in the Interest of L.C.L. and M.E.M., Children ( 2019 )

Dissenting Opinion to the Order of October 22, 2019, Granting En Banc
Review, and the Order of October 22, 2019, Granting Oral Argument, filed
October 22, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00062-CV
IN THE INTEREST OF L.C.L. AND M.E.M., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2016-03785J
DISSENTING OPINION
I respectfully dissent from the majority vote (5-4) of the en banc Court to
review this case en banc and to hold oral argument in this case.
This is an appeal from a judgment terminating parental rights, and as such, it
is governed by specific deadlines. In 2011, the legislature required the Texas
Supreme Court to adopt rules accelerating an appellate court’s disposition of an
appeal from an order terminating a parent-child relationship. See TEX. FAM. CODE
ANN. § 263.405(c). Pursuant to that mandate, the Rules of Judicial Administration
were amended to require an appellate court to bring such an appeal “to final
disposition . . . [w]ithin 180 days of the date the notice of appeal is filed.” TEX. R.
JUD. ADMIN. 6.2(a) (emphasis added). By granting en banc review of this case, the
majority violates this rule, as is shown by the chronology of this appeal:
Notice of Appeal filed: January 18, 2019
Appellant’s brief filed: April 19, 2019
Case submitted on the merits: May 29, 2019
Panel opinion issued: July 16, 2019, with dissent to follow
180-day deadline: July 17, 2019
Dissenting Opinion issued: September 24, 2019
En banc review granted (5-4): October 22, 2019
Court orders oral argument (5-4): October 22, 2019
We are now 90 days past our deadline, with no new majority opinion in sight.
The issue raised by the dissent was waived (both in the trial court and in the appellate
court) and the panel opinion affirmed termination on an alternative ground. Those
facts should have deterred a vote for en banc review, but they did not.
The dissenting panelist contends that Mother’s due-process rights were
violated because she was not given a service plan in Spanish, but there was no such
objection in the trial court and Mother did not raise this issue in her brief. Under
clear Texas Supreme Court precedent, this due-process argument was waived. See
In re L.M.I., 119 S.W.3d 707 (Tex. 2003) (a due-process complaint that the father’s
affidavit of relinquishment of parental rights was not translated into Spanish was
waived by failure to raise the issue in the trial court).
“[O]ur well-established error-preservation rules . . . preclude a party from
seeking appellate review of an issue that the party did not properly raise in the trial
court.” G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 516 (Tex.
2015). This is true even of constitutional complaints. See Tex. Dep’t of Protective &
2
Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (constitutional claim
on appeal in paternity suit waived by failure to raise complaint at trial).
The Texas Supreme Court has been equally emphatic that an appellate court
is “without authority” to consider a complaint that was not raised on appeal. Elliff v.
Texon Drilling Co., 146 Tex. 575, 579, 210 S.W.2d 558, 560 (1948); see also Sw.
Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 726 (Tex. 2016) (because
appellant did not re-urge argument in the appellate court, the matter “was not
properly before the court of appeals, and reversal of the trial court’s judgment on
that basis was improper”).
These are not the only reasons that the case should not be reheard en banc.
Mother’s failure to follow her service plan was only one of the grounds on which
her parental rights were terminated; there were additional, independent grounds for
termination. See generally TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), and (O).
A panel of this court affirmed the termination on subsection E—that Mother
endangered her children, primarily by her continued use of cocaine. The dissenting
opinion did not address why this conclusion lacked evidentiary support. The Texas
Supreme Court consistently has held that “only one ground is required to terminate
parental rights.” See In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014) (“[C]lear and
convincing proof of any one ground will support a judgment terminating parental
rights.”). Under Texas law, Mother is conclusively presumed to have known that she
should not use illegal drugs—even if she was not so instructed in a Spanish-language
service plan. See E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 23 S.W.2d 695,
697 (Tex. [Comm’n App.] 1930) (“The rule is too elementary to require the citation
of authority that all persons are conclusively presumed to know the law.”); accord,
Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex. 1990) (“[A]ll
persons are presumed to know the law.”).
3
Finally, the general rule is that, as an appellate court, “we only decide
constitutional questions when we cannot resolve issues on nonconstitutional
grounds.” In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). For all of the reasons
above, it is unnecessary to reach the due-process concerns that the majority of the
en banc court have chosen to address.
Thus, I respectfully dissent.
/s/ Tracy Christopher
Justice
The En Banc Court consists of Chief Justice Frost and Justices Christopher, Wise,
Jewell, Bourliot, Zimmerer, Spain, Hassan, and Poissant. Justices Bourliot,
Zimmerer, Spain, Hassan, and Poissant join the En Banc Order. Chief Justice Frost
and Justices Christopher, Wise, and Jewell dissent to the En Banc Order. Justice
Christopher authors a Dissenting Opinion, in which Justices Wise and Jewell join.
Publish
4