Opinion issued March 5, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00885-CV
———————————
IN THE INTEREST OF C. M. J. AKA C.W., Child
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2016-03689J
OPINION
This is an appeal from a decree terminating a mother’s parental rights and
appointing the Department of Family and Protective Services as sole managing
conservator of her child. The mother contends in her first issue that the trial court
improperly denied her motion to dismiss because the statutory deadline by which the
case was to be finalized had passed. She contends second that the trial court
erroneously granted the Department’s summary-judgment motion. Because the trial
court properly extended the finalization deadline and because there existed no
genuine issue of material fact as to whether a factfinder could form a firm belief or
conviction on the statutory-predicate ground, we overrule the mother’s first issue
and overrule her second issue in part. Because the mother’s summary-judgment
evidence required the trial court to weigh the parties’ competing evidence on the
child’s best interest, we sustain in part the mother’s second issue.
Background
This parental-termination case concerns J.L.C.’s fifth child, C.M.J. Between
2003 and the start of this case, J.L.C. had five children. Her parental rights over four
of those children were terminated after a long history of drug use, violence, and child
endangerment.
We begin in September of 2003, the month after the mother’s first child was
born. The mother was admitted to the hospital and tested positive for cocaine.
Although she denied using cocaine, she explained that “she cooked cocaine for her
brother as he did not know how to cook cocaine and the cocaine may have been
absorbed through her skin.” The Department tried to provide the mother with a
family-services plan to ensure that she could provide her newborn son with a safe
environment, but the Department was unable to do so after it lost contact with her
and could not find her.
2
Then, in 2004, the mother was convicted of evading arrest and sentenced to
six months’ confinement for violating the conditions of the community supervision
she was on for evading arrest about a year earlier. Around eight months after the
birth of her second child, in 2006, the Department received a second report that the
mother was using crack cocaine after being released from jail. The father of the two
children refused to speak with the Department’s caseworker and “was very
threatening and hostile.” The mother again denied using drugs. Next, while her
second child was less than a month old, the mother was convicted of theft and
sentenced to eleven months in jail.
Shortly after getting out of jail, the Department received another report
alleging that the mother’s one-year-old child was “always dirty”; that she left the
child “to be cared for by different people”; and that she allowed the child to be
“around people that were using crack and blowing smoke into [the child’s] face.”
The Department interviewed the mother, and while she again denied using drugs,
she said that she was living in a shelter and was stealing to provide for her family.
The Department again attempted to provide the mother with services, but, again, it
lost contact with her. Three months later, the mother was sentenced to thirty days’
confinement for another theft conviction. Shortly after she was released, the mother
had her third child.
3
In June of 2009, the Department requested that the mother’s three children be
placed in its conservatorship after receiving another complaint that the mother left
two of her three children with a babysitter and failed to return for almost two weeks.
The Department could not find the mother during its investigation, but it did discover
that one of her children had been living with a relative for the past two years. The
relative did not know where the mother was, which was especially problematic
because the mother had the information regarding the child’s access to Medicaid.
The relative informed the Department that the children’s father was “always loaded
on drugs,” and that, last known, the mother “was living in a crack house.” During
the pendency of that suit, the mother failed three drugs tests and refused to take two
others.
The trial court signed a decree terminating the mother’s parental rights to her
three children. In that order, the trial court found that the mother engaged in conduct
endangering to her children and knowingly allowed her children to remain in
endangering circumstances, in violation of Texas Family Code subsections
161.001(b)(1)(D) and (E). It also found that the father violated subsection (E) and
that termination of both parents’ parental rights was in the children’s best interest.
The three children were placed in the Department’s sole managing conservatorship.
Nine months later, in November of 2011, the mother had a fourth child. Not a
year later, the Department received a report alleging that the mother and father were
4
subjecting the child to physical abuse. The allegations described a witnessed
argument between the mother and father that culminated with the father throwing
the child “on the concrete.” The following day, a Department caseworker visited the
home and observed “what appeared to be droplets of blood everywhere,” and the
caseworker called the police. The mother told the police and caseworker that she no
longer needed help and that she did not want to let the worker or the police into the
home because “the father” was “kind of crazy.” When the caseworker told the
mother that the Department wished to have the child placed with a relative because
of concerns related to the domestic violence, the mother locked the door and refused
to cooperate. The Department convinced the mother to give the baby to a relative
and then filed suit, requesting that the child be placed in its temporary
conservatorship due to concerns that the mother and father posed a danger to the
child.
