in the Interest of K.D.S.P., Child(ren) ( 2022 )

DISSENT and CONCUR; Opinion Filed November 21, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00456-CV
IN THE INTEREST OF K.D.S.P., CHILD
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-20-00042
CONCURRING AND DISSENTING OPINION
Before Justices Schenck, Pedersen, III, and Smith
Opinion by Justice Schenck
Parental termination cases necessarily involve constitutional rights. See In re
In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (citing Troxel v. Granville, 530 U.S.
57, 66 (2000) (plurality op.)). This case is no exception. It is because of these rights
that indigent parents have a right to be represented by counsel in proceedings
initiated by the State in both the trial court and on appeal. See TEX. FAM. CODE §§
107.013, 107.016(2); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (holding right to
counsel under section 107.013 through exhaustion of appeals under section
107.016(2)(B) includes all proceedings in the supreme court). We have also
recognized that in parental termination cases, the parents, just as defendants in
criminal cases are entitled to effective assistance of counsel. See In re M.S., 115
S.W.3d 534, 545, 550 (Tex. 2003) (holding parents have right to effective assistance
of counsel in cases involving termination of parental rights and directing use of
criminal standard) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Because of these important rights, in my view, where the counsel provided to parents
to protect their fundamental rights fails to provide effective assistance of counsel, I
would conclude that we may consider whether that deficient performance affected
the outcome of the case, especially where that deficient performance affects our
ability to review the trial proceedings for the basic assurance that disruptions of
parental rights are based on the law and proof required under it.
After reviewing the record on appeal, at least in the instance of Father’s
appeal, but for the deficient performance, I would conclude the result on appeal
would have been contrary to the judgment entered against him on the issue of
conservatorship, as there is no evidence to support the implied finding that
appointment of him as managing conservator would significantly impair K.D.S.P.’s
physical health or emotional development. I would then reach and sustain the
sufficiency issue he raised.
Accordingly, I concur in the majority’s decision to affirm the portion of the
trial court’s order terminating the parental rights of Mother as to K.D.S.P., but I
dissent to affirming the remainder. Instead, I would reverse the remainder of the
trial court’s order, render judgment that Father be appointed sole managing
conservator of K.D.S.P., and remand the case to the trial court for further
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consideration of whether Foster Parents should be granted possessory
conservatorship of K.D.S.P. Because the majority does not reach Father’s
sufficiency issues and because the majority instead affirms the trial court’s order as
to Father and Foster Parents, I dissent.1
BACKGROUND2
Father moved from Reynosa, Mexico, to Dallas, Texas, in 2017. Father
regularly called home to stay in touch with his wife and sons, as well as sent home
1
In addition to my concurrence in part and dissent in part to the judgment, I include this footnote to
express my objection to the reconstitution of this panel after the decision in this case. Our rules oblige the
court to determine at the outset whether a case will be decided by a panel or the en banc court and where
two or more justices “agree on the judgment[,]” the “panel opinion constitutes the court’s opinion, and the
court must render judgment in accordance with the panel opinion.” See TEX. R. APP. P. 41.1; id. 47.2
(requiring names of participating justices be noted on all written opinions or orders of court or panel of
court). After an opinion has circulated in an argued case, no other justice must join it, but at least two must
concur in the judgment. Id. 41.1. It is only where a panel member cannot “participate” in the decision may
a substitution take place. Id.
Justice Osborne approved of the opinion and the judgment it dictates prior to her resignation, as did
another justice. She therefore participated. As the Clerk, not the justices, communicates the Court’s opinion
to the parties, there was in fact no further “participation” permitted, apart from the unrealized potential for
her to withdraw her assent to the judgment. Nevertheless, after Justice Osborne’s departure, a majority of
the Court voted to substitute other sitting justices or visiting justices on any case on which Justice Osborne
was originally assigned to the panel—regardless of whether she had participated or communicated her
approval of the judgment to the Clerk prior to her resignation. In this case, the substitution, while improper
in my view, does not alter the judgment and is disclosed to the parties.
I have previously and broadly expressed my view that this Court’s practices concerning the assignment
and decision of cases do not comport with my understanding of the rules of procedure or the due process
rights of litigants to a decision derived by random processes. See, e.g., Steward Health Care Sys. LLC v.
Saidara, 633 S.W.3d 120, 153–154, 164 (Tex. App.—Dallas 2021, no pet.) (interpreting rule 41.1 to
provide that once two or more justices have agreed on judgment, case is “decided” and objecting to
substitution of new justice after original panel member participated in opinion and judgment not released
before expiration of original panel member’s term of office).
2
I do not fault the recitation of the facts in the majority opinion, but because I would conclude that the
evidence in this record would support a different outcome, I provide the background facts necessary for
context in this opinion.
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money each week. That year, Father also met Mother, and by 2018, Father and
Mother had entered into a romantic relationship.
Mother has been addicted to drugs since she was fourteen years old. Prior to
meeting Father, she used heroin while pregnant with her two children from a
previous relationship, and both children were born addicted to heroin. Both children
were removed due to that addiction and placed with paternal relatives.
At his construction job, Father was offered and began using illegal drugs to
keep up with the work. Father and Mother continued to use illegal drugs until
Mother learned she was pregnant around September of 2019. Both parents agreed
to seek treatment, and Mother went to a methadone clinic. Both soon relapsed, but
each hid his or her drug use from the other.
In December of 2019, K.D.S.P. was born two months prematurely and
addicted to heroin. The hospital reported the child’s addiction at birth to the
Department. A few days after her birth, the Department filed a petition for
protection, conservatorship, and termination. Both parents submitted to drug testing
at the Department’s request. Mother and Father tested positive for illegal drugs. The
Department took custody of K.D.S.P. and subsequently placed her with Foster
Parents.
