Opinion issued August 2, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00791-CV
———————————
IN THE INTEREST OF E.C.R.
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 201004599J
OPINION DISSENTING FROM DENIAL OF EN BANC
RECONSIDERATION
I respectfully dissent from the denial of en banc reconsideration. In this
accelerated appeal, the panel reverses the trial court’s decree terminating appellant
M.R.’s parental rights to her minor child, E.C.R. The panel concludes that the
evidence was legally insufficient to support the termination of M.R.’s parental
rights under Texas Family Code section 161.001(1)(O).1 Having reached the
conclusion that the Department of Family and Protective Services (“DFPS”) failed
to establish by clear and convincing evidence that M.R. violated section
161.001(1)(O), the panel finds it unnecessary to address the trial court’s finding
that termination was in E.C.R.’s best interest,2 and it reverses and renders judgment
denying DFPS’s petition for termination of M.R.’s parental rights.
1
TEX. FAM. CODE ANN. § 161.001(1)(O) (Vernon Supp. 2011).
2
The factors relevant to a best interest determination include: (1) a child’s age and
physical and mental vulnerabilities; (2) the frequency and nature of out-of-home
placements; (3) the magnitude, frequency, and circumstances of the harm to the
child; (4) whether the child has been the victim of repeated harm after an initial
report and intervention; (5) whether the child is afraid to return home; (6) the
results of psychiatric, psychological, or developmental evaluations of the child, the
child’s parents, other family members, or others who have access to the child’s
home; (7) whether there is a history of abusive or assaultive conduct by the child’s
family or others who have access to the child’s home; (8) whether there is a
history of substance abuse by the child’s family or others who have access to the
child’s home; (9) whether the perpetrator of the harm against the child had been
identified; (10) the willingness of the child’s family to seek out, accept, and
complete counseling and to cooperate with supervising agencies; (11) the
willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable time; (12) whether the child’s family
demonstrates adequate parenting skills, including providing the child with
adequate health and nutritional care, care and nurturance consistent with the
child’s development, guidance and supervision for the child’s safety, a safe
physical home environment, protection from exposure to violence even if not
directed at the child, and an understanding of the child’s needs and capabilities;
and (13) whether an adequate social support system consisting of friends and an
extended family is available to the child. Id. § 263.307(b) (Vernon 2008); see In
re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976) (listing factors, including (1) child’s desires,
(2) current and future physical and emotional needs of child, (3) current and future
physical danger to the child, (4) parental abilities of person seeking custody,
(5) whether programs are available to assist person seeking custody in promoting
2
The panel’s decision turns entirely on its determination that, in seeking
termination of M.R.’s parental rights under subsection 161.001(1)(O), DFPS was
required to prove not only that M.R. violated her Family Service Plan,3 but also
that it initially removed E.C.R. from M.R.’s possession due to immediate “abuse or
neglect” of E.C.R. himself, disregarding as irrelevant all evidence of endangerment
of E.C.R. and his siblings, abuse or neglect of E.C.R.’s siblings, risk of future
abuse, neglect, and endangerment, and proof of E.C.R.’s best interests.
The panel’s opinion in this case is based on two previous opinions from
different panels of this Court: In re A.A.A., 265 S.W.3d 507 (Tex. App.—Houston
[1st Dist.] 2008, pet. denied), and Mann v. Department of Family and Protective
Services, No. 01-08-01004-CV, 2009 WL 2961396 (Tex. App.—Houston [1st
Dist.] Sept. 17, 2009, no pet.) (mem. op.). In all three of these cases, this Court
held that, in cases in which DFPS seeks termination pursuant to subsection
161.001(1)(O), DFPS must present evidence that (1) not only did a parent fail to
comply with a DFPS service plan setting out the steps the parent must take to
regain custody of a child removed from that parent’s custody for “abuse or
best interests of child, (6) plans for child by person seeking custody, (7) stability
of home, (8) acts or omissions of parent that may indicate parent-child relationship
is not proper, and (9) any excuse for acts or omissions of parent).
3
“The Family Service Plan is the trial court’s order specifying the actions the
parents had to take for the Department to return the children to their custody.” In
re J.F.C., 96 S.W.3d 256, 298 n.1 (Tex. 2002) (Schneider, J., dissenting) (citing
TEX. FAM. CODE ANN. § 161.001(1)(O)).
3
neglect,” but that (2) DFPS removed the child at issue from the home due to the
immediate “abuse or neglect” of that specific child. This Court also held that the
fact finder may not consider as evidence of “abuse or neglect” evidence that DFPS
predicated its removal decision upon the parent’s admitted physical abuse of
another child in the home.
In my view, this line of cases misconstrues Family Code section
161.001(1)(O) and violates the well-established standard of proof for termination
of parental rights; the well-established standard of review for legal sufficiency of
the evidence in a parental-rights-termination case; and the standard of proof and
standard of review for termination under subsection 161.001(1)(O) due to the
parent’s violation of a Family Service Plan. This line of cases also leads to
arbitrary and absurd results that conflict with opinions in similar cases from this
Court, our fellow appellate courts, and the Texas Supreme Court and that directly
contravene the express purpose of the parental rights termination statute as set out
in both the Texas Family Code and in supreme court precedent. These cases thus
undermine both the effectiveness and the purpose of section 161.001 in protecting
the welfare and best interests of children and in “[p]romot[ing] the child’s interest
in a final decision and thus placement in a safe and stable home.”4
4
In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (quoting In re B.L.D. 113 S.W.3d
340, 353 (Tex. 2003)).
4
Texas Rule of Appellate Procedure 41.2 provides, “En banc consideration of
a case is not favored and should not be ordered unless necessary to secure or
maintain uniformity of the court’s decisions or unless extraordinary circumstances
require en banc consideration.” TEX. R. APP. P. 41.2(c). This case merits en banc
review on both grounds. Therefore, I respectfully dissent from the denial of en
banc reconsideration. I would hold (1) that appellant failed to complete a court
ordered Family Service Plan pursuant to Family Code section 161.001(1)(O), as
required for the return of E.C.R. following his removal by DFPS pursuant to the
procedures set out in Family Code Chapter 262, “Procedures in Suit by
Governmental Entity to Protect Health and Safety of Child,”5 and (2) that
termination is in E.C.R.’s best interest. I would affirm the judgment of the trial
court terminating M.R.’s parental rights.
Standard of Review
“The State’s fundamental interest in parental-rights termination cases is to
protect the best interest of the child. This interest is aligned with another of the
child’s interests—an interest in a final decision on termination so that adoption to a
stable home or return to the parents is not unduly prolonged.” In re M.S., 115
S.W.3d 534, 548 (Tex. 2003); see also In re L.M.I., 119 S.W.3d 707, 708, 711
(Tex. 2003) (noting “the Legislature’s dual intent to ensure finality in these cases
5
TEX. FAM. CODE ANN. §§ 262.001–.309 (Vernon 2008).
