B. S. and M. S. v. Texas Department of Family and Protective Services ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00279-CV
B. S. and M. S., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 315625, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
CONCURRING OPINION
I concur in the Court’s judgment affirming the termination of Father’s and
Mother’s parental rights. However, I would address the merits of Father’s and Mother’s
challenges to the sufficiency of the evidence supporting the district court’s endangerment
findings. See Tex. Fam. Code § 161.001(b)(1)(D), (E). Because the Court declines to review
those findings, I cannot join its opinion.
Ordinarily, to raise a challenge on appeal to the legal or factual sufficiency of the
evidence in a civil jury trial, a party must preserve error by first raising the challenge in the trial
court. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21 (Tex. 1992);
Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). However, the Texas Supreme Court has
cautioned that “error preservation in the trial court, which is a threshold to appellate review,
necessarily must be viewed through the due process prism.” In re M.S., 115 S.W.3d 534, 547
(Tex. 2003).
“The phrase ‘due process,’ although incapable of precise definition, expresses the
requirement of fundamental fairness.” In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (citing
Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 24 (1981)). “What fundamental fairness requires
in a particular situation is determined by ‘considering any relevant precedents and then . . .
assessing the several interests that are at stake.’” Id. (quoting Lassiter, 452 U.S. at 25).
Although courts “presume that our rules governing preservation of error in civil cases comport
with due process,” that presumption can be overcome when “assess[ing] the interests that are
affected by our procedures for preservation of error.” Id. (citing Lassiter, 452 U.S. at 27). “[I]n
the context of parental termination, ‘due process turns on the balancing of three distinct factors’:
(1) ‘the private interests affected by the proceeding’; (2) ‘the risk of error created by the [s]tate’s
chosen procedure’; and (3) ‘the countervailing governmental interest supporting use of the
challenged procedure.’” In re N.G., 577 S.W.3d 230, 236 (Tex. 2019) (per curiam) (quoting
In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002)).
“The private interest affected by a termination case is a parent’s fundamental
liberty interest in the care, custody, and control of his or her children.” B.L.D., 113 S.W.3d at
352 (citing Troxel v. Granville, 530 U.S. 57, 65–66 (2000)). This is “an interest far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982). “If the
Department succeeds in terminating a parent’s rights, the State will have ‘worked a unique kind
of deprivation . . . . A parent’s interest in the accuracy and justice of the decision to terminate his
or her parental status is . . . a commanding one.’” B.L.D., 113 S.W.3d at 352 (quoting Lassiter,
452 U.S. at 27). “Thus, the parent’s interests generally will favor reviewing unpreserved error
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that might result in reversal of a judgment to terminate.” Id. Additionally, “until the State
proves parental unfitness, the child and his parents share a vital interest in preventing erroneous
termination of their natural relationship.” Santosky, 455 U.S. at 760.
The second factor, the risk of error, also weighs in favor of reviewing unpreserved
sufficiency challenges to section 161.001(b)(1)(D) and (E) findings. “[W]hen parental rights
have been terminated under either section 161.001(b)(1)(D) or (E), that ground becomes a basis
to terminate that parent’s rights to other children” under section 161.001(b)(1)(M). N.G.,
577 S.W.3d at 234. “Because only one ground is required to terminate parental rights—and
therefore a section 161.001(b)(1)(M) ground based on a prior termination would be sufficient to
terminate parental rights to another child in another termination proceeding—the collateral
consequences of terminating parental rights under section 161.001(b)(1)(D) or (E) are
significant.” Id. Declining to review the sufficiency of the evidence supporting (D) or (E)
grounds “creates the risk that a parent will be automatically denied the right to parent other
children even if the evidence supporting the section 161.001(b)(1)(D) or (E) finding were
insufficient.” Id.
