in the Interest of Q.M., a Child ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00367-CV
___________________________
IN THE INTEREST OF Q.M., A CHILD
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-107863-18
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
The Texas Department of Family and Protective Services challenges the denial
of its petition to terminate Father’s parental rights. In its sole issue, the Department
says the evidence conclusively and overwhelmingly establishes a statutory ground for
termination under Section 161.001 of the Family Code, and the evidence is therefore
legally and factually insufficient to support the denial of termination.
But the Department does not address the trial court’s implied finding that
termination was not in the child’s best interest. That finding would, by itself and
independent of any statutory ground, support the denial of termination. Because the
Department has not addressed all possible bases for the judgment, we affirm.
I. BACKGROUND
Q.M.’s entry into this world was not an easy one. After a premature birth, Q.M.
tested positive for opiates and went through severe withdrawal. Mother admitted to
using cocaine, marijuana, and heroin throughout her pregnancy. Mother believed that
her off-and-on boyfriend, Father, might be Q.M.’s biological parent, but Father was
unsure. Father had a criminal record for drug possession, was unemployed, and told
caseworkers that he did not believe he would be able to care for Q.M. financially. Father
also tested positive for marijuana early on in the case. The Department filed a petition
to terminate Mother’s and Father’s parental rights the month after Q.M.’s birth. The
trial court named the Department as Q.M.’s temporary managing conservator, and the
Department placed her in a foster home.
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As the case progressed, Mother failed to appear at multiple hearings and
eventually executed an affidavit relinquishing her parental rights. But after a DNA test
confirmed his parenthood, Father sought the return of Q.M. The court ordered Father
to engage in a service plan designed to improve his fitness as a parent. The Department
ultimately went to trial to terminate Father’s parental rights under the theory that he
had not lived up to and completed the service plan.
At trial, the Department’s witnesses agreed that Father had taken several positive
steps pursuant to the service plan. Among the more notable improvements, Father
obtained a job working upwards of forty hours per week, took multiple drug tests
showing that he was maintaining sobriety, rearranged and cleaned his home to make it
more suitable for Q.M., and attended twenty-eight weekly visitations during which,
caseworkers agreed, Father cared for and nurtured Q.M. However, the Department’s
witnesses also testified concerning Father’s shortcomings under the plan, which ranged
from lesser areas of noncompliance (such as his failure to attend certain parenting
classes) to one major error: allowing Mother to attend a visitation while she was
intoxicated.
Following the close of the evidence, the trial court granted termination as to
Mother and denied termination as to Father. The Department appeals the denial of
termination as to Father.
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II. APPLICABLE LAW AND STANDARD OF REVIEW
A parent’s rights to the companionship, care, custody, and management of his
or her children are constitutional interests far more precious than any property right.
In re A.C., 560 S.W.3d 624, 629–30 (Tex. 2018) (quoting Santosky v. Kramer, 455 U.S.
745, 758–59, 102 S. Ct. 1388, 1397 (1982)). In a termination case, the State seeks not
just to limit parental rights but to erase them permanently—to divest the parent and
child of all legal rights, privileges, duties, and powers normally existing between them,
except the child’s right to inherit. 1 Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re
A.B., 412 S.W.3d 588, 591 (Tex. App.—Fort Worth 2013) (en banc) (per curiam), aff’d,
437 S.W.3d 498 (Tex. 2014).
Because of these “irrevocable consequences,” due process mandates a clear and
convincing evidence standard of proof. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019)
(per curiam). The Texas Family Code allows for involuntary termination of parental
rights if the State shows by clear and convincing evidence that a parent engaged in an
enumerated ground for termination and that termination is in the best interest of the
child. Tex. Fam. Code Ann. § 161.001(b); In re C.W., 586 S.W.3d 405, 406 (Tex. 2019)
(per curiam).
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“Unsurprisingly, parental-termination cases have been described as the death
penalty cases of civil law.” In re C.M.J., 573 S.W.3d 404, 410 (Tex. App.—Houston [1st
Dist.] 2019, no pet.) (internal quotation marks omitted); see In re A.M., No. 18-0905,
2019 WL 5275657, at *1 (Tex. Oct. 18, 2019) (Blacklock, J., concurring in denial of pet.)
(citing In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)).