5
and expedite their resolution” and its “intent that cases terminating parental rights
be expeditiously resolved, thus ‘promot[ing] the child’s interest in a final decision
and thus placement in a safe and stable home’”) (quoting In re B.L.D., 113 S.W.3d
340, 353 (Tex. 2003)).
The Texas courts have long recognized that “[a] parent’s interest in the
accuracy and justice of the decision to terminate his or her parental status is . . . a
commanding one.” M.S., 115 S.W.3d at 547 (quoting Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981)). However, the child also
has a substantial interest in the proceedings. Id. “Indeed, the Family Code’s entire
statutory scheme for protecting children’s welfare focuses on the child’s best
interest.” Id. (citing TEX. FAM. CODE ANN. §§ 153.002, 161.001(2), 263.306(4),
(5)). The statutory scheme thus comports with “[t]he public policy of this state[,
which] is to . . . provide a safe, stable, and nonviolent environment for the child.”
In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting TEX. FAM. CODE ANN.
§ 153.001 (a)(2)). Although termination can result in a parent's loss of her legal
relationship with the child, the primary focus is on protecting the best interest of
child. Id.
Because termination of parental rights “is complete, final, irrevocable, and
divests for all time that natural right . . . [,] the evidence in support of termination
must be clear and convincing before a court may involuntarily terminate a parent’s
6
rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky v.
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)). “The Texas
Legislature has now codified the clear-and-convincing standard in Family Code
§ 161.001(1), (2), which provides: a ‘court may order termination of the parent-
child relationship if the court finds by clear and convincing evidence’ that the
parent has engaged in certain listed conduct and ‘termination is in the best interest
of the child.’” In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing
evidence is “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 (Vernon 2008); In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002).
In conducting a legal-sufficiency review in a parental-rights-termination
case under Family Code section 161.001, we must look at all the evidence to
determine whether the evidence viewed in the light most favorable to the finding is
such that the fact finder could reasonably have formed a firm belief or conviction
about the truth of the matter on which DFPS bore the burden of proof. In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005); J.F.C., 96 S.W.3d at 266. We “must consider
all of the evidence, not just that which favors the verdict.” J.P.B., 180 S.W.3d at
573; J.F.C., 96 S.W.3d at 266. We “must assume that the fact finder resolved
disputed facts in favor of its finding if a reasonable fact finder could do so,” and
7
we “should disregard all evidence that a reasonable fact finder could have
disbelieved or found to be incredible.” J.P.B., 180 S.W.3d at 573; J.F.C., 96
S.W.3d at 266; see also Jordan v. Dossey, 325 S.W.3d 700, 712–13 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (when legal sufficiency of evidence in
parental rights termination suit is challenged, reviewing court should look at all
evidence in light most favorable to finding to determine whether reasonable trier of
fact could have formed firm belief or conviction that its finding was true,
disregarding all evidence that reasonable factfinder could have disbelieved or
found incredible, but not disregarding undisputed facts that do not support finding,
as doing so could skew analysis of whether there is clear and convincing evidence
that matter that must be proven is true).
“[T]ermination findings must be upheld against a factual sufficiency
challenge if the evidence is such that a reasonable jury could form a firm belief or
conviction that grounds exist for termination under Texas Family Code sections
161.001 and 161.206(a).” C.H., 89 S.W.3d at 18–19. To reverse a case on
insufficiency grounds, “the reviewing court must detail the evidence relevant to the
issue of parental termination and clearly state why the evidence is insufficient to
support a termination finding by clear and convincing evidence.” Id. at 19. In
C.H., the supreme court emphasized that, in applying the “clear and convincing”
8
evidence standard, the appellate courts “must maintain the respective constitutional
roles of juries and appellate courts.” Id. In that regard,
An appellate court’s review must not be so rigorous that the only fact
findings that could withstand review are those established beyond a
reasonable doubt. . . . While parental rights are of constitutional
magnitude, they are not absolute. 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.
Id. (citation omitted).
Accordingly, in a case to terminate parental rights brought by DFPS under
section 161.001, DFPS must establish, by clear and convincing evidence, (1) that
the parent committed one or more of the enumerated acts or omissions justifying
termination and (2) that termination is in the best interest of the child. TEX. FAM.
CODE ANN. §161.001(1)–(2) (Vernon Supp. 2011); C.H., 89 S.W.3d at 23. Both
elements must be established, and termination may not be based solely on the best
interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). However, “[o]nly one predicate
finding under section 161.001(1) is necessary to support a judgment of termination
when there is also a finding that termination is in the child’s best interest.” A.V.,
113 S.W.3d at 362. Thus, if multiple predicate grounds are found by the trial
court, we will affirm on any one ground because only one is necessary for
termination of parental rights. In re D.S., 333 S.W.3d 379, 388 (Tex. App.—
9
Amarillo 2011, no pet.); In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008,
no pet.).
We are bound by the unchallenged findings of the trial court supporting
termination. D.S., 333 S.W.3d at 388. However, this Court has held that, in
reviewing the sufficiency of the evidence to support the trial court’s termination of
parental rights when the findings of the trial court are challenged, the court is
limited to reviewing the grounds for termination explicitly relied upon by the trial
court, even if DFPS pleaded other grounds for termination that are supported by
the evidence. Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221
S.W.3d 244, 251–52 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc),
overruling Thompson v. Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 121
(Tex. App.—Houston [1st Dist.] 2004, pet. denied).6
6
While this Court has relied on Cervantes-Peterson v. Texas Department of Family
and Protective Services, 221 S.W.3d 244 (Tex. App.—Houston [1st Dist.] 2006,
no pet.), in several parental rights termination cases, I have found no citations to
this case by other courts; nor does this Court cite any authority for its ruling in
Cervantes-Peterson.
I believe that Cervantes-Peterson’s ruling on this point is contrary to well-
established law, including family law, holding that when a trial court does not
issue findings of fact and conclusions of law, it is implied that the trial court made
all findings necessary to support its judgment and the judgment must be affirmed
if it can be upheld on any legal theory that finds support in the evidence. See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (applying rule
in context of modification of child support ordered in divorce decree); see also
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)
(applying rule in context of special appearance, stating “all facts necessary to
support the judgment and supported by the evidence are implied”); Mikuni Corp.
10
Termination under Subsection 161.001(1)(O)
In this case, DFPS pleaded and presented evidence supporting three grounds
that are each independent justifications for the termination of M.R.’s parental
rights: subsections 161.001(1)(E), 161.001(1)(L), and 161.001(1)(O).
