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In re P.W.

Court of Appeals of Texas, Fourteenth District

June 4, 2019

IN THE INTEREST OF P.W., A CHILD

          On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2017-05035J

          Panel consists of Chief Justice Frost and Justices Spain and Poissant

          MAJORITY OPINION

          KEM THOMPSON FROST CHIEF JUSTICE

         In this accelerated appeal in a termination-of-parental-rights case, we consider as an issue of apparent first impression whether a parent may get review of the sufficiency of the evidence to support the trial court's findings under subsections (D) and (E) of Family Code section 161.001(b)(1), even though the parent does not challenge either the trial court's finding under another subsection of section 161.001(b)(1) or the trial court's finding that termination of the parent's parental rights is in the child's best interest. Based on recent cases from the Supreme Court of Texas, we must determine whether the appellant's challenge to the subsection (D) and subsection (E) findings has merit and detail our analysis, even if another finding that is listed in the final order as a ground for termination provides a proper basis for the predicate act required under section 161.001(b)(1) and even if the appellant does not challenge the trial court's best-interest-of-the-child finding. We have the power to grant an appropriate appellate remedy if we sustain the appellant's challenge to the trial court's findings, and this appellate remedy would preclude the Department of Family and Protective Services from using the trial court's termination order as a basis for a subsection (M) finding in a future case seeking termination of the appellant's parental rights as to another child. Thus, contrary to the Department's arguments, the issue of whether the evidence suffices to support the trial court's findings stands ripe for resolution. This issue is not moot, and our opinion addressing the issue does not amount to an advisory opinion.

         We conclude that the record contains legally and factually sufficient evidence to support the trial court's finding under subsection (E), so we need not address the sufficiency of the evidence to support the trial court's finding under subsection (D). We affirm the trial court's final order terminating the parent-child relationship between the appellant and the child ("Final Order").

         I. Factual and Procedural Background

         Appellant ("Mother") gave birth to Philip[1] in 2017, in Oregon. Mother listed John ("Father") as Philip's father on the child's birth certificate. When Father went to jail for domestic abuse, Mother and Philip moved to Houston, Texas.

         The Department became involved with the family when Mother and four-month-old Philip were admitted to a hospital in Harris County because Mother was having suicidal ideations and harming herself. Mother blamed these behaviors on Father's threat to leave her. Mother told hospital staff members that she did not want to harm Philip. Mother said that she needed help and explained that she could not take care of the child.

         Mother told a Department investigator that before she met Father she was "doing as many drugs as possible." Mother confirmed that she had been diagnosed with bipolar disorder and major depressive disorder. The domestic-abuse charges for which Father had been incarcerated arose out of an incident in which Father physically abused Mother when he was intoxicated. In commenting on the abuse, Mother reported that Father was under great stress as a result of the couple being homeless.

         Before Mother's release from the hospital, she agreed to let Casa de Esperanza, a children and family services charity, care for Philip until she could get her life more settled. Three months later, the Department initiated this suit requesting termination of Mother's parental rights under subsections (C), (D), (E), (K), (N), and (O) of section 161.001(b)(1) of the Family Code and asking the trial court to name the Department as Philip's sole managing conservator. In the meantime, the trial court named the Department as Philip's temporary managing conservator. At some point, presumably after Father's release from jail, Mother moved back to Oregon to be with Father, without ever having visited Philip.

         Trial on the Department's petition seeking termination of the parental rights of Mother and Father began fifteen months after Mother left Philip in the care of Casa de Esperanza. At trial, the Department's caseworker, Mitchelle Joseph, testified that the Department initiated its investigation when it received allegations that Mother had attempted to stab herself in the stomach while she was home with Philip. The caseworker testified that she believed it would be in the child's best interest to have Mother's parental rights terminated because Mother had never contacted Philip and Mother had failed to provide him with financial support, failed to demonstrate the ability to provide him with a stable home, and had not addressed Mother's own mental health and substance-abuse issues.

         The volunteer advocate (sometimes referred to as the "Texas Court Appointed Special Advocate" or the "CASA volunteer"[2]), Samuel Todd, recommended termination of Mother's parental rights because Mother had shown no interest in working on her family service plan. According to Todd, Philip was thriving in a loving foster home. Todd recommended that Philip remain with his foster parents.

