In the Interest of E.N.C., J.A.C., S.A.L., N.A.G. and C.G.L. ( 2012 )

IN THE SUPREME COURT OF TEXAS
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NO . 11-0713
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IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G. AND C.G.L.,
MINOR CHILDREN
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
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Argued September 12, 2012
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
1
The record does not indicate the reason for the ten-year ban on reentry.
2
Francisco is not the father of Edna’s other three children. As such, only J.A.C. and S.A.L.— Francisco’s
children— are at issue in this proceeding.
2
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
3
The Department investigated Edna after receiving allegations of physical abuse in 2000, neglectful supervision
in 2002, sexual abuse in 2006, and sexual abuse in 2008. The Department ruled out the alleged behavior in 2000, 2002,
and 2006, and determined in 2008 that cousins alleged to have sexually abused one of the children no longer had access
to the child and that Edna was protective of the child.
4
Francisco testified that he believed he and Edna were divorced because Edna had told him the divorce was
final.
3
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. See TEX . 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 conference calls with his
children, “which have been positive for both parties.” Although Francisco was initially able to
5
The Department’s original petition generically identified Francisco as the father of one of the children and
stated that his address was unknown. Three days later, the Department amended its petition to identify Francisco as the
father of J.A.C. and S.A.L., but continued to state that his address was unknown. Francisco was later served by certified
mail in Mexico. The Department also successfully sought to terminate the parental rights of the fathers of Edna’s other
children. Those fathers did not appeal the trial court’s termination order.
4
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
6
The four older children, including J.A.C. and S.A.L., had been placed with one foster family, while the baby
was placed with another.
5
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 parental rights be terminated as well, reasoning that
6
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 children. The only testimony or other evidence concerning Francisco’s conviction came
from Francisco on direct examination from his counsel:
Q: Okay. Now, you got in trouble in Wisconsin, right?
A: Yes. Correct.
Q: You were having—your girlfriend was underage?
A: Yes. Correct.
The Department asked no questions about this issue on cross-examination. The record does not
contain the Wisconsin judgment, probation terms, or the charges brought. The Department presented
no evidence concerning the date, circumstances, or offending conduct, or the girl’s age. Because
Francisco moved to Texas and met Edna in 1996, we can deduce that he was convicted in 1996 or
earlier, when Francisco would have been twenty-one years old or younger.
The trial court terminated both Francisco’s and Edna’s parental rights in a November 18,
2010 order. With respect to Francisco, the trial court found by clear and convincing evidence that
termination was in the best interest of J.A.C. and S.A.L., and that Francisco (1) knowingly placed
or knowingly allowed the children to remain in conditions or surroundings which endangered their
physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with
7
persons who engaged in conduct which endangered their physical or emotional well-being; (3) failed
to support the children in accordance with his ability; and (4) constructively abandoned the children.
See TEX . FAM . CODE § 161.001(1)(D), (E), (F), and (N), (2).
Francisco filed a timely combined motion for new trial and statement of points for appeal that
tracked the language of section 161.001(1) (D), (E), (F), and (O) of the Family Code, and also
challenged the constitutionality of the statement-of-points statutory requirement.7 The trial court
denied Francisco’s request for a new trial, found that Francisco’s appeal was not frivolous and a
record was necessary, and appointed counsel to represent Francisco on appeal.
A divided court of appeals affirmed the trial court’s judgment as to Francisco. __ S.W.3d
__, __ (Tex. App.—Texarkana 2011, pet. granted). The court of appeals addressed only the trial
court’s finding under section 161.001(1)(E) and the best-interest finding, holding that there was
factually and legally sufficient evidence to support the findings that Francisco had engaged in
conduct that endangered the physical and emotional well-being of the children, and that termination
was in the children’s best interest. Id. at __. Francisco filed a petition for review challenging the
7
Francisco failed to challenge the trial court’s finding that he violated section 161.001(1)(N), presumably
inadvertently tracking the language of section 161.001(1)(O) in his statement of points. In the court of appeals, Francisco
argued that his trial counsel was ineffective for failing to raise the issue of constructive abandonment under section
161.001(1)(N) in the statement of points. The court of appeals did not reach that issue, __ S.W .3d __, __ n.13 (Tex.