Mother visited K.D.S.P. in the hospital, but she failed to appear at a hearing
two weeks after K.D.S.P.’s birth. The Department served her by publication.
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Mother also failed to appear at a supervised visit scheduled at the beginning of
February 2020. Mother did not file an answer until June 17, 2021.
In January 2020, Father returned to Reynosa to enter drug–rehabilitation
treatment. Upon his release from treatment, Father worked with the Department’s
office in McAllen and the Mexican equivalent of the Department, DIF, to complete
the services. While K.D.S.P. remained in the care of Foster Parents, Mother did not
visit her, despite the fact that remote visits were offered to her. However, in June of
2020, Father began visiting K.D.S.P. via video calls and consistently visited her
throughout the pendency of this case.
In October of 2020, the Department received a home study report from DIF
on Father and Stepmother, but the Department sent it to be translated from Spanish
to English.
On January 13, 2021, Father filed his original answer, requesting a jury trial
and seeking return of K.D.S.P. to him, as well as lesser alternative forms of relief,
such as joint managing conservatorship and possessory conservatorship. During the
pendency of the case, Father requested and obtained continuances in order to
translate from Spanish to English the home study conducted by DIF and to allow
additional information requested by the Department to be gathered.
On August 30, 2021, Foster Parents filed a petition to intervene in the
Department’s suit, seeking the termination of both Mother’s and Father’s parental
rights as to K.D.S.P. Foster parents requested the Department be appointed
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managing conservator and alternatively that they be appointed joint managing
conservators. The Department declined to pursue termination of Father’s rights at
trial. And, as detailed below, a jury refused to terminate his rights.
The case proceeded to trial before a jury, at which Mother, Father, Foster
Parents, and other witnesses testified. At the conclusion of the trial, the jury returned
a verdict, finding, among other things, it was in the best interest of K.D.S.P. for
Mother’s parental rights to terminated,3 for Father’s parental rights to not be
terminated,4 for Foster Parents to be appointed joint managing conservators, and for
Father to be appointed possessory conservator. The trial court signed an order
terminating Mother’s parental rights and appointing Foster Parents permanent joint
managing conservators and Father possessory managing conservator consistent with
the jury’s findings. That order also required Father’s possession be supervised and
included a finding that unsupervised access would endanger the physical health or
safety of K.D.S.P.
Mother and Father filed separate notices of appeal and briefs in this case.
3
The jury also found Mother had allowed K.D.S.P. to be placed or remain in conditions or surroundings
that endangered the child’s physical or emotional well-being, had engaged in conduct or placed K.D.S.P.
with persons who engaged in conduct that endangered the child’s physical or emotional well-being, and
constructively abandoned K.D.S.P.
4
The jury found Father had allowed K.D.S.P. to be placed or remain in conditions or surroundings that
endangered the child’s physical or emotional well-being and had engaged in conduct or placed K.D.S.P.
with persons who engaged in conduct that endangered the child’s physical or emotional well-being. Despite
those findings, the jury concluded termination of his parental rights as to K.D.S.P. would not be in the
child’s best interest.
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DISCUSSION
I. Important Procedural Concerns
As noted by the majority, no party, other than appellants, has filed a brief in
this case, and I fully agree with the majority’s decision that we may, if not must,
raise the question of whether the parties have preserved their issues on appeal.
Additionally, I agree that the record before us on appeal contains no action taken on
the part of the parents’ appointed counsel to preserve their sufficiency issues on
appeal. Where I disagree is whether our analysis should stop there. I believe it
should not.
While considering this appeal, I questioned whether appellants’ sufficiency
issues had been preserved in the record on appeal and sought to request and permit
the parties to submit supplemental briefing to respond to that question and to address
whether appellants received effective assistance of counsel. See TEX. R. APP. P.
38.9(b) 44.3. The panel declined to permit further briefing to address those issues.
I dissent from that decision.
I further dissent from the panel’s decision not to examine on our own motion
whether appellants have been provided by the State constitutionally and statutorily
required guaranteed effective assistance of counsel in this an action initially filed by
the State seeking to terminate appellants’ parental rights. See TEX. FAM. CODE
§§ 107.013, 107.016(2); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (holding right
to counsel under section 107.013 through exhaustion of appeals under section
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107.016(2)(B) includes all proceedings in the supreme court). In my view, the State
acted to terminate constitutionally guaranteed and fundamental rights and then failed
to ensure the protection of those same rights guaranteed by the constitution and
statutes. I would conclude the procedural facts and record in this case would permit
us to review unpreserved error. See In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003)
(“our procedural rules bar review of unpreserved error except in very narrow
circumstances”) (emphasis added).
In In re B.L.D., the supreme court engaged in an analysis of whether review
of an unpreserved issue regarding a jury charge in a parental termination case was
required by due process. See id. In that case, the supreme court began with the
presumption that the rules governing preservation of error in civil cases comport
with due process. See id. (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27
(1981). The supreme court then applied the three factors set forth by Mathews v.
Eldridge, 424 U.S. 319, 335 (1976): (1) the private interest affected by the
proceeding or official action; (2) the countervailing governmental interest
supporting use of the challenged proceeding; and (3) the risk of an erroneous
deprivation of that interest due to the procedures used. See id. After concluding the
private interests of the parents weighed in favor of reviewing unpreserved error and
that the State’s interests weighed against, the court assessed the risk that the
application of the preservation rules to bar review of unpreserved complaints would
cause the parents to be erroneously deprived of their children and found that risk to
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be low in light of the “heightened procedural protections in termination cases.” See
id. at 353–54.
