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In re L.C.

Court of Appeals of Texas, Twelfth District, Tyler

September 27, 2019

IN THE INTEREST OF L.C., A CHILD

          APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT HOUSTON COUNTY, TEXAS (Tr. Ct. No. 18-0062)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle, Justice.

         R.C. and B.P. appeal the termination of their parental rights. In one issue, they challenge the legal and factually sufficiency of the evidence to support the termination order. We affirm.

         Background

         R.C. is the father and B.P. is the mother of L.C. On March 8, 2018, the Department of Family and Protective Services (the Department) filed an original petition for protection of L.C., for conservatorship, and for termination of R.C.'s and B.P.'s parental rights. The Department was appointed temporary managing conservator of the child, and the parents were granted limited access to, and possession of, the child.

         At the conclusion of the trial on the merits, the jury found, by clear and convincing evidence, that the parent-child relationship between R.C. and L.C. should be terminated. Consequently, the trial court found that R.C. engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), (N), (O), and (P) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between R.C. and L.C. is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between R.C. and L.C. be terminated.

         The jury also found, by clear and convincing evidence, that the parent-child relationship between B.P. and L.C. should be terminated. Consequently, the trial court found that B.P. engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsections (D), (E), (M), (N), (O), and (P) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between B.P. and L.C. is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between B.P. and L.C. be terminated. This appeal followed.

         Unchalleged Finding

         On appeal, R.C. and B.P. do not argue that the evidence is legally and factually insufficient to support one of the predicate grounds for termination or the finding that termination was in the best interest of the children. A finding of only one ground for termination alleged under Section 161.001(b)(1) is sufficient to support a judgment of termination. In re E.M.N., 221 S.W.3d 815, 821 (Tex.App.–Fort Worth 2007, no pet.). Thus, to be successful on appeal, R.C. and B.P. must establish that the trial court's findings on all the Department's pleaded grounds are unsupported by the evidence. See Fletcher v. Dep't of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex.App.–Houston [1st Dist.] 2009, no pet.).

         R.C. contends that the evidence does not support termination of his parental rights under subsections (D) (endangerment by conditions or surroundings), (E) (endangerment by conduct), (O) (failure to comply with a court-ordered service plan), or (P) (use of a controlled substance), of Texas Family Code Section 161.001(b). However, in the body of his brief, R.C. fails to challenge the jury's findings on the grounds for termination alleged under subsection (N) (constructive abandonment). Further, B.P. argues that the evidence does not support termination of her parental rights under subsections (D), (E), (M) (termination of another child based on findings of endangerment), (O), or (P), of Texas Family Code Section 161.001(b). However, in the body of her brief, B.P. fails to challenge the jury's findings on the grounds for termination alleged under subsection (N).

         Because R.C. and B.P. do not challenge every ground upon which the jury could have based its decision to terminate their parental rights, we have previously not addressed the unchallenged findings or the grounds they chose to challenge in their brief. See In re A.V., 113 S.W.3d at 361–62; Fletcher, 277 S.W.3d at 64. However, the Texas Supreme Court recently held that allowing Section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court violates the parent's due process and due course of law rights. In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). In making its holding, the Court relied on subsection (M), which 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 the finding that the parent's conduct was in violation of Paragraph (D) or (E)." Id. at 234; Tex. Fam. Code Ann. § 161.001(b)(1)(M) (West Supp. 2018). As a result, the "collateral consequences of terminating parental rights under [S]ection 161.001(b)(1)(D) or (E) are significant." In re N.G., 577 S.W.3d at 234. "When a parent has presented the issue on appeal, an appellate court that denies review of a [S]ection 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children." Id. at 235. Therefore, due process and due course of law requirements mandate that an appellate court detail its analysis in an appeal of termination of parental rights under Section 161.001(b)(1)(D) or (E) of the Family Code if a parent raises such issues. Id. at 237. Accordingly, in light of the Supreme Court's decision in In re N.G., we will consider R.C.'s and B.P.'s sufficiency arguments as to subsections (D) and (E), even though they do not challenge termination under subsection (N).

         Termination of Parental Rights

         Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex.App.–Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex.App.–Texarkana 1995, writ denied). Because a termination action "permanently sunders" the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex.App.–El Paso 1998, no pet.).

         Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. Tex. Fam. Code Ann. § 161.001 (West Supp. 2018); In re J.M.T., 39 S.W.3d 234, 237 (Tex.App.–Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. Tex. Fam. Code Ann. § 161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex.App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2018); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. Tex. Fam. Code Ann. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.

         The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. Tex. Fam. Code Ann. § 161.001; In re J.J., 911 S.W.2d at 439. 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 (West 2019). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.

         Standard of Review

         When confronted with both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex.App.–Amarillo 1999, no pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id.

         The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court's findings. Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex.App.–Houston [1st Dist.] 1997, pet. denied).

         Termination Under Section 16.001(b)(1)

         As part of their sole issue, R.C. and B.P. argues the evidence is legally and factually insufficient to terminate their parental rights pursuant to subsections (D) ...


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