When the judiciary takes the trusting, innocent hand of a little girl or a little boy and involuntarily terminates that child's connection to her dad or mom, the court cuts the core relationship of all humankind. To sever this natural right for a child to have a father, or a mother, and for a father or mother to have a child, involves the most essential of all societal structure. One cannot conceive of a greater loss, than the parental loss of a child or the child's loss of her parent. Therefore, for the law to say involuntary termination of parental rights involves constitutional dimensions, that it is more precious than property rights, that it is an essential right,1 that it is a natural and civil right, is an understatement of the greatest magnitude. The magnitude of such court intrusion into the family relation, dictates that such action only be taken under the strictest scrutinies and only under narrowest construction favoring the parent.2 Accordingly, I agree with the majority's conclusion that before a trial court may display a child's parent before a jury in manacles, handcuffed, and however shackled, such judicial action requires the utmost exigent circumstances of justification. That justification must explicitly appear in the record or the implementing jurist is charged to explain her concerns for the record.
The court below effectively communicated to the jury his implied finding that appellant was not only a clear and present danger to those in the courtroom, but also was a present threat to his surviving child. The trial judge waited over a day and a half before informing the jury that appellant had been convicted and not to infer anything from the shackles. However, this ill-timed juridical comment, left the jury to speculate for many hours, over night, about the apparent dangerous propensities of appellant, and perhaps even fear for their own safety. The trial court irrevocably and unnecessarily marked appellant as a dangerous character.3 The experienced jurist, however, made no record mention of his concerns requiring shackles. The majority opinion describes and documents the law's presumption that it is in the best interest of a child to remain with her parent. This presumption of a parent's right to raise their own child is at least as great as the presumption of innocence. The trial court disregarded not only the objections of all the parties and ad litem, but also ignored the presumption that the relationship of the parent, however *Page 96 inadequate that parent, predominates over the dictates of the state.
The dissent goes awry when it ignores the presumption of every parent's responsibility and right to raise their own children. Is this not at least as fundamental to our law as the presumption of innocence? Or does our law afford greater protection to one accused of crime than to one who serves the critical societal role of father or mother? Morever, does not our Texas jurisprudential heritage strictly forbid a judge from commenting upon the weight of the evidence?4
Because of the tragic proof of record, I agree with both the majority and the dissent that the evidence, by the clear and convincing standard, supports the instant two findings necessary for the termination of the parental rights of appellant.
I write separately on the narrow issue of our standard of review on the termination issue. The majority articulately describes5 the debate over the review standard that has challenged the courts of appeals without supreme court guidance for over twenty years. Today, however, the majority opinion does not embrace the precedent of this very court. We have previously held that there is no middle "clear and convincing" standard of review.6 "The requirement of clear and convincing evidence is merely another method of stating that a cause of action must be support [sic] by factually sufficient evidence."7
I would argue at least two reasons why we should adopt the intermediate standard of review in parental termination cases. First, both the federally and state mandated constitutional concerns require the presence of clear and convincing evidence.8 Second, the legislature has mandated the intermediate standard. In both instances, only flawed logic could argue that both the constitutional and the legislative requirements apply only at the trial court level and not at the appellate level. If we review the legal and factual sufficiency of evidence applying the same standard as we review the preponderance of the evidence, we too would sometime violate the due process of all Texas' parents and children. If we do not apply the higher constitutional and statutory standards, we too fail our own constitutional responsibilities.
The difficulty of the standard of review concept seems to me that we fail to recognize the standard for what it is. Both legal and factual sufficiency are essentially negative concepts. If there is a complete absence of evidence, "no evidence" as a matter of law, there is insufficient evidence, the evidence is so weak that a finding is clearly wrong and manifestly unjust, or the evidence is against the great weight and preponderance of the evidence, then we have found something is missing, lacking, *Page 97 mere surmise or non-existent. If however, we find there is some evidence, more than a scintilla, that does not mean the fact finder had before it "clear and convincing evidence." When we positively find some supporting evidence, we are usually not saying there is overwhelming evidence or that the evidence was supported by the great weight.
When we address a legal sufficiency or no evidence issue, we consider only the evidence and inferences viewed in their most favorable light and disregard evidence and inferences to the contrary.9 In a parental termination case would we not then be disregarding evidence and inferences that support the maintenance of the parent-child relationship? Again, we would not be requiring clear and convincing evidence.
Viewed another way, given the burden of proof, if the state appealed an adverse fact finding, a parent's rights would still be protected, defacto, by the dual legal and factual sufficiency standard of review. The parent's presumed right to their own child found by the trier of fact would only be overturned if the state demonstrated on appeal there was no evidence to support the parent's retention of the child and the evidence conclusively established the two prong termination requirements as a matter of law. A factual sufficiency appellate review would require the state to establish that the great weight of evidence is so contrary to the finding the parent keeping the child that such failure to find is manifestly unjust.10 Under either of these negative standards, given the absence of a finding of termination, the parent is both constitutionally and statutorily protected as applied, (de facto). Not so, when parental rights are terminated.
The majority implicitly grasps this dichotomy. In the case subjudice, a parent's natural, constitutional and statutory rights are illegitimately terminated if appellate courts do not apply the intermediate standard. A standard of review that does not require proof greater than a preponderance must fail. An appellate review that only reviews the supporting evidence, disregards contrary evidence, or is searching the entire record only for evidence in excess of a scintilla, both logically and constitutionally fails.
While several of our sister courts correctly recognized this, their insistence that the legal sufficiency standard is appropriate is only partially correct. When the state appeals an adverse termination finding, the traditional no evidence standard works because the question is asked in the negative. When, however, the party without the burden of proof appeals, i.e., the parent, neither the traditional legal or factual sufficiency standards are workable, much less constitutional or in compliance with legislative mandate.
The Fort Worth court helps captures this elusive concept in In theInterest of L.R. M.:11 "We do not believe the Texas Supreme Court intends to require trial courts to adhere to a higher standard of proof in termination cases while allowing the courts of appeals to use the same standard of review as in cases decided by preponderance of the evidence."12 Justice Lattimore, I believe, correctly prescribes the appellate standard of review when the fact finder is required to make a finding by *Page 98 clear and convincing evidence: "The court of appeals will only sustain a point of error alleging insufficient evidence if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence."13 The language used by our majority, that the standard of review would test whether the trier of fact "could reasonably conclude that the existence of a fact is highly probable" (taken from Neiswander, supra) is, as Justice Lattimore pointed out, an unnecessary complication; "`highly probable' is merely a synonym for `clear and convincing.'"14 The Waco Court of Appeals adopted this same standard15 and further elucidates the standard of review:
In a case where the burden is by clear and convincing evidence, an insufficient evidence point may be sustained when: (1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing.16
Though the Texas Supreme Court recently wrote on the clear and convincing standard as applied in the libel context,17 it neither addressed the legislative requirement in parental termination cases nor did it assess the constitutional, fundamental and natural right of every parent and child in the context of the family. The court only correctly refused to extend federal procedures to Texas summary judgment practice.
In summary, I argue that whenever an appellate court affirms a final judgment terminating parental rights, it, like the trier of fact, may only do so by the intermediate standard of review guaranteeing the application of the clear and convincing evidentiary requirement. I would expressly overrule our precedents of In re B. S. T. and Oadra.