In re Interest of L.N.C

• Decision Date: 31 January 2019
• Docket Number: NO. 14-18-00691-CV,14-18-00691-CV
• Citation: 573 S.W.3d 309
• Parties: In the INTEREST OF L.N.C & K.N.M., Children
• Court: Texas Court of Appeals

573 S.W.3d 309

In the INTEREST OF L.N.C & K.N.M., Children

NO. 14-18-00691-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed January 31, 2019

Rehearing En Banc Denied March 26, 2019

Margaret "Meg" Poissant, Justice

This appeal arises from the termination of the parental rights of D.D.C. ("Father") to his daughter, L.N.C. ("Laura").¹ The parental rights of Laura’s mother ("Mother") to Laura and her brother, K.N.M. ("Kevin"), and the parental rights of Kevin’s father, K.J.M. ("James"), also were terminated. Mother and James are not parties to this appeal.

Father was incarcerated at the time of trial on June 19, 2018. On appeal, Father challenges the judgment terminating his parental rights to Laura in four issues: (1) he was denied due process of law by the trial court’s denial of his request for a continuance, when he was timely bench-warranted to appear at trial; (2) the evidence was factually insufficient to support the predicate finding under Tex. Fam. Code § 161.001(b)(1)(E) ; (3) the evidence was legally and factually insufficient to support the predicate finding under subsection Tex. Fam. Code § 161.001(b)(1)(N) ; and (4) the evidence was legally and factually insufficient to support the finding that termination was in Laura’s best interest under Tex. Fam. Code § 161.001(b)(2). For reasons stated below, we conclude Father’s due process rights were violated, reverse the trial court’s judgment, and remand for a new trial. Because a finding of legal insufficiency would result in greater relief, we must first address Father’s claims of legal insufficiency. See In Interest of J.E.M.M, 532 S.W.3d 874, 891–92 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (rendering judgment denying the Department’s request to terminate Mother’s parental rights to her children); see also In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) (holding rendition of judgment in favor of parent generally required if there is legally insufficient evidence).

Because Father does not claim the evidence is legally insufficient as to endangerment, he would not be afforded greater relief by a determination that there is no evidence of constructive abandonment. See Tex. Fam. Code §§ 161.001(b)(1)(E) and (N), respectively. We therefore do not reach the merits of issues two or three.

We do, however, consider that part of Father’s fourth issue contending there is legally insufficient evidence to support the best-interest finding because a determination in Father’s favor would afford greater relief. See Tex. Fam. Code § 161.001(b)(2).

I. BEST INTEREST

Termination must be in the child’s best interest. Tex. Fam. Code § 161.001(b)(2). There is a strong presumption that the best interest of a child is served by keeping the child with the child’s parent. Id. § 153.131(b); see also In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re U.P. , 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The Department of Family and Protective Services (the "Department") carries the burden of rebutting that presumption. U.P. , 105 S.W.3d at 230. Prompt, permanent placement of the child in a safe environment is also presumed to be in the child’s best interest. See Tex. Fam. Code § 263.307(a). Proof of acts or omissions under section 161.001(b)(1) are probative of the issue of the child’s best interest. See In re S.R. , 452 S.W.3d 351, 366 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

A. Burden of Proof and Standard of Review

Only one predicate finding under Tex. Fam. Code § 161.001(b)(1), along with the best-interest determination, is necessary to support termination. In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003). In a termination case, the State seeks not just the limitation of parental rights, but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between a parent and child, except the child’s right to inherit. Tex. Fam. Code § 161.206(b) ; Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." In re E.R. , 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer , 455 U.S. 745, 747–48, 102 S.Ct. 1388, 1391–92, 71 L.Ed.2d 599 (1982) ). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012) ; E.R. , 385 S.W.3d at 554–55 ; Holick , 685 S.W.2d at 20–21.

