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In re N.G.

Supreme Court of Texas

May 17, 2019

In the Interest of N.G., a Child

          On Petition for Review from the Court of Appeals for the Fifth District of Texas

          PER CURIAM

         Texas Family Code section 161.001(b) allows for involuntary termination of parental rights if clear and convincing evidence supports that a parent engaged in one or more of the twenty-one enumerated grounds for termination and that termination is in the best interest of the child. Tex. Fam. Code § 161.001(b)(1)(A)-(U), (b)(2). To affirm a termination judgment on appeal, a court need uphold only one termination ground-in addition to upholding a challenged best interest finding-even if the trial court based the termination on more than one ground. See id. § 161.001(b); see also Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."); In re K-A.B.M., 551 S.W.3d 275, 284 (Tex. App.-El Paso 2018, no pet.) ("Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." (citation omitted)); In re S.F., 32 S.W.3d 318, 320 (Tex. App.-San Antonio 2000, no pet.) (explaining that only one basis under the statute is necessary to terminate rights in addition to finding that termination is in the best interest of the child).

         On October 25, 2015, the Department of Family and Protective Services (the Department) received allegations of neglectful supervision and physical neglect of the child, N.G. The Department determined that the adults living in N.G.'s home had exposed the child to methamphetamine and marijuana and that N.G. was living in a "hoarder home." The Department placed N.G. in protective custody.

         N.G.'s mother had a criminal history involving methamphetamine use and possession. N.G.'s father had previously been incarcerated for a drug offense, and at the time the Department placed N.G. in protective custody, the father was imprisoned for violating probation for a robbery charge. Throughout the case, the trial court ordered the mother and father to complete educational services, drug and alcohol treatments, and counseling services. Both parents failed to submit to drug testing on multiple occasions, and both failed to comply with the other court-ordered services.

         After a trial, the trial court issued an order terminating each parent's parental rights and awarding the Department sole managing conservatorship. The trial court terminated both parents' parental rights under three grounds-section 161.001(b)(1)(D), (E), and (O) of the Texas Family Code-in addition to finding that termination was in N.G.'s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (b)(2). The parents timely appealed.

         Each parent separately challenged the legal and factual sufficiency of the evidence to support the trial court's findings for termination of their parental rights to N.G.___ S.W.3d___, ___ (Tex. App.-Dallas 2018) (mem. op.). The mother also asserted that the trial court's order failed to specify the actions necessary for her to obtain N.G.'s return under Family Code section 161.001(b)(1)(O). See id. at___ . The court of appeals affirmed the trial court's termination. Id. at___ . The court of appeals held that the evidence was both legally and factually sufficient to support the trial court's finding as to both the mother and father under section 161.001(b)(1)(O), and that termination of the mother's and father's parental rights was in N.G.'s best interest. Id. at___ . Because the court of appeals found termination sufficient under section 161.001(b)(1)(O), it declined to review the legal or factual sufficiency of the evidence under section 161.001(b)(1)(D) or (E). See id. at___ .

         Only the mother petitioned for review in this Court. The issues before us include: (1) whether a parent, whose parental rights were terminated by the trial court under multiple grounds, is entitled to appellate review of the section 161.001(D) and (E) grounds because of the consequences these grounds could have on their parental rights to other children-even if another ground alone is sufficient to uphold termination; and (2) whether the court of appeals erred in failing to address whether the trial court's order was sufficiently specific to warrant termination under section 161.001(b)(1)(O).

         Under section 161.001(b)(1)(D), parental rights may be terminated if clear and convincing evidence supports that the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for termination of parental rights if clear and convincing evidence supports that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well- being of the child." Id. § 161.001(b)(1)(E). Parental rights may be terminated under section 161.001(b)(1)(O) if clear and convincing evidence supports that the parent

failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Departmen t o f F a m i l y a n d Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.

Id. § 161.001(b)(1)(O).

         Section 161.001(b)(1)(M) further provides that parental rights may be terminated if clear and convincing evidence supports that the parent "had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state." Id. § 161.001(b)(1)(M). Therefore, when parental rights have been terminated under either section 161.001(b)(1)(D) or (E), that ground becomes a basis to terminate that parent's rights to other children. Because only one ground is required to terminate parental rights-and therefore a section 161.001(b)(1)(M) ground based on a prior termination would be sufficient to terminate parental rights to another child in another termination proceeding-the collateral consequences of terminating parental rights under section 161.001(b)(1)(D) or (E) are significant. See, e.g., id. § 161.001(b). Because termination under section 161.001(b)(D) or (E) may have implications for her parental rights to other children, the mother here argues that she is entitled to appellate review for sufficiency of the evidence of these grounds as a matter of due process and due course of law.

         The United States Constitution and Texas Constitution provide parents due process rights as to the care, custody, and control of their children. Compare U.S. Const. Amend. XIV, § 1, with Tex. Const. art. I, § 19. The United States Constitution mandates that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. In Texas, "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Tex. Const. art. I, § 19. This Court has stated that there is no "meaningful distinction" between due process of the law under the United States Constitution and due course of law under the Texas Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Texas courts have, therefore, traditionally followed federal due process precedent. See, e.g., Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560-61 (Tex. 1985) (utilizing federal precedent in a procedural due process claim).

         Courts have long recognized that due process "guarantees more than fair process" and "provides heightened protection against government interference with certain fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65 (2000) (citations omitted). One of the most fundamental liberty interests recognized is the interest of parents in the care, custody, and control of their children. See id. at 65-66 ("[T]he custody, care and nurture of the child reside first in the parents, whose primary ...


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