Subsection 161.001(1)(E) requires that the trial court find by clear and
convincing evidence that the parent whose rights DFPS seeks to terminate has
“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.” TEX.
FAM. CODE ANN. § 161.001(1)(E). Subsection 161.001(1)(L) requires that the
court find that the parent has “been convicted or has been placed on community
supervision, including deferred adjudication community supervision, for being
criminally responsible for the death or serious injury of a child” under, among
other provisions, Penal Code section 22.04, “injury to a child, elderly individual, or
disabled individual.” Id. § 161.001(1)(L). Subsection 161.001(1)(O) requires that
the court find that the parent has
v. Foster, No. 01-11-00383-CV, 2012 WL 170603, at *2 (Tex. App.—Houston
[1st Dist.] Jan. 19, 2012, no pet.) (mem. op.) (same).
I further believe that this Court’s rejection of the rule that “all facts necessary to
support the judgment and supported by the evidence are implied” in termination of
parental rights cases contributed to the incorrect rulings and holding in the instant
case. See Slip Op. at 15–16 (citing Cervantes-Peterson, 221 S.W.3d at 252).
Therefore, I would overrule Cervantes-Peterson as well, on en banc
reconsideration, and I urge the supreme court to consider this an integral issue if it
grants review of this case.
11
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 [DFPS] 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(1)(O).
In its final decree, the trial court found solely that M.R. violated subsection
161.001(1)(O), as it was entitled to do. See A.V., 113 S.W.3d at 362 (holding that
“[o]nly one predicate finding under section 161.001(1) is necessary to support a
judgment of termination when there is also a finding that termination is in the
child’s best interest”). It also found that termination was in the best interest of
E.C.R. The trial court did not make any findings with respect to subsections
161.001(1)(E) and 161.001(1)(L).
A. Subsection 161.001(1)(O) under In re A.A.A. and Mann v. DFPS
This Court previously analyzed the requirements of subsection
161.001(1)(O) in two cases: In re A.A.A. and Mann. The first of these, In re
A.A.A., established the requirement in this Court that when DFPS seeks to
terminate parental rights under section 161.001(1)(O), it must prove not only that
the child was removed from the parent by DFPS under the authority granted by
Family Code Chapter 262 and that the parent violated a court-ordered Family
Service Plan, satisfactory completion of which was required to secure return of the
child, but also that initial removal of the child from the parent by DFPS was, in
12
fact, triggered by “abuse or neglect” of that specific child. 265 S.W.3d at 513–15.
Thus, to support termination pursuant to subsection 161.001(1)(O), DFPS not only
has to establish, by clear and convincing evidence, (1) that it removed the child
pursuant to its power under Family Code Chapter 262, which establishes
procedures to be followed by DFPS to protect the health and safety of children, and
(2) that the parent did not complete a court-ordered plan for return of the child, but
also (3) that, at the time DFPS initially removed the child, that specific child was
subjected to abuse or neglect. See id. at 516.
In A.A.A., the appellant challenged the termination of her parental rights for
failure to complete a Family Service Plan under subsection (O) on the ground that
her child had not been removed from her home as a result of abuse or neglect, but
simply because she had been arrested and she could not return to her child, whom
she had left in a shelter. Id. at 513. DFPS argued that the supreme court had
already addressed the issue of whether it must prove initial removal of the child at
issue for “abuse or neglect” as a requirement for obtaining termination of parental
rights under section 161.001(1)(O) in J.F.C. Id. at 514.
The panel acknowledged the standard of proof required by the supreme court
in J.F.C. to justify termination under subsection (O), but considered it inapplicable
to the question of whether DFPS had to prove that the child was actually initially
removed for “abuse or neglect” of that specific child, quoting from J.F.C.:
13
The evidence establishes as a matter of law that the parents failed to
comply with the court’s orders specifying the actions the parents had
to take for the DPRS to return the children to the parents. The record
also conclusively establishes that the children were removed from
their parents under Chapter 262 of the Family Code, and it is
undisputed that they were in the DPRS’s custody for more than nine
months after their removal. Accordingly, the parental conduct
described in subsection 161.001(1)(O) of the Family Code was
established as a matter of law.
Id. (quoting J.F.C., 96 S.W.3d at 278–79). The panel observed that, in J.F.C., the
supreme court held that the parent’s violation of subsection 161.001(1)(O) was
conclusively established without mentioning whether the child was removed for
abuse or neglect, but it determined that “the specific question of whether a child
must be removed under Chapter 262 for that child’s own abuse or neglect was not
brought before the court in J.F.C.,” even though the supreme court “held that the
evidence established parental conduct pursuant to subsection 161.001(1)(O) as a
matter of law.” Id. (citing J.F.C., 96 S.W.3d at 277).
The panel cited several intermediate appellate court decisions it concluded
held that a finding that “the child’s removal from the parent was a result of abuse
or neglect of the child” constitutes “a third element of subsection 161.001(1)(O).”
Id. (citing, inter alia, In re M.B., No. 07-04-0334-CV, 2004 WL 2867544, at *2
(Tex. App.—Amarillo Dec. 14, 2004, no pet.) (mem. op.)). It concluded that
“[b]ecause the supreme court did not expressly hold that ‘removal under Chapter
262 for abuse or neglect of the child’ is not an element of subsection
14
161.001(1)(O), we must adhere to the unambiguous language of the statute,” and it
held that termination under subsection (O) requires proof that the child was
initially removed by DFPS for “abuse or neglect” of that specific child.7 Id. at 515
(emphasis in original). The panel held that termination under subsection
161.001(1)(O) was not supported by the record. Id. at 515–16. However, it
affirmed the trial court’s finding that termination was proper under subsection
161.001(1)(E). Id. at 516.
In Mann, as in A.A.A. and this case, DFPS moved for termination under both
subsection (E) and subsection (O), and, as in A.A.A. but unlike this case, the trial
court terminated Mann’s parental rights pursuant to both subsection (E) and
subsection (O). Mann, 2009 WL 2961396, at *5, *7. The Mann panel followed
A.A.A. and held that “[Mann’s] abusive acts towards A.S. [Mann’s other child
living in the home] cannot be considered as evidence that she abused or neglected
C.M. [the child at issue in the termination suit] for the purposes of section
161.001(1)(O).” Id. at *6. The Mann panel also discounted the relevance of
evidence that Mann had failed to comply with a court-ordered service plan in
A.S.’s case and that Mann had failed to secure housing at the time C.M., the child
at issue, was born. Id. at *7. The panel held, “While all of these factors may
indicate risk to C.M. if he were to remain under appellant’s care, they do not
7
The Fourteenth Court of Appeals agreed with this analysis in In re S.N. See 287
S.W.3d 183, 190 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
15
indicate that appellant abused or neglected C.M., leading to his removal.” Id.