App.— Texarkana 2011, pet. granted), and the Department does not argue waiver here. Francisco’s statement of points
also did not attack the trial court’s best-interest finding. The Department does not challenge that omission. The
Legislature has since repealed the requirement for a statement of points on appeal. See Act of May 5, 2011, 82d Leg.,
R.S., ch. 75, § 5, 2011 Tex. Gen. Laws 75; see also In re J.O.A., 283 S.W .3d 336, 339 (Tex. 2009) (holding that the
statement-of-points requirement is unconstitutional as applied when it precludes a parent from raising a meritorious
complaint concerning the insufficiency of the evidence supporting a termination order).
8
legal sufficiency of the evidence as to the trial court’s section 161.001(1)(E) and best-interest
findings, which we granted. 55 Tex. S. Ct. J. 461 (Mar. 30, 2012).8
II. Standard of Review
Termination of parental rights requires proof by clear and convincing evidence. This
heightened standard of review is mandated not only by the Family Code, see TEX . FAM .
CODE § 161.001, but also the Due Process Clause of the United States Constitution. See, e.g., In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)
(recognizing the fundamental liberty interest a parent has in his or her child and concluding that the
state must provide a parent with fundamentally fair procedures, including a clear and convincing
evidentiary standard, when seeking to terminate parental rights). The Family Code defines clear and
convincing evidence as “the 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; see J.F.C., 96 S.W.3d at 264. We strictly construe involuntary termination statutes
in favor of the parent. In re E.R., __ S.W.3d __, __ (Tex. 2012) (citing Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985)).
We have previously examined the manner in which to apply the clear and convincing
evidentiary standard onto our legal sufficiency review. In J.F.C., we explained:
In a legal sufficiency review, a court should look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true. To give appropriate
8
Edna’s parental rights were terminated as to all five children and the court of appeals affirmed the termination.
__ S.W .3d at __. Edna petitioned this Court for review as to that judgment, but we denied her petition. 55 Tex. S. Ct.
J. 462 (Mar. 30, 2012). Thus, we reverse the court of appeals’ judgment only as to Francisco.
9
deference to the factfinder’s conclusions and the role of a court conducting a legal
sufficiency review, looking at the evidence in the light most favorable to the
judgment means that a reviewing court must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. A
corollary to this requirement is that a court should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible. This
does not mean that a court must disregard all evidence that does not support the
finding. Disregarding undisputed facts that do not support the finding could skew the
analysis of whether there is clear and convincing evidence.
If, after conducting its legal sufficiency review of the record evidence, a court
determines that no reasonable factfinder could form a firm belief or conviction that
the matter that must be proven is true, then that court must conclude that the evidence
is legally insufficient. Rendition of judgment in favor of the parent would generally
be required if there is legally insufficient evidence.
96 S.W.3d at 266; see also In re J.O.A., 283 S.W.3d 336, 344–45 (Tex. 2009).
For a trial court to terminate a parent’s right to his children, the State must prove by clear and
convincing evidence both that: (1) the parent committed an act prohibited under Texas Family Code
section 161.001(1), and (2) termination is in the children’s best interest. See TEX . FAM . CODE
§ 161.001(1)–(2). Francisco challenges the court of appeals’ holding as to both prongs.9 We begin
by considering whether the evidence is legally sufficient to justify the termination of Francisco’s
parental rights under section 161.001(1)(E) of the Family Code.
9
The Department contends that Francisco waived his arguments before this Court challenging the legal
sufficiency of the evidence as to the endangerment finding. The Department’s waiver argument cuts too broadly. A party
is entitled to challenge a court of appeals’ analysis in this Court, even if the court of appeals primarily focuses on an issue
that was not the focus of the party’s briefing in the court of appeals (here, its reasons for affirming the trial court’s
endangerment finding). Further, in both this Court and the court of appeals, Francisco specifically challenged the legal
sufficiency of the evidence as to the trial court’s endangerment finding.
10
III. The Evidence Is Legally Insufficient to Support Termination of Francisco’s Parental
Rights Under Section 161.001(1)(E) of the Family Code
The court of appeals upheld the termination of Francisco’s parental rights on grounds that
he engaged in conduct or knowingly placed his children with persons who engaged in conduct
endangering the physical or emotional well-being of his children. See id. § 161.001(1)(E). In
considering whether the evidence is legally sufficient to support a finding of endangerment, we must
determine whether there was “some evidence of endangerment on which a reasonable factfinder
could have formed a firm belief or conviction of endangerment.” J.O.A., 283 S.W.3d at 346 (citing
J.F.C., 96 S.W.3d at 266). We have held that “endanger” means more than a threat of metaphysical
injury or potential ill effects of a less-than-ideal family environment, but that endangering conduct
need not be directed at the child. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987).