         In closing argument, the Department urged the trial court to terminate Mother's parental rights under subsections (N) (constructive abandonment) and (O) (failure to complete the court-ordered family service plan) of Family Code section 161.001(b)(1). The guardian ad litem agreed with the Department.

         The trial court terminated Mother's parental rights based on findings that Mother had engaged in the conduct described in subsections (D), (E), (N), and (O) of Family Code section 161.001(b)(1) and based on the court's finding that terminating Mother's parental rights would be in Philip's best interest. The trial court terminated Father's parental rights under Family Code section 161.002 providing for the termination of the rights of an alleged biological father.

         II. Issues and Analysis

         In her appellate brief, Mother concedes the sufficiency of the evidence to support the trial court's findings as to constructive abandonment under subsection (N) and that termination of Mother's parental rights is in Philip's best interest, but Mother nonetheless asks this court to review the sufficiency of the evidence to support the trial court's findings under subsections (D) and (E) because of the collateral consequences of these findings. Mother relies on a line of cases in which this court has concluded that when asked to address findings under subsections (D) and (E), this court should do so even if a finding under another subsection supports the final termination order because of potential collateral consequences that a finding under subsection (D) or (E) might be used to support a finding under subsection (M) in a future action to terminate the appellant's parental rights as to another child.[3] See In re S.J.N., No. 14-18-00529-CV, 2018 WL 6494256, at *6 (Tex. App.-Houston [14th Dist.] Dec. 11, 2018, pet. denied) (mem. op.). The parties have not cited, and research has not revealed, any case addressing whether this review of a (D) or (E) finding is available if the appellant did not challenge another finding under Family Code section 161.001(b)(1) and the trial court's best-interest-of-the-child finding. Thus, this case presents an issue of apparent first impression.

         Mother contends the evidence is insufficient to support the termination of her parental rights under (D) and (E). In response, the Department argues that because Mother has conceded the (N) ground and the trial court's best-interest determination, a review of the (D) or (E) ground would result in an advisory opinion. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). Under the Supreme Court of Texas's interpretation of the Texas Constitution, Texas courts have no jurisdiction to issue advisory opinions. See, e.g., Cadena Com. USA Corp. v. Texas Alco. Bev. Comm'n, 518 S.W.3d 318, 336 (Tex. 2017) (citing Tex. Const. art. IV, §§ 1, 22); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d at 822 (citing Tex. Const. art. II, § 1); Morrow v. Corbin, 62 S.W.2d 641, 645-46 (Tex. 1933) (Tex. Const. art. V, §§ 3, 6). Alternatively, the Department argues that the record contains sufficient evidence to support the trial court's findings on the (D) and (E) grounds.

         A. The Effect of the Supreme Court of Texas's Opinion in In re N.G.

         On the heels of oral argument in today's case, the Supreme Court of Texas issued its opinion in In re N.G. See No. 18-0508, ___S.W.3d___, ___, 2019 WL 2147263, at *4 (Tex. May 17, 2019) (per curiam). The N.G. court applied the factors the Supreme Court of the United States used in Santosky v. Kramer and the Supreme Court of Texas used in In re J.F.C. See Santosky v. Kramer, 455 U.S. 745, 759-68, 102 S.Ct. 1388, 1398-1402, 71 L.Ed.2d 599 (1982); In re J.F.C., 96 S.W.3d 256, 273-274 (Tex. 2002); In re N.G., 2019 WL 2147263, at *3-4. Balancing these factors, and considering that the risk of error would mean significant consequences for future parental rights, the N.G. court concluded that a parent's fundamental liberty interest in the right to parent outweighs the state's interest in deciding only what is necessary for final disposition of the appeal. In re N.G., 2019 WL 2147263, at *4. Therefore, the N.G. court decided that allowing (D) and (E) findings to go unreviewed on appeal when the parent has presented the issue to the appellate court violates the parent's due-process and due-course-of-law rights. See id.