However, the Mann panel then considered the very same evidence—Mann’s
abusive conduct concerning A.S., her failure to obtain stable housing, and her
failure to comply with a court-ordered service plan in A.S.’s case—as relevant to
the determination of whether sufficient evidence supported termination pursuant to
subsection (E). See id. at *8–9 (“We have held that ‘the manner in which a parent
treats other children in the family can be considered in deciding whether that
parent engaged in a course of conduct that endangered the physical or emotional
well-being of a child.’”).
The Mann panel found that all of the evidence of child endangerment that it
had discounted as irrelevant for purposes of termination under subsection (O) was
relevant to termination under subsection (E). Id. at *6–12. Nevertheless, the Mann
panel reversed the trial court’s termination of Mann’s parental rights, holding that
DFPS failed to present sufficient evidence supporting termination pursuant to
either subsection (E) or subsection (O). See id. at *13 (considering alleged abuse
of sibling as relevant to subsection (E) analysis, but holding evidence insufficient
to establish “course of conduct that endangered her son”) (emphasis in original).
B. The Panel’s Construction of Subsection 161.001(1)(O)
Here, relying on A.A.A. and Mann, the panel (1) failed to view the evidence
that M.R. violated subsection 161.001(1)(O) in the light most favorable to the trial
16
court’s finding, violating the standard of review; (2) refused to review the evidence
supporting the trial court’s predicate finding under subsection 161.001(1)(O) that
M.R. violated critical provisions of her Family Service Plan as evidence of
ongoing unfitness that risked future abuse or neglect were E.C.R. returned to her
care; (3) refused to consider overwhelming evidence of M.R.’s neglect and abuse
of all her children both before and after imposition of her service plan that
demonstrably placed E.C.R. in danger of future abuse, including her physical abuse
of E.C.R.’s four-year-old sister, Y.C., her incarceration for injury to a child, her
attempted suicide while incarcerated, the removal of E.C.R.’s younger and older
siblings from M.R., her neglect of E.C.R.’s medical needs, her mental instability,
her homelessness and lack of employment, and her failures to take a psychiatric
exam, find employment, or secure a stable home as required by her court-ordered
Family Service Plan; (4) refused to review evidence that termination was in
E.C.R.’s best interest as evidence supporting termination under subsection
161.001(1)(O); and (5) failed to find proof that E.C.R. was removed pursuant to
Family Code Chapter 262 and had been in DFPS custody for more than nine
months, together with evidence that M.R. violated her Service Plan, to be legally
sufficient evidence to support termination under subsection 161.001(1)(O),
contrary to J.F.C. See 96 S.W.3d at 275–79.
17
In my view, A.A.A., Mann, and the panel opinion in this case and the
reasoning behind these cases violate both the standard of proof and the standard of
review of parental-rights-termination cases and establish precedent in this Court
that contravenes both established precedent and the purpose of the termination
statute and is dangerous for the protection and safety of endangered children within
the jurisdiction of this Court.
In this case, M.R. does not dispute that DFPS had temporary managing
conservatorship of E.C.R. for more than nine months or that she failed to complete
the actions necessary to obtain the return of E.C.R. as set forth in the trial court’s
temporary orders and her Family Service Plan. See TEX. FAM. CODE ANN.
§ 161.001(1)(O). Instead, she argues, and the panel agrees, that “DFPS did not
establish by clear and convincing evidence that E.C.R. was removed from M.R.’s
care as a result of M.R.’s abuse or neglect of E.C.R.” Slip Op. at 8 (emphasis in
original). The panel opines, “For a trial court to terminate parental rights under
section 161.001(1)(O), it must find that the child who is the subject of the suit was
removed as result of the abuse or neglect of that specific child.” Slip Op. at 8
(emphasis added) (citing Mann, 2009 WL 2961396, at *6, and A.A.A., 265 S.W.3d
at 512–16). The panel justifies its decision on the ground that “[w]e previously
have held that evidence of abuse or neglect of a sibling does not support
18
termination under section 161.001(1)(O).” Slip Op. at 8 (citing Mann, 2009 WL
2961396, at *6–7).
In following A.A.A. and Mann, the panel ignores its own recitation of the
following facts as evidence of abuse or neglect justifying removal of E.C.R. from
M.R.’s care and control by DFPS under Family Code Chapter 262:
(1) evidence that “E.C.R. was taken into DFPS’s custody ‘due to risk of
[E.C.R.] being physically abused by the mother’”;
(2) testimony by the caseworker, Ehiomen Etinfoh, that law enforcement
had been called to an incident in which M.R. was allegedly abusing her
four-year-old daughter, Y.C., that “a witness reported seeing M.R. drag
Y.C. by her ponytail down the street at Interstate 45 and Greens Road,”
and that police arriving at the scene “observed Y.C. had a bruised lip, a
cut on her forehead, dried blood on her nose and fresh bruising on her
right ear and left eye;
(3) Etinfoh’s testimony that, “while E.C.R. was not present during that
incident, the incident resulted in M.R.’s being arrested and charged with
injury to a child, Y.C.”;
(4) Etinfoh’s testimony that M.R. pleaded guilty and received four years’
deferred adjudication community supervision as a result of the incident
involving Y.C.;
(5) Etinfoh’s testimony that, “while M.R. had completed some services, she
had not completed the ‘big’ services required by the court’s service plan,
i.e., the psychiatric evaluation and psychological treatment,” as well as
the requirement that she find employment and provide stable housing for
the children;
(6) Etinfoh’s testimony that M.R. had lost custody of another son, A.J.;
(7) Etinfoh’s testimony that E.C.R. was “very behind in his immunizations”
and that E.C.R. “had to be caught up, up until he turned one years old on
his shots” because M.R. “was not taking care of his medical needs”;
(8) Etinfoh’s testimony that M.R. had admitted to her that, in the year before
the trial, she was “moving from house to house”;
19
(9) Etinfoh’s testimony that M.R. attempted to kill herself while she was in
prison on the injury to a child charge;
(10) Etinfoh’s testimony that M.R. had given birth to another child,
younger than E.C.R., who currently lived in the same foster home as
E.C.R.;
(11) Etinfoh’s opinion testimony that she believed termination was in the
best interest of E.C.R. because “M.R. could not provide him with a
proper, stable environment, her mental status was questionable, she
had not completed the psychiatric evaluation, and she was
unemployed”;
(12) Etinfoh’s testimony that E.C.R. came into DFPS’s care “based on
risk” due to the allegation of injury to his sibling, Y.C.;
(13) Testimony of Lucinda Thomas, the child advocate, confirming her
belief that E.C.R. should be removed from possession of M.R. “based
upon alleged physical risk” to E.C.R.;
(14) Thomas’s testimony that M.R. had failed to complete the required
psychiatric and psychotherapy treatments; that M.R. had not lived in a
home or had a job for six months; and that M.R. claimed she was
unable to find a job due to complications with her last pregnancy, but
she had not given Thomas any documentation of her inability to
work;
(15) Thomas’s testimony that, as of the date of the termination hearing, she
recommended termination of M.R.’s parental rights based on alleged
physical risk to E.C.R. and the fact that M.R. had not completed her
services.