The evidence on which the Department relied to prove endangerment was virtually
undisputed. In his testimony, Francisco acknowledged that he was convicted in Wisconsin of an
offense involving a minor when he was younger, for which he received probation, long before J.A.C.
and S.A.L. were born. After he and Edna separated, Francisco attempted to procure a green card and
was arrested for violating the terms of his probation and deported. The court of appeals took this
limited evidence and surmised an endangering course of conduct, beginning with the offense in
Wisconsin and ending in deportation. The court of appeals explained that the trial court could
determine that Francisco’s inappropriate relationship involving an underage “child” established a
voluntary course of conduct in that the series of events ultimately led to the loss of the children’s
11
father figure. __ S.W.3d at __. The court of appeals acknowledged that deportation alone is
insufficient to establish endangerment, but concluded that it is a fact properly considered given that
Francisco’s criminal acts subjected the children “to a life of uncertainty and instability, endangering
their physical and emotional well-being.” Id. at __.
While we agree that Francisco’s conviction, probation violation, and deportation were all
factors to be considered, on the basis of the record evidence before us, no reasonable fact-finder
could have formed a firm belief or conviction that Francisco engaged in a course of endangering
conduct. First, the Department bears the burden of showing how the offense was part of a voluntary
course of conduct endangering the children’s well-being, but did not offer evidence concerning the
Wisconsin or deportation proceedings, aside from statements in its own reports, which we have set
out and the substance of which Francisco does not challenge.10 The only evidence concerning the
conviction came from Francisco’s own brief testimony on direct examination. On this record, we
cannot determine whether the offense involved a seventeen-year-old girl (as mentioned, Francisco
was likely twenty-one or younger when the offense was committed) or someone younger, nor do we
10
The trial court took notice of the Department’s reports, which included statements that Francisco had been
deported to Mexico because of “criminal activity involving sex with a minor.” The Department argues that these
statements constitute legally sufficient evidence to support the endangerment finding. The Department also argues that
Francisco has waived any argument concerning the trial court’s notice of the file by failing to object to the notice. W e
need not decide whether statements in a report noticed by the trial court can support a finding, nor do we need to
determine whether Francisco waived any argument concerning the statements. Even if the statements could constitute
evidence supporting a finding, the statements are not legally sufficient evidence. W hile the statements are certainly very
serious, given that the statements supply no details, that Francisco was given a probated sentence, that the events occurred
at least eight years before Francisco was deported and at least thirteen years before the Department initiated these
termination proceedings, and that in the long interim there is evidence Francisco consistently demonstrated his desire
to care and provide for his children, the brief statements in the Department’s records cannot be considered clear and
convincing evidence of endangerment.
12
know whether the offense in Wisconsin would have constituted an offense under Texas law.11 The
court of appeals essentially affirmed the trial court’s endangerment finding on the basis of
supposition: the court inferred a worst-case scenario involving sex with a “child” that would have
resulted in the endangerment of Francisco’s own children. The trier of fact may draw inferences,
but only reasonable and logical ones. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.
1997) (observing that “[t]his Court has held that the trier of fact may draw inferences, but only
reasonable and logical ones,” and noting that the evidence relied on may not just be “‘meager
circumstantial evidence’ which could give rise to any number of inferences, none more probable than
another” (quoting Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995))); see also
Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1969)
(recognizing that “a vital fact may not be established by piling inference upon inference”). We agree
that an offense occurring before a person’s children are born can be a relevant factor in establishing
an endangering course of conduct, see J.O.A., 283 S.W.3d at 345, but the Department bears the
11
Texas and W isconsin law vary in how unlawful sex with a minor is treated. Compare T EX . P EN AL C O DE
§ 21.11, with W IS . S TAT . A NN . §§ 948.02, .09 (W est 2012). In Texas, the age of consent is seventeen. See T EX . P EN AL
C O D E § 21.11. Texas also provides an affirmative defense if there are consenting parties close in age. See id. In
W isconsin, on the other hand, the age of consent is eighteen, and W isconsin does not provide an affirmative defense for
consenting parties who are close in age. See W IS . S TAT . A N N . § 948.01(1) (W est 2012). W isconsin law makes it a Class
A misdemeanor to have “sexual intercourse” with a “child who is not the defendant’s spouse” and has attained the age
of sixteen. Id. § 948.09; see also id. § 948.01(1), (6) (defining “child” and “sexual intercourse”). Given Francisco’s
young age at the time of his conviction, it is possible he would not have been subject to conviction in Texas had the
conduct occurred here.