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The high evidentiary burden at trial “also warrants a heightened standard of
review” on appeal. N.G., 577 S.W.3d at 235. When a party attacks the legal sufficiency
of an adverse finding on an issue on which it has the burden of proof, it must
demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in
support of the issue. In re E.J.R., 503 S.W.3d 536, 541 (Tex. App.—Corpus Christi–
Edinburg 2016, pet. denied) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001) (per curiam)); In re A.L.D.H., 373 S.W.3d 187, 192 (Tex. App.—Amarillo 2012,
pet. denied). We review the entire record in the light most favorable to the finding,
assuming that the trier of fact resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We
will sustain such a legal sufficiency challenge and reverse an adverse finding only if as a
matter of law, the evidence conclusively establishes the “contrary proposition” to the
finding. In re M.I.A., No. 04-19-00227-CV, 2019 WL 5030241, at *3 (Tex. App.—San
Antonio Oct. 9, 2019, no pet.). “In other words, [the Department] must conclusively
establish that any reasonable trier of fact would have unavoidably formed a firm belief
that Father had committed an act listed in section 161.001 and that termination was in
the best interest of the child.” Id. (citing E.J.R., 503 S.W.3d at 541 n.3).
Normally, when an appellant attacks the factual sufficiency of the evidence
supporting the factfinder’s adverse resolution of an issue on which he had the burden
of proof at trial, he must show that the finding was against the great weight and
preponderance of the evidence. Id. (citing Dow Chem., 46 S.W.3d at 242). In termination
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cases, the standard is heightened: we review the entire record and determine whether
the trial court’s failure to form a firm conviction or belief that a parent’s rights must be
terminated is “contrary to the overwhelming weight of the evidence and clearly wrong.”
Id. In conducting this review, we may not gainsay the trial court’s weighing of the
evidence, and we must defer to the trial court’s credibility determinations so long as
they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). “We examine
the record in this case in light of the high evidentiary burden that [the Department]
bore and our required appellate deference to the trial court’s decision that the evidence
did not meet it.” M.I.A., 2019 WL 5030241, at *3 (quoting E.J.R., 503 S.W.3d at 542).
III. UNCHALLENGED BEST INTEREST FINDING SUPPORTS THE JUDGMENT
In its sole issue, the Department brings a legal and factual sufficiency challenge
against the trial court’s denial of termination. According to the Department, the
evidence is legally insufficient because the Department conclusively proved at trial that
Father did not complete his service plan, and any reasonable factfinder would have
therefore ordered termination under Subsection O of the termination statute. As to
factual insufficiency, the Department argues that the trial court’s implied finding
concerning Subsection O was against the overwhelming weight of the evidence and
clearly wrong. However, the State does not challenge the evidence or the trial court’s
implied findings as they relate to the other element that the Department was required
to prove in the trial court: the child’s best interest.
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When no findings of fact or conclusions of law are filed following a bench trial,
the trial court’s judgment implies all findings necessary to support it. In re K.W., 138
S.W.3d 420, 425 (Tex. App.—Fort Worth 2004, pet. denied). When a reporter’s record
is filed, these implied findings are not conclusive, and an appellant may challenge them
by raising both legal and factual sufficiency of the evidence issues. Id. Where such
issues are raised, the applicable standard of review is the same as that to be applied in
the review of jury findings or a trial court’s findings. Id. at 426.
The trial court’s written judgment simply stated that as to Father, “The Court
denied the Department’s petition for termination.” Ordinarily, for purposes of implied
findings, we might interpret such a judgment as either an implicit rejection of the State’s
statutory ground for termination under Subsection O or an implied finding that
termination was not in the child’s best interest.
However, the State argues that based on the trial court’s remarks at trial, we
should hold that the trial court impliedly found one, but not the other. During the final
stages of trial, the trial court quizzed the Department about the logical underpinnings
of its statutory ground for termination. The questions grew into a debate, during which
the trial court expressed its view that there was a flaw in the Department’s ground: that
Father had inadequate time to comply with the service plan. The Department observes
that during this exchange, the trial court did not mention Q.M.’s best interest. Shortly
after the debate ended, the trial court denied termination as to Father without orally
pronouncing any findings of fact or conclusions of law. The Department insists that
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because the trial court only commented on the statutory ground—and not best
interest—in the lead-up to its pronouncement, the trial court impliedly found against
the Department only on the statutory ground, and the trial court did not reach the
question of best interest. Therefore, the Department takes the position that in order to
prevail on appeal, it need only challenge the trial court’s implied rejection of the
statutory ground, and we should remand for a hearing on the unaddressed subject of
the child’s best interest.