But, the supreme court also considered whether a fact-specific due process
analysis controlled and conceded that “in a given parental rights termination case, a
different calibration of the Eldridge factors could require a court of appeals to review
an unpreserved complaint of error to ensure that our procedures comport with due
process.” See id. at 354. Indeed, in B.L.D., the supreme court held that no such
concerns were presented in that case where the record did not contain any evidence
that appellants’ counsel’s error constituted ineffective assistance. See id. Here, I
believe the facts present a different calibration where we must review whether
appellants’ counsel’s failure to preserve any of the issues argued on appeal,
regardless of whether appellants actually claim they received such ineffective
assistance.
Accordingly, in this case and on this record, I would conclude this panel
should proceed to examine whether appellants’ counsel’s performance was deficient
and further whether such deficient performance affected the outcome of this appeal.
II. Right to Effective Assistance of Counsel
In parental termination cases, the parents, just as defendants in criminal cases,
are entitled as to effective assistance of counsel, and we apply the standard
applicable to criminal cases in parental termination cases. See In re M.S., 115
S.W.3d 534, 545, 550 (Tex. 2003) (holding parents have right to effective assistance
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of counsel in cases involving termination of parental rights and directing use of
criminal standard) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
obtain a reversal because of ineffective assistance, appellant must show: (1) that
counsel’s performance was so deficient that counsel was not functioning as the
counsel guaranteed by the Sixth Amendment and (2) that there is a reasonable
probability that, but for the deficient performance, the result of the proceeding would
have been different. See Sledge v. State, 637 S.W.3d 770, 775 (Tex. App.—Dallas
2021), reh’g denied, 637 S.W.3d 967 (Tex. App.—Dallas 2022, pet. granted).
As there is no conceivable strategic rationale to justify not filing any motion
or making any objection to preserve appellants’ sufficiency arguments, I would
conclude that appellants’ counsel were constitutionally deficient and thus failed to
provide assistance as guaranteed by the Sixth Amendment. See id. Because I have
reached that conclusion regarding the first step of the Strickland analysis, I would
also conclude that we are obliged to address the second step: whether the deficient
performance of appellants’ counsel affected the outcome in this appeal in order to
determine whether the result of the proceeding would have been different. See id.III. Father’s Appeal
In a single issue, Father challenges the sufficiency of the evidence to support
the implied findings that the appointment of him as managing conservator was not
in K.D.S.P.’s best interest and that appointment of Father as managing conservator
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would significantly impair K.D.S.P.’s physical or emotional development in order
to overcome the presumption that a fit parent acts in a child’s best interest.
A. Standards of Review and Applicable Law
The United States Supreme Court has long held that the Constitution “protects
the fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (quoting
Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality op.)). Texas jurisprudence
underscores this fundamental right and recognizes that it gives rise to a “legal
presumption” that it is in a child’s best interest to be raised by his or her parents. Id.at 812 (citing Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955)). Although
the best interest of the child is the paramount issue in a custody determination, “[t]he
presumption is that the best interest of the children” is served “by awarding them”
to a parent. Id.Further, five years before Troxel, the Texas Legislature added a statutory
parental presumption applicable to original custody determinations:
[U]nless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional
development, a parent shall be appointed sole managing conservator or
both parents shall be appointed as joint managing conservators of the
child.
FAM. § 153.131(a). Texas courts have also recognized a presumption that parents
are fit and able to make decisions regarding their children unfettered by government
intrusion. See In re C.D.C., No. 05-20-00983-CV, 2021 WL 346428, at *1 (Tex.
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App.—Dallas Feb. 2, 2021, no pet.) (mem. op.) (citing In re C.J.C., 603 S.W.3d at
814). Thus, the strong presumption that the best interest of a child is served by
appointing a natural parent as managing conservator is deeply embedded in Texas
law. In re B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, pet. denied)
(citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)).
To overcome this presumption, a nonparent must prove by a preponderance
of the evidence that appointment of the parent as managing conservator would
significantly impair the child’s physical health or emotional development. See FAM.
§ 153.131(a). The evidence cannot merely raise a suspicion or speculation of
possible harm. See In re B.B.M., 291 S.W.3d at 467. Instead, the evidence must
support the logical inference that some specific, identifiable behavior or conduct of
the parent will probably harm the child. Id. Evidence that a nonparent would be a
better custodian of the child is wholly inadequate to meet this burden. Id.This is a heavy burden that is not satisfied by merely showing
the nonparent would be a better choice as custodian of the child. Id. Acts or
omissions that constitute significant impairment include, but are not limited to,
physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral
behavior by the parent. Id. at 469. A factfinder may infer the present fitness of the
parent to be managing conservator from the parent’s recent, deliberate past
misconduct. See In re A.V., No. 05-20-00966-CV, 2022 WL 2763355, at *6 (Tex.
App.—Dallas July 15, 2022, no pet.) (mem. op.). But evidence of past misconduct,
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standing alone, may not be sufficient to show present unfitness. Id. “When a
nonparent and a parent are both seeking managing conservatorship, the ‘close calls’
go to the parent.” In re B.B.M., 291 S.W.3d at 469; see also In re F.E.N., 579 S.W.3d
74, 77 (Tex. 2019) (per curiam) (proof of significant impairment “should include the
acts or omissions of the parent demonstrating that result”) (citing Lewelling, 796
S.W.2d at 167).