13
burden of introducing evidence concerning the offense and establishing that the offense was part of
a voluntary course of conduct that endangered the children’s well-being.12
Second, though we agree with the court of appeals that deportation, like incarceration, is a
factor that may be considered (albeit an insufficient one in and of itself to establish endangerment),
its relevance to endangerment depends on the circumstances. Under the court’s reasoning, the mere
threat of deportation or incarceration resulting from an unlawful act, regardless of severity, would
establish endangerment. We disagree with that analysis. Many offenses can lead to an immigrant’s
deportation, including entering the country unlawfully. See, e.g., 8 U.S.C. §§ 1227, 1325. Under
the court’s reasoning, virtually any offense that could lead to deportation—even a minor one
committed long before the parent’s children were born—would create such an unstable and uncertain
environment as to establish endangerment, subjecting countless immigrants to the potential loss of
their children. The court’s broad reasoning necessarily applies to citizens as well. Any offense
committed by a citizen that could lead to imprisonment or confinement would also apparently
establish endangerment, simply because the parent’s ability to be present in his children’s lives
would be uncertain. Our nation’s Constitution forbids such a far-reaching interpretation of our
12
The Department points to two court of appeals’ decisions for the proposition that inappropriate conduct with
a minor is a sufficient basis for proving endangerment. Both cases are inapposite. In In re R.W., 129 S.W .3d 732 (Tex.
App.— Fort W orth 2004, pet. denied), the father engaged in a long course of conduct that the court of appeals concluded
endangered the child, including allegations of child molestation with another child, a long history of drug and alcohol
abuse, a long history of mental health issues resulting in hospitalization on several occasions, several felony criminal
convictions, and an inappropriate relationship with a minor. Id. at 738–44. Though it is unclear from the court of
appeals’ opinion the father’s age at the time of the inappropriate relationship, the relationship in that case was but one
in a long string of conduct that was endangering. Id. at 743. In re R.G. also does not support the Department’s argument.
See 61 S.W .3d 661 (Tex. App.— W aco 2001, no pet.). There, a father continually returned his children to their
grandmother’s house where sexual abuse was taking place, even after knowing that the abuse was occurring and, later,
in contravention of a Department safety plan. Id. at 668. R.G. also applied an incorrect legal sufficiency standard of
review that was later overturned in J.F.C. Id. at 667; see J.F.C., 96 S.W .3d at 267.
14
parental rights termination statutes. See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) (noting
the “extensive precedent” establishing that the Due Process Clause of the Fourteenth Amendment
“protects the fundamental right of parents to make decisions concerning the care, custody, and
control of their children”); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (observing that “the
Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent”). Here, though Francisco engaged in
a criminal act and left Wisconsin without completing his probation before his children were born,
there is no evidence that these actions created such uncertainty and instability for his children
sufficient to establish endangerment. Nor is there evidence that Francisco abandoned his parental
responsibilities once he was forced to leave the country. Instead, the undisputed evidence illustrates
that Edna and Francisco lived together as a family unit without apparent incident until they
separated, and Francisco and his family remained a regular presence and source of support in the
children’s lives after he was deported.
We further agree with the court of appeals that there are similarities between incarceration
and deportation in that the parent is no longer available to reside with the children in their home in
the United States. But there are important differences. Unlike an incarcerated individual, a person
who is deported is able to work, have a home, and support a family. More importantly, it is possible
for the person’s children to live with him.
Although the court of appeals focused on Francisco’s conviction involving a minor and
subsequent deportation as evidence supporting the trial court’s endangerment finding, section
161.001(1)(E) also provides that a parent can engage in an endangering course of conduct if the
15
parent knowingly places the children with persons who engaged in conduct endangering the physical
and emotional well-being of the children. The Department does not argue in its brief that Francisco
violated this prong, but at oral argument suggested he did on the basis of Edna’s endangering actions.
