In the Interest of L.M. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00307-CV
__________________
IN THE INTEREST OF L.M.
__________________________________________________________________
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-240,175
__________________________________________________________________
MEMORANDUM OPINION
Father appeals from an order terminating his parental rights to
Levi, his eleven-month-old child. 1 In its order, the trial court determined
that, along with finding it was in Levi’s best interest, the evidence
established that Father was convicted or placed on community
1We use pseudonyms to protect the minor’s identity. Tex. R. App. P.
9.8 (Protection of Minor’s Identity in Parental-Rights Termination
Cases).
1
supervision in 2006 for sexually assaulting a child. 2 In his first issue,
Father argues the evidence is legally and factually insufficient to support
the trial court’s finding that he was convicted of a crime that involved the
sexual assault of a child. According to Father, the evidence shows he was
convicted of sexually assaulting an adult, not a child. In Father’s second
issue, he argues the evidence is insufficient to support the trial court’s
finding that terminating his parent-child relationship with Levi is in
Levi’s best interest.
For its part, the Department concedes “there was no testimony at
trial as to how [Father’s] conviction for sexual assault injured a child.” It
then admits the evidence presented in the trial established “the victim of
the sexual assault [the Department proved Father committed] was an
adult[.]” Because the evidence is legally insufficient to support the trial
court’s finding that Father was convicted of sexually assaulting a child,
2See Tex. Fam. Code Ann. § 161.001(b)(1)(L) (authorizing the
parent-child relationship to be terminated based on a finding that the
child’s parent was convicted or placed on community supervision because
the parent was criminally responsible for the death or serious injury of a
child under one of sixteen enumerated sections of the Penal Code, which
specifically includes sexual assault).
2
we hold the trial court erred in terminating Father’s parent-child
relationship with Levi by relying on Family Code section 161.001(b)(1)(L)
(“subsection L”) as the statutory basis for terminating his rights.
As to Father’s issue challenging the trial court’s best-interest
finding, we need not reach his argument given our conclusion that the
evidence is legally insufficient to support the trial court’s subsection L
finding, which is the only predicate ground the trial court relied on to
support its order terminating Father’s rights. 3 We will reverse the trial
court’s order in part and render the judgment the trial court should have
rendered, which is a judgment denying the Department’s petition seeking
to terminate Father’s parental rights. 4
Background
Father didn’t know Mother was claiming that Levi was his child
until Levi was around four months old. When Levi was born, Mother and
Levi tested positive for the presence of methamphetamine and
3Tex. R. App. P. 47.1.
4Mother’s rights to Levi were also terminated but she did not
appeal.
3
amphetamine. Levi remained in the hospital for nearly two weeks. While
there, he was placed in neonatal intensive care and given oxygen. When
Mother was admitted, she denied using drugs during her pregnancy, but
she admitted she had not received prenatal care.
Even before Levi was released from the hospital, the Department
received a referral “due to neglectful supervision of newborn [Levi.]”
Following the referral, one of the Department’s caseworkers conducted
an unannounced visit at Mother’s home. The caseworker found Mother
had no baby supplies, no bed, and no bassinet in her home. Given
concerns the Department had about Mother’s historic use of drugs and
questions about Mother’s ability to provide Levi with a safe place to live,
the Department asked the trial court to name the Department as Levi’s
temporary managing conservator before Levi left the hospital. The trial
court granted the Department’s request.
In January 2022, the Department filed an amended petition adding
Father to the case, which it had initiated against Mother in September
2021. DNA tests, which Father requested, established that Levi is
Father’s child. The Department caseworker described the investigation
4
she conducted on behalf of the Department in Levi’s case. We limit our
discussion to the facts relevant to our analysis of Father’s issues.
During the trial, Levi’s caseworker testified that even though
Father complied with his family service plan, he did not demonstrate that
he could provide Levi with a safe home based on his status as a registered
sex offender, which the caseworker based on Father’s 2006 conviction for
sexual assault. The exhibits the trial court admitted into evidence in the
trial included the judgment and other documents relevant to Father’s
2006 conviction.
The documents admitted into evidence provide information
relevant to the background that led to Father’s indictment for sexual
assault. Nothing in any of the exhibits or the testimony about the sexual
assault show that Father was convicted of sexually assaulting a child.
Instead, the probable cause affidavit for the offense, which is among the
exhibits attached to the judgment of conviction, reflects the victim of
Father’s sexual assault was an adult, not a child.