Unlike the clear and convincing standard applicable in a termination
proceeding, the appointment of a nonparent as managing conservator need only be
proven by a preponderance of the evidence. See In re D.P., No. 05-22-00147-CV,
2022 WL 2816601, at *2 (Tex. App.—Dallas July 19, 2022, no pet.) (mem. op.). As
conservatorship determinations are intensely fact driven, the trial court is in the best
position to observe the demeanor and personalities of the witnesses and can “feel”
the forces, powers, and influences that cannot be discerned by merely reading the
record. See In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). A trial court’s
determination of what is in the child’s best interest, specifically the establishment of
terms and conditions of conservatorship, is a discretionary function. See id. The
trial court’s judgment will be reversed only when it appears from the record as a
whole that the court has abused its discretion. See id. A trial court abuses its
discretion when it acts without reference to any guiding rules or principles or, in
other words, when it acts arbitrarily or unreasonably. See id.–13–
B. Evidence at Trial
The following was established through witness testimony and exhibits at trial.
Prior to 2017, Father lived with Stepmother and their three sons in Reynosa,
Mexico. While visiting his cousin in Dallas, Father was offered a job in construction
that would allow him to make far more than he was making in Reynosa. Stepmother
and he discussed the opportunity and agreed he would live and work in Dallas while
she and their children remained in Reynosa, and he would send money to them.
According to Stepmother, it is common in Reynosa for men to work in the U.S. for
extended periods of time. She testified that Father was in contact with her and her
sons over audio and video calls throughout the years he lived in Dallas and that he
sent money to them on a weekly basis.
While living in Dallas, Father met Mother and began a romantic relationship
with her in 2018. Father moved out of the apartment he shared with roommates and
into an apartment with Mother. Father candidly acknowledged that he began using
illegal drugs after his coworkers encouraged him to use it as a daily stimulant. When
Father and Mother became aware that Mother was pregnant with K.D.S.P., they both
agreed to stop using illegal drugs. Father knew that Mother had two other children
and that both were born addicted to illegal drugs. Mother went to a methadone clinic
for two weeks but soon relapsed. According to both, Father and Mother each
continued using illegal drugs but hid that use from each other. Mother testified that
when she went to the hospital to deliver K.D.S.P., she knew her child would likely
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be born addicted to heroin, but her hope was that Father would be able to take
custody of their daughter. That plan did not come to pass because neither Mother
nor Father passed the drug tests the Department requested they take after K.D.S.P.
was born.
After the Department intervened and took custody of K.D.S.P., Father decided
with Stepmother that he would return to Reynosa to enter drug rehabilitation. When
questioned why he did not remain in Dallas, he answered the options he found in
Dallas were much more expensive than those in Reynosa and that he was not aware
the Department could help him find other options. Father proceeded to enter in-
patient treatment for three months, but not before first giving the Department’s
contact information to Stepmother and directing her to learn how K.D.S.P. was
doing. According to Father and Stepmother, his treatment took place in a locked
facility he could not leave and Stepmother emailed the Department to let them know
in February 2020 that Father had entered rehabilitation treatment. Stepmother also
obtained from the Department the list of services Father needed to complete in order
to be reunified with K.D.S.P.
Subsequent to his release from his rehabilitation treatment, Father returned to
work and continued to work through the date of trial. He also contacted an office of
the Department in McAllen, Texas, in order to complete the services required to be
reunified with K.D.S.P. As part of that process, the Mexican equivalent of the
Department, DIF, conducted home studies of Father and Stepmother’s home and
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interviews of Father, Stepmother, and their three sons. Father participated in drug
testing, as did Stepmother and their three sons. Father admitted he tested positive
for drugs in January 2021, but he explained that the positive test was from a
medication he obtained in Mexico to treat his toothache.
Around the same time that Father was released from rehabilitation treatment,
returned to work full-time, and began completing services with the Department and
DIF, Father began visiting K.D.S.P. remotely with video calls, each lasting about an
hour long, in June of 2020. He testified he could not visit with her in person at that
time because of the ongoing pandemic. Foster Mother facilitated those calls,
keeping the infant K.D.S.P. engaged. According to her, Father would ask for
pictures whenever he had a video call with his daughter. She testified that Father
was kind, thankful, attentive, and “basically a good person to deal with.” The CASA
advocate also testified positively as to Father’s interactions with K.D.S.P.
Father testified his job at the time of trial was a truck driver, a job that required
him to work and be away from home six days a week. He testified his plan was for
Stepmother and his mother to be at home with K.D.S.P. He and Stepmother had a
crib set up in their room and were in the process of building an additional room onto
their house for K.D.S.P. to have her own room. His oldest son had his own room,
while the two younger sons shared a room. Among Father’s exhibits at trial was the
home study prepared by DIF, which included statements from his sons looking
forward to having their sister live with them. Father also provided pictures from his
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visits with K.D.S.P. in person. He testified that at the visit that took place one
evening during trial, he, Stepmother, and one of their sons were present, while the
other two sons were able to join remotely. Other pictures depicted Father’s visit
from the previous December with his daughter, as well as his house and his family
on vacation in 2022.
Stepmother testified she would care for K.D.S.P. and offer her the same love
and support she had raised her three sons with. According to Stepmother, she had
forgiven Father for his relationship with Mother and believed he would continue to
abstain from using illegal substances. When asked why she wanted to “taken in a
child that’s not your own,” she responded that K.D.S.P. is her children’s blood and
that children should be with their parents. She professed to accept and love K.D.S.P.
with all her heart and want the best for her. To Stepmother, K.D.S.P. is no different
than her own children. Although she was working at the time of trial, Stepmother
planned to cease working to care for K.D.S.P. at home as she had her sons.
