In re E.N.C.

• Decision Date: 12 October 2012
• Docket Number: No. 11–0713.,11–0713.
• Citation: 56 Tex. Sup. Ct. J. 19,384 S.W.3d 796
• Parties: In the Interest of E.N.C., J.A.C., S.A.L., N.A.G. and C.G.L., Minor Children.
• Court: Texas Supreme Court

384 S.W.3d 796

56 Tex. Sup. Ct. J. 19

In the Interest of E.N.C., J.A.C., S.A.L., N.A.G. and C.G.L., Minor Children.

No. 11–0713.

Supreme Court of Texas.

Argued Sept. 12, 2012.

Decided Oct. 12, 2012.

Gary L. Waite, Judy Hodgkiss, The Moore Law Firm, LLP, Paris, TX, for Petitioner Edna Melissa Lopez.

Edward Ellis, Ellis & Tidwell, L.L.P., Judy Hodgkiss, The Moore Law Firm, Paris, TX, for Petitioner Francisco Lopez.

Clayten Howard Hearrell, Jill Miller Drake, Lamar County District Attorney's Office, Paris, TX, Cynthia Ann Morales, Luisa P. Marrero, Michael C. Shulman, Susan Marie Wolfe, and Trevor Allen Woodruff, TX Dept. of Family & Protective Svcs., Austin, TX, for The State of Texas.

Justice GREEN delivered the opinion of the Court.

A court cannot terminate a person's parental rights unless the State proves by clear and convincing evidence that the parent engaged in certain proscribed conduct, as specified in the Family Code, and that termination is in the best interest of the children. In this case, an immigrant convicted in another state of unlawful conduct with a minor and given a probated sentence years before his children were born was later deported to Mexico. The State relied on these facts in petitioning to terminate this father's parental rights, yet put on no evidence concerning the offense committed years earlier, nor the circumstances of his deportation. We are asked to determine whether legally sufficient evidence supports termination of this father's parental rights under these facts. We conclude the evidence is legally insufficient and, accordingly, reverse the court of appeals' judgment in part and remand the case to the trial court.

I. Facts and Procedural Background

Francisco, a citizen and resident of Mexico, was born in May 1975. Years before his children were born, Francisco was convicted in Wisconsin of an offense involving an underage girl and placed on probation. In 1996, Francisco moved from Wisconsin to Texas without completing the terms of his probation. Once in Texas, Francisco met Edna and married her. The couple lived together for eight or nine years. The marriage resulted in two children: J.A.C., born in mid–1998, and S.A.L., born in late–1999. Francisco supported the family, including a child born to Edna from a previous relationship.

In 2004 or 2005, after Francisco and Edna separated, Francisco approached the immigration authorities in Dallas for purposes of procuring a green card. Because Francisco had left Wisconsin in violation of his probation terms, he was arrested, jailed, and ultimately deported. Francisco is not allowed to return to the United States for ten years (until at least 2014), but he testified that he would like to return to the United States to help J.A.C. and S.A.L.¹

In the meantime, J.A.C. and S.A.L., along with their three half-siblings, remained with Edna in Texas.² The Department of Family and Protective Services investigated Edna several times over the years, beginning in 2000, but the Department always chose to allow the children to remain with their mother. ³ There were never any allegations concerning Francisco during this period, nor were there any negative findings concerning Edna, until this case.

Since his deportation, Francisco has resided in his hometown of San Miguel de Allende, Guanajuato, Mexico, where his mother also lives. Francisco has remarried,⁴ has two young children, and works at a hotel where he makes the equivalent of $400 a month. Before the Department removed J.A.C. and S.A.L., Francisco would call them about three times a week or on weekends, and sometimes daily. Francisco's father, Alvaro, who remained in Texas, also took the children to visit Francisco and Francisco's mother in Mexico—J.A.C. twice and S.A.L. at least once. The children last visited their father one-and-a-half years before trial. Alvaro testified that, at the end of that visit, the children did not want to come home and that they wanted to stay with their father in Mexico.