Slip Op. at 2–4.
The panel also disregards the following evidence cited by DFPS as evidence
of M.R.’s abuse or neglect of E.C.R.:
(16) Language in M.R.’s Family Service Plan showing that, as of August
2, 2010, M.R. was living on the streets and did not have a support
system; and
20
(17) “Additional Temporary Orders to Obtain Return of the Children”
signed by the trial court on July 8, 2010, finding “danger to the
physical health or safety” of E.C.R. and “a substantial risk of a
continuing danger if the child is returned home.”
Slip Op. at 9 (quoting findings).
The panel opines, “[T]he evidence here does not show neglect or negligent
supervision of the child as a reason for DFPS involvement. . . . In fact, the Family
Service Plan and Etinfoh’s testimony both show that DFPS became involved as a
result of M.R.’s abuse of E.C.R.’s sibling, a factor that the court could not
consider in reaching a finding under section 161.001(1)(O).” Slip Op. at 12–13
(emphasis added). It also rejects DFPS’s evidence that the Family Service Plan
showed that M.R. was living on the streets as of August 2, 2010, and that M.R. did
not have a support system as evidence of M.R.’s abuse or neglect of E.C.R. Slip
Op. at 13. It explains:
The language in the Family Service Plan here stated that M.R. was
“currently” living on the streets “as of” August 2, 2010. The plan was
written over one month after E.C.R.’s initial removal from M.R., on or about
June 25, 2010, and almost one month after the adversary hearing on July 8,
2010, in which DFPS was given temporary conservatorship of E.C.R. Even
considering the language in the Family Service Plan along with Etinfoh’s
testimony that M.R. told her that “last year” that she was “moving house to
house,” these statements, without more detail as to when this occurred or
whether it was E.C.R. as opposed to M.R. that was in an unsafe or unstable
living environment, cannot be considered evidence of abuse or neglect of
E.C.R.
Slip Op. at 13–14.
21
The necessary implication of A.A.A., Mann, and the panel’s holding in this
case is that if a child is removed from a parent’s home in accordance with the
procedures set out in Family Code Chapter 262, due to DFPS’s reasonable
professional assessment of danger and risk of future danger to the child, and a
Family Service Plan is ordered to address the parent’s abusive and neglectful
behavior cited by DFPS as justification for initial removal, and the parent fails to
comply with the plan and continues to exhibit behavior dangerous to the health and
safety of any child returned to her custody, and, as a result, the parent’s parental
rights are terminated under subsection 161.001(1)(O), a reviewing court may not
consider evidence of the parent’s abusive conduct towards another child in the
home, or anything other than immediate abuse or neglect of the specific child,
given as reasons for the initial removal by DFPS, and it may not consider the
evidence of risk of future abuse or neglect of the child due to the parent’s failure to
comply with the service plan, evidence that we have repeatedly held is relevant to a
determination of whether the parent endangered the child pursuant to subsection
161.001(1)(E). See Jordan, 325 S.W.3d at 723; Cervantes-Peterson, 221 S.W.3d
at 253; Mann, 2009 WL 2961396, at *8.
Instead, under this line of First Court of Appeals cases, the reviewing court
must make its own determination of whether the child was initially removed from
the parent’s care by DFPS for “abuse or neglect” as it defines these terms, it “must
22
find that the child who is the subject of the suit was removed as result of the abuse
or neglect of that specific child” under its own criteria, it must disregard as
evidence that DFPS removed the child for abuse or neglect anything other than
direct abuse or neglect of that specific child which was the immediate trigger for
removal of that child, and it may not consider evidence that the parent is
continuing to engage in behavior, such as homelessness, failure to obtain
employment, and failure to take a psychiatric examination, in violation of her
service plan that can only be reasonably construed as endangering to any child
returned to her custody. See Slip Op. at 8–14.
Thus, in following A.A.A. and Mann, the panel fails even to consider the
conclusive proof in the record that M.R. violated her Family Service Plan—the
necessary predicate finding under subsection 161.001(1)(O). Nor does it consider
the undisputed evidence of how she violated the plan—namely, by failing to take a
court-ordered psychiatric exam, maintain stable housing, and obtain and maintain
stable employment. Nor does it count as evidence that DFPS removed E.C.R. from
M.R.’s care for “abuse or neglect” any of the evidence set out above as items (1)–
(17). Thus, it fails to draw any connection between and among (1) the reasons
given by DFPS for E.C.R.’s removal from M.R. pursuant to Chapter 262; (2) the
entry of a Family Service Plan with requirements M.R. had to fulfill to obtain
E.C.R.’s return; (3) M.R.’s failure to fulfill those requirements; and (4) the proof
23
required to establish a predicate act for termination under subsection
161.001(1)(O) for a parent’s failure of to comply with her court-ordered Family
Service Plan following removal of the child by DFPS under Chapter 262.
The panel reasons that “[w]hile M.R’s abusive conduct toward Y.C. may
have jeopardized E.C.R.’s well-being and served as evidence to support
termination under section 161.001(1)(E), it is not evidence that E.C.R. actually
sustained abuse or was neglected by M.R.” Slip Op. at 8–9. The panel cites In re
D.M., 58 S.W.3d 801, 811, (Tex. App.—Fort Worth 2001, no pet.), for the
proposition that “proving the element of a parent’s endangering act under section
160.001(1)(E) ‘may be satisfied by showing the parent in question engaged in a
course of conduct that endangered the child’s physical or emotional well-being.’”
Slip Op. at 9. It then concludes, “Thus, M.R.’s abuse of Y.C. cannot be considered
evidence that M.R. abused or neglected E.C.R. under section 161.001(1)(O).” Slip
Op. at 9.
The analysis and holdings of A.A.A., Mann, and the panel’s opinion in this
case are contrary to numerous opinions of the supreme court governing the
standard of proof of termination cases in general, the standard of proof of
termination in section 161.001(1)(O) cases in particular, the standard of review of
parental-rights-termination cases, and the purpose of the parental-rights-
termination statute and intent of the Legislature in enacting it, as set out above.
24
See J.P.B., 180 S.W.3d at 573; L.M.I., 119 S.W.3d at 708–11; J.F.C., 96 S.W.3d at
266; C.H., 89 S.W.3d at 19. In addition, the analysis and holdings conflict with the
holdings in numerous factually similar parental-rights-termination cases of this
Court and our fellow intermediate appellate courts.