Parental rights can be terminated if clear and convincing evidence shows (1) the parent committed an act described in Tex. Fam. Code § 161.001(b)(1), and (2) termination is in the best interest of the child. Tex. Fam. Code § 161.001(b)(2). Clear and convincing evidence is that 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 § 101.007. This heightened burden of proof results in heightened standards of review for sufficiency of the evidence.

When reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. In re J.F.C. , 96 S.W.3d at 266. We assume the fact finder resolved disputed facts in favor of its finding, if a reasonable fact finder could do so, and disregard all evidence a reasonable fact finder could disbelieve. Id.

The fact finder assesses the credibility and demeanor of the witnesses. In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014) ; In re H.R.M. , 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s resolution of a factual dispute by relying on disputed evidence or evidence the fact finder could easily have rejected as not credible. In re L.M.I. , 119 S.W.3d 707, 712 (Tex. 2003).

B. Relevant Evidence

Father claims the evidence is legally insufficient to support the trial court’s finding that termination of his parental rights was in Laura’s best interest. The Department responds that the best-interest finding is supported by the evidence.

Laura was four years old at the time of trial; Kevin was two and a half. The children came into care due to neglectful supervision by Mother and James. At that time, Father was incarcerated for assaulting Mother when she was five and a half months pregnant. Pursuant to a plea bargain, Father pled guilty to second-degree assault and was sentenced to two years in prison in 2017. The Department’s caseworker, Kirby Clark, testified Father would complete his sentence on January 6, 2019.

The Department introduced additional convictions into evidence. In 2016, Father was convicted of assault of a family member, a class A misdemeanor, and sentenced to twenty days in county jail. In 2012, Father was adjudicated guilty of third-degree possession of a prohibited weapon and sentenced to two years in prison. In 2010, Father was convicted of trespass and possession of marijuana, both class B misdemeanors and sentenced to thirty days and ten days, respectively, in county jail. In 2009, Father was convicted of evading arrest, a class B misdemeanor, and theft, a class A misdemeanor, and sentenced to sixty days in county jail in each case. In 2008, Father was convicted of assault, a class A misdemeanor, and sentenced to ninety days in county jail. In 2007, Father was convicted of unlawfully carrying a weapon, a class A misdemeanor, and criminal trespass, a class B misdemeanor, and sentenced to ten days in county jail in each case.

Clark agreed that Father’s pattern of incarceration posed a danger to Laura. A family service plan ("FSP"), tailored to what Father could do in prison, was implemented. Pursuant to the FSP, Clark asked Father to contact Clark each month, inform her what services he was able to complete while incarcerated, provide the names of family members that he would like to have Laura placed with, sign a release of information, and maintain contact with Laura by mail. According to Clark, Father did all of these things. Clark agreed that Father had completed everything asked of him under the FSP. Although not requested, Father had acquired a general education diploma ("GED"). Clark agreed that Father showed a deep interest in Laura, loves her, and has written her on numerous occasions, including on her birthday and at Christmas. Father has not sent any gifts or money for Laura’s benefit. Clark acknowledged that Father was not the reason Laura came into care. Clark also testified that Father has not demonstrated any ability to parent Laura. She agreed that Father’s incarceration was part of the reason the children came into care.

Clark stated that during this case Father communicated with Clark by letter, and requested Laura be placed with his parents. Clark agreed the paternal grandparents are available for support and are willing to provide a stable environment and financial assistance. While Father was in prison, his parents attended court hearings to support Laura. The paternal grandmother told Clark that they have a relationship with Laura and a bond with her. The paternal grandparents are willing and able to take Laura into their care and have a stable home environment. Their home study was approved. A criminal background check of the paternal grandparents was negative, and they have no history with the Department. Clark agreed that "everything has been approved" for Laura to be placed with the paternal grandparents.

Clark also testified that Kevin, James' son and Laura’s half-brother, have been together since Kevin’s birth and have a sibling bond. When Clark contacted the paternal grandmother, she only wanted Laura placed with her. Father has not provided an alternative relative for placement. According to Clark, a decision had to be made whether to...