Stepmother testified she enjoyed meeting and visiting with K.D.S.P. She also
testified that Father is and has been a good dad and that he is engaged with their
sons, helping them with their homework and taking them to play in the park.
The Program Director for the Department testified as a witness for Foster
Parents. According to Program Director, she is in charge of Region 3, which
encompasses Dallas, while Father has been working with employees of the
Department in Region 11 where he works. When asked about potentially placing
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K.D.S.P. with Father, the Program Director testified as to concerns with the initial
report from Father’s home study, particularly that she did not believe the Department
had received answers to its questions, Father “needed more people to be of support,”
and more drug testing. She testified that it was concerning that she did not know
anything of Father’s life in Mexico and that she considered the following indications
he would not be able to parent K.D.S.P. safely: Father travels between Mexico and
the U.S. for work; Stepmother would be the primary caregiver; K.D.S.P. was born
as a result of an extramarital affair; K.D.S.P.’s young age would prevent her from
being able to protect herself against any potential backlash from Stepmother; and the
Department is not able “to monitor the interaction between them all.”
The Program Director admitted she had not spoken with the personnel in
Region 11, although she averred she had made attempts to do so, and she also
admitted she had not seen the completed and translated home study—“I really don’t
recall it being this thick or this detailed”—which was offered and admitted as an
exhibit at trial. She further admitted that she had spoken to Stepmother and that
nothing was said to trigger any concern that Stepmother would mistreat K.D.S.P.
Moreover, she testified that requesting a home study on a child’s parent was “very
rare” and that the reason the Department requested additional information after the
initial home study report was “it’s out of the country, so it’s different.” She also
testified her main concerns were that the Department could not monitor the case
because Father lives in a different country and that no support system, such as
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nonrelated references, had been established in the home study report to insure
Father’s sobriety and the child’s care.
In response to the concerns raised about monitoring the child if she were
placed in Father’s home, Father called a witness from the Mexican consulate
(“Consul”), who described himself as “in charge of matters or minors underage in
Mexico, for Mexico.” The Consul testified he had worked on this particular case;
DIF conducted a home study on Father’s home; at the request of the Department or
as ordered by a judge, DIF has the ability to provide supervision of the child at her
Father’s home in Mexico; and that it was in K.D.S.P.’s best interest “to go to
Mexico.”
In addition to the evidence regarding Mother and Father, there was also
testimony from and other evidence regarding Foster Parents.
The Program Director testified that in order to become foster parents,
individuals must obtain a license, complete a certain amount of trainings every year,
maintain daily documentation for the youth they care for, and submit to periodic
unannounced visits from child placing agency case managers, CASA advocates, and
guardians ad litem. When questioned what placement would be in the child’s best
interest, the Program Director testified it would be to stay with Foster Parents
because they have given her good care and because they have received a lot of
training.
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Foster Mother testified she had been married to Foster Father for twenty years
and that they had two children, a son in college and a daughter in high school. Both
Foster Parents were born in Mexico and later moved to the U.S. and became U.S.
citizens. Foster Mother worked from home taking customer service phone calls for
a company that owns a series of nursing homes. Foster Father worked in a company
he started in 2020 installing elevators. Before then, Foster Father bought,
remodeled, and sold houses. According to Foster Father, he is an active father,
prioritizing being with his family on weekends and supporting his children’s
activities in theater and soccer. Foster Mother and Foster Father obtained a license
to foster children in 2011 and since then have fostered approximately a dozen
children. They made the decision to foster children because they “wanted to help
kids that . . . were in the system, that needed a mom and a dad, that spoke our
language, that spoke Spanish.” According to Foster Mother, they receive some daily
payment per night each child is fostered with them, but they are not financially
motivated to foster.
According to Foster Mother, K.D.S.P. was a little over one month old when
she came to live at her house. Foster Mother took her to regular and specialist
doctors for regular well check-ups as well as for treatment of K.D.S.P.’s low birth
weight, oversized head, and heart murmur, all of which had been resolved by the
time of trial. Because Foster Mother worked from home, K.D.S.P. attended a
daycare. Both Foster Mother and Foster Father are bilingual in Spanish and English
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and speak mostly English at home, although K.D.S.P. knew some Spanish words.
At K.D.S.P.’s daycare, English was spoken. After daycare, K.D.S.P. typically has
dinner with the foster family and goes with Foster Parents to soccer practices. On
weekends, K.D.S.P. typically goes with her foster family to visit their relatives or to
soccer games. Foster Father’s parents lived near Foster Parents, and they visited
with K.D.S.P. at least three times a month.
When K.D.S.P. was about six months old, Foster Mother began facilitating
video calls between K.D.S.P. and Father. Because the Department’s caseworker did
not speak Spanish but was on the calls, Foster Mother often translated questions
Father had about the ongoing case. For the first month or so, Foster Mother would
place the child in her high chair with the phone in front of her and some toys, as well
as keep the other members of her family out of the room. After K.D.S.P. grew older
and frustrated with spending the calls in her highchair, Foster Mother moved the
child to the living room and followed her with the phone to continue the video call
with Father.
According to Foster Mother, she and Foster Father decided to intervene in the
case because of the length of the case and the growing attachment between the
members of the foster family and K.D.S.P. Foster Parents loved K.D.S.P. as their
own daughter. Foster Mother testified their family loved K.D.S.P. She offered into
evidence pictures of the child alone and with members of the foster family at Foster
Mother’s home, at her sister’s home, and on a trip to New York to visit her son at
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college. Foster Father testified his goal in pursuing termination of Mother’s and
Father’s rights was to pursue adoption of K.D.S.P. in order to establish her home
permanently with the only family she has known.
