In re A.V.

• Decision Date: 03 July 2003
• Docket Number: No. 01-0706.,01-0706.
• Citation: 113 S.W.3d 355
• Parties: In the Interest of A.V. and J.V., Minor Children.
• Court: Texas Supreme Court

113 S.W.3d 355

In the Interest of A.V. and J.V., Minor Children.

No. 01-0706.

Supreme Court of Texas.

Argued October 9, 2002.

Decided July 3, 2003.

Rehearing Denied August 21, 2003.

James Wiley, Assistant Criminal District Attorney, John W. Segrest, McLennan County Criminal District Attorney, Daniel David Semanek, Office of the Criminal Dist. Atty., Ashley Tallm Westmoreland, Waco, for petitioner.

Nita C. Fanning, Law Office of Nita Fanning, Gerald Ray Villarrial, Waco, for respondent.

Justice ENOCH delivered the opinion of the Court.

Section 161.001(1)(Q) of the Texas Family Code provides that parental rights may be terminated if the parent has knowingly engaged in criminal conduct for which the parent is incarcerated and unable to care for the child "for not less than two years from the date of filing the petition."¹ We must decide whether the two years applies to the period before the filing or after, and whether the subsection is unconstitutional if applied to a parent who was incarcerated before the subsection's effective date. We hold that subsection Q's time period is prospective and that the subsection is constitutional even though applied to a parent incarcerated before the subsection's effective date. Thus, subsection Q is a valid ground for terminating the father's parental rights in this case. Because the father has not preserved any other claims that could be harmful error, we reverse the court of appeals' judgment and render judgment terminating his parental rights.

Pablo Puig is the alleged father of A.V., born in 1986, and J.V., born in 1988. Their mother is Becky Vela. The family lived together in Waco until 1993, when Puig was arrested and convicted for a federal drug offense. He was sentenced to one-hundred months in prison, and the record does not show that he appealed. The children remained with their mother.

After Puig's incarceration, the Texas Department of Protective and Regulatory Services received reports prompting an investigation regarding Vela's care of the children. Caseworker reports show that Vela left the young children at home alone without sufficient food and sent them to school in an unhygienic condition. Acting on this information, the Department began to monitor the children's living conditions. In 1994, Puig learned of the Department's intervention in his children's care and of the allegations concerning Vela's improper care and supervision. At that time, Puig attempted to escape from prison in order, he asserts, to care for his children. His failed escape attempt, along with a conviction for witness tampering in connection with his escape attempt, added forty months to his prison sentence. Thus, his projected release date from prison was June 2003.

In July 1997, the Department filed suit seeking to be named temporary managing conservator of the children. The trial court granted the Department temporary managing conservatorship, and the Department placed the children in foster care. The Department drew up separate Family Service Plans for Vela and Puig in August 1997 and initially recommended family reunification. In April 1998, however, the Department amended its petition and requested termination of both Vela's and Puig's parental rights to their children. Vela and Puig had separate trials.

In Puig's case, the Department alleged that Puig's conduct met the elements of section 161.001(1)(Q) and section 161.001(1)(N).² At trial at the Department's request, the court submitted two broad-form questions to the jury asking whether Puig's rights to each child should be terminated based on either or both subsections. Neither the Department nor Puig objected to the form of the charge. The jury answered yes to both questions. The trial court signed an order terminating Puig's rights on January 26, 2000. Puig appealed.

In Vela's bench trial, the court concluded that her parental rights should be terminated. And the trial court signed a separate order terminating Vela's rights on March 7, 2000. Vela did not appeal.

Before the court of appeals, Puig argued that the two statutory grounds for terminating his parental rights alleged by the Department were unconstitutionally retroactively applied to him. Further, Puig asserted that the evidence was factually and legally insufficient to support termination based on subsection N. Puig also complained about the trial court submitting the jury charge in broad form and that the judgment violated statutory and constitutional rights.

