Opinion issued March 14, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00844-CV
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IN THE INTEREST OF J.G.S., A Child
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Case No. 2016-52707
DISSENTING OPINION
I respectfully dissent. I would hold that Rita Sims failed to establish a
statutorily-required predicate act to support termination of Paul Cooper’s parental
rights to J.G.S., the child who is the subject of this petition, under any of the
subsections of Family Code section 161.001(b)(1) pled, namely subsections (B), (C),
(F), or (Q). I join the majority’s opinion and judgment holding that Sims failed to
establish her right to termination of Cooper’s parental rights by clear and convincing
evidence under subsections (B), (C), and (F). However, I would also hold that Sims
failed to establish a predicate act under subsection (Q) by clear and convincing
evidence. Because I would hold that Sims failed to establish any predicate act for
termination of Cooper’s parental rights to J.G.S. under section 161.001(b)(1), as
required by law, I would deny the petition for termination, I would void Sims’
adoption of the child, J.G.S., and I would order the reinstatement of the court order
granting sole managing conservatorship of J.G.S. to Sims and possessory
conservatorship to Cooper.
Termination Under Family Code Section 161.001(b)(1)(Q)
The Texas Family Code requires that “the evidence in support of termination
must be clear and convincing before a court may involuntarily terminate a parent’s
rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Santosky v.
Kramer, 455 U.S. 745, 747–48 (1982)); see TEX. FAM. CODE ANN. § 161.001(b); In
re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “Consequently, termination proceedings
should be strictly scrutinized, and involuntary termination statutes are strictly
construed in favor of the parent.” Holick, 685 S.W.2d at 21.
“Clear and convincing evidence” means “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007. In
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conducting a legal sufficiency review of the evidence when the standard of proof at
trial is clear and convincing evidence, the court looks at all of the evidence in the
light most favorable to the finding to determine whether a reasonable factfinder
could have formed a firm belief or conviction that the finding was true. In re J.F.C.,
96 S.W.3d at 266. We must assume the factfinder resolved disputed facts in favor of
its finding if a reasonable factfinder could do so, and we must disregard all evidence
that a reasonable factfinder could have disbelieved or found to have been incredible.
Id. When conducting a factual sufficiency review, “[i]f, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction, then the evidence is factually insufficient.” Id.
Section 161.001(b)(1)(Q) provides for termination of the rights of a parent for
“knowingly engag[ing] in criminal conduct that has resulted in the parent’s:
(i) conviction of an offense; and (ii) confinement or imprisonment and inability to
care for the child for not less than two years from the date of filing the [termination]
petition.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d
105, 107 (Tex. 2006) (per curiam).
The majority acknowledges that there are three steps to prove a right to
termination under subsection (Q), but it misapplies those steps.
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According to the majority, “During the first step, the party moving for
termination must produce evidence of criminal conduct by the parent that results in
confinement for two years or more. The burden of production then shifts to the
[incarcerated] parent.” Slip Op. at 27 (citing In re E.A.R., No. 13-08-00101-CV,
2009 WL 2625314, at *4 (Tex. App.—Corpus Christi Aug. 27, 2009, pet. filed)
(mem. op.)).
Subsection (Q) actually says that it applies when a parent has “knowingly
engaged in criminal conduct that has resulted in the parent’s (i) conviction of an
offense” and “confinement or imprisonment and inability to care for the child for not
less than two years from the date of filing the [termination] petition.” TEX. FAM.
CODE ANN. § 161.001(b)(1)(Q) (emphasis added); see In re E.S.S., 131 S.W.3d 632,
639 (Tex. App.—Fort Worth 2004, no pet.) (“First, the party seeking termination
must establish that the parent’s knowing criminal conduct resulted in incarceration
for more than two years.”).
Here, the evidence is plainly insufficient to establish under the clear and
convincing standard that Cooper “knowingly engaged in criminal conduct” that
resulted in his conviction of an offense. Rather, the evidence shows that his
conviction for sexual assault by the military court was overturned on due process
grounds; that ruling was then reversed by a panel of the military court of appeals
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over a strong dissent;1 and the case is still in the process of litigation. Thus, there is
no final conviction. Under the majority’s standard, a parent’s rights to a child can be
terminated even if he is wrongfully convicted of a crime and there is no evidence in
the record regarding the grounds for his continued confinement; his simply being
confined during the appeals process is enough, even if he is ultimately acquitted.
That alone is reason to hold that Sims did not present sufficient evidence to support
termination of Cooper’s rights under step one of the proof of subsection (Q). But
that is not all.