Foster Mother testified about her fears for K.D.S.P. should she be returned to
Father. She was concerned the child would not know anyone, that her world would
change, and that she would not know the language spoken in Father’s home. She
also admitted that K.D.S.P. had had to adapt to changing environments in her brief
life, including staying home from daycare during the pandemic and changing to
different daycares. But Foster Mother opined that K.D.S.P. would be traumatized
by the experience of leaving her home with the foster family and living in Father’s
home. She admitted that earlier in the case, she recommended returning K.D.S.P. to
Father, but because of the length of time and K.D.S.P.’s age and the growing
attachment among the members of the foster family and K.D.S.P., she changed her
mind and sought termination of Mother’s and Father’s parental rights and
alternatively managing conservatorship of K.D.S.P.
Foster Parents called two friends as witnesses to testify as to their good
character. Both had known Foster Parents for years and testified as their excellent
care of K.D.S.P. Both also testified as to having no concerns regarding Foster
Parents’ care of K.D.S.P. and that they treated her as they did their own biological
children.
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The Court Appointed Special Advocate (CASA) testified she had visited with
K.D.S.P. monthly in person and virtually throughout the case, beginning in January
of 2020. She prepared summary reports prepared before hearings in the case, which
included brief histories of the case, recent information regarding visits, and
placement recommendations from CASA. In her reports dating from February 2020
through May 2021, CASA recommended K.D.S.P. remain with Foster Parents. She
included notes on the care Foster Parents gave the child, as well as Father’s
consistent visits with K.D.S.P., his completion of various classes and trainings, and
his repeated statements that he wanted his daughter to be reunified with him. She
also noted Father’s one positive drug test result in March 2021. But in her September
2021 report, CASA recommended that due to Father’s “completion of services,
visiting consistently with child, [and] upon recommendation of his counselor, he
should be reunited with [K.D.S.P.].” In her final report in December 2021, she
recommended K.D.S.P. remain with Foster Parents and that Father provide the
Department with contact information for his mother and niece in order for
background checks on them.
According to the CASA, this case represented a close call for her in terms of
what to recommend for K.D.S.P.’s placement. She had observed the care the Foster
Parents had provided the child, calling them a wonderful family and stating they had
bonded with K.D.S.P., had done “an excellent job” caring for her, and “have done
everything.” But, she also testified she had observed Father communicated and
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consistently visited with his daughter and had also “done everything that’s asked of
him.” Her recommendation was that Father should not be denied his child. She also
testified that she thought it would be “a positive thing in her life” for K.D.S.P. to
maintain contacts with her foster family. Her proposed “best of both worlds” would
be for K.D.S.P. to be placed with Father and Foster Parents allowed to continue a
relationship with her.
C. Jury’s Charge and Findings5
The jury’s charge asked whether the jury found by clear and convincing
evidence that Father knowingly placed or knowingly allowed K.D.S.P. to remain in
conditions or surroundings that endangered her physical or emotional well-being.
The jury’s charge also asked whether the jury found by clear and convincing
evidence that Father engaged in conduct or knowingly placed K.D.S.P. with persons
who engaged in conduct that endangered her physical or emotional well-being. The
jury answered yes to these two questions, but they answered no to the question
asking whether they found by clear and convincing evidence that termination of
Father’s relationship with K.D.S.P. would be in the child’s best interest.
Because the jury did not find termination of Father’s rights was in K.D.S.P.’s
best interest, they were next asked to determine who should be named as her
managing conservator. As part of that question, the jury was instructed that, in
5
The first four questions asked the jury to make findings regarding Mother, which need not be
addressed in this section addressing Father’s appeal.
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accordance with section 153.131, a parent shall be appointed managing conservator
of the child “unless it is shown by a preponderance of the evidence that appointment
of a parent as Managing Conservator would not be in the best interest of the child
. . . because the appointment would significantly impair the child’s physical health
or emotional development.” See FAM. § 153.131(a). The jury was further instructed
that if a nonparent were appointed as managing conservator, the parent would be
appointed as possessory conservator. No one objected to these instructions;
accordingly, I would review the evidence in light of these instructions. See Danet v.
Bhan, 436 S.W.3d 793, 796 (Tex. 2014).
D. Insufficient Evidence Supports the Jury’s Implied Finding that
Appointment of Father as Managing Conservator Would
Significantly Impair K.D.S.P.’s Physical Health or Emotional
Development
Father argues the evidence in the record fails to establish the parental
presumption was rebutted. He points to the evidence that he successfully completed
services in Mexico and in McAllen, has a suitable home for K.D.S.P., has
consistently visited with her with weekly video calls, is employed, and has a stable
home and extended family.
To be sure, the evidence shows that Father engaged in past conduct that might
significantly impair K.D.S.P.’s physical or emotional well-being. Father used illegal
substances prior to these proceedings and his submission to services and home
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studies. And when K.D.S.P. was born, he left her in the custody of the Department
for several months.6
However, Father left K.D.S.P. with a government agency, knowing that he
could not take custody of her himself and knowing that Mother similarly could not
do so. He left in order to receive several months of treatment in order to become the
parent K.D.S.P. needed him to be. Father conceded his relationship with Mother
and his drug use to his wife, Stepmother, and asked her to check on his infant
daughter while he was in treatment. When he was released from treatment, he found
employment, worked with the Department and DIF to complete further services, and
he began regular, consistent visits with K.D.S.P. He tested positive once during the
case for drugs. He provided an explanation for that positive test, and he completed
additional counseling and treatment. See, e.g., C. O. v. Tex. Dep’t of Family &
Protective Servs., No. 03-21-00453-CV, 2022 WL 413374, at *8 (Tex. App.—
Austin Feb. 11, 2022, no pet.) (mem. op.) (concluding evidence of parent’s sole
6
I note that the jury found by clear and convincing evidence that Father had:
knowingly placed or knowingly allowed K.D.S.P. to remain in conditions or surroundings that
endanger the physical or emotional well-being of the children [FAM. § 161.001(b)(1)(D)] and
engaged in conduct or knowingly placed K.D.S.P. with persons who engaged in conduct that
endangers the physical and emotional well-being of the child [FAM. § 161.001(b)(1)(E)].
