Andrew Niles Gordon v. David Drew Gordon ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-05-00051-CV

Andrew Niles Gordon,

                                                                      Appellant

 v.

David Drew Gordon,

                                                                      Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 2003-1481-4

CONCURRING Opinion

          Very few documents have been filed or received at this point in this appeal.  From what we have, I have been able to piece together the following time-line:

          Date                       Description

          10/29/04                 Docket entry of hearing

          11/02/04                 Motion for New Trial

          11/02/04                 Motion to Reinstate

          11/08/04                 Notice of Appeal

          11/09/04                 Judgment signed

          12/23/04                 Motion Extension of Time to File Brief

          (12/17/04)               (mailed above motion)

          02/07/04                 Appellant’s Brief filed

          02/07/04                 Appellant’s Motion for Leave to Proceed in Forma Pauperis

          02/07/04                 Declaration of Inability to Pay Cost

          The motion for new trial and the notice of appeal both appear to be prematurely filed as they were filed prior to the signing of the judgment.  Tex. R. App. P. 12.1 and 12.2.  But there can be no question the notice of appeal was timely for the purpose of invoking our jurisdiction.  Tex. R. App. P. 27.1.

          But the Court’s holding overrules the procedure we followed in In the Interest of K.K., L.M., M.M., and T.K., 10-04-00303-CV (letter order) that allowed a late filed indigence affidavit after the receipt of a reasonable explanation and reset the timetable to contest that affidavit.  I am very reluctant to overrule a procedure so recently established. But I will join the decision, making it a unanimous holding that if the indigence affidavit is not timely filed, and no extension to consider the late filed indigence affidavit is timely filed, the case must be dismissed if the filing fee remains unpaid.

          With these remarks, I join the Court’s opinion and judgment.

                                                          TOM GRAY

                                                          Chief Justice

Concurring opinion delivered and filed March 30, 2005

[CV06]

justify; line-height: 0.388889in">          On the other hand, the evidence was factually insufficient to support the finding. The trial court, in terminating Cooper's parental rights, was willing to allow J.K. to remain in Young's custody, which indicates that the court did not believe that Young imposed any significant danger to J.K. Further, there was no evidence that Young was ever abusive to J.K. or to his other child, a boy fifteen years old at the time of the hearing. Considering all the evidence at the hearing, we conclude that the trial court's third finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

          In addressing the trial court's fourth finding, we similarly conclude that there was more than a scintilla of evidence that Cooper engaged in conduct that endangered J.K.'s physical or emotional well-being. There was evidence that Cooper had been convicted of marijuana possession, lives with two men, dances at a strip-bar, has attempted suicide at least twice, lost possession of another child, threw down J.K. as an infant so she could fight with a male companion, did not contact J.K. for an extended period of time after leaving her with Young, and that J.K. has emotional and behavioral problems of an unknown origin. Each one of these facts provides more than a scintilla of evidence to support the trial court's fourth finding.

          But we fail to conclude that the evidence adduced at the termination hearing was factually sufficient to support the fourth finding. There was evidence that Cooper is now gainfully employed (the other side of the strip-dancing coin), no longer uses drugs, no longer is depressed or has suicidal thoughts, and was concerned enough about J.K.'s well-being while she was suffering from depression to leave her with Young whom she believed could provide for J.K. While there was evidence that J.K. at the time of the hearing was having emotional and behavioral problems, there was no evidence to show that Cooper caused the problems. Young surmises that Cooper's employment as a strip-dancer and her domestic accommodations with two men suggest that Cooper had allowed J.K. to be sexually assaulted, but this evidence is extremely speculative. Furthermore, other than the hearsay testimony that Cooper threw down J.K. at a party, there was no additional evidence that Cooper ever hurt J.K. in any other way, either physically or emotionally. See In re P.S., 766 S.W.2d 833, 839 (Tex. App.—Houston [1st Dist.] 1989, no writ).

          The decision to terminate should not be made lightly. Rights which inhere in the parent-child relationship are of constitutional dimension, Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972); In re G.M., 596 S.W.2d 846, and the decision to terminate is complete, final, and irrevocable. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Interference with the parent-child relationship is justified only when there is a compelling governmental interest; consequently, a trial court's decision to terminate will be strictly scrutinized on appeal. Id. While there was substantial evidence that Cooper has not been a model mother for J.K., the evidence nevertheless fails to justify a decision to completely and permanently sever Cooper's relationship with her daughter. We conclude that the evidence adduced at the termination hearing was factually insufficient to support the trial court's fourth finding.

          We conclude that the evidence was factually insufficient to support the trial court's judgment. Due to our disposition of Cooper's sufficiency points, we need not consider her complaint about the trial court's failure to appoint her an attorney ad litem for the termination hearing. The judgment is reversed and the cause remanded for a new termination hearing.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Justice Cummings,

          Justice Vance,

          and Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed September 18, 1996

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