The majority further states, “In the second step, the parent must produce some
evidence of how the parent will provide care for the child during the period of
confinement or that the parent has arranged with another person for that person to
provide care for the child during the period of confinement.” Slip Op. at 27 (internal
footnote omitted) (citing In re E.A.R., 2009 WL 2625314, at *4 and In re Caballero,
53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied)). The majority claims,
“If the parent seeks to meet the burden of production with evidence that another
person will care for the child during the period of confinement, the parent must prove
the proposed caregiver’s agreement to provide the care.” Id. (emphasis added)
(citing In re E.S.S., 131 S.W.3d at 640).
1
United States v. Cooper, — M.J. —, No. 18-0282, 2019 WL 629509 (C.A.A.F. Feb.
12, 2019).
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However, the majority’s restatement of the requirements to satisfy the second
step of the proof required for termination under subsection (Q) overstates and
misstates the parent’s burden as set out in the authorities it cites.
In re E.A.R., cited by the majority, actually says,
Once TDFPS established, through [the father’s] own testimony, that his
knowing criminal conduct resulted in his incarceration for more than
two years, the burden of production shifted to [him] to provide some
evidence as to how he intended to care for or arrange for care [of the
child] during his incarceration. [He] failed to produce any such
evidence.
2009 WL 2625314, at *4 (emphasis added) (terminating parental rights of
incarcerated father when father failed to produce any “evidence as to how he
intended to care for or arrange for” child’s care during his incarceration). There was
no requirement that the parent present evidence of an agreement by the proposed
caregiver with that parent on his behalf as the majority requires.
Similarly, in In re Caballero, also cited by the majority, the Amarillo Court
of Appeals rejected the incarcerated father’s argument that DFPS had the burden to
show that there was no one with whom his child could be placed during the period
of his incarceration. See 53 S.W.3d at 396. In a case of first impression construing
the term “care” in subsection (Q), the court of appeals held that “once the
Department has established a parent’s knowing criminal conduct resulting in their
incarceration for more than two years, the parent must produce some evidence as to
how they would provide or arrange to provide care for the child during that period”
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and that when the parent has met that burden of production, “the Department would
have the burden of persuasion that the arrangement would not satisfy the parent’s
duty to the child.” Id. (emphasis added).
Likewise, In re E.S.S., which the majority also cites, says, “Second, the parent
must produce some evidence as to how he would provide or arrange to provide care
for the child during [the period of incarceration].” 131 S.W.3d at 639 (emphasis
added). In that case, the Fort Worth Court of Appeals held that the incarcerated father
“met his burden of production regarding how he would arrange for the care of [the
child] in that the [pre-trial] agreement reached by the parties included naming [the
father’s] mother and brother possessory conservators with visitation rights.” Id. at
640 (emphasis added). The court stated, “Appellee [the mother] consequently had
the burden of persuasion to establish that this arrangement would not meet [the
father’s] duty to [the child].” Id. (emphasis added). The court then held that the
mother, who had had custody over the child since her divorce from the father—as
Sims has had custody over J.G.S. here—had presented no evidence that the pre-trial
agreement would not satisfy the incarcerated father’s burden of showing how he
would arrange for the care of the child. Thus, her petition to terminate the father’s
rights failed. Id.
The In re E.S.S. court opined:
Although [the father] admitted that he is currently serving a prison term
that will exceed two years, there is no evidence that [the father] is
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unable to care for [the child]. Proof that [the father] is unable to care
for [the child] is an additional requirement not met by showing
incarceration alone. Otherwise, the termination of parental rights could
become an additional punishment automatically imposed along with
imprisonment for almost any crime.
Id. at 639 (emphasis added).
In re E.S.S. is virtually identical to this case in that Cooper, the incarcerated
father here, did show how J.G.S. would be cared for during his incarceration—
namely by his mother, Sims—and Sims, who sought to terminate Cooper’s rights,
did not carry her burden of persuasion that he had not provided for J.G.S.’s care
while he was incarcerated and would be unable to care for J.G.S. if she were not
adopted by Sims.
Here, Cooper’s burden at the second stage was only to produce some evidence
as to how he would arrange to provide care for J.G.S. during his incarceration. He
did. He produced evidence that J.G.S. was being well cared for subject to a prior
court order in which Sims was named managing conservator of J.G.S. and Cooper
was awarded possessory rights. Sims’ own evidence in support of her termination
petition admits as much. And Sims expressed her continued intention to provide for
J.G.S. by adopting her.