Although Father did not specifically challenge the jury’s findings regarding endangerment, I would
conclude they are necessarily subsumed in his challenge to the lack of evidence regarding significant
impairment because we have previously held that “[c]ertain past acts or omissions such as physical abuse,
severe neglect, abandonment, drug or alcohol abuse, or immoral behavior may indicate a threat of future
harm to a child.” See In re B.B.M., 291 S.W.3d 463, 469 (Tex. App.—Dallas 2009); cf. In re M.G., No.
12-16-00312-CV, 2017 WL 2299168, at *2 (Tex. App.—Tyler May 26, 2017, no pet.) (mem. op.) (Father
waived challenged grounds of termination by endangerment and failure to comply with court-ordered
service plan by failing to challenge ground of knowingly engagement in criminal conduct).
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positive drug test and failure to obtain protective order against abusive romantic
partner, most of which occurred eighteen to twenty-six months before conclusion of
final hearing was factually insufficient to support significant-impairment finding);
In re J.A., No. 05-19-01333-CV, 2020 WL 2029248, at *5, 8 (Tex. App.—Dallas
Apr. 28, 2020, pet. denied) (mem. op.) (parent’s use of marijuana three times during
pendency of case legally insufficient to support finding termination of his parental
rights in child’s best interest).
Thus, although there is some evidence that Father’s past conduct indicated
risks to the child’s physical or emotional well-being, the evidence of his recent
conduct, particularly after his cooperation with the Department and DIF, does not
indicate any threat of future harm to this child. See In re A.V., No. 05-20-00966-
CV, 2022 WL 2763355, at *6 (Tex. App.—Dallas July 15, 2022, no pet.) (mem.
op.); Critz v. Critz, 297 S.W.3d 464, 475 (Tex. App.—Fort Worth 2009, no pet.) (“If
the parent is presently a suitable person to have custody, the fact that there was a
time in the past when the parent would not have been a proper person to have such
custody is not controlling.”); see also In re B.B.M., 291 S.W.3d 463, 469 (Tex.
App.—Dallas 2009) (noting custodial matters are inherently fact intensive must be
reviewed on an individualized basis).
Other than Father’s past conduct, the concerns raised by the evidence at trial
are more theoretical and speculative, which is not sufficient to support a finding of
significant impairment so as to overcome that constitutional and statutory paradigm
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that is an unfit parent or that appointing him managing conservator would result in
significant impairment. See in re A.V., 2022 WL 2763355, at *6. For example, the
Program Director expressed concerns about K.D.S.P. living in another country
where the Department could not monitor her.7 Even if such a concern were relevant
to this finding, the evidence showed the DIF more than capable of coordinating with
the Department regarding any services, home visits, or other interventions. The
Program Director also expressed concern about what potential negative
consequences might be experienced by K.D.S.P. because she was born as a result of
an extramarital affair and Father’s plan was for Stepmother to be his daughter’s
primary caregiver while he traveled for most of the week for his job. The Program
Director admitted these concerns were not based on anything Stepmother had said
or any evidence other than her own fears. Moreover, Stepmother testified she loved
K.D.S.P. as the sister of her sons and the daughter of her husband. And she spoke
in glowing terms of the child when recounting the in-person visit between K.D.S.P.
and Father, Stepmother, and one of their sons. Thus, any concern related to the
circumstances of the child’s birth was speculative and unfounded.
The other concern raised by more than one witness at trial was what effect
separating K.D.S.P. from Foster Parents would have on her. We do not treat this
7
I do not doubt the Department’s commitment to the best interests of K.D.S.P. and all children.
However, having declined to pursue termination of Father in this case, and having coordinated oversight of
him with their counterpart in Mexico, I presume it would not suggest that either the country of Mexico or
its nationals are inherently less interested or able to rear or oversee the basic welfare needs of their children.
–28–
concern lightly as the evidence establishes that at the time of trial, K.D.S.P. had spent
nearly her entire life with Foster Parents and had become bonded with them and their
extended family. Foster Mother expressed particular concern that the child would
have a difficult time understanding and adjusting to a new home with a new family
in a new country where a different language was spoken. Father, too, conceded, that
“in the beginning, it will be” that K.D.S.P.’s primary caregiver, Stepmother, will be
“a total stranger” to the child.
But, as previously stated, to support a finding of significant impairment, the
evidence must do more than merely raise a suspicion or speculation of possible harm.
