In re A.B.
| Decision Date | 08 August 2013 |
| Docket Number | No. 02–11–00209–CV.,02–11–00209–CV. |
| Citation | 412 S.W.3d 588 |
| Parties | In the Interest of A.B. and H.B., Children. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Richard A. Gladstone, Fort Worth, for Appellant.
Joe Shannon, Jr., Criminal District Attorney, Christopher W. Ponder, Assistant District Attorney for Tarrant County, Fort Worth, for Appellee.
Jeffrey N. Kaitcer, Mike Windsor, Loe, Warren, Rosenfield, Kaitcer, Hibbs, Windsor, Lawrence & Wolffarth, P.C., Forth Worth, for Intervenors.
EN BANC.
OPINION ON APPELLEES' MOTION FOR REHEARING AND MOTION FOR EN BANC RECONSIDERATION1
Appellees Department of Family and Protective Services (DFPS) and Intervenors (the children's foster parents) filed motions for rehearing and for en banc reconsideration of our opinion issued September 13, 2012. We grant the motions, withdraw our opinion and judgment of September 13, 2012, and substitute the following.
This is the second time that Father has appealed the termination of his parental rights to A.B. and H.B. See In re A.B., No. 02–09–00215–CV, 2010 WL 2977709 (Tex.App.-Fort Worth July 29, 2010, no pet.) (mem. op.).
As we detailed in our first opinion, A.B. and H.B. were placed with family members in September 2007 after then fifteen-month-old H.B., weighing only fifteen pounds, was admitted to the hospital and diagnosed with failure to thrive. See id. at *4–5. Upon DFPS's conclusion that H.B. had been physically neglected, the children remained in a voluntary family placement for about nine months before DFPS returned them to Father's care on June 10, 2008. See id. at *4, 7, 9. On July 8, 2008, the children were removed from Father after a Volunteers of America (VOA) case worker discovered that A.B. had bruises on his face and left ear. See id. at *11. Child Protective Services (CPS) placed the children with a foster family, and DFPS filed its petition to terminate Father's and Mother's parental rights the next day. See id. at *13.
In June 2009, after a bench trial, the trial court found by clear and convincing evidence that Father had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that had endangered their physical or emotional well-being, that he had engaged in conduct or knowingly placed the children with persons who had engaged in conduct that endangered the children's physical or emotional well-being, and that termination of Father's parental rights was in the children's best interest.2See id. at *32.
Father appealed, challenging the legal and factual sufficiency of the evidence supporting the trial court's findings. See id. at *1. In July 2010, we overruled Father's legal sufficiency challenges but sustained his challenge to the factual sufficiency of the evidence supporting the endangerment findings. We held the evidence legally sufficient to support the trial court's best interest finding, and we reversed the trial court's judgment and remanded the case for a new trial. See id. at *36, 40–42, 44.
After a jury trial, Father's parental rights were terminated for a second time. The jury made the same endangerment and best interest findings that the trial court had made in the first trial. SeeTex. Fam.Code Ann. § 161.001(1)(D), (E), (2) (West Supp.2012). Father then raised five points on appeal, and we initially concluded that the evidence supporting the endangerment findings was again insufficient. However, upon review of DFPS's and the Intervenors' motions for en banc reconsideration, we revise this conclusion and affirm the termination of Father's parental rights.
In his first three points, Father argues that the evidence is legally and factually insufficient to support the endangerment or best interest findings. See id. In his fourth point, Father complains that the trial court erred by allowing the children's foster parents to intervene, and in his fifth point, he complains that the trial court erred by preventing his impeachment of a DFPS witness.
A. Sufficiency1. Standards of Review
In a termination case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Id. § 161.206(b) (West 2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. In re E.R., 385 S.W.3d 552, 563 (Tex.2012) (citing Holick, 685 S.W.2d at 20).
Termination decisions must be supported by clear and convincing evidence. Tex. Fam.Code Ann. §§ 161.001, 161.206(a). Due process demands this heightened standard because “[a] parental rights termination proceeding encumbers a value ‘far more precious than any property right.’ ” E.R., 385 S.W.3d at 555 (quoting Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S.Ct. 1388, 1391–92, 71 L.Ed.2d 599 (1982)); In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex.2007) (). Evidence is clear and convincing if it “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 (West 2008).
In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one ground listed under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); In re D.T., 34 S.W.3d 625, 629 (Tex.App.-Fort Worth 2000, pet. denied) (op. on reh'g).
In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005). We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses, for that is the factfinder's province. Id. at 573, 574. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the verdict with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated subsection (D) or (E) of section 161.001(1) and that the termination of the parent-child relationship would be in the best interest of the child. Tex. Fam.Code Ann. § 161.001(1)(D), (E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex.2002). If, 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 in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
2. The “Law of the Case” Doctrine Does Not Apply Here
Relying on the “law of the case” doctrine, Father argues that the evidence is legally and factually insufficient to terminate his parental rights under subsections (D) or (E). Specifically, Father identifies four allegations made by DFPS and argues that our holdings on these allegations in his first appeal control the outcome of this appeal because the evidence presented in the second trial was substantially the same as the evidence presented at the first trial. First, he argues that evidence that he slapped A.B. in July 2008 is insufficient under subsection (E) because it was a single incident. Second, he argues that DFPS failed to prove that he knew that H.B. was failing to thrive in the two months before her diagnosis in September 2008 as required under subsection (D). Third, Father argues that there is no evidence that the children witnessed or were harmed by witnessing the alleged violence between Father and Mother. Finally, Father argues that the evidence of his unsanitary living conditions is insufficient to prove that he endangered the children under either subsection (D) or (E).
Although the “law of the case” doctrine generally applies to successive appeals in the same case, it only applies to questions of law, not questions of fact. See In re B.G.D., 351 S.W.3d 131, 141 (Tex.App.-Fort Worth 2011, no pet.) (citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986)). Further, “the decision to revisit a previous holding is left to the discretion of the court under the particular circumstances of each case.” Id. (citing City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex.2006)). Because the resolution of Father's first three issues turns on questions of fact, the doctrine does not apply here, and we will analyze the sufficiency of the evidence presented to the jury at the second trial.
3. Evidence
At fifteen months old, H.B. was diagnosed with failure to thrive after she suffered a seizure in ...
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