Dissent; Opinion Filed January 31, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00712-CV
IN THE INTEREST OF A.M., A CHILD
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-30187-2019
DISSENTING OPINION
Before Justices Schenck, Reichek, and Carlyle
Opinion by Justice Schenck
The majority affirms the trial court’s judgment terminating the parental rights
of a father based on evidence he was slow to establish his paternity. Because I
disagree that that evidence standing alone is sufficient to support the trial court’s
finding that the Department’s efforts to return the child were reasonable, I dissent.
A Parent Is Presumed to Be Fit
The United States Supreme Court has long held that the Constitution “protects
the fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (quoting
Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion)). Texas jurisprudence
underscores this fundamental right and recognizes that it gives rise to a “legal
presumption” that it is in a child’s best interest to be raised by his or her parents. Id.
at 812 (citing Taylor v. Meek, 276 S.W.2d 787, 790 (1955)). Although the best
interest of the child is the paramount issue in a custody determination, “[t]he
presumption is that the best interest of the children” is served “by awarding them”
to a parent. Id. Thus, the fit-parent presumption is “deeply embedded in Texas law”
as part of the determination of a child’s best interest. Id.
Further, five years before Troxel, the Texas Legislature added a statutory
parental presumption applicable to original custody determinations:
[U]nless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional
development, a parent shall be appointed sole managing conservator or
both parents shall be appointed as joint managing conservators of the
child.
TEX. FAM. CODE § 153.131(a).
In the context of this presumption of parental fitness, Texas courts have long-
recognized that due process requires a heightened standard of evidence in reviewing
decisions to support termination of a parent’s rights to his or her child. See In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also FAM. §§ 161.001, 161.206(a)
(requiring clear and convincing evidence); In re A.C., 560 S.W.3d 624, 630 (Tex.
2018) (“[T]ermination of parental rights ‘is complete, final, irrevocable and divests
for all time’ the natural and legal rights between parent and child . . . .”).
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Father Challenges the Evidence to Support a Finding of Constructive
Abandonment
The family code allows for termination of the parent–child relationship if the
court finds by clear and convincing evidence that the parent has:
constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the
parent;
(ii) the parent has not regularly visited or maintained significant contact
with the child; and
(iii) the parent has demonstrated an inability to provide the child with a
safe environment
FAM. § 161.001(b)(1)(N). On appeal, Father challenged the evidence to support
termination based on this ground, as well as others listed but not addressed by the
majority opinion.1 Specifically, Father argued that he “could not constructively
abandon A.M., since the child was removed by the Department at the hospital, and
1
The majority opinion strongly implies Father’s brief insufficiently argued the remaining grounds and
states his brief failed to challenge the best-interest finding, despite the heading in his brief indicating as
much. As my main disagreement is with the majority’s conclusion regarding the sufficiency of the evidence
to support termination on the ground of constructive abandonment, I will note that several options are
available to, and often exercised by, this Court when confronted with inadequate briefing, particularly in a
case such as this one on a matter of some constitutional import. See, e.g., TEX. R. APP. P. 38.9, 44.3; St.
John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 213 (Tex. 2020) (concluding court of appeals
had authority to order additional briefing under appellate rule 38.9); Crowe v. State, 595 S.W.3d 317, 320–
21 (Tex. App.—Dallas 2020, no pet.) (after concluding at least one arguable issue existed in trial record,
appellate court struck Anders brief, granted appointed counsel’s motion to withdraw, and remanded case to
trial court for appointment of new counsel); see also In re D.T., 625 S.W.3d 62, 71 (Tex. 2021) (holding
family code evidences “Legislature’s intent to afford all parents appearing in opposition to state-initiated
parent-rights termination suits the right to effective counsel”) (emphasis in original); In re A.F., No. 05-17-
00392-CV, 2017 WL 4116945, at *3 (Tex. App.—Dallas Sept. 18, 2017, no pet.) (mem. op.) (similar).