         The N.G. court held that the court of appeals violated the mother's due-process and due-course-of-law rights by failing to review the trial court's findings under (D) and (E) when the appellant/mother had presented the issue. Id. The N.G. court also concluded that due process and due course of law require an appellate court to detail its analysis as to why a parent's challenge to a finding under (D) or (E) lacks merit. See id. at *3-4. In another case the high court decided on the same day the court characterized the N.G. opinion as standing for the proposition that "due process requires an appellate court to review and detail its analysis as to termination of parental rights under [(D) or (E)] when challenged on appeal." In re Z.M.M., No. 18-0734, ___S.W.3d___, ___, 2019 WL 2147266, at *2 (Tex. May 17, 2019) (per curiam).

         In In re N.G. the trial court terminated the mother's rights based on its findings under subsections (D), (E), and (O) and its best-interest finding. See In re N.G., 2019 WL 2147263, at *1. The mother appealed and challenged each of these findings, unlike Mother in today's case, who does not challenge the (N) finding or the best-interest finding. See id. The court of appeals in In re N.G. failed to address the findings under (D) or (E) because the court of appeals rejected the mother's challenge to the (O) and best-interest findings. See id. The court of appeals did not address the various court-of-appeals cases requiring review of findings under (D) and (E) on nonconstitutional grounds, nor did the court of appeals address whether constitutional due process or due course of law requires this review. See In re N.G., No. 05-17-01255-CV, 2018 WL 1835697, at *4 (Tex. App.-Dallas Apr. 18, 2018) (mem. op.), rev'd, 2019 WL 2147263, at *6 (Tex. May 17, 2019). It appears that the appellant/mother did not raise either of these points in the court of appeals. See In re N.G., 2019 WL 2147263, at *1; In re N.G., 2018 WL 1835697, at *4. In In re N.G. the supreme court did not address whether the court of appeals was required to review the sufficiency of the evidence to support the trial court's findings under (D) and (E) based on nonconstitutional grounds. See In re N.G., 2019 WL 2147263, at *1-4. The mother in In re N.G. argued in the supreme court that the Fourteenth Amendment's Due Process Clause and the Texas Constitution's Due Course of Law provision required the court of appeals to review the trial court's findings under (D) and (E). See id. at *2. In today's case, Mother has not asserted these constitutional arguments.

         Because of these differences between today's case and In re N.G., today's case does not fall within the scope of the In re N.G. court's holding. See id. at *1- 4. Nonetheless, the N.G. court made deliberate statements for future guidance in the conduct of litigation. Without determining whether nonconstitutional law required review of the trial court's findings under (D) and (E), the N.G. court concluded that (1) allowing (D) and (E) findings to go unreviewed on appeal when the parent has presented the issue to the appellate court violates the parent's due-process and due-course-of-law rights and (2) due process and due course of law require an appellate court to detail its analysis as to why a parent's challenge to a finding under (D) or (E) lacks merit. In re N.G., 2019 WL 2147263, at *3-4. Although today's case does not fall within the scope of the N.G. court's holding, consistency with the high court's recent pronouncements demands that, without first determining whether nonconstitutional law requires review of the trial court's (D) and (E) findings, we determine whether Mother's challenge to the (D) and (E) findings has merit and detail our analysis, even though another finding listed in the Final Order as a ground for termination provides a proper basis for the predicate act required under section 161.001(b)(1) and even though Mother does not challenge the trial court's best-interest-of-the-child finding. See In re N.G., 2019 WL 2147263, at *3-4.

         B. The Advisory-Opinion Argument

         The Department argues that because Mother has conceded one predicate ground and the trial court's best-interest determination, any review of the (D) or (E) grounds would result in an advisory opinion. The parties' arguments also raise the issue as to whether an appellate remedy exists if the evidence is insufficient to support the (D) and (E) findings, given that this court must affirm the termination of Mother's parental rights because she does not challenge the (N) or the best-interest finding. Neither the N.G. court nor the Z.M.M. court addressed these issues. See In re N.G., 2019 WL 2147263, at *1-4; In re Z.M.M., 2019 WL 2147266, at *1-2. We must do so to dispose of today's appeal.