Our supreme court rejected a similar argument in In re W.E.R., 669 S.W.2d 716,
716 (Tex. 1984) (per curiam). There, a trial court denied an adoption, and it did not
render findings of fact or conclusions of law. Id. Nonetheless, the court of appeals
held “that comments made by the trial judge at the conclusion of the adoption hearing
amounted to a finding that the adoption was denied for the sole reason that the
petitioner was a single man.” Id. The court of appeals held that this reasoning was
objectionable, and it reversed the denial of adoption. Id. In reversing the court of
appeals, the supreme court held that it was not permissible to use a judge’s remarks at
trial to limit what may be implied from the judgment. Id. “The court of appeals was
not entitled to look to any comments that the judge may have made at the conclusion
of a bench trial as being a substitute for findings of fact and conclusions of law.” Id.
“The judgment of the court of appeals conflicts with many decisions of this court which
hold that in the absence of findings and conclusions, the judgment of the trial court
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implies all necessary fact findings in support of the judgment.” Id. at 717; see also In re
Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002) (reaffirming W.E.R.’s reasoning).
The rule of W.E.R. governs here. The debate between the trial court and the
Department was not a conversational series of findings of fact and conclusions of law,
and the reasoning that the trial court expressed during that debate does not limit the
scope of what may be implied from the judgment.2 We imply “all findings” necessary
to support the judgment, not merely the ones that are most convenient for attack on
appeal. See W.E.R., 669 S.W.2d at 717 (emphasis added). Thus, the trial court impliedly
made two findings with one stone: it determined that neither statutory grounds nor
best interest were satisfactorily proven.
To prevail on its legal sufficiency challenge, then, the Department must
conclusively establish that any reasonable trier of fact would have unavoidably formed
a firm belief that Father had committed an act listed in Section 161.001 and that
termination was in the best interest of the child. M.I.A., 2019 WL 5030241, at *3 (citing
E.J.R., 503 S.W.3d at 541). Similarly, to succeed on a factual sufficiency challenge, the
Department must establish that the trial court’s implied findings on the statutory
2
Moreover, the Department does not mention another exchange near the end of
trial, during which the trial court thoughtfully questioned whether the Department’s
concerns about Father were “subjective,” unrelated to any real threat of “abuse or
neglect” to Q.M., based predominately on Father’s financial status, and beyond the
Department’s limited mandate. The Department does not argue that these questions
have bearing on the trial court’s implied findings.
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ground and best interest were contrary to the overwhelming weight of the evidence and
clearly wrong. See id.
But in its brief, the Department only discusses whether Father committed a
prohibited act; it does not argue that best interest was proved conclusively or by the
overwhelming weight of the evidence. The implied finding that termination was not in
Q.M.’s best interest would, by itself, warrant a denial of termination. “When, as here,
an appellant does not challenge an independent ground that may, under the record
presented, support the judgment that appellant seeks to reverse, this Court may not
address either the challenged grounds or the unchallenged ground and has no choice
but to overrule the challenges that the appellant has chosen to assert.” In re K.A.,
No. 02-19-00099-CV, 2019 WL 4309168, at *11 (Tex. App.—Fort Worth Sept. 12,
2019, pet. denied) (mem. op.); In re M.C.D., No. 02-13-00061-CV, 2013 WL 3771338,
at *5 (Tex. App.—Fort Worth July 18, 2013, pet. denied) (per curiam) (mem. op.); In re
J.P., No. 02-10-00448-CV, 2012 WL 579481, at *3 (Tex. App.—Fort Worth Feb. 23,
2012, no pet.) (mem. op. on reh’g). Because the Department has not challenged an
independent basis—the implied finding on best interest—that supports the trial court’s
judgment, we must overrule the Department’s challenge concerning the statutory
ground for termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
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We overrule the Department’s sole issue.3
IV. CONCLUSION
We affirm the trial court’s judgment denying termination of Father’s parental
rights.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: February 20, 2020
The attorney ad litem for Q.M. also filed a notice of appeal, though she adopted
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the Department’s brief in all respects. We overrule her sole appellate issue for the same
reasons that we overrule the Department’s issue.
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