See In re B.B.M., 291 S.W.3d at 467. Likewise, the controlling constitutional
question here is not whether the jury or the court believe the Foster Parents (or the
United States) would provide a better home. See id.; In re B.A.B., No. 07-21-00259-
CV, 2022 WL 1687122, at *5 (Tex. App.—Amarillo May 26, 2022, no pet.) (mem.
op.); see also Troxel, 530 U.S. at 72–73. Instead, the evidence must support the
logical inference that some specific, identifiable behavior or conduct of the parents,
demonstrated by specific acts or omissions, will probably harm the child. See In re
B.B.M., 291 S.W.3d at 467. Further, we have previously declined to adopt a holding
that the negative effect on the child caused by her separation from the nonparents
may, standing alone, be sufficient to deny a natural parent managing
conservatorship. See id. at 468. A mere potential threat, as opposed to evidence of
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actual harm to the child’s emotional development, is insufficient to deny a natural
parent the right to raise his or her own child. See id.Much as I commend the Foster Parents for their care and nurturing of
K.D.S.P., I would conclude the evidence is insufficient to rebut the parental
presumption. Thus, I would conclude that on this record on appeal, but for the
deficient performance of Father’s counsel, the result of this appeal would have been
different, i.e., to sustain Father’s issue and conclude Father should have been
appointed managing conservator of K.D.S.P. See Sledge v. State, 637 S.W.3d 770,
775 (Tex. App.—Dallas 2021), reh’g denied, 637 S.W.3d 967 (Tex. App.—Dallas
2022, pet. granted).
IV. Mother’s Appeal
In three issues, Mother challenges the legal and factual sufficiency of the
evidence to support the jury’s finding that termination of her parental rights was in
the best interest of K.D.S.P. The standards of review and applicable law in a parental
termination case and more particularly a challenge to a best-interest finding therein
are well known and are not improved upon by repetition in this dissent. Suffice it to
say that I would hold that the evidence presented at trial is legally and factually
sufficient to reasonably establish a firm belief or conviction that termination of
Mother’s parental rights is in K.D.S.P.’s best interest. See FAM. § 106.001(2);
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Accordingly, I would
conclude that in Mother’s case, the second Strickland step has not been met such
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that but for her counsel’s deficient performance the outcome in these proceedings
would have been different. See Sledge, 637 S.W.3d at 775
V. I Would Resolve This Appeal in Father’s Favor and Remand for
Consideration of Foster Parents’ Right to Possessory Conservatorship
As stated above, I would conclude that the result of this appeal would have
been different but for Father’s counsel’s deficient performance. Generally, when we
sustain a complaint regarding effective assistance of counsel, we reverse the trial
court’s judgment and remand for new counsel. See In re M.S., 115 S.W.3d 534, 550
(Tex. 2003). Here, however, Father’s sufficiency complaint presents a question of
law where no evidence supports the jury’s implied finding of significant impairment
and appointment of Foster Parents as managing conservators. Thus, I would
conclude that we must render the judgment the trial court should have rendered. See
TEX. R. APP. P. 43.3; cf. In re A.F., No. 05-17-00392-CV, 2017 WL 4116945, at *7
(Tex. App—Dallas Sept. 18, 2017, no pet.) (mem. op.) (concluding remand
appropriate where “the adversarial process employed in this case was so unreliable”
that appellants’ case had not been fully developed). Accordingly, I would, in
addition to affirming the portion of the trial court’s judgment terminating Mother’s
parental rights, reverse the remainder of the trial court’s judgment and render
judgment that Father be appointed managing conservator of K.D.S.P.
Having concluded that the termination of Mother’s parental rights to K.D.S.P.
should be affirmed and that Father should be appointed sole managing conservator
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of K.D.S.P., I would also consider what possession or access, if any, Foster Parents
might be left with. In their petition to intervene in this case, Foster Parents sought
to be appointed joint managing conservators of K.D.S.P. pursuant to both Chapter
153 Subchapter G and Section 153.131 of the family code. As discussed above in
my proposed disposition of Father’s issues, section 153.131 relates to the
presumption in favor of appointment of a parent or parents as managing conservators
of a child. Chapter 153 Subchapter G provides for the appointment of nonparents as
conservators, both as managing conservator, see FAM. § 153.371–72, and as
possessory conservator, see FAM. § 153.376. Unlike the appointment of a managing
conservator, the appointment of a nonparent as a possessory conservator does not
require evidence of significant impairment of K.D.S.P.’s physical health or
emotional well-being. Compare FAM. §§ 153.131, 153.372(b) with FAM. § 153.376.
Thus, my proposed conclusion regarding the lack of such evidence would not bar
Foster Parents’ appointment as possessory conservators of K.D.S.P.
In light of the evidence that Foster Parents provided K.D.S.P. with all the love
and care anyone could wish for a child for over two years from her infancy through
trial, and in light of the fact that Foster Parents’ petition sought conservatorship over
K.D.S.P. through a statute that provides for both managing and possessory
conservatorship,8 I would conclude the interest of justice requires remand to the trial
8
See, e.g., In re J.A.J., 243 S.W.3d 611, 615 (Tex. 2007) (holding that because Department sought
appointment as child’s conservator on multiple grounds, when one ground overturned on appeal, remaining
unchallenged ground could support that appointment).
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court for consideration of whether Foster Parents should be appointed possessory
conservators of K.D.S.P. See In re H.H., No. 05-15-01322-CV, 2016 WL 556131,
at *4 (Tex. App.—Dallas Feb. 12, 2016, no pet.) (mem. op.) (“Appellate courts have
broad discretion to remand a case for a new trial in the interest of justice.”).
CONCLUSION
I would conclude that, at least in the instance of Father’s appeal, but for the
deficient performance of appointed counsel, the result on appeal would have been
contrary to the judgment entered against him on the issue of conservatorship, as there
is no evidence to support the implied finding that appointment of him as managing
conservator would significantly impair K.D.S.P.’s physical health or emotional
development. I would thus affirm the portion of the trial court’s order terminating
the parental rights of Mother as to K.D.S.P., reverse the remainder of the trial court’s
order, render judgment that Father be appointed sole managing conservator of
K.D.S.P., and remand the case to the trial court for further consideration of whether
Foster Parents be granted possessory conservatorship of K.D.S.P.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
220456DF.P05
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