Francisco also provided financial support to his children before they were removed to foster care. When Francisco and Edna separated, Edna apparently did not seek child support from Francisco. Instead, Francisco and Edna entered into an informal agreement where Alvaro would visit the children and bring money for the children's support and buy what the children needed. Francisco would also send clothes from Mexico for the children. To repay his father, Francisco would give money to his mother, who remained in Mexico. Edna testified that Francisco was a good father who provided support for the children.

The events leading to this termination proceeding began in January 2009, a few years after Francisco and Edna separated and Francisco was deported, when the Department investigated Edna for neglectful supervision. The Department ultimately determined that Edna was giving the children Tylenol PM to make them sleep and taking her mother's prescription pain medication. In February 2009, Edna gave birth to her fifth child, whose low birth weight triggered a referral to the Department by the hospital. Two months later, Edna was arrested for a DWI with S.A.L. in the car, which prompted the Department to remove the children. The Department petitioned to terminate both Edna's and Francisco's parental rights.⁵

In its combined permanency plans and permanency progress reports, the Department permitted Francisco one visit per month by conference call. SeeTex. Fam.Code §§ 263.3025, .303. The trial court's orders did not provide for visitation, other than by incorporating by reference recommendations from the Department. Nothing in the record provides further details on the Department's efforts to facilitate the monthly conference calls, except that the Department's reports indicate that Francisco was compliant in his response and communication with the Department, kept in regular contact with the caseworker, and participated in the scheduled conferencecalls with his children, “which have been positive for both parties.” Although Francisco was initially able to participate in the monthly conference calls with his children, he was unable to speak to the children once the foster parents moved the four older children, including J.A.C. and S.A.L., to Bryan in the four months before trial.⁶ Francisco testified that he would call the Department office but no one would answer. Francisco testified that it was Edna, and not the Department, who informed him that the foster family had moved the children.

There is no evidence that Francisco was subject to any child support order either before or after the children were removed to foster care. The Department never requested support or undertook an evaluation of Francisco's means, nor did the Department offer Francisco a service plan. The Department's reports state that Francisco had been deported to Mexico because of “criminal activity involving sex with a minor,” and he “will need to complete his probation and have restrictions lifted to return to the United States for the Department to evaluate his ability and willingness to provide for the children.” Nonetheless, at trial, when Francisco was asked how much support he would be willing to provide for J.A.C. and S.A.L., he asked how much he should send, indicating that he was willing to get a second job if necessary. Francisco attempted to provide support for the children after they were removed to foster care by sending them clothing through his uncle, who traveled to the United States every two weeks.

Alvaro remained a presence in the children's life once the children were placed in foster care. Alvaro regularly visited the children with Edna and their maternal grandmother at the Department's Commerce office, bringing the children food, unless his work schedule interfered. Alvaro testified that he last saw the children a little over a month before trial.

At the bench trial, the Department put on testimony from the following witnesses: Edna, her assigned counselor, the caseworker, the caseworker's supervisor, a CASA volunteer acting as guardian ad litem, and a foster parent caring for Edna's baby. The Department did not call the foster parents caring for J.A.C. and S.A.L. as part of its case. The Department offered one exhibit, a document from Edna's DWI case, and asked the court to take notice of its file, including its reports. The children did not testify, but were brought to court so they could be interviewed by their attorney ad litem, who recommended against terminating Francisco's parental rights. The judge also spoke in chambers with J.A.C.

The caseworker recommended that Francisco's parental rights be terminated, testifying that she had no personal knowledge as to why Francisco was deported and was not aware of his having provided any support for the children in the eighteen months since the case began. The caseworker additionally testified that the children's foster family was committed to keeping them until they aged out. The caseworker indicated that the Department had never entered into a service plan with Francisco because he had been deported to Mexico.

The caseworker's supervisor also recommended that Francisco's parental rights be terminated, adding that the four older children were together in a long-term foster placement, and that the foster parents would have to think about adoption again if that became an option. The CASA volunteer recommended that Francisco's parentalrights be terminated as well, reasoning that he had a new wife and family in Mexico, could not return to the U.S. for ten years, by which time the children would be grown, and made too little money to help the children.

Francisco testified over the phone through an interpreter. Francisco stated that he never saw Edna drink, use drugs, or hurt the kids in any manner, and that Edna had been a good mother. Francisco testified that he wanted his children to reside with their mother or his family because they love the...