I would hold that A.A.A. and Mann were wrongly decided. I would overrule
them, and I would affirm the trial court’s judgment terminating M.R.’s parental
rights to E.C.R. under subsection 161.001(1)(O).
C. Consequences of the Court’s Construction of Subsection
161.001(1)(O)
1. Conflicts with the Rules of Construction and Standard of
Review
Subsection (O) is established, according to its plain language, by evidence
that a 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 [DFPS] 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.
TEX. FAM. CODE ANN. § 161.001(1)(O).
First, the natural reading of the unambiguous language of subsection
161.001(1)(O) is that the predicate for termination is established by proof (1) that
the parent failed to comply with the provisions of a Family Service Plan that
established the actions necessary for the parent to obtain the return of the child
25
(2) whom DFPS removed from the parent in accordance with Chapter 262, which
establishes procedures in a suit brought by a governmental entity such as DFPS to
protect the health and safety of children. See id. §§ 262.001–.309 (Vernon 2008).
Under the construction of the standard of proof required for termination
pursuant to subsection (O) espoused in A.A.A., Mann, and the panel’s holding in
this case, however, no evidence supports termination under subsection (O) other
than (1) evidence that the child was removed from the custody of the parent
pursuant to Family Code Chapter 262, providing for removal for abuse or neglect,
and has been in DFPS’s custody for at least nine months; (2) evidence that the
parent failed to comply with a Family Service Plan ordered as a condition of the
parent’s regaining custody; and (3) evidence that DFPS’s initial removal of the
child from the parent was triggered by immediate abuse or neglect of that specific
child; and termination of the parent’s rights with respect to the child is not justified
unless all three of these things are shown by clear and convincing evidence,
disregarding all other evidence in the record. This rule blatantly contradicts the
standard of review for sufficiency of the evidence challenges in parental rights
termination cases. See J.P.B., 180 S.W.3d at 573; J.F.C., 96 S.W.3d at 266; C.H.,
89 S.W.3d at 19.
Under A.A.A., Mann, and the panel’s holding, it becomes virtually
impossible for DFPS to prove that a child removed from a home pursuant to
26
Chapter 262 was actually removed for abuse or neglect—because even child
endangerment and all of the usual factors that assist in determining abuse or
neglect or the best interest of the child, except for immediate abuse or neglect of
that specific child, are ignored. Thus, A.A.A., Mann, and the panel’s holding make
it impossible, as a practical matter, for a trial court to properly order termination of
the parental rights of a mentally unstable mother who neglects and physically and
emotionally abuses her children by injuring them, failing to provide a stable home
and environment, and failing to follow a Family Service Plan required for their
return under subsection (O), effectively rendering subsection (O) a nullity.
Neither the construction of subsection 161.001(1)(O) by the supreme court
in J.F.C. nor the plain language of the statute itself references or requires
additional proof that DFPS not only initially removed a child from the care of a
parent and brought suit for custody of the child under the procedures set out in
Chapter 262, in accordance with its professional judgment that removal was
required to protect the health and safety of the child, but that it initially removed
that child for reasons an appellate court might determine would count as evidence
justifying the initial removal. Indeed, any such construction is plainly contrary
both to the standard of proof set out in J.F.C. and to the plain language of the
statute.
27
Moreover, when the construction of a statute is used, as this Court’s
construction of section 161.001(1)(O) has been used and is used in this case, to
establish barriers to termination of the parental rights of a parent who the evidence
clearly and convincingly shows is unfit and whose custody endangers the child, is
contrary to the best interests of the child, and delays or prevents the final
placement of the child in a safe and stable home, that construction is plainly
contrary to the intent of the Legislature in enacting the parental rights termination
statute. See In re L.M.I., 119 S.W.3d at 708–11 (noting “the Legislature’s dual
intent to ensure finality in these cases and expedite their resolution” and its “intent
that cases terminating parental rights be expeditiously resolved, thus ‘promot[ing]
the child's interest in a final decision and thus placement in a safe and stable
home’”) (quoting In re B.L.D., 113 S.W.3d at 353).
The Texas Code Construction Act requires the presumptions that, in
enacting a statute, the Texas Legislature intended the entire statute to be effective,
that it intended a just and reasonable result, and that it favored the public interest—
here, the public interest in protecting the best interests of the child—over any
private interest. TEX. GOV’T CODE ANN. § 311.021 (Vernon 2005). In reviewing
statutes, the primary objective of the courts is to effectuate the intent of the
legislature. Tex. Lottery Comm’n v. First State Bank of Dequeen, 325 S.W.3d 628,
635 (Tex. 2010). Courts “rely on the plain meaning of the text as expressing
28
legislative intent unless a different meaning is supplied by legislative definition or
is apparent from the context, or the plain meaning leads to absurd results.” Id.
Courts “presume the Legislature selected language in the statute with care and that
every word or phrase was used with a purpose in mind.” Id. “[T]he text is the best
expression of legislative intent unless a different meaning is apparent from the
context or the plain meaning leads to absurd or nonsensical results.” Jackson v.
State Office of Admin. Hearings, 351 S.W.3d 290, 295 n.3 (Tex. 2011).
“[E]very word of a statute must be presumed to have been used for a
purpose. Likewise, . . . every word excluded from a statute must also be presumed
to have been excluded for a purpose.” Id. at 299 (quoting Cameron v. Terrell &
Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). There is no language in
subsection 161.001(1)(O) that places on DFPS the burden of proving that it
removed a child from the custody of a parent for immediate abuse or neglect of
that specific child. The only burden expressed in the statute is the burden to show
that the child “has been in the permanent or temporary managing conservatorship
of the [DFPS] 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.” TEX. FAM.
CODE ANN. § 161.001(1)(O). The natural reading of this language is that the child
was removed under the procedures established in Chapter 262 for removing abused
29
or neglected children from a parent, and the supreme court has so held. See J.F.C.,
96 S.W.3d at 266.
The construction this Court has placed on Family Code section
161.001(1)(O) leads to absurd results, and that construction depends upon adding
into the statute language the Legislature did not add or intend and that the supreme
court, in construing the statute in J.F.C., likewise did not add. Rather, the plain
language is clear and unambiguous, and it does not support the reading this Court
has given it. Thus, I disagree with the A.A.A. panel’s conclusion that proper
statutory construction required its reading of subsection (O), and I disagree with
the current panel’s application of the same construction of the statute in this case. I
would grant en banc reconsideration of this case, and I would overrule A.A.A. and
its progeny.