The Department’s caseworker expressed her concerns about
whether the court should allow Father to have access to Levi. First, the
5
caseworker testified that Father is currently involved with a woman who
is a registered sex-offender. According to the caseworker, Father is the
father of this woman’s two-week-old baby. Second, the caseworker
explained that Mother is pregnant with another child. The caseworker
testified that Father, she believes, has also had a sexual relationship with
Mother and he is her unborn baby’s father. The caseworker expressed her
concern that given that Levi is an infant, he would not be able to protect
himself or verbalize what occurred should he be abused. She also
expressed her opinion that she didn’t believe it would be in Levi’s best
interest for the court to place him in a home where multiple registered
sex offenders would have access to him.
When the trial ended, the trial court terminated Mother’s and
Father’s parental rights. As previously mentioned, the trial court relied
solely on the predicate subsection L finding to terminate Father’s rights,
finding that Father had been convicted or placed on community
supervision for being criminally responsible for the death or serious
6
injury of a child. 5 Along with the trial court’s subsection L finding, it also
found that terminating Father’s rights to Levi is in Levi’s best interest. 6
The trial court appointed the Department to be Levi’s sole
managing conservator. In the section of the order appointing the
Department as Levi’s conservator, the trial court found that the
“appointment of a parent or parents would not be in [Levi’s] best interest
because the appointment would significantly impair [his] physical health
or emotional development.”
Standard of Review
A trial court’s findings terminating the parent-child relationship
must be supported by clear and convincing evidence. 7 To be clear and
convincing, the evidence “must 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.” 8
5Tex. Fam. Code Ann. § 161.001(b)(1)(L).
6Id. § 161.001(b)(2).
7Id. § 161.001(b).
8Id. § 101.007; see also In re J.L., 163 S.W.3d 79, 84 (Tex. 2005)
(cleaned up).
7
This “firm belief or conviction” standard affects our review of the
evidence on appeal. 9 Under a legal sufficiency review, we must determine
whether “a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” 10 When conducting our review and
given the appellate deference due the factfinder, we “look at all the
evidence in the light most favorable to the finding,” “assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so,” and “disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.”11
Even so, we may not disregard “undisputed facts that do not support the
finding.” 12 Thus, in a legal-sufficiency review, the factfinder remains “the
sole arbiter of the witnesses’ credibility and demeanor.” 13
Analysis
Under the Family Code, “[f]or a trial court to terminate a parent’s
right to his [child], the State must prove by clear and convincing evidence
9In re J.W., 645 S.W.3d 726, 741 (Tex. 2022).
10In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
11Id.
12Id.
13In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (cleaned up).
8
both that: (1) the parent committed an act prohibited under [section
161.001(b)(1)] and (2) termination is in the [child’s] best interest.” 14 As to
the prohibited act under section 161.001(b)(1), there are twenty-one
predicate grounds on which a trial court may terminate a parent’s
rights. 15 One of these predicate grounds, subsection L, allows the trial
court to terminate a parent-child relationship on a finding the parent has
“been convicted or has been placed on community supervision . . . for
being criminally responsible for the death or serious injury of a child
under” one of sixteen enumerated sections of the Penal Code when that
finding is coupled with a finding of good cause. 16 Subsection L refers to
section 22.011 of the Penal Code, which makes it an offense to sexually
assault a child. 17
To prove a claim based on subsection L, the Department must prove
both that: (1) the parent was convicted or placed on probation of at least
one of the sixteen crimes listed in subsection L and (2) the parent was
14In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012).
15See Tex. Fam. Code Ann. § 161.001(b)(1).
16Id. § 161.001(b)(1)(L).
17Id. § 161.001(b)(1)(L)(vi); Tex. Penal Code Ann. § 22.011(a)(2).
9
convicted or placed on probation because the parent was “criminally
responsible for the death or serious injury of a child[.]” 18 Father argues
(and the Department concedes) that subsection L required it to prove that
Father’s 2006 conviction for sexual assault resulted because he was
criminally responsible for the death or serious injury to a child. The
Department also concedes it didn’t prove Father was criminally
responsible for the death or injury of a child based on his conviction of
sexual assault. The Department also does not claim it proved that Father
was convicted of any of the other sixteen enumerated crimes listed in
subsection L.
We agree the record shows the undisputed facts in evidence do not
support the trial court’s subsection L finding. We also conclude the
evidence before the trial court reveals no reasonable trier of fact could
have formed a firm belief or conviction that the Department proved
Father was criminally responsible for the death or injury of a child. The
18See In re J.F.-G., 627 S.W.3d at 313 n.33; In re L.S.R., 60 S.W.3d
376 (Tex. App.—Fort Worth 2001), pet. denied, 92 S.W.3d 529, 530 (Tex.
2002) (per curiam); In re A.L., 389 S.W.3d 896, 900-01 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); Vidaurri v. Ensey, 58 S.W.3d 142, 145
(Tex. App.—Amarillo 2001, no pet.).