Here, as in In re E.S.S., there is literally no indication that Cooper failed to
satisfy his burden of producing some evidence that he—through a prior court
order—had arranged to provide for J.G.S. during the period of his incarceration. He
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necessarily was unable to fulfill his possessory rights to J.G.S., accorded to him in
the same court order, during the period of his incarceration, but that had no bearing
on the uncontested evidence that J.G.S. has been and continues to be well cared for
during the period of his incarceration. Nor is there any evidence that J.G.S. will cease
to be well cared for by Sims throughout Cooper’s period of incarceration or that
Cooper will be unable to fulfill his parental responsibilities upon his release, which
the evidence shows could be this year. Rather, the record shows that, if his conviction
is overturned and he is released, Cooper may be entitled to funds he could use to
support J.G.S., which remains a real, if remote, possibility. Because there is no
evidence to support the second step of the proof required for termination under
subsection (Q), Sims’ petition for termination fails on this ground too.
The majority reasons, however, that because the child was placed in Sims’
care pursuant to a prior court order and the child is well cared for, Sims should be
allowed to renege on the terms of the court order appointing her sole managing
conservator and appointing Cooper possessory conservator and to terminate
Cooper’s rights to the child—guaranteed by the same court order—and to adopt the
child because she is not acting “on his behalf” in caring for the child, she is
exercising her own rights to the child, which gives her grounds to terminate his
rights.
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This reasoning is directly contrary to the reasoning and holding of the Texas
Supreme Court in Holick, a subsection (C) abandonment case, in which the niece
with whom a mother left her children as caretaker in her absence attempted to
terminate the mother’s rights to the children. The court held that the parent was not
required to produce evidence of an agreement by the parent and the caretaker that
the caretaker would care for the children on the parent’s behalf—as the majority
holds here. See Holick, 685 S.W.2d at 21 (holding, in termination case involving
question of whether mother voluntarily abandoned her children, that “provide” under
section 161.001(b) includes “make arrangements for adequate support” of child and
does not require personal support of child).
The supreme court pointed out in Holick both that “the evidence in support of
termination must be clear and convincing before a court may involuntarily terminate
a parent’s rights” and that “termination proceedings should be strictly scrutinized,
and involuntary termination statutes are strictly construed in favor of the parent.” Id.
at 20. It held that the mother’s rights to her children could not be terminated for
abandonment and the children adopted by the niece with whom she had left them
during financial difficulties for over six months—even though the mother had
obtained employment, did not send money to support the children, did not write or
visit the children, and only called and talked to them once, and the niece and her
husband provided for all the children’s needs—because the mother had voluntarily
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arranged for the niece to provide adequate support for the children and the children
were in fact provided for. Id. at 19–21. That is parallel to the case here.
Ultimately, the majority rests its construction of the parent’s burden of
production of evidence to satisfy the second step of the proof required for
termination under subsection (Q) on its construction of In re H.R.M., a 2006 Texas
Supreme Court per curiam opinion—i.e., an opinion that did not purport to change
the law. In that per curiam case, the Texas Supreme Court stated,
Absent evidence that the non-incarcerated parent agreed to care for the
child on behalf of the incarcerated parent, merely leaving a child with
a non-incarcerated parent does not constitute the ability to provide
care. If it did, then termination under subsection Q could not occur in
any instance where one parent is not incarcerated and is wiling and able
to care for the child.
In re H.R.M., 209 S.W.3d at 110 (emphasis added). The majority opines with respect
to In re H.R.M.,
The Texas Supreme Court has held that a parent relying on another’s
provision of care to avoid termination under Subsection (Q) must
demonstrate that the care is being provided on behalf of the parent, not
out of an existing duty or inclination to care for the child. In re H.R.M.,
209 S.W.3d 105 (Tex. 2006). . . .
An incarcerated parent cannot meet his burden merely by producing
evidence that there is an unincarcerated parent or grandparent who is
willing and able to care for the child; instead, the parent must present
evidence that the alternative caregiver is providing care on behalf of
the parent. [Id.]
Slip Op. at 27–28 (emphasis added) (additional citations omitted). This construction
of In re H.R.M. misreads and overstates the burden of proof required by the Texas
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Supreme Court for a parent to sustain his burden at the second step of subsection
(Q).