It is undisputed that Edna never engaged in endangering conduct, per the Department’s own records,
until the underlying proceeding, long after Francisco was deported and living in another country.
There is simply no evidence that Francisco knowingly placed the children with Edna while she was
engaging in endangering conduct, nor is there evidence that Francisco allowed the children to remain
with Edna after learning of her conduct. Francisco’s uncontroverted testimony was that he was
surprised by the instant proceeding and that he had never seen Edna use drugs.
Deportation flowing from an unknown offense occurring many years earlier cannot satisfy
the State’s burden of proving by clear and convincing evidence that a parent engaged in an
endangering course of conduct, nor can mere guesswork undergird such a finding.13 See Serv. Corp.
13
W e note that several other courts around the country have considered the relevance of illegal status in this
country or deportation in parental rights termination proceedings, with the majority concluding that illegal status and
deportation are not in themselves grounds for the termination of parental rights. See, e.g., In re M.M., 587 S.E.2d 825,
832–33 (Ga. Ct. App. 2003) (concluding that the evidence was insufficient to terminate a Mexican’s parental rights when
the basis was the father’s illegal status in this country and the possibility that he could be deported); In re Doe, 281 P.3d
95, 102 (Idaho 2012) (concluding that evidence was insufficient to show a deported Mexican father unfit and reversing
parental rights termination order); In re B & J, 756 N.W .2d 234, 239–40 (Mich. Ct. App. 2008) (concluding that the
evidence was insufficient to terminate a Guatemalan’s parental rights on the basis of failing to provide proper care or
custody for a child after being deported to Guatemala when CPS had reported the parents to immigration authorities);
In re Angelica L., 767 N.W .2d 74, 94–96 (Neb. 2009) (concluding that the evidence was insufficient to terminate a
Guatemalan’s parental rights on the basis of twice failing to provide a child with adequate medical care and subsequent
deportation on the basis of living illegally in this country); Fairfax Cnty. Dep’t of Family Servs. v. Ibrahim, No. 0821-00-
4, 2000 WL 1847638, at *2–3 (Va. Ct. App. Dec. 19, 2000) (concluding that termination of a Ghanan’s parental rights
was unjustified when the father was incarcerated and deported for importing drugs). But see State Dep’t of Children’s
Servs. v. Ahmad, No. M2004-02604-COA-R3-PT, 2005 W L 975339, at *1, *3 (Tenn. Ct. App. Apr. 26, 2005)
(concluding that evidence was sufficient to terminate a Nigerian’s parental rights when the mother was convicted of
felony theft, deported, and chose to allow her children to remain in foster care in this country); In re M.F., No. 20080250-
CA, 2008 W L 2224277, at *1–2 (Utah Ct. App. May 30, 2008) (concluding that evidence was sufficient to terminate
a Mexican’s parental rights when the father was incarcerated and deported and had not seen the children or provided
support in almost two years); Perez-Velasquez v. Culpeper Cnty. Dep’t of Soc. Servs., No. 0360-09-4, 2009 W L
16
Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011) (“If . . . the evidence does no more than create a
mere surmise or suspicion and is so slight as to necessarily make any inference a guess, then it is no
evidence.”). As such, we conclude the evidence is legally insufficient to support termination of
Francisco’s parental rights under section 161.001(1)(E).14
We next evaluate the final prerequisite necessary to support an order terminating a person’s
parental rights: whether the evidence is legally sufficient to support the trial court’s finding that
termination of Francisco’s parental rights is in the best interest of J.A.C. and S.A.L.
IV. The Evidence Is Legally Insufficient to Support Termination of Francisco’s Parental
Rights Under the “Best Interest” Prong in Section 161.001(2) of the Family Code
The Department is required to prove by clear and convincing evidence that termination of
a parent’s right to his children is in the children’s best interest. See TEX . FAM . CODE § 161.001(2).
In determining whether the evidence is legally sufficient to support a best-interest finding, we
“consider the evidence that supports a deemed finding regarding best interest and the undisputed
evidence,” and ignore evidence a fact-finder could reasonably disbelieve. J.F.C., 96 S.W.3d at 268.
