In re Interest of J.A.
| Decision Date | 11 May 2020 |
| Docket Number | No. 05-19-01333-CV,05-19-01333-CV |
| Parties | IN THE INTEREST OF J.A. & N.A., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the 305th Judicial District Court Dallas County, Texas
Before Chief Justice Burns, Justice Whitehill, and Justice Schenck
A pivotal question in this case is the extent to which a court of appeals can second-guess a factfinder's credibility determinations in a parental rights termination case under a legal sufficiency review. Concluding that the majority opinion overstepped its authority by denying outright the factfinder's right to factor reasonable inferences and credibility determinations into her decision making matrix, I dissent.
The trial judge in this case heard three days of testimony from six witnesses (including Father, the State's case worker, a CASA volunteer, and the children's guardian ad litem) and admitted twenty-one exhibits.1 When all was said and done she considered the record before her and issued her Statement of Evidence finding that the Department adduced sufficient evidence to sustain its clear and convincing burden of proof on the grounds alleged in its petition and that terminating Father's parental rights over N.A. was in N.A's best interest. The trial court's decree reflected those fact findings.
Father's credibility regarding his willingness and ability to quit smoking marijuana and cigarettes was a critical factor in this case. The trial judge observed not only his body language and tone—factors invisible on the written record—but also other evidence supporting her good faith effort to do what is in N.A.'s best interest.
In In re C.V.L., this Court held that it has the power to second guess factfinders' credibility determinations while performing factual sufficiency reviews, at least in state parental rights termination cases. See 591 S.W.3d 734, 756-59 (Tex. App.—Dallas 2019, pet. filed); see also id. at 760-65 (Whitehill, J. dissenting). The majority opinion takes that newfound power one step further by holding that, at least in state parental rights termination cases, courts of appeals have the power under legal sufficiency review to prevent factfinders from drawing reasonable inferences from disputed evidence and making credibility determinations in the first instance.
Like many cases, the factfinder here had to resolve disputed evidence and make credibility determinations to decide the case. Specifically, the trial judge-factfinder had to sift and sort evidence to make her factual determinations, including whether terminating Father's parental rights over N.A. was in N.A.'s best interest. In second guessing that factfinding, however, the majority opinion ignores (i) relevant evidence; (ii) conflicting evidence; (iii) logical inferences that the factfinder could have drawn from the evidence; (iv) the absence of the kind of evidence that led us to find factual insufficiency in C.V.L.; and (v) the factfinder's right to assess witness credibility by observing body language and tone.
Accordingly, this dissent explores the record in more detail to illustrate the erroneous conclusion that there is legally insufficient evidence—meaning there is no legally cognizable evidence at all—from which any reasonable factfinder could possibly have concluded by clear and convincing evidence that terminating Father's parental rights over N.A. was in N.A.'s best interest.
Here is additional, or a more complete statement of, the evidence that the majority opinion either ignores or glosses over but that was before the trial court and is some evidence supporting the trial court's factfinding that terminating Father's parental rights with N.A. is in N.A.'s best interest:
• Father pled guilty to and openly confessed to second degree sexual assault of a child and received a five year probated sentence as part of a plea bargain.
• Father violated his terms and conditions in less than a year by failing to complete his required sex offender counseling and, thus, had his probation revoked and was incarcerated for four years. The motion to adjudicate alleged three separate violations, but the State withdrew two allegations.
• Father failed to tell the Department's caseworker, Ms. Sanchez, about his child sex assault conviction (and probation revocation) during her evaluation. Father's not being forthcoming with that information concerned Sanchez and contributed to her decision to withdraw her initial recommendation to place N.A. with Father.
• Father failed to follow through with the recommendations made pursuant to his psychological evaluation for this case.
• Father gave Sanchez three different addresses for his residence since the case began. But he gave contradictory testimony regarding his residences during that time period.
• In 2005, Father was convicted of marijuana possession and served a thirty day sentence.
• Not only did Father fail two drug tests while his case was pending, but he also failed to comply with repeated requests to take additionalsubsequent drug tests. Specifically, Father didn't respond when Sanchez in March 2019 asked him to take another drug test. Later, Sanchez twice more asked him to go for a drug test but he never did. One such request was made in front of Father's lawyer as well.
• When Sanchez asked Father about his drug usage, he denied using drugs and said he didn't know why he tested positive.
• Father admitted to Sanchez that he smokes cigarettes, which may be a factor in N.A.'s RSV condition. Along that line, Father admitted that he smokes sometimes, but not around N.A.
• But Father equivocated when asked if, since smoke is not good for N.A., he had a plan for dealing with his smoking if N.A. were placed with him:
A: Plan to eventually try, you know, slow down on smoking and hopefully try to, maybe, stop smoking.
• While testifying, Father denied having had any other criminal actions filed against him since the 2005 marijuana possession conviction. But when confronted with the facts, he admitted that in 2018 he was criminally charged for failing to change his address as a lifetime registered sex offender. Father's omission was a felony (see TEX. PEN. CODE § 62.102) for which he received two years' deferred adjudication probation that was being served while this case was pending and Father was testifying at trial.
• While he was on two years' probation for felonious failure to change his address, this case was pending, and Father knew his parental rights were in jeopardy, Father failed two drug tests for marijuana.
• Furthermore, after first denying that he uses illegal substances, Father admitted to using marijuana in between trial days. But when confronted on cross-examination, he admitted that smoking marijuana was illegal. Apparently recognizing that he was testifying to illegal conduct while on probation and that his admitted drug use during trial was not helpful, Father changed his testimony and tried to back up the drug use time period to before the case started:
• When asked whether he "would stop smoking marijuana around [N.A.]" if the court ordered him to, Father testified, (Emphasis added.) Similarly, Father said, "Yes," when asked, "If a doctor ordered or requested that you stop smoking or using marijuana around [N.A.], would you stop?" (Emphasis added.)
• Sanchez further testified that almost immediately after Father's visits N.A. will be congested for a few hours or up to a day, depending on how bad N.A.'s reaction is. Sanchez produced a photograph showing N.A.'s swollen eye after one such visit.
• Sanchez later testified that Father's deceptions and continuing marijuana use concerned her.
• Sanchez said that on May 16, 2019, after the trial had begun, she conducted a home visit where Father was living with his wife, his sister-in-law, and his brother-in-law. Although it was a good home, Father had made no arrangements for receiving N.A.; there was no bedroom for her or anything like that. On the other hand, Father testified that he had furniture and a car seat ready if he got N.A.
• Unlike in C.V.L., no family members or friends testified on Father's behalf that he is a good guy and would be a good father to N.A.
This is not to say the State conclusively proved that termination is in N.A.'s best interest or whether this evidence would pass factual sufficiency muster on that question. The majority opinion does not reach that latter question, and thus neither does this dissent. But as discussed below the evidence and reasonable inferences drawn from it are some evidence, that is, legally sufficient evidence, supporting the trial court's best interest factfinding.
This Court in C.V.L. discussed at length the "best interest" principles applicable in termination cases, see 591 S.W.3d at 753-54, and thus they need not be repeated here in detail. In sum, best interest is a term of art encompassing a broad facts and circumstances based evaluation that is accorded significant discretion. Id. at 753.
Courts typically base their analysis on some combination of the factors stated in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) as well as factors in Family Code § 263.307(b). See 591 S.W.3d at 753. And, although courts can consider other relevant factors, there is a strong presumption that a child's best interest is...
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