2. Refusal to Consider Evidence Probative of “Abuse or Neglect”
under Other Subsections of Section 161.001(1) and of the Best
Interest of the Child under Section 161.001(2) as Probative
under Subsection 161.001(1)(O)
In addition to violating the rules of statutory construction and the standard of
review of the evidence in termination cases, the result reached by the panel in this
case conflicts with other cases of this Court affirming the termination of a parent’s
rights for behavior strikingly similar to that of M.R. For example, in 2010, this
Court approved the termination of parental rights in similar circumstances—under
30
Family Code subsections 161.001(1)(D)8 and (E), rather than under subsection
(O)—for endangerment of the child. Jordan, 325 S.W.3d at 721–23. The Court
stated that, when termination is based on subsection (D), “[T]he endangerment
analysis focuses on the evidence of the child’s physical environment, although the
environment produced by the conduct of the parents bears on the determination of
whether the child’s surroundings threaten his wellbeing.” Id. at 721. “It is not
necessary that the parent’s conduct be directed towards the child or that the child
actually be injured; rather, a child is endangered when the environment creates a
potential for danger which the parent is aware of but disregards.” Id. The Court
then pointed out that the relevant inquiry under subsection 161.001(1)(E) “is
whether evidence exists that a parental course of conduct endangered the child’s
physical or emotional well-being.” Id. at 723. Termination under subsection (E),
unlike termination under subsection (D), “must be based on more than a single act
or omission; what is required is a voluntary, deliberate, and conscious course of
conduct,” and that “conduct does not have to occur in the presence of the child”
and may occur “both before and after the child’s birth.” Id.
In defining behavior that justifies termination under subsection (E), the
Court opined, “Conduct that subjects a child to a life of uncertainty and instability
8
TEX. FAM. CODE ANN. § 161.001(1)(D) (“knowingly plac[ing] or knowingly
allow[ing] the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child”).
31
endangers the child’s physical and emotional well-being.” Id. The Court further
opined, “A parent’s mental state may be considered in determining whether a child
is endangered if that mental state allows the parent to engage in conduct that
jeopardizes the physical or emotional well-being of the child.” Id. But it did not
stop there. It also opined, “A parent’s mental instability and attempt to commit
suicide may contribute to a finding that the parent engaged in a course of conduct
that endangered a child’s physical or emotional well-being.” Id. at 724. And it
opined, “Evidence as to how a parent has treated another child or spouse is relevant
regarding whether a course of conduct under section E has been established.” Id.
Finally, it stated, “Evidence that a person has engaged in abusive conduct in the
past permits an inference that the person will continue violent behavior in the
future.” Id.
While the mother whose rights were terminated in Jordan had also left her
infant with his father, a violent drug-addicted sex offender, subjecting her own
rights to termination under subsection (D), this Court also held that her rights were
subject to termination under subsection (E) because she had “lived an unstable,
transient lifestyle that indicates a pattern of engaging in conduct that would
endanger [the child] emotionally and physically,” including being evicted from a
shelter for violent conduct, attempting suicide, residing at various times in a
hospital or a shelter, and being homeless. Id. at 725.
32
The Court pointedly stated, “Although none of her conduct at that time was
directed at harming [the child], endangering conduct is not limited to actions
directed toward the child.” Id. It concluded, “The trial court could reasonably
determine that Jordan’s propensity for violence against herself and others, want of
self control, and transient life-style would endanger [the child] by giving him a life
of instability and uncertainty.” Id. (citing similar cases). Although there was
evidence at the time of trial that Jordan had not been hospitalized for over two
years and that her mental illness was in remission, the Court held that a fact finder
could reasonably have formed a firm belief or conviction that Jordan knowingly
engaged in conduct that endangered the physical and emotional well-being of the
child; and, thus, the evidence was “legally sufficient to support the trial court’s
termination findings under section E.” Id. at 726.
The panel not only ignores Jordan and all of the cases cited therein, it also
ignores this Court’s holding in Walker v. Texas Department of Family and
Protective Services, 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied), and other cases in which we, and other courts, have held that evidence
concerning how a parent has treated another child in the home is relevant to a
determination that a course of conduct has had the effect of endangering a child so
as to support termination of parental rights. See, e.g., In re M.R.J.M., 280 S.W.3d
494, 503 (Tex. App.—Fort Worth 2009, no pet.) (to support finding of
33
endangerment warranting termination of parental rights, parent’s conduct does not
necessarily have to be directed at child, nor is child required to suffer injury);
D.M., 58 S.W.3d at 811.
The panel presumably would be willing to find that the undisputed evidence
that M.R. did not complete her Family Service Plan and the evidence of M.R.’s
mental instability, imprisonment for injury to a child, suicide attempt, violence
towards Y.C., E.C.R.’s four year-old-sister, loss of custody of her other children,
transient lifestyle and unemployment—evidence that is strikingly similar to that
found sufficient to justify termination under subsection (E) in Jordan—would
justify termination of M.R.’s parental rights under subsection (E); and it might find
that it demonstrates that termination is in E.C.R.’s best interest under section
161.001(2)—an issue it does not reach. But it disregards this evidence because the
trial court did not terminate M.R.’s rights under subsection (E), on which DFPS
also offered proof, but solely under subsection (O), and that is sufficient, in its
estimation, to justify ignoring this evidence and overturning the trial court’s
judgment. The panel does not consider any of this evidence as evidence that
termination was in E.C.R.’s best interests. It does not consider any of this
evidence for any purpose.
This Court’s rulings in Jordan and Walker, as well as its holding affirming
termination based on the parent’s violation of subsection (E) and the trial court’s
34
finding that termination was in the best interest of the child, are inconsistent with
A.A.A., Mann, and the panel’s rulings and holding in this case. The only material
difference between those cases and this case is that, here, the trial court chose to
terminate M.R.’s rights under subsection (O), rather than under subsection (E).
Thus, the mere fact that the trial court chose to terminate M.R.’s parental rights
under subsection 161.001(1)(O), rather than under subsection 161.001(1)(E) or (L),
introduces an element of radical arbitrariness into the outcome of appeals of
termination cases. And this element of arbitrariness is exacerbated by this Court’s
refusal to define “abuse or neglect” for purposes of termination under subsection
(O) in the same terms as under the other subsections of 161.001(1) and under
section 161.001(2). In my view, holding that facts that constitute evidence of
endangerment under subsection (E) and are relevant to an analysis under that
subsection—e.g., evidence that the parent admittedly physically abused another
child in the home and was placed on deferred adjudication for this conduct—do not
constitute some evidence that the child at issue was properly removed from the
home by DFPS for “abuse or neglect” is an unduly restrictive construction of
“abuse or neglect” to the extent that “abuse or neglect” is required to be shown to
support termination under subsection 161.001(1)(O), as opposed to under another
subsection or section 161.001(2).