1851017, at *2–3 (Va. Ct. App. June 30, 2009) (concluding that evidence was sufficient to terminate a Guatemalan’s
parental rights when the father was convicted of malicious wounding, incarcerated, and deported).
14
The court of appeals affirmed the trial court’s finding under section 161.001(1)(E) and thus did not reach
the trial court’s remaining findings under section 161.001(1)(D) (knowingly placed or allowed the child to remain in
conditions or surrounding which endangered the child), (F) (failed to support the child in accordance with the parent’s
ability during a period of one year ending within six months of the date of the filing of the petition), and (N)
(constructively abandoned the child who has been in managing conservatorship of Department for not less than six
months, and Department has made reasonable efforts to return the child to the parent, the parent has not regularly visited
or maintained significant contact with the child, and the parent has demonstrated an inability to provide the child with
a safe environment). In this Court, Francisco does not challenge those additional trial court findings. W e note, however,
that the Department presented the same limited evidence concerning those findings as it did to support the endangerment
finding.
17
We have previously articulated nonexclusive factors to be considered in determining whether
termination of parental rights is in a child’s best interest:
(1) the child’s desires;
(2) the child’s emotional and physical needs now and in the future;
(3) any emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist the individuals seeking custody to promote the best
interest of the child;
(6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the parent’s acts or omissions which may indicate that the existing parent-child
relationship is improper; and
(9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Of these, the court of appeals concluded
that factors (1), (2), (6), (8), and (9) weighed in favor of termination of Francisco’s parental rights,
factor (7) was neutral, and factors (3), (4), and (5) weighed against termination. __ S.W.3d at __.
We address each in turn.
The court of appeals first reasoned that there was “no evidence that any of the children
wanted to live with their father in Mexico” to support its conclusion that the first Holley factor
weighed in favor of termination. Id. at __. But, in doing so, the court incorrectly applied the
standard of review and burden of proof. A trial court’s best-interest finding must be supported by
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clear and convincing evidence in the record. See TEX . FAM . CODE § 161.001(2). The court of
appeals erred in relying on a lack of evidence to contradict a finding as if it were evidence supporting
the finding. The Department did not introduce evidence that the children would not want to live with
their father, nor did the Department controvert Alvaro’s testimony concerning the children’s wish
to stay with their father after their most recent visit. A lack of evidence does not constitute clear and
convincing evidence.
As to the second Holley factor, the court of appeals stated that the children’s emotional and
physical needs are great, but did not explain or cite any evidence illuminating how those needs differ
from other children or would go unmet if the children were with Francisco. See __ S.W.3d at __.
As such, we disagree that this factor weighs in favor of termination.
The court of appeals next pointed to Francisco’s failure to articulate a plan for the children,
beyond allowing the children to return to the mother, as evidence supporting termination under the
sixth Holley factor. Id. at __. While we agree this amounts to some evidence, it is legally
insufficient to weigh in favor of termination. As an initial matter, Francisco actually testified that
the children should be with their mother or his family; thus, it is untrue that Francisco’s only plan
was for the children to remain with Edna. More importantly, though, there is no indication from the
record that the Department considered the possibility of the children living with Francisco in
Mexico; Francisco was never offered a service plan. The Department’s only post-termination plan
for the children was apparently to leave the four older children together with the same foster parents
until they age out. Similarly, because the Department never assessed Francisco’s situation in
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Mexico, there is a lack of evidence establishing the instability of Francisco’s home in Mexico
pursuant to the seventh Holley factor.
The court of appeals stated that there is some evidence that Francisco’s acts or omissions
rendered the parent-child relationship improper under the eighth Holley factor, pointing to
Francisco’s improper relationship with a minor and deportation. Id. at __. But, as discussed, the
record is devoid of evidence concerning the offense. We cannot say from this record that Francisco’s
conviction equates to a risk of his having an inappropriate relationship with his own children. In
fact, the undisputed evidence indicates that Francisco’s relationship with his children was a good
one. Similarly, we disagree with the court of appeals’ assertion that Francisco’s failure to provide
an excuse for “these acts” (presumably referring to the conviction and deportation) under the ninth
Holley factor supported the trial court’s best-interest finding, given that the evidence concerning
those “acts” is legally insufficient to support a best-interest finding in the first place. See id. at __.
