NO. 07-07-0504-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
OCTOBER 16, 2008
______________________________
IN THE INTEREST OF B.L.R.P., A CHILD
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF RANDALL COUNTY;
NO. 4690-L1; HONORABLE JAMES W. ANDERSON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
Appellant, W.B.,1 brings this appeal challenging the trial court’s order terminating his
parental rights to his child, B.L.R.P. and appointing Appellee, the Department of Family
and Protective Services, as managing conservator.2 By three points of error, W.B.
1
To protect the parents’ and children’s privacy, we refer to the parents and the
children by their initials. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2002), Tex. R.
App. P. 9.8(b)(1).
2
The parental rights of B.L.R.P.’s mother were also terminated, but no appeal from
that decision was filed.
maintains the evidence is factually insufficient to support the trial court’s termination order
and findings that (1) termination is in the child’s best interest; (2) he failed to timely file an
admission of paternity or to file a counterclaim for paternity; and (3) he failed to comply with
provisions of a court order that specifically established the actions necessary for him to
obtain return of the child who had been in the conservatorship of the Department for not
less than nine months as a result of the child’s removal from the parent under Chapter 262
for abuse or neglect of the child. We reverse and remand.
Standard of Review in Termination Cases
In proceedings to terminate the parent-child relationship, the petitioner must
establish one or more acts or omissions enumerated by statute and must additionally prove
that termination of the parent-child relationship is in the best interest of the child. Tex.
Fam. Code Ann. § 161.001 (Vernon Supp. 2008). Both elements must be established and
proof of one element does not relieve the petitioner of the burden of proving the other. See
Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Because termination of parental rights
is of such weight and gravity, due process requires the petitioner to justify termination by
clear and convincing evidence. § 161.001; In Interest of G.M., 596 S.W.2d 846, 847 (Tex.
1980). Clear and convincing evidence is that measure or degree of proof which 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. In re C. H., 89 S.W.3d 17, 25-26 (Tex. 2002); Tex.
Fam. Code Ann. § 101.007 (Vernon 2002).
2
Procedural Background
The Department originally filed for termination of parental rights against an alleged
father other than W.B. on June 21, 2006. Temporary orders, which included compliance
with a family service plan, were entered against the first alleged father. W.B. was shown
to be B.L.R.P.’s father after a paternity test was administered on October 30, 2006.
Thereafter, on September 10, 2007, the Department amended its petition to add W.B. as
the father. The Department sought termination of W.B.’s parental rights on several
grounds; however, the trial court’s termination order was based on only two grounds: (1)
the failure of W.B. to respond, after being served with citation, by timely filing an admission
of paternity or by filing a counterclaim for paternity under Chapter 160,3 and (2) the failure
of W.B. to comply with the provisions of a court order that specifically established the
actions necessary for W.B. to obtain the return of B.L.R.P. who had been in the permanent
or temporary managing conservatorship of the Department of Family and 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.4
In its original brief, the Department candidly conceded that termination on the first
ground, that W.B. failed to file an admission of paternity or a counterclaim for paternity,
3
See Tex. Fam. Code Ann. § 161.002(b)(1) (Vernon Supp. 2008).
4
See Tex. Fam. Code Ann. § 161.001(O) (Vernon Supp. 2008).
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was erroneous. Therefore, the only remaining ground to support the order of termination
was the second ground, the alleged failure to comply with a court-ordered service plan.
The record establishes that W.B. signed the Department’s service plan on January
5, 2007. The record does not, however, contain a written order requiring W.B. to comply
with that service plan. Although W.B. did appear at a permanency hearing held on May
29, 2007, the record does not contain a transcription of that hearing. Therefore, we can
only conclude that there is no court order that specifically establishes the actions
necessary for W.B. to obtain the return of the child.
By its supplemental brief, the Department contends that W.B. failed to preserve that
issue and although the record does not establish that the service plan was adopted by
order of the trial court, W.B. has waived the issue by failing to make an objection or assert
the complaint in his original brief. The Department further contends that it is undisputed
that W.B. did not complete the requirements of the service plan. In response, W.B.
contends that termination of his parental rights on the basis of failure to comply with a
nonexistent court order “flies in the face of common sense and convention.” W.B.
acknowledges that no case on point was found but presents several analogous situations,
to-wit: (1) holding an obligor in contempt for failure to pay child support that was never
reduced to written order,5 and (2) revoking community supervision when an order
containing the terms and conditions thereof was never signed by the trial court. W.B. then
5
Ex parte Harris, 649 S.W.2d 389, 391 (Tex.App.–Corpus Christi 1983, no pet.).
4
answers the Department’s preservation of error issue by referencing Rule 38.1(e) of the
Texas Rules of Appellate Procedure which provides that an issue will be treated as
covering every subsidiary question that is fairly included. We begin our analysis by
addressing the preservation of error issue.
Preservation of Error
Points of error are to be construed “liberally in order to adjudicate justly, fairly and
equitably the rights of the litigants.” See Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.
1990). See also In re M. N., No. 07-0698, 2008 WL 3991189, at *1 (Tex. Aug. 29, 2008)
(applying Rule 55.2(f), the Texas Supreme Court’s counterpart to Rule 38.1(e) of the Texas
Rules of Appellate Procedure, in liberally construing an argument).
W.B. argues that the absence of a court order requiring him to comply with the
Department’s service plan per § 161.001(1)(O) of the Family Code is another facet of his
factual sufficiency argument. We agree and conclude that the argument raised in his
supplemental brief is preserved for review by this Court.6
6
We also note that W.B.’s factual sufficiency argument was preserved by his timely
filed Statement of Points filed in the trial court in accordance with § 263.405(i) of the Family
Code.
5
Requirement of a Court Order
Section 161.001(1)(O) provides that the trial court may order termination of the
parent-child relationship if the court finds by clear and convincing evidence that the parent
has:
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 Department of Family and 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.
(Emphasis added).
An order is defined as “a mandate; precept; command or direction authoritatively
given; rule or regulation.” [Citation omitted]. “Direction of court or judge made or entered
in writing, and not included in a judgment, which determines some point or directs some
step in the proceedings.” See Black’s Law Dictionary 1096 (6th ed. 1990).
The natural right existing between parents and their children is of constitutional
dimension. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
termination proceedings must be strictly scrutinized. In Interest of G. M., 596 S.W.2d at
846.
In In re J.F.C., 96 S.W.3d 256, 284 (Tex. 2002), the parents argued that termination
for failure to comply with trial court orders delineating what they must do to have their
6
children returned was equivalent to criminal contempt. In addressing their complaint, the
Court noted that the “Legislature has specifically provided in subsection 161.001(1)(O) that
failure to comply with court orders like those issued in this case is grounds for termination.”
(Emphasis added).
Because there are no court orders specifically establishing the actions necessary
for W.B. to obtain the return of the child, written or otherwise, the Department failed to
establish by clear and convincing evidence any grounds enumerated under subsection (1)
of § 161.001 to support termination of W.B.’s parental rights to B.L.R.P. Strictly
scrutinizing the underlying proceedings, we decline to condone termination of W.B.’s
parental rights on the basis of a violation of a court order that did not exist. Point of error
three in W.B.’s original brief and issue one in his supplemental brief are sustained.
Consequently, the trial court’s termination order is reversed and the cause is
remanded to the trial court for further proceedings.
Patrick A. Pirtle
Justice
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