During the suit, the mother continued to test positive for cocaine and failed to
comply with court-ordered drug testing. The trial court signed a decree terminating
the mother’s parental rights to her fourth child on February 21, 2013. The trial court
supported its decree with findings that the mother’s parental rights were previously
terminated as to her other three children because she engaged in conduct that
endangered their well-being; that she failed to comply with court-ordered tasks and
5
services necessary for reunification with her child; and that termination of her
parental rights was in the child’s best interest.
Nine months later, the mother had C.M.J., the child involved in this suit. When
the child was still a year old, the child’s father—who was not the same father of the
other four children—was convicted of assaulting the mother. In February of 2016,
the Department received a report that C.M.J. was subject to neglectful supervision
and that the mother was abusing prescription drugs. The report described the mother
as sleepy, drunk, and stumbling. The report also alleged that the mother would drive
with C.M.J. in the car while she was intoxicated. The Department attempted to meet
with the mother, but she refused. The mother also would not provide information
about the child’s father, nor would she disclose her address. A Department
caseworker tried unsuccessfully nine other times to contact the mother.
The Department filed, and the trial court granted, an emergency petition
naming the Department as temporary managing conservatorship over C.M.J.,
pending the outcome of an adversarial hearing. After the adversarial hearing, the
trial court found that despite reasonable efforts made to prevent the child’s removal,
there remained a danger to the child’s safety that warranted his immediate removal
from his parents’ care and placement in the Department’s temporary managing
conservatorship.
6
On August 30, 2016, the trial court held a status hearing to discuss the
Department’s family-service plans developed for the mother and father. The trial
court found the existence of aggravated circumstances under Texas Family Code
section 262.2015, which relieved the Department of its obligations to provide the
mother with a family-services plan or make reasonable efforts to return the child to
her care.
About nine months later, the trial court issued an order retaining the suit on
its docket and setting hearing dates. This order added 180 days to the usual deadline
that requires parental-termination cases to be finalized by “the first Monday after the
first anniversary of the date the court rendered a temporary order appointing the
department as temporary managing conservator.” See TEX. FAM. CODE § 263.401(b).
With this order in place, the new deadline became January 19, 2018.
On September 5, 2017, about six months before the January deadline, and
shortly after Hurricane Harvey struck Texas, the Texas Supreme Court entered an
Emergency Order Affecting Child Protection Cases that permitted trial courts to
suspend the effects of the deadline statute if “the court finds that disastrous
conditions . . . precluded compliance” and that provided “any such suspension
extends to the date the court finds it reasonably possible to proceed, taking into
account the circumstances.” Twenty-one days after the Texas Supreme Court issued
its order, the trial court signed an order retaining the suit on the court’s docket. The
7
trial court found that Harris County was experiencing a state of disaster and that the
court was “incapable of commencing trial by the scheduled dismissal deadline.” The
order then listed the new dismissal deadline as October 6, 2018. Months before that
deadline, on March 3, 2018, the mother filed a motion to dismiss, arguing that the
case should automatically be dismissed because the deadline imposed by section
263.401 had passed. The trial court denied the mother’s motion.
The Department later filed a motion for summary judgment, maintaining that
termination of the parents’ parental rights was warranted as a matter of law.
Specifically, the Department argued that its summary-judgment evidence
conclusively established that termination of the mother’s parental rights was
supported by Texas Family Code 161.001(b)(1)(M) and that termination of her rights
was in C.M.J.’s best interest. The Department’s evidence detailed the accounts
described above. That evidence included the referral affidavits from this case and
the two previous cases, police reports, the mother’s drug-test results, the criminal
records of the mother and the father, several affidavits by Department caseworkers
who were involved with the case, and certified copies of the termination decrees of
the mother’s other four children.
The trial granted the Department’s motion, terminating the mother’s parental
rights under section 161.001(b)(1)(M), finding “by clear and convincing evidence
that termination of the parent-child relationship between the mother and C.M.J . . .
8
is in the child’s best interest,” and naming the Department as sole managing
conservator.
Analysis
The mother raises two issues on appeal. She contends that the trial court
erroneously denied her motion to dismiss. She also contends that the trial court
improperly granted the Department’s summary-judgment motion.
I. Motion to dismiss
The mother first contends that the trial court was required to grant her motion
to dismiss under Family Code section 263.401(a). This section was recently
amended in 2017. That amendment states that the changes made to section 263.401
“apply only to a suit affecting the parent-child relationship filed on or after
[September 1, 2017].” Act of May 28, 2017, 85th Leg., R.S., ch. 319, §§ 33–34,
2017 Tex. Gen. Laws 716, 738 (codified at TEX. FAM. CODE § 263.401(a)). Because
this suit began before the present amendment, the former provision controls here.