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never went home with the mother” and that the Department failed to make
reasonable efforts to return A.M. to him.
Delay in Establishing Paternity Should Not Alone Be Sufficient to Support
Termination of Parental Rights
In previous decisions, this Court has held that when considering whether the
Department made reasonable efforts to return the child to the parent, we focus on
the Department’s conduct rather than the parent’s conduct, and that the relevant
inquiry is whether the Department made reasonable, not ideal efforts. See, e.g., In
re D.P.G., No. 05-20-00652-CV, 2021 WL 2472717, at *9–10 (Tex. App.—Dallas
June 17, 2021, no pet.) (mem. op.) (concluding Department failed to establish
reasonable efforts when incarcerated father was ordered to undergo services but
Department failed to provide list of services or help him find places to complete
services); In re X.A.S., No. 05-19-01082-CV, 2020 WL 1042520, at *3 (Tex. App.—
Dallas Mar. 3, 2020, no pet.) (mem. op.) (concluding Department established
reasonable efforts by facilitating mother’s access to job and parenting classes,
providing transportation to drug tests, and making other efforts to assist mother
complete services). This review is in line with the plain language of the statute as
well as the underlying presumption of parental fitness discussed above. However,
despite our Court’s precedent and the aforementioned presumption of parental
fitness, the majority opinion holds that evidence that a parent impeded the
Department’s attempts to timely adjudicate a parent’s parentage is sufficient to
establish that the Department made reasonable efforts to return a child to the parent.
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Notwithstanding the opinion’s lack of explanation for how Father could have
constructively abandoned a child he did not know was his and of whom he had never
had possession or access, I cannot agree with the majority’s conclusion that evidence
that Father delayed establishing his paternity is sufficient, standing alone, to support
a finding the Department made reasonable efforts to return the child in support of
the termination of his parental rights. Although Mother texted Father a picture of
A.M. the day the child was born, she did not identify him as a potential father to the
Department until August 2020. Thus, any construed delay or impediment to the
Department’s reunification efforts attributable to Father would begin then. At that
point and for several months, the Department sent to Father’s last known address
letters informing him that he was named as an alleged father of A.M. and that if he
was found to be the father of A.M., “there are court ordered services that you’ll need
to complete.”2 Thus, the Department indicated to Father—before his paternity was
established much less legally presumed—that the State intended to require Father to
demonstrate his fitness for parenthood despite our long-standing jurisprudence and
statutory presumptions. See supra; see also In re J.W., 615 S.W.3d 453, 471 (Tex.
App.—Texarkana 2020, no pet.) (discussing untenable dilemma faced by alleged
father who was never part of child’s household and only suspected his paternity who
2
The record also reflects that messages sent to Father via text and social media indicated an employee
of the Department wanted to speak with him concerning a child alleged to be his.
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was nonetheless required by the Department to undergo services and whose refusal
to undergo same was later held against him in termination proceedings).
Separate and apart from the sufficiency of the evidence, I disagree with the
majority’s interpretation of our sister court’s opinion it relies on for its analysis. In
In re J.W., the Texarkana Court of Appeals held that an alleged father cannot use a
delay in adjudication of his parentage that he created to defend against termination
of his parental rights. See 615 S.W.3d at 473. However, that court went on to note
that the father there “knew he was required to submit to genetic testing as of the
October 3, 2019 hearing when he first appeared in this case.” See id. That court
also noted that although there was “some evidence” establishing that father’s actions
impeded the Department’s legitimate attempts to timely adjudicate his parentage,
there was also additional delay unexplained by the father’s actions. See id. at 473–
74. Thus, the In re J.W. court did not reach the conclusion that evidence of a father’s
delay in establishing his paternity could alone be considered “clear and convincing
evidence” to support a finding that the Department made reasonable efforts to return
the child to the parent.
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Accordingly, I would conclude the trial court’s finding of constructive
abandonment is not supported by the current state of the law or the trial record, and
so I dissent from the majority’s conclusion.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
210712DF.P05
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