct that has resulted in the parent's conviction of an offense, and the parent is both incarcerated and unable to care for the child for at least two years from the date the termination petition was filed. Tex. Fam. Code Ann. § 161.001(b)(1)(Q). Father filed a response to the Department's motion, in which he challenged the admissibility of much of the Department's evidence and submitted his own summary judgment evidence.

         On July 27, 2016, the trial court heard the motion for summary judgment as to Father only. After reviewing the evidence and considering argument of counsel, the court granted the Department's motion for partial summary judgment, finding grounds for termination of Father's parental rights pursuant to subsection Q and finding that termination of Father's parental rights would be in Tracy's best interests. On July 28, 2016, the trial court signed an interlocutory decree for termination as to Father.

         On August 9, 2016, a court trial as to Mother's parental rights was held, during which Mother's irrevocable affidavit of voluntary relinquishment was admitted without objection.

         On September 1, 2016, the trial court signed a final decree for termination and appointed the Department as Tracy's sole managing conservator. Father timely appealed.

         II. Burden of Proof and Standard of Review

         Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").

         Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Family Code; and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). "'Clear and convincing evidence' means 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; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Only one predicate finding under ...


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