That provision read:
Unless the court has commenced the trial on the merits or granted an
extension under Subsection (b) or (b-1), on the first Monday after the
first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, the
court shall dismiss the suit affecting the parent-child relationship filed
by the department that requests termination of the parent-child
relationship or requests that the department be named conservator of
the child.
9
The trial court rendered a temporary order appointing the Department as temporary
managing conservator on July 19, 2016, which would make July 24, 2017, the first
Monday after the first anniversary of that order. On May 17, 2017, and before the
dismissal deadline, the trial court signed an order under section 263.401(a) retaining
the suit on the court’s docket. This order extended the dismissal deadline to January
6, 2018.
The mother contends that because she brought a motion to dismiss three
months after that deadline, the trial court was required to dismiss the suit. But the
mother ignores the Texas Supreme Court’s Emergency Order Affecting Child
Protection Cases in response to Hurricane Harvey. This order, entered under
Government Code section 22.0035, permitted trial courts to suspend the effects of
263.401 if “the court finds that disastrous conditions resulting from Hurricane
Harvey precluded compliance” and provided that “any such suspension extends to
the date the court finds it reasonably possible to proceed, taking into account the
circumstances.” On September 26, 2017, the trial court, under the Texas Supreme
Court’s order, signed an order retaining the suit on the court’s docket. The trial court
found that Harris County was experiencing a state of disaster and that the court was
“incapable of commencing trial by the scheduled dismissal deadline.” It then noted
the new dismissal deadline as October 6, 2018. The mother filed her motion to
10
dismiss about eight months before that deadline. Accordingly, the trial court was not
required to dismiss this suit, and we overrule the mother’s first issue.
II. Summary judgment
The mother maintains the Department’s summary-judgment evidence is
insufficient to support parental termination as a matter of law. We review summary
judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005). Before a trial court may terminate parental rights, the Department must prove
by clear and convincing evidence that both a predicate statutory ground under
section 161.001(b)(1) exists and that terminating parental rights is in the child’s best
interest. TEX. FAM. CODE § 161.001(b)(1); In re B.L.D., 113 S.W.3d 340, 353–54
(Tex. 2003). Normally, the Department satisfies its burden through a trial. But here,
the Department chose to proceed through summary judgment under Rule of Civil
Procedure 166a.1
1
In her brief, the mother fairly questions whether the Texas Constitution
permits the termination of parental rights by summary judgment. See, e.g., In
re G.M.G., 44 S.W.3d 46, 61–62 (Tex. App.—Houston [14th Dist.] 2014, no
pet.) (Christopher, J., concurring) (questioning constitutionality of
termination by summary judgment). Nevertheless, the mother’s
constitutionality argument is not preserved for appellate review because she
failed to raise the issue in the trial court. See TEX. R. APP. 33.1 (requiring
preservation of issues); see also In re L.M.I., 119 S.W.3d 707, 710–11 (Tex.
2003) (stating that constitutional complaints in parental-termination cases
must be raised in trial court to be preserved for appellate review).
11
In the typical summary-judgment case, the movant must establish that there
are no genuine issues of material fact and that it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166(a); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000). If the movant satisfies this standard, the burden shifts to
the nonmovant to raise a genuine issue of material fact that will preclude summary
judgment. Willrich, 28 S.W.3d at 23. Unlike most civil cases, which are governed
by a preponderance-of-the-evidence standard, parental-termination cases employ the
“clear and convincing” standard. See TEX. FAM. CODE § 161.001(b). Accordingly,
we must first determine whether this clear-and-convincing evidentiary standard
alters the typical summary-judgment standard. The supreme court’s decision in
Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413 (2000) is particularly
instructive.
In Huckabee, the issue was whether the court of appeals properly reversed a
trial court’s order denying summary judgment in favor of a broadcaster being sued
for defamation by a public figure. Id. at 416–17. In defending the court of appeals’
reversal, the broadcaster argued that, because defamation requires a plaintiff to
“establish actual malice by clear and convincing evidence,” the appropriate
summary-judgment standard should be the federal standard: whether “the evidence
in the record could support a reasonable jury finding that the plaintiff has shown
12
actual malice by clear and convincing evidence.” Id. at 420 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255–56 (1986)).
In rejecting the broadcaster’s argument, the Supreme Court cited Casso v.
Brand, 776 S.W.2d 551, 555–57 (Tex. 1989), its decision holding that neither the
United States Constitution nor the Texas Constitution required a special summary-
judgment procedure in public-figure defamation cases. Huckabee, 19 S.W.3d at 421.