The court of appeals did not reach any issues regarding the judgment.³ Regarding subsection Q, the court of appeals concluded that subsection Q was unconstitutionally applied to Puig.⁴ Though it disagreed with Puig that subsection N was applied retroactively to him, the court determined that the evidence supporting subsection N was legally insufficient.⁵ As a result, the court reversed the trial court's judgment, rendered judgment for Puig on the subsection N ground, and remanded the case to the trial court for further proceedings, instructing the trial court to consider its earlier opinion in In re B.L.D. concerning the form of the jury charge.⁶ We granted the Department's petition for review.

The Department first argues that the court of appeals erred in reviewing Puig's unpreserved complaint that the broad form of the charge violated his constitutional and statutory rights to have ten jurors agree to each predicate finding supporting termination. The court of appeals relied on its previous opinion in In re J.F.C. to review the unpreserved complaint.⁷ Today, in In re B.L.D., we hold that our law on preservation of error does not permit, and due process does not require, a court of appeals to review an unpreserved complaint of charge error in parental-rights termination cases.⁸ Because Puig did not object in the trial court to the form of the charge, he waives that complaint on appeal, and our holding in In re B.L.D. controls. Therefore, we sustain the Department's first issue.

The Department also questions whether Puig has standing to appeal and whether he forfeited his right to appeal his motion for directed verdict on the constitutional complaints about subsections Q and N. As a result of our disposition, discussed below, we do not reach these questions.

We now turn to the questions that decide this case. The Department argues that the court of appeals erred in holding that subsection Q was unconstitutionally applied to Puig. Section 161.001(1)(Q) was amended in 1999 after this suit arose, but non-substantively so. In any event, we set out section 161.001(1)(Q) as written when the Department filed this suit:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

....

(Q) knowingly engaged in criminal conduct that results in the parent's imprisonment and inability to care for the child for not less than two years from the date of filing the petition;⁹

The court of appeals interpreted subsection Q's relevant two-year time period "from the date of filing the petition" to mean that the "applicable time period is two years before the petition was filed."¹⁰ The court of appeals noted that subsection Q went into effect on September 1, 1997, and the termination petition was amended in April 1998.¹¹ Thus, according to the court, the two-year time period extended approximately sixteen months before the effective date of the statute. Concluding that the application of subsection Q in this case did not meet the exceptions to the general rule that a retroactive law is unconstitutional, the court held that subsection Q as applied to Puig was an unconstitutional retroactive law.¹²

Here, the Department argues that the statute's language mandates a prospective application of the two-year time period rather than the retrospective reading that the court of appeals adopted. Our courts of appeals, however, have differed in their reading of subsection Q—some advocate a retrospective application while others adopt a prospective application. For example, the courts in In re A.L.S.¹³ and In re A.R.R.¹⁴ held that subsection Q should be read retrospectively to refer to the two years before the Department's petition is filed. But in In re R.F.,¹⁵ In re B.M.R.,¹⁶ In re D.R.L.M.,¹⁷ and In re I.V.,¹⁸ the courts interpreted subsection Q to be read prospectively to refer to the two years after the Department's petition is filed. Commentators recognize that our courts of appeals have struggled with the interpretation of subsection Q:

The ground is somewhat ambiguous because it is unclear whether it is the sentence of "not less than two years" or whether the individual must actually be incarcerated for that length of time. For example, if an individual is sentenced to life imprisonment, may termination proceed immediately or must there be a two year delay before the ground is fully met and the termination may proceed?¹⁹

Practitioners, too, have grappled with the repercussions of interpreting subsection Q prospectively or retrospectively:

If applied to recent convictions requiring prospective confinement, opposing counsel is sure to raise issues such as the possibility of reversal on appeal, or the possibility of early parole. If applied only to sentences already served, courts may have to render a final order [regarding the termination of parental rights] under the new 12-month time frame before the two year period of imprisonment has passed.²⁰

But to us, the phrase "two years from the date of filing the petition" reasonably indicates, consistent with the common usage of the word "from," a prospective reading. Webster's Dictionary defines "from" as "to indicate a starting point."²¹ We must read words and phrases in context and construe them "according to the rules of grammar and common usage."²²

This prospective reading is supported by what words the Legislature used in other subsections of section 161.001(1) that specify...