In In re H.R.M., the child’s mother, who had been named sole managing
conservator of the child, sought to terminate the father’s possessory rights. However,
there the resemblance to this case ends. Although the father in In re H.R.M. “testified
that if he had to, he could go to his mother for help and support, . . . neither his
mother nor anyone else testified that they were willing to care for [the child] on [the
father’s] behalf during his incarceration.” Id. Moreover, the record showed that the
father “had multiple convictions and sentences. He had been on parole for a robbery
conviction, but his parole was revoked in 2002 [four years before the date the case
was decided], when he was convicted of enticing a child”; he “received a seven-year
sentence for that offense”; he “had just under thirteen years left to serve of his
robbery sentence”; and he “acknowledged that the parole board had twice denied
him parole already.” Id. at 109. In short, a jury could have reasonably formed a firm
belief or conviction that the mother was the child’s sole provider, that the father had
not been in a position to exercise his possessory rights during H.R.M.’s childhood,
that he was unlikely to be in a position to care for the child in the future, and that the
father had made no arrangements to provide any care or support for the child and
had no plans to care for the child should he be paroled or released.
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In re H.R.M. is not only distinguishable on its facts but, as a per curiam
opinion, it was not intended to and did not change the law with respect to the second
stage of the burden of proof under subsection (Q). Thus, I cannot conclude that In re
H.R.M. supports the majority’s interpretation of that case.
Finally, I would also hold that Sims did not satisfy her burden with respect to
the third stage of the proof required to terminate an incarcerated parent’s rights under
subsection (Q). As recited by the majority,
If the parent’s burden of production is met, the third step shifts the
burden to the party seeking to terminate parental rights. In re S.R., No.
13-15-00114-CV, 2015 WL 3657747, at *2 (Tex. App.—Amarillo June
11, 2015, no pet.). That party then has the burden of persuasion to show
by clear and convincing evidence that the parent’s provision or
arrangement would not adequately satisfy the parent’s duty to the child.
Id.; In re D.J.H., 381 S.W.3d at 611 n.3.
Slip Op. at 29 (emphasis added).
As stated above, Sims herself showed by clear and convincing evidence that
J.G.S. was being well cared for pursuant to the court order appointing her J.G.S.’s
managing conservator and that she intends to continue to fulfill all parental duties
for J.G.S. during the period of Cooper’s incarceration. Moreover, Sims failed to
show by clear and convincing evidence either that that arrangement would fail or
that Cooper would be unable to uphold his parental responsibilities in the future if
his parental rights were not terminated. Rather, Cooper produced some evidence that
his period of incarceration was likely to end within the year, either because his
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previous sentence was ending or because the case against him was still not finally
resolved and could result in reversal of his conviction. Sims produced no evidence
to carry her burden of persuasion that Cooper would be unable to work or provide a
home for J.G.S. upon his release or would otherwise be unable to fulfill his rights
and obligations to J.G.S. See In re E.S.S., 131 S.W.3d at 640 (holding that mother’s
petition seeking termination of incarcerated father’s parental rights failed because
she did not meet burden of persuasion to establish that pre-trial arrangement naming
father’s mother and brother as possessory conservators of child would not meet
father’s duty to child).
I join the majority’s opinion and judgment that Sims failed to show by clear
and convincing evidence that she was entitled to termination of Cooper’s parental
rights under Family Code subsections 161.001(b)(1) (B), (C), and (F) and that she
failed to present clear and convincing evidence that termination of Cooper’s parental
rights would be in J.G.S.’s best interest. However, I disagree with the majority’s
opinion and judgment that Sims showed her right to termination of Cooper’s parental
rights to J.G.S. under subsection (Q). I would hold that the evidence is legally and
factually insufficient to support termination of Cooper’s parental rights to J.G.S.
under subsection (Q), just as the evidence is insufficient under each of the other
sections of 161.001(b) pled. Nor has Sims shown that termination is in J.G.S.’s best
interest.
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Accordingly, because I would hold that Sims failed to establish by clear and
convincing evidence any of the predicate acts required for termination of Cooper’s
parental rights, I respectfully dissent from the majority’s opinion holding that Sims
satisfied her burden of proving her right to termination under subsection (Q) and
remanding this case to the trial court for additional evidence on whether termination
was in J.G.S.’s best interest.
CONCLUSION
I would deny the petition to terminate Cooper’s parental rights to J.G.S., and
I would void Sims’ adoption of J.G.S. I would remand the case to the trial court with
instructions to reinstate the court order awarding sole possessory conservatorship of
J.G.S. to Sims and possessory conservatorship to Cooper.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Justice Keyes, dissenting.
Justice Landau, concurring.
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