Although alterations made to the Rules of Civil Procedure after Casso “obviated, to
some extent, the differences in summary judgment procedure between [the Federal
and Texas] systems,” the Supreme Court concluded that Casso was premised on two
“practical considerations, which remain valid today.” Id.
The first consideration was the “difficulty in adapting review under a
heightened evidentiary standard to Texas summary judgment practice.” Id.
“Requiring the trial court to determine at the summary judgment stage whether a
reasonable juror could find the evidence to be clear and convincing suggests that the
trial court must weigh the evidence,” which stood in sharp contrast to extant Texas
law that prohibits the weighing of evidence at the summary-judgment stage. Id. at
421–22. The second consideration was that the vague “clear-and-convincing
standard provides little guidance regarding what evidence is sufficient for a plaintiff
to avoid summary judgment.” Id. at 422. Accordingly, the court concluded, absent
“authority that would constitutionally require it, we decline to adopt the clear-and-
13
convincing standard at the summary judgment stage of a public-figure defamation
case.” Id. at 423.
In contrast, it is well established that a parent’s natural right to the custody of
her children is of significant constitutional dimension. See Santosky v. Kramer, 455
U.S. 745, 753 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The right is
“far more precious than any property right.” Santosky, 455 U.S. at 758–59.
Unsurprisingly, parental-termination cases have been described as “the ‘death
penalty’ cases of civil law.” In re K.G.M., 171 S.W.3d 502, 506 (Tex. App.—Waco
2005, no pet.) (Vance, J., concurring). “Termination is a drastic remedy and is of
such weight and gravity that due process requires the state to justify termination of
the parent-child relationship by proof more substantial than a preponderance of the
evidence.” In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). And termination
proceedings are “strictly scrutinized.” Holick, 685 S.W.2d at 20.
The constitutional authority for incorporating the clear-and-convincing
standard into the summary-judgment standard that was lacking in the public-figure-
defamation context exists here. “If anything, persons faced with forced dissolution
of their parental rights have a more critical need for procedural protections than do
those resisting state intervention into ongoing family affairs.” Santosky, 455 U.S. at
753. In light of these constitutional considerations, we conclude that, in the context
14
of a parental-termination case, the clear-and-convincing standard applies at the
summary-judgment stage.2
As the Huckabee court described, the clear-and-convincing summary-
judgment standard is difficult to satisfy.
On a cold summary judgment record, without having observed a single
witness, it would take keen insight to forecast accurately whether
probative evidence would or would not produce a “firm belief or
conviction” in the mind of the trier of fact. The distinction, in a paper
record, between evidence that will merely raise a fact issue and
evidence that will be clear and convincing is generally subtle, if not
wholly subjective.
Huckabee, 19 S.W.3d at 422–23. Hence, the court noted, “We believe it obvious that
this determination may be more easily and accurately made after a trial on the
merits.” Id. at 423.
We now apply this clear-and-convincing standard to the summary-judgment
evidence in this case, beginning first with the predicate-statutory ground. The
2
A Colorado Court of Appeals has taken a nearly identical approach. See
People in Interest of A.E., 914 P.2d 534 (Colo. App. 1996). In A.E., the court
acknowledged that the Colorado Supreme Court had “ruled that because the
applicable standard of proof in a summary judgment motion is whether there
is a genuine issue of material fact, neither the ‘clear and convincing’ nor the
‘preponderance of the evidence’ standard is applicable.” Id. at 538 (quoting
Neves v. Potter, 769 P.2d 1047 (Colo. 1989). Nevertheless, the court reasoned,
because “termination of the parent-child legal relationship is a drastic remedy
that affects a parent’s liberty interest, a court deciding a summary judgment
motion seeking to terminate parental rights must apply the standard of clear
and convincing evidence to the applicable statutory criteria.” Id.
15
Department moved for summary judgment on the predicate-statutory ground under
section 161.001(b)(1)(M). That provision states that the Department satisfies its
burden of establishing a predicate ground with evidence that the parent had her
“parent-child relationship terminated with respect to another child based on a finding
that the parent’s conduct was in violation of Paragraph (D) or (E).” Evidence of a
prior decree reflecting the requisite findings under subsection (D) or (E) satisfies the
Department’s burden under subsection (M). See In re A.C., 394 S.W.3d 633, 641
(Tex. App.—Houston [1st Dist.] 2012, no pet.). Here, the Department’s summary-
judgment evidence included trial-court decrees terminating the mother’s parental
rights over her other four children. The first decree was signed on February 1, 2011,
and contained findings that the mother violated both subsections (D) and (E). The
second decree was signed on February 21, 2013, and contained findings that the
mother violated subsections (O) and (M).