         A trial court generally must file findings of fact separately rather than recite them in the trial court's judgment. See Tex. R. Civ. P. 299a; In re A.A.M., No. 14-05-00740-CV, 2007 WL 1558701, at *3, n.3 (Tex. App.-Houston [14th Dist.] May 31, 2007, no pet.) (mem. op.). But, Texas Rule of Civil Procedure 306, entitled "Recitation of Judgment," requires that the trial court state in its final termination order the specific grounds for termination. See Tex. R. Civ. P. 306. In today's case, the trial court recited in its Final Order that the grounds for termination were the trial court's findings by clear and convincing evidence that Mother engaged in the conduct described in subsections (D), (E), (N), and (O) of section 161.001(b)(1) and that termination of Mother's parental rights was in Philip's best interest. See Tex. Fam. Code § 161.001(b); Tex.R.Civ.P. 306. Because trial courts must recite the specific grounds for termination in their final termination orders, parties properly may assert appellate complaints against these grounds, and an appellate court has the power to grant appropriate appellate relief if, for example, the appellate court concludes that the trial evidence is legally insufficient to support a finding that was a ground for termination of the appellant's parental rights.[4] See Tex. Fam. Code § 161.001(b); Tex.R.Civ.P. 306; In re A.A.M., 2007 WL 1558701, at *3, n.3; In re C.M.C., 554 S.W.3d 164, 173 (Tex. App.-Beaumont 2018, no pet.). Under this reasoning, in her second issue, Mother challenges part of the Final Order - the findings under (D) and (E). Because this court has the power to delete these grounds from the trial court's Final Order, the issue of whether the evidence suffices to support these findings is not moot but ripe for resolution. Likewise, an opinion addressing this issue would not be an advisory opinion.

         C. The Effectiveness of the Available Appellate Remedies in a Future Termination Case Based on Subsection (M)

         In its opinion in In re N.G. the Supreme Court of Texas necessarily concluded that courts of appeals have an appellate remedy if the trial court reversibly erred in making findings under subsections (D) and (E) which became specific grounds for termination and that this remedy would prevent these findings from being used under subsection (M) in a future termination proceeding. See In re N.G., 2019 WL 2147263, at *3-4. But, the high court did not explain why this is so. One rationale finds roots in statutory construction.

         The Department may prove a predicate act under subsection (M) by showing that "the parent has . . . 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 subsection (D) or (E) or substantially equivalent provisions of the law of another state." Tex. Fam. Code § 161.001(b)(1)(M). One reasonable interpretation of this provision is that the Department must prove that a trial court signed a final order terminating the parent's parent-child relationship as to another child based on a finding that the parent's conduct violated (1) subsection (D) or subsection (E) or (2) substantially equivalent provisions of the law of another state, without any requirement that the Department prove (1) the final termination order is final by appeal and (2) no court has deleted the finding or reversed or set aside the final order. See In re A.F.G., No. 14-17-00440-CV, 2017 WL 5506026, at *6 (Tex. App.-Houston [14th Dist.] Nov. 16, 2017, pet. denied) (mem. op.); In re A.C., 394 S.W.3d 633, 640-41 (Tex. App.-Houston [1st Dist.] 2012, no pet.). Another reasonable interpretation of subsection (M)'s text is that the Department must prove that a trial court signed a final order terminating the parent's parent-child relationship as to another child based on a finding that the parent's conduct (1) violated subsection (D) or subsection (E) or (2) substantially equivalent provisions of the law of another state, and also that (1) the final termination order is final by appeal and (2) no court has deleted the finding or reversed or set aside the final order.