35
I have found no Texas cases, other than those from this Court, that consider
testimony by a DFPS caseworker testifying as to the reasons for the initial removal
of a child from a parent and to whether a parent had demonstrated compliance with
a Family Service Plan designed to address the behavior for which the child was
initially removed to be no evidence that the child was removed for abuse or
neglect, and the case law on point demonstrates that other appellate courts do
credit such evidence. See, e.g., In re J.S., 291 S.W.3d 60, 66–67 (Tex. App.—
Eastland 2009, no pet.) (holding mother’s inability to provide stable housing and
basic necessities for her children to be significant deficiencies in consideration of
compliance with provisions of court order establishing actions necessary for
mother to obtain return of children that justified termination under section
161.001(1)(O), despite mother’s achievement of some of plan’s goals).
Furthermore, several of our sister courts have upheld termination pursuant to
subsection 161.001(1)(O) even when the parent who violates the Family Service
Plan is not the same parent who initially abused or neglected the child, thus
necessitating the removal of the child from the home by DFPS. See, e.g., In re
S.N., 287 S.W.3d 183, 188–89 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(adopting this Court’s requirement that DFPS prove that child was removed for
“abuse or neglect,” but holding that parent who fails to comply with court-ordered
Family Service Plan for children removed because of abuse or neglect is not
36
required to be same parent whose acts or omissions caused child to be removed
and placed into DFPS care in order to support termination of parental rights under
subsection (O)); see also In re C.D.B., 218 S.W.3d 308, 309–12 (Tex. App.—
Dallas 2007, no pet.) (upholding termination of mother’s parental rights under
subsection (O) where mother failed to comply with service plan for return of
children initially removed by DFPS for father’s abuse of child during mother’s
absence); In re S.M., No. 04-04-00194-CV, 2005 WL 418540, at *2–4 (Tex.
App.—San Antonio Feb. 23, 2005, no pet.) (mem. op.) (finding evidence sufficient
to support termination of mother’s parental rights under subsection (O) where child
was initially removed from home by DFPS due to boyfriend’s physical abuse of
one child and mother failed to complete Family Service Plan). But see In re
S.A.P., 169 S.W.3d 685, 705–06 (Tex. App.—Waco 2005, no pet.) (“At trial [the
caseworker] unequivocally testified that S.A.P. was not removed for abuse or
neglect by [father or mother], that S.A.P. was not abused or neglected by [father or
mother], and that S.A.P. was removed only because of the risk because of [father
and mother’s] prior history. There is thus no evidence to support the application of
subsection 161.001(1)(O) . . . .”).
The result of this Court’s construction of subsection 161.001(1)(O) is thus
arbitrary rulings in similar cases, depending upon the subsection under which the
37
trial court elects to terminate parental rights among all those argued and supported
by the evidence, and a divergence between this Court and other courts.
3. Refusal to Consider Cross-Points
Finally, the panel also refuses to consider DFPS’s cross-points as alternative
grounds under section 161.001(1) for affirming the judgment of the trial court.
These cross-points argued that (1) “[t]he trial court erred in denying the
Department’s request for parental termination on a finding under Subsection L,
because the evidence is undisputed that [M.R.] pled guilty to injury to a child and
that the injuries to the child were serious,” and (2) “[t]he trial court erred in
denying the Department’s request for parental termination on a finding under
Subsection E, because the evidence is undisputed regarding [M.R.]’s pattern of
inappropriate parenting, instability and abusive conduct.”
In refusing to consider DFPS’s cross-points, the panel relies on the statement
of this Court in Vasquez v. Texas Department of Protective and Regulatory
Services, 190 S.W.3d 189 (Tex. App.—Houston [1st Dist.] 2005, pet. denied), that
“a parental rights termination order can be upheld only on grounds both pleaded by
[DFPS] and found by the trial court.” Slip Op. at 14 (quoting Vasquez, 190
S.W.3d at 194); see also Cervantes-Peterson, 221 S.W.3d at 251. DFPS points out
that the panel’s opinion on this point, too, is in conflict with numerous cases of this
Court permitting consideration of cross-points when the independent grounds
38
raised in the cross-points would not grant the appellee greater relief than that
awarded by the trial court. See Valadez v. MEMC Pasadena, Inc., 2011 WL
743099, at *1 n.1 (Tex. App.—Houston [1st Dist.] Mar. 3, 2011, no pet.) (mem.
op.); Helton v. R.R. Comm’n of Tex., 126 S.W.3d 111, 119–20 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied); Dean v. Lafayette Place (Section One)
Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.]
1999, no pet.). Here, of course, the relief awarded was the termination of M.R.’s
parental rights under section 161.001(1) and (2).
Unlike the panel, I would consider DFPS’s cross-points, and I would
overrule Vasquez to bring this Court’s application of the law on cross-points in the
context of termination of parental rights into accord with its application of the law
on cross-points in general, just as I would overrule Cervantes-Peterson’s holding
that predicate acts under section 161.001(1) raised by DFPS and supported by the
evidence, but not expressly found by the trial court, cannot be considered as
grounds for affirming the trial court’s judgment terminating parental rights. See
n.6 supra.
Conclusion
A.A.A., Mann, and the panel opinion in this case establish binding precedent
in this Court that misconstrues the plain language of Family Code subsection
161.001(1)(O) contrary to supreme court precedent, misapplies the standard of
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review of sufficiency of the evidence to support termination of parental rights
under that subsection, and creates and applies a standard of proof for termination
under subsection (O) that violates the rules of statutory construction, contravenes
established law, conflicts with numerous other cases in this Court, and leads to
arbitrary and capricious results that plainly thwart the intent of the Legislature in
enacting statutory provisions for the termination of parental rights to protect the
best interests of children and to assure that they are placed in safe and stable
homes. I also fear that this Court’s harsh and ultra-restrictive construction of the
law regarding termination of parental rights will have serious repercussions for the
safety of the children of this State by placing hyper-technical and insurmountable
hurdles in the path of termination of the parental rights of a parent whose child has
been removed from her custody by DFPS under Family Code Chapter 262 for
abuse or neglect and who fails to correct the behavior giving rise to the child’s
removal. Therefore, I believe that en banc reconsideration of the panel opinion in
this case is fully merited under Rule 41.2 of the Texas Rules of Appellate
Procedure.
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I respectfully dissent from the denial of en banc reconsideration. I would
affirm the judgment of the trial court terminating M.R.’s parental rights to E.C.R.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Huddle.
En banc consideration was requested. See TEX. R. APP. P. 41.2(c).
Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Sharp,
Massengale, Brown, and Huddle participated in the vote to determine en banc
consideration.
A majority of the Court voted to deny en banc consideration. See TEX. R. APP. P.
49.7.
Justice Keyes, dissenting from the denial of en banc reconsideration.
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in the Interest of E.C.R., a Child
Combined Opinion