Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2015-04802J
consists of Justices Boyce, Jamison, and Donovan.
Hill Jamison Justice.
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. 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.
Factual and Procedural Background
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.
August 14, 2015, following an investigation, the Department
filed its original petition seeking termination of the
parents' rights to Tracy.
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.
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.
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
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.
Burden of Proof and Standard of Review
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.").
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 ...