The court of appeals finally concluded that the third through fifth Holley factors weighed
against termination of Francisco’s parental rights, observing that testimony suggested that Francisco
was a good father to the children who provided for their needs, and that there was no evidence the
Department had programs available to assist Francisco in Mexico. Id. at __. We agree with the
court’s assessment of these three Holley factors, except to observe that the Department did not
determine whether Mexican programs might be available to Francisco to promote the best interest
of his children.
We note that the court of appeals additionally inferred that termination of Francisco’s
parental rights was in the children’s best interest because the Department caseworker testified that
20
Francisco had not provided financial support for or contacted the children, with the exception of a
few phone calls, and Alvaro testified it “would be good” if a married couple adopted the children
and fed, clothed, and provided them with a good education. See id. at __. It appears from the record
that any absence of financial support and telephone calls from Francisco was largely a result of the
Department’s actions. As discussed, the Department did not request court-ordered support, though
Francisco provided his children with financial support and clothing on his own initiative. The
Department’s plans also limited Francisco’s visitation to a once-a-month telephone call, and the
Department’s reports indicate Francisco was always compliant until the Department moved the
children without informing him. Finally, the Department presented no evidence that another family
wishes to adopt the children, or that the children’s foster parents can provide for them in a way
Francisco cannot. But, even if the evidence showed the children’s foster family to have superior
resources to Francisco, we decline to postulate that this would support a best-interest finding. See,
e.g., In re Doe, 281 P.3d 95, 102 (Idaho 2012) (“The fact that a child may enjoy a higher standard
of living in the United States than in the country where the child’s parent resides is not a reason to
terminate the parental rights of a foreign national.”); In re Angelica L., 767 N.W.2d 74, 94 (Neb.
2009) (“[T]he fact that the State considers certain adoptive parents . . . ‘better’ . . . does not
overcome the commanding presumption that reuniting the children with [their mother] is in their best
interests—no matter what country she lives in . . . . [T]his court has never deprived a parent of the
custody of a child merely because on financial or other grounds a stranger might better provide.”
(internal citations omitted)).
21
In sum, we conclude that no reasonable fact-finder could have formed a firm belief or
conviction that termination of Francisco’s parental rights was in the children’s best interest, and the
court of appeals erred in holding otherwise. See TEX . FAM . CODE § 161.001(2); J.F.C., 96 S.W.3d
at 272. We do not conclude that the children’s best interest is unquestioningly for them to join their
father in Mexico; it is possible that the children’s best interest is to remain in the United States,
whether in foster care or with Alvaro or another family member.15 But the Department is required
to meet its burden of proof, and the evidence introduced at trial fails, at this juncture, to support the
Department’s burden as to the best-interest finding.
V. Conclusion
Due process commands that courts apply the clear and convincing evidentiary standard in
parental rights termination cases. Santosky, 455 U.S. at 769; J.F.C., 96 S.W.3d at 263; see also In
re B.G., 317 S.W.3d 250, 257 (Tex. 2010) (observing that a parental rights termination case
implicates “fundamental liberties” and “a parent’s interest in maintaining custody of and raising his
or her child is paramount” (quoting In re M.S., 115 S.W.3d 534, 547 (Tex. 2003))). The Department
is required to support its allegations against a parent by clear and convincing evidence; conjecture
is not enough. Because the evidence is legally insufficient to support the trial court’s order
terminating Francisco’s parental rights under section 161.001, we hold that the court of appeals erred
in affirming the trial court’s order as to Francisco. On remand, the Department has several options
to consider, including offering Francisco a service plan to assess whether it would be feasible and
15
It is unclear whether Alvaro remains in the United States. Alvaro testified that he may return to Mexico.
22
appropriate for him to have custody of his children, and allowing Francisco an opportunity to comply
with the plan. See, e.g., TEX . FAM . CODE §§ 263.101–.106. The fact that Francisco resides in
Mexico should not seriously hamper the Department’s efforts. See, e.g., Angelica, 767 N.W.2d at
86–87 (discussing State of Nebraska’s coordination with the Guatemalan consulate and agencies for
the purpose of conducting a home study and determining whether sufficient services exist in
Guatemala to monitor and protect the well-being of the children). We reverse the court of appeals’
judgment in part and remand the case to the trial court for further proceedings in accordance with
this opinion. See TEX . R. APP . P. 60.2(d).
_________________________________
Paul W. Green
Justice
OPINION DELIVERED: October 12, 2012
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