         In interpreting a statute, if one reasonable interpretation raises a serious doubt as to the constitutionality of the statute and another reasonable interpretation does not, we are to adopt the latter interpretation. See Whitman v. Am. Trucking Assocs., 531 U.S. 457, 471, 121 S.Ct. 903, 911, 149 L.Ed.2d 1 (2001); FSLIC v. Glen Ridge I Condominiums, Ltd., 750 S.W.2d 757, 759 (Tex. 1988); Trustees of Indep. Sch. Dist. of Cleburne v. Johnson, 52 S.W.2d 71, 72 (Tex. 1932). Interpreting subsection (M) to allow the Department to prove a predicate act based on a termination finding as to another child when a court has deleted the finding or reversed the final order or when a court in a pending appeal might delete the finding or reverse the final order would raise a serious doubt as to the constitutionality of subsection (M). Therefore, we interpret subsection (M) to require the Department to prove that a trial court had signed a final order terminating the parent's parent-child relationship as to another child based on a finding that the parent's conduct violated (1) subsection (D) or subsection (E) or (2) a substantially equivalent provisions of another state's law, and also that (1) the final termination order is final by appeal and (2) no court has deleted the finding or reversed or set aside the final order. See Whitman, 531 U.S. at 471, 121 S.Ct. at 911; Glen Ridge I Condominiums, Ltd., 750 S.W.2d at 759; Trustees of Indep. Sch. Dist. of Cleburne, 52 S.W.2d at 72. This interpretation of subsection (M) differs from that of courts that have concluded that a certified copy of a prior final termination order as to another child based on (D) or (E) is sufficient evidence to support an (M) finding. See In re A.F.G., 2017 WL 5506026, at *6; In re A.C., 394 S.W.3d at 640-41. Under today's interpretation of subsection (M), if this court were to find reversible error because the evidence is legally insufficient to support the (D) and (E) findings in the Final Order and this court rendered judgment under Texas Rule of Appellate Procedure 43.2(b) or (c), our decision would have an impact on Mother's rights because it would prevent the Department from using the Final Order to prove a predicate act under subsection (M) in a future termination case as to another child of Mother.

         The Texas Legislature has mandated that "[a]n appeal in a suit in which termination of the parent-child relationship is ordered shall be given precedence over other civil cases by the appellate courts, shall be accelerated, and shall follow the procedures for an accelerated appeal under the Texas Rules of Appellate Procedure." Tex. Fam. Code Ann. § 109.002(a-1) (West, Westlaw through 2017 1st C.S.). Appellate courts are to dispose of these appeals "with the least possible delay." Tex. Fam. Code Ann. § 263.405 (West, Westlaw through 2017 1st C.S.). In most situations, remedies other than a direct appeal from the final termination order will not be available for a party complaining that the trial evidence is insufficient to support the trial court's (D) or (E) findings. Notwithstanding Texas Rule of Civil Procedure 329, the Texas Legislature requires that in most scenarios[5]one whose parental rights have been terminated may not assert a direct or collateral attack on the final termination order after the sixth month following the date the trial court signed the order. Tex. Fam. Code Ann. § 161.211(a), (b) (West, Westlaw through 2017 1st C.S.). A restricted appeal is available only if the one whose parental rights were terminated (1) did not participate-either in person or through counsel-in the hearing that resulted in the final order and (2) did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Texas Rule of Appellate Procedure 26.1(c). See Tex R. App. P. 30. Even if one seeks equitable-bill-of-review relief within six months of the final termination order, that relief is available only in limited circumstances. See Maree v. Zuniga, No. 14-17-00210-CV, ___S.W.3d___, ___, 2019 WL 2000464, at *3-7 (Tex. App.-Houston [14th Dist.] May 7, 2019, no pet. h.).

         A direct appeal from the final termination order under Family Code section 109.002(a-1) likely presents the only opportunity for review of the trial court's findings under subsections (D) and (E). See In re N.G., 2019 WL 2147263, at *3. In addition, if a party does not challenge these findings and waits to see if the Department seeks to use these findings against the party in a future termination case as to another child, no remedy likely will be available because, in most scenarios, one whose parental rights have been terminated may not assert a direct or collateral attack against the final termination order more than six months after the date on which the trial court signed the order. Tex. Fam. Code Ann. § 161.211(a), (b). In those cases, once that period expires, Texas statutes do not allow a party to challenge the (D) and (E) findings in the final order in the future if the Department seeks to terminate parental rights as to another child under subsection (M).

         In this appeal, Mother asks this court to review the sufficiency of the evidence to support the trial court's findings under (D) and (E). If Mother were to succeed in this challenge, this court could modify the trial court's Final Order by deleting the grounds for termination based on the (D) and (E) findings, and affirm the Final Order as modified. See In re C.M.C., 554 S.W.3d at 173; Tex.R.App.P. 43.2(b). This appellate remedy would preclude the Department from proceeding under subsection (M) in a future case seeking termination of Mother's parental rights as to another child.

         D. Review of the ...


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