Opinion issued April 20, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00999-CV
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S.H.R., Appellant
V.
Department of Family and Protective Services, Appellee
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 200903028J
CONCURRING OPINION
I agree, albeit for different reasons, with both of my colleagues that the evidence is legally sufficient to support a finding that appellant, S.H.R., engaged in conduct which endangered the physical or emotional well-being of his children. See Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2011). I also agree, again, for different reasons, with Justice Sharp that the evidence is factually insufficient to support such a finding. Accordingly, I write separately to explain why I agree.
Standard of Review
A parent’s right to “the companionship, care, custody, and management” of his children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal citation omitted). The United States Supreme Court has emphasized that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has also concluded that “[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
[T]ermination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.
Id. (emphasis added).
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 rights.” Id. (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92; Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)) (emphasis added). 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). Because the standard of proof is “clear and convincing,” the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264–66.
Instead of requiring just more than a scintilla of evidence to support a finding, we, in conducting our legal-sufficiency review in parental-rights termination cases, must 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 the Department of Family and Protective Services (“DFPS”) bore the burden of proof. See id. at 266. In viewing the evidence in the light most favorable to the judgment, we “must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so,” and we “should disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d at 266).
However, a fact finder may not, from meager circumstantial evidence, reasonably infer an ultimate fact, none more probable than another. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). This Court has explained that under the law of evidence, the term “inference” means,
[A] truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved.
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting Black’s Law Dictionary 700 (5th ed. 1979)). Thus, to “infer” a fact, one “must be able to deduce that fact as a logical consequence from other proven facts.” Id. In other words, there must be a logical and rational connection between the facts in evidence and the fact to be inferred. United States v. Michelena-Orovio, 702 F.2d 496, 504 (5th Cir.), aff’d on reh’g, 719 F.2d 738 (5th Cir. 1983) (en banc). It is important to be mindful that “‘when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). And in regard to the sufficiency of evidence in circumstantial-evidence cases, one inference cannot be based upon another inference to reach a conclusion. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003). Conclusions based on such stacking do not constitute evidence. Id.
In conducting a factual-sufficiency review in a parental-rights termination case, we must determine whether, considering the entire record, including evidence supporting and evidence contradicting the finding, a fact‑finder could have reasonably formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. Cervantes-Peterson, 221 S.W.3d at 250 (citing J.P.B., 180 S.W.3d at 573; In re C.H., 89 S.W.3d at 25). The higher burden of proof in parental-rights termination cases alters the appellate standard of review: “a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). In considering whether disputed evidence rises to the level of being clear and convincing, we must consider whether the evidence is sufficient to reasonably form in the mind of the fact finder a firm belief or conviction as to the truth of the allegation sought to be established. Cervantes-Peterson, 221 S.W.3d at 250. We consider whether the disputed evidence is such that a reasonable fact‑finder could not have resolved the disputed evidence in favor of its finding. Id. (citing J.F.C., 96 S.W.3d at 266–67). If, in light of the entire record, the disputed evidence that a reasonable fact‑finder could not have credited in favor of the finding is so significant that a fact‑finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id. (quoting J.F.C., 96 S.W.3d at 266).
Endangerment
Here, to support the trial court’s termination of S.H.R.’s parental rights, the record must contain clear and convincing evidence that he engaged in conduct which “endangered” his children. “Endanger” means to “expose to loss or injury” or to “jeopardize”; it consists of conduct that is “more than a threat of metaphysical injury” or the “possible ill effects of a less than ideal family environment”; although, a child need not suffer actual injury to constitute endangerment. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment can occur through both the acts and omissions of a parent. See In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
After considering all of the evidence in the light most favorable to the trial court’s findings, the only evidence in the record from which the trial court could have reasonably formed a firm belief or conviction that S.H.R. in fact endangered his children is that of his abuse of the children’s biological mother in front of the children. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). DFPS’s exhibit number 22A, a document entitled “Newsom Psychological Evaluation,” reveals un-objected to hearsay that the children’s biological mother stated that the children witnessed S.H.R. being “physically, verbally and sexually abusive to their mother.” From this evidence, the trial court could have reasonably inferred and formed a firm conviction or belief that S.H.R. endangered the children.
As noted by both of my colleagues, DFPS tried this case to the trial court on the allegation that S.H.R. had sexually abused the children. Its only evidence in this regard was that S.H.R. had tested positive for oral and genital herpes and hearsay evidence that the children also had tested positive for oral and genital herpes. However, the medical records in evidence are either silent or reveal that the children tested negative for genital herpes. Thus, DFPS did not present any evidence from which the trial court could have logically deduced that S.H.R. sexually assaulted the children. Indeed, there is no evidence that any attempt was ever made to prosecute S.H.R. for sexual assault of a child.
DFPS barely made mention of any other allegation of endangerment in the trial court in its closing argument in regard to the termination of S.H.R.’s parental rights. And, in its appellate brief, DFPS mentions scant details of other allegations—i.e., criminal history, domestic violence, frequent moving, and use of alcohol and drugs—only in footnotes. Thus, DFPS did not present any evidence, or even argument, about how any specific act of S.H.R. actually endangered his children. For example, DFPS did not present any evidence or provide any reasoned analysis as to how appellant’s one felony conviction for possession of cocaine in July 1992 endangered his children who were later born in 2003, 2005, and 2006. Nor did it temporally connect any of appellant’s misdemeanor convictions for harassment, terroristic threat, or criminal trespass or his use of alcohol or marijuana to any specific endangerment of the children. One might easily surmise or have a strong suspicion that such conduct, assuming that it occurred after the children’s births, could have somehow endangered them. But, from the evidence actually presented at trial, such endangerment cannot be reasonably inferred. And the evidence presented by DFPS does not support a firm belief or conviction of endangerment.
Nevertheless, as mentioned by DFPS in a footnote in its brief, it did introduce into evidence the Newsom Psychological Evaluation, which contains the hearsay statement of the children’s mother that they witnessed S.H.R. being “physically, verbally and sexually abusive to their mother.” However, this hearsay evidence, offered without any contextual evidence or explanation at all of when, how, or exactly what “abuse” occurred, is contradicted by S.H.R.’s direct testimony. Given how the case was presented to the trial court, it is highly doubtful whether the trial court considered or even read the mother’s hearsay statement in this report. But, even if it did, a fact‑finder could not have reasonably resolved the disputed evidence in favor of a finding of actual endangerment. See Cervantes-Peterson, 221 S.W.3d at 250 (citing In re J.P.B., 180 S.W.3d at 573; In re C.H., 89 S.W.3d at 25).
Because a fact finder, considering the disputed evidence in light of the entire record, could not have reasonably formed a firm belief or conviction that S.H.R. actually endangered his children, I would hold that the evidence is factually insufficient to support the trial court’s finding of endangerment. See id. (quoting J.F.C., 96 S.W.3d at 266). Accordingly, I agree that the judgment of the trial court should be reversed and the case remanded for further proceedings.
Terry Jennings
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Jennings, concurring.
Justice Brown, dissenting.