The third factor weighs in favor of the State, which “has a strong interest in
ensuring that our trial courts have an opportunity to correct errors as a matter of judicial
economy.” B.L.D., 113 S.W.3d at 353. “Appellate review of potentially reversible error never
presented to a trial court would undermine the Legislature’s dual intent to ensure finality in these
cases and expedite their resolution.” Id. On the other hand, “[t]he State’s foremost interest in
suits affecting the parent-child relationship is the best interest of the child” and therefore, the
State “shares the parent’s interest in an accurate and just decision.” Id. “In that regard, the
State’s interest favors reviewing unpreserved error that bears on the accuracy of the verdict.” Id.
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Overall, however, “the State’s interests weigh heavily toward applying our procedural rules to
bar review of unpreserved error.” Id.
Balancing the three factors, I would conclude that when a parent argues on appeal
that there is insufficient evidence to support endangerment findings under either section
161.001(D) or (E), due process demands that the appellate court review that claim, even if it was
not preserved in the court below. The Texas Supreme Court reached a similar conclusion when
addressing “whether a parent, whose parental rights were terminated by the trial court under
multiple grounds, is entitled to appellate review of the section 161.001(D) and (E) grounds
because of the consequences these grounds could have on their parental rights to other
children—even if another ground alone is sufficient to uphold termination.” N.G., 577 S.W.3d at
233. The court concluded that a parent is entitled to appellate review of those grounds as a
matter of due process. It explained:
The state has a substantial, legitimate interest in protecting children and looking
out for their best interests, but parents also have a fundamental liberty interest in
the right to parent—particularly, a right to parent other children not involved in
the termination proceeding at hand. In any parental termination proceeding, the
state is immediately concerned with the child in that case, but the state’s interest
in allowing certain grounds to remain unreviewed on appeal should not outweigh
the parent’s interest in parental rights to another child. . . .
Balancing these factors, and considering that the risk of error has significant
consequences for future parental rights, we conclude that the parent’s
fundamental liberty interest at stake outweighs the state’s interest in deciding only
what is necessary for final disposition of the appeal. Allowing section
161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has
presented the issue to the court thus violates the parent’s due process and due
course of law rights.
Id. at 236–37 (internal citations omitted).
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Although N.G. did not address error preservation, I believe the court’s reasoning
in that case is applicable here. The State undoubtedly has an interest in resolving termination
appeals expeditiously, and appellate courts declining to review unpreserved sufficiency
challenges furthers that interest. However, parents have a fundamental liberty interest in the
care, custody, and control of their children, and declining to review unpreserved sufficiency
challenges to endangerment findings under (D) and (E) grounds, when the parents have raised
the issue on appeal, risks wrongfully depriving parents of their rights to future children in future
termination proceedings. That is a risk I am unwilling to take. As the Texas Supreme Court
explained in N.G.:
A parent may be denied the fundamental liberty interest in parenting only after
they have been provided due process and due course of law, and terminating
parental rights based on a challenged, unreviewed section 161.0001(b)(1)(D) or
(E) finding runs afoul of this principle. When a parent has presented the issue on
appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E)
finding deprives the parent of a meaningful appeal and eliminates the parent’s
only chance for review of a finding that will be binding as to parental rights to
other children.
Id. at 235 (internal citations omitted).
Finally, I am troubled that our Court does not appear to be consistent on
this issue. Recently, a different panel of this Court handed down its opinion in A.K. and T.A.
v. Texas Department of Family and Protective Services, No. 03-22-00285-CV,
2022 WL 14989625 (Tex. App.—Austin Oct. 27, 2022, no pet. h.) (mem. op.), a case that also
involved a parent’s unpreserved legal and factual sufficiency challenges to endangerment
findings under (D) and (E). “In the interest of justice and because of the importance of the rights
involved,” this Court chose to review the findings. See id. at *5 n.3. I do not believe that it is
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prudent for our Court to review unpreserved sufficiency challenges in some cases but not in
others. We should consistently review those challenges or consistently decline to review them. I
would choose to consistently review them.
For these reasons, I concur in the judgment only.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Filed: November 10, 2022
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