In re A.D. ( 2009 )

OPINION ON MOTION FOR REHEARING

While the motion for rehearing raises no meritorious issues, we are compelled to write this addendum to point out an extremely misleading statement in the motion cited as if it were a quotation from this Court’s opinion. The motion alleges that this Court reasoned that “the only evidence to support the finding is the opinion of the juvenile probation department that such a placement would not work due to the family’s culture.” In fact, the statement was that the only “other” evidence was the probation officer’s opinion. This small omission makes a big difference.

In our opinion, we reviewed the entire testimony from the trial and surveyed at length summaries and quotations from the State’s witnesses. A.D. had alleged that his constitutional rights of due process and equal protection were violated because of his religious affiliation, a claim we found was not asserted at trial and therefore was forfeited. Consequently, it was not necessary to recite the factual details supporting and resisting that claim. Nevertheless, we set out in great detail the State’s evidence and contentions, and even inserted a footnote stating that such a lengthy discussion was presented because it pertained to other issues. In section III(C) of our opinion, we again summarized the State’s evidence on this issue and stated that it had “previously been discussed at length.” Our reference to the “only other evidence” was deliberate and intentional as the “other” evidence consisted of the extensive quotations and summaries of the evidence the State alleged supported the verdict. The State’s motion for rehearing omits this reference to “other evidence” and suggests that we held the probation officer’s opinion was the “only evidence” on the subject. This erroneous quotation dramatically changes the meaning of the sentence. Both the Texas Lawyer’s Creed (“I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.”),¹⁰ and the Texas Standards for Appellate Conduct¹¹ admonish counsel against making misrepresentations. We do note that the opinion is quoted correctly in the “Issue” statement and, therefore, we assume that the erroneous quotation in the body of the motion was not intentional, but the result of negligence.

Further, we did not state, as is quoted in the motion, that Kennedy’s testimony allowed “only one inference.” Our reference to the phrase “only one inference” is in a footnote which quotes the standard for review for legal sufficiency. We credited the State’s evidence, including the testimony of the probation officer and every reasonable inference from that evidence that the State argued supported the trial court’s findings, and disregarded contrary evidence because the contrary evidence did not lead to only one inference. Even under this test, there was no evidence to support the finding that reasonable efforts were made to prevent or eliminate removal of the juvenile from the home.

Finally, the State appears to abandon the argument that attempts were in fact made to avoid removal of the juvenile from the home. Instead, the State argues that the evidence is sufficient if the State proved that attempts to avoid removing the juvenile from his home “were, or would have been, unreasonable given the family’s difficulties.... ” The statute requires proof that if the court places a juvenile at the Texas Youth Commission, there must be proof that “reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home.” With no citation to authority, the State effectively argues it does not have to prove the statutory requirements that reasonable efforts “were made” to avoid removal, but may merely show that efforts to avoid removing the child “were, or would have been, unreasonable .... ” The statute is clear; this argument is unsound.

We deny the motion.

10 . The Texas Lawyer's Creed-A Mandate for Professionalism IV.6 (adopted by the Supreme Court of Texas and the Texas Court of Criminal Appeals Nov. 7, 1989), reprinted in Texas Rules of Court 759, 761 (West 2009).

11 . Standards for Appellate Conduct, Lawyers' Duties to the Court 3, Texas Rules of Court 416, 417 (West 2009).