10
evidence shows Father sexually assaulted an adult and there is no
evidence showing he was also criminally responsible for injuring a child
in the course of sexually assaulting the adult. 19 We sustain Father’s first
issue.
In his second issue, Father argues the evidence is legally and
factually insufficient to support the trial court’s best-interest finding. But
having found the evidence legally insufficient to support the trial court’s
subsection L finding, we need not decide whether legally or factually
sufficient evidence supports the trial court’s best-interest finding as it
relates to the trial court’s decision to terminate Father’s parental rights.
Next, we must decide whether Father’s challenge to the trial court’s
best-interest finding nonetheless still requires us to address the trial
court’s decision naming the Department as Levi’s sole managing
conservator. To begin, we note Father didn’t raise a separate issue
challenging the trial court’s finding appointing the Department as Levi’s
managing conservator by claiming there is insufficient evidence to show
19Tex. Fam. Code Ann. § 161.001(b)(1)(L).
11
that appointing him would have significantly impaired Levi’s physical
health or emotional development, which is what the trial court found.
When a trial court terminates the parent-child relationships of both
parents, the Family Code provides the trial court with three choices as to
whom it should name as the child’s managing conservator: (1) a suitable
competent adult, (2) the Department, or (3) a licensed child-placing
agency. 20 When Family Code section 161.207 is the sole basis of the trial
court’s appointment of the Department as a child’s conservator, the
parent’s challenge to the trial court’s best-interest finding is considered
as raising an issue challenging the trial court’s appointment of the
Department as the child’s managing conservator. 21
On the other hand, when the trial court has appointed the
Department as the child’s managing conservator based on its authority
under Chapter 153 of the Family Code—the chapter addressing
conservatorship, possession, and access—the parent must challenge the
20Tex. Fam. Code Ann. 161.207(a).
21See id. § 161.207; In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008)
(holding the parent’s challenge to Department’s appointment as the
child’s managing conservator “was subsumed in her appeal of the
parental-rights termination order”).
12
trial court’s appointment of the Department as the child’s managing
conservator to preserve a challenge to the Department’s appointment. 22
When the Department amended its petition adding Father to the
suit, it asked the trial court to name it as Levi’s sole managing
conservator should the court determine that appointing Levi’s parents
would not be in Levi’s best interest because their appointment would
significantly impair Levi’s physical health or emotional development.
The trial court’s order tracks the findings that Family Code section
153.131 requires, which indicates to us the trial court appointed the
Department as Levi’s conservator under the authority granted to it by
Chapter 153 and not Chapter 161. The trial court’s order appointing the
22See Tex. Fam. Code Ann. §§ 153.001-.709 (West & Supp. 2022)
(Although the legislature amended some sections of Chapter 153 after
the Department sued, none of the changes are relevant to the issues in
Father’s appeal. For convenience, we cite the current version of the
statute when referring to the statute in the opinion.); In re J.A.J., 243
S.W.3d 611, 615-17 (Tex. 2007) (explaining that parent must raise an
issue in the appeal challenging trial court’s appointment of the
Department when the findings show the Department was appointed
under Family Code section 153.131 because a challenge based on findings
under section 153.131 is not subsumed by a parent’s claim that
terminating the parent-child relationship is not in the child’s best
interest); In re C.D.E., 391 S.W.3d 287, 301 (Tex. App.—Fort Worth 2012,
no pet.) (same).
13
Department as Levi’s managing conservator states: “The court finds the
appointment of a parent or parents would not be in [Levi’s] best interest
because the appointment would significantly impair [his] physical health
or emotional development.” 23
Since Father didn’t specifically challenge the trial court’s
conservatorship findings or the trial court’s decision appointing the
Department to be Levi’s managing conservator based on its authority to
do so under Chapter 153, the part of the trial court’s order appointing the
Department as Levi’s sole managing conservator is not overturned by our
judgment reversing the trial court’s order terminating Father’s parental
rights. 24
Conclusion
We conclude that the evidence is legally insufficient to support the
trial court’s subsection L findings. We reverse that portion of the trial
court’s order terminating Father’s parental rights and as to the
Department’s claims against Father, we render judgment denying the
23Tex.Fam. Code Ann. § 153.131.
24In re J.A.J., 243 S.W.3d at 615-17; In re C.D.E., 391 S.W.3d at
301-02.
14
Department’s claims seeking to terminate Father’s parental rights.25 The
rest of the trial court’s order terminating Mother’s parent-child
relationship with Levi and appointing the Department as Levi’s sole
managing conservator is affirmed.
REVERSED AND RENDERED IN PART; AFFIRMED IN PART.
_________________________
HOLLIS HORTON
Justice
Submitted on January 17, 2023
Opinion Delivered March 9, 2023
Before Horton, Johnson and Wright, JJ.
25Tex. R. App. P. 43.2.
15