Although Huckabee suggested that, under the clear-and-convincing summary-
judgment standard, summary disposition may never be appropriate because it is
likely impossible for a trial judge to apply the standard without being forced to weigh
the evidence, see Huckabee, 19 S.W.3d at 422–23, we believe that a case such as
this, where the Department moves for summary judgment on the predicate-statutory
ground under section 161.001(b)(1)(M), presents a scenario where a trial court can
grant summary judgment without having to weigh the evidence. Subsection (M)
16
requires only that the Department establish that the mother had her parental rights as
to other children terminated for her violation of subsections (D) or (E). Absent
evidence that the decrees were suspended or reversed, we cannot see how the mother
could produce any evidence that would create a fact issue on the decrees that contain
findings that she violated subsections (D) and (E). Under this circumstance,
summary judgment on whether the parent violated section 161.001(b)(1)(M) is
appropriate because decrees showing that the parent violated subsections (D) or (E)
satisfy the Department’s burden under subsection (M) as a matter of law, with no
evidence weighing required. See In re A.C., 394 S.W.3d at 640–41. Summary
judgment on a child’s best interest, however, presents different concerns.
Unlike the wholly objective inquiry that subsection (M) calls for, a child’s
best-interest determination under subsection 161.001(b)(2) calls for a delicate
weighing and balancing of numerous factors that are unique to each child and
parent.3 Accordingly, when the mother submitted summary-judgment evidence of
3
See In re K.M.L., 443 S.W.3d 101, 117 (Tex. 2014) (describing certain Holley
factors as “weigh[ing] in favor of the foster care placement and in favor of
termination”); In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (same); Lenz v.
Lenz, 79 S.W.3d 10, 19 (Tex. 2002) (“Suits affecting the parent-child
relationship are intensely fact driven, which is why courts have developed
best-interests tests that consider and balance numerous factors.”); Green v.
Remling, 608 S.W.2d 905, 908 (Tex. 1980) (“The trial judge is better situated
to weigh all of the surrounding circumstances and arrive at a judgment which
in his discretion will best protect the best interest of the child.”); Taylor v.
Meek, 276 S.W.2d 787, 790 (Tex. 1955) (noting that “presumption that to be
17
her paying money to C.M.J.’s caregiver, the trial court could not rule on the
Department’s summary-judgment motion on best interest without weighing the
parties’ competing summary-judgment evidence. See supra note 3; Huckabee, 19
S.W.3d at 422–23 (“Texas law has always emphasized that trial courts must not
weigh the evidence at the summary judgment stage.”). Thus, the trial court
improperly granted the Department’s summary-judgment on C.M.J.’s best interest.
Our holding should not be read as a categorical prohibition against summary
judgment on best interest in parental-termination cases. There may be circumstances
where it is appropriate. See, e.g., Dowell v. Dowell, 276 S.W.3d 17, 22 (Tex. App.—
El Paso 2008, no pet.) (“There may be instances where the acts or omissions of the
parent, standing alone, are sufficient to establish as a matter of law that termination
is in the best interest of the children.”); In re T.H., No. 05-99-01142-CV, 2000 WL
1853042, at *2 (Tex. App.—Dallas 2000, no pet.) (rejecting argument that summary
judgment is never appropriate for parental-termination cases). But see In re E.N.C.,
384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing
evidence.”) (Christopher, J., concurring). But summary judgment on a child’s best
interest will rarely be appropriate.4 We overrule in part and sustain in part the
raised by [a child’s] natural parents is to the child’s best interest . . . should be
considered by the trial judge in weighing the evidence”).
4
We also note that the trial court granted the Department’s summary-judgment
motion at the pretrial conference three days before this case was set for trial,
where the mother appeared and asked for a continuance, explaining “I’ve just
18
mother’s second issue. The trial court must commence a new trial no later than 180
days after the issuance of our mandate in this case. See TEX. R. APP. P. 28.4(c).
Conclusion
We affirm the trial court’s denial of the mother’s motion to dismiss and its
ruling on the Department’s summary-judgment motion on the predicate-statutory
finding under Family Code subsection 161.001(b)(1)(M). We reverse and remand
on the trial court’s granting of the Department’s summary-judgment motion on
C.M.J.’s best interest.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Publish.
met [my attorney] today . . . . [W]hy can’t I get the same opportunity as CPS.
They filed three continuances . . . . All I’m asking is give me some time so we
could talk . . . . [W]e haven’t even prepared for the [summary-judgment]
response . . . .”
19