In re D.M.F.

• Decision Date: 16 April 2009
• Docket Number: No. 2-08-212-CV.,2-08-212-CV.
• Citation: 283 S.W.3d 124
• Parties: In the Interest of D.M.F., a Child.
• Court: Texas Court of Appeals

283 S.W.3d 124

In the Interest of D.M.F., a Child.

No. 2-08-212-CV.

Court of Appeals of Texas, Fort Worth.

April 16, 2009.

Edwin J. Seilheimer, Seilheimer Reid, PC, Daniel P. Webb, Granbury, for Appellant.

Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, for Appellee.

PANEL: CAYCE, C.J.; LIVINGSTON, J.; and DIXON W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).

OPINION ON REHEARING

TERRIE LIVINGSTON, Justice.

After reconsidering our prior opinion on appellees' motion for rehearing, we deny the motion, but we withdraw our prior opinion and judgment dated December 11, 2008, and substitute the following, primarily to modify our discussion concerning subsection H of family code section 161.001(1). Tex. Fam.Code Ann. § 161.001(1)(H).

On January 11, 2007, the Texas Department of Family and Protective Services (TDFPS) removed one-day-old Donny from his mother, Sara, while she was still in the hospital.¹ Appellant Jerry F., who was the alleged father, was served in February 2007 and in January 2008, once his paternity was established, entered his appearance in the termination suit brought by TDFPS to terminate both parents' rights to Donny. Jerry F.'s father, David F., intervened in January 2008. Furthermore, Donny's foster parents, appellees Bob and Susan Parsons, intervened, seeking termination and adoption of Donny. The trial court terminated both parents' rights and appointed appellees Donny's managing conservators. Jerry F. and David F. appealed the trial court's judgment. We reverse the trial court's order terminating Jerry F.'s parental rights and remand this case to the trial court.

Facts

Sara and Jerry F. had lived together in Tennessee. Before breaking up with Jerry F., Sara took two pregnancy tests, both of which were negative. When Sara left Tennessee, she moved to Texas. Sara was living in a women's shelter in Granbury at the time Donny was born and had a past history with TDFPS, along with a history of drug use and mental problems, so TDFPS filed for custody the day after Donny's birth.

Sara filed an Affidavit of Status naming Jerry F. the alleged father, but he was not served until after the first hearing and after temporary orders had been entered. After service and completion of DNA testing identifying Jerry F. as the father, Jerry F. and David F. asked the trial court to place Donny with them. They also asked that appellees be struck from the suit. Likewise, appellees challenged Jerry F. and David F.'s standing to sue. The trial court denied both motions. TDFPS set up a service plan for Jerry F., which he performed from Tennessee for the next four months, including visiting with Donny, attending court hearings, completing parenting classes, having a home study, having a psychological evaluation, and staying employed. The trial court concluded the March 12, 2008 permanency hearing after the caseworker testified without allowing either appellant to testify.

The final hearing took place on April 2, 2008. The caseworker testified that Jerry F. had completed his services, except for the individual counseling. TDFPS recommended that Donny be placed with his father, which corresponded with the Tennessee-recommended placement. The ad litem questioned Jerry F. as to why he had failed to complete the individual counseling, to which he replied that he had just lost both of his paternal grandparents since the report's filing that had recommended individual counseling. The trial court stopped the trial and ordered Jerry F. to complete his counseling. The trial resumed on April 25, 2008 after Jerry F. had successfully completed his counseling, which the caseworker verified. The trial court nevertheless terminated Jerry F.'s and Sara's² parental rights and appointed appellees managing conservators of the child.

Issues Presented

In four issues, appellants contend (1) the trial court's order terminating Jerry F.'s parental rights should be reversed because the requirements of Texas Family Code sections 161.001(1)(H) and (O), 161.001(2), and 153.131(a) were not satisfied, (2) the trial court's order terminating Jerry F.'s constitutionally protected fundamental rights as a parent should be reversed because termination under the circumstances presented by this case fails to satisfy the Due Process Clause of the Fourteenth Amendment to the United States Constitution, (3) the trial court's order appointing appellees as managing conservators should be reversed, and (4) this court should enter the proposed order submitted by appellants in their motion to modify the final order, which requests, among other things, that Jerry F. and David F. be named joint managing conservators.

Sufficiency of the Evidence to Support Termination

In appellants' first issue, they complain that the evidence is legally and factually insufficient to show proof of either ground for termination or that termination would be in Donny's best interest. Appellants contend that appellees have failed to establish by clear and convincing evidence at least one ground for termination under the family code or the best interest prong. See Tex. Fam.Code Ann. § 161.001 (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002).

Standard of Review in Parent-Child Termination Cases

A parent's rights to "the companionship, care, custody, and management" of his children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex.2003). In a termination case, the State seeks not just to limit parental rights but to end them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit. Tex. Fam.Code Ann. § 161.206(b) (Vernon 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. Holick, 685 S.W.2d at 20-21; In re E.M.N., 221 S.W.3d 815, 820 (Tex.App.-Fort Worth 2007, no pet.).

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 subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam.Code Ann. § 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).

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.Code Ann. §§ 161.001, 161.206(a); J.F.C., 96 S.W.3d at 263. This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex.1980); In re C.S., 208 S.W.3d 77, 83 (Tex.App.-Fort Worth 2006, pet. denied). It is defined as 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 (Vernon 2008).

In reviewing the evidence for legal sufficiency in parental termination cases, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005). We must review all the evidence in the light most favorable to the finding and judgment. Id. This means that we must assume that the factfinder resolved any disputed facts in favor of its finding if a reasonable factfinder could have done so. Id. We must also disregard all evidence that a reasonable factfinder could have disbelieved. Id. We must consider, however, undisputed evidence even if it is contrary to the finding. Id. That is, we must consider evidence favorable to termination if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. Id.

We therefore consider all of the evidence, not just that which favors the verdict. Id. But 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 573-74. And even when credibility issues appear in the appellate record, we must defer to the factfinder's determinations as long as they are not unreasonable. Id. at 573. If we determine that no reasonable factfinder could form a firm belief or conviction that the grounds for termination were proven, then the evidence is legally insufficient, and we must generally render judgment for the parent. J.F.C., 96 S.W.3d at 266; see Tex.R.App. P. 43.3.

In reviewing the evidence for factual sufficiency, we must give due deference to the factfinder's findings and not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006). We must determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated the relevant conduct provision of section 161.001(1) and that the termination of the parent's parental rights would be in the best interest of the child. 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. If we reverse on factual sufficiency grounds, then we must detail in our opinion why we have concluded that a...