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

Majority Panel Opinion of July 16, 2019 and Dissenting Panel Opinion of
September 24, 2019 Withdrawn; Affirmed in Part, Reversed and Rendered in
Part, Reversed and Remanded in Part, and En Banc Majority Opinion and En
Banc Dissenting Opinions filed March 31, 2020.
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
EN BANC MAJORITY OPINION
Appellant F.L. (“Mother”) appeals the trial court’s final order terminating her
parental rights to her children L.C.L. (“Lorenzo”) and M.E.M. (“Melissa”).1 The
trial court terminated Mother’s parental rights on predicate grounds of endangerment
and failure to comply with the service plan for reunification. See Tex. Fam. Code
1
Lorenzo and Melissa are pseudonyms. Pursuant to Texas Rule of Appellate Procedure
9.8, we use fictitious names to identify the minors and other family members involved in this case.
See Tex. R. App. P. 9.8.
Ann. § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination
of Mother’s parental rights was in the children’s best interest. See Tex. Fam. Code
Ann. § 161.001(b)(2).
On appeal, Mother asserts six issues, most of which are duplicated in each
section of her brief. Mother’s issues can be summarized as follows: (1) the trial
court erred in failing to file findings of fact and conclusions of law; (2) the trial court
violated Mother’s constitutional rights to (a) due process and due course of law by
failing to give her a family services plan in Spanish (the language she understands),
and (b) equal protection; (3) the evidence presented at trial was legally and factually
insufficient to support the trial court’s findings (a) of endangerment, (b) of failure to
follow a family service plan, and (c) that termination is in the best interest of the
children; and (4) the trial court erred by admitting illegally obtained evidence. A
panel of this court affirmed the trial court’s final order. Mother filed a motion for
en banc reconsideration, a majority of this court voted to reconsider this case, and
the en banc court heard oral argument. After analyzing the evidence presented at
trial and in concluding there is not clear and convincing evidence that termination
was in the best interest of the children, we reverse the portions of the trial court’s
final order terminating Mother’s parental rights, we affirm the remaining challenged
portions of the trial court’s final order, and we remand this case to the trial court for
further proceedings limited to Texas Family Code section 161.001(b)(2).
BACKGROUND
On March 22, 2016, the Department of Family and Protective Services (the
“Department”) received a referral alleging neglectful supervision of Lorenzo,
Melissa, and A.M. (another child in the home, age 15). Specifically, the referral
alleged that the children were often left home alone, that there was no electricity in
the home, and that the children were very thin.
2
After preliminary research into the case, Alexis Wilson, the Department
caseworker, visited Mother and the children in their home on May 25, 2016. The
caseworker did not observe any marks or bruises on either Lorenzo or Melissa and
noted that they both appeared clean, healthy, and developmentally on target. She
also noted the home appeared to look appropriate, had all working utilities, and had
no safety hazards. Additionally, she noted there was plenty of leftover food in the
freezer. A.M. informed the caseworker that there was no drug or alcohol use in the
home, that she watches her siblings when her mother leaves the house, and that her
mother had never left home for days at a time.
The caseworker then asked Mother to take a drug test, which she agreed to do.
The result of the initial urine drug test was negative; the results from the hair test
showed positive for marijuana and cocaine. The children were subsequently
removed from Mother’s care on June 23, 2016. On June 24, 2016, the Department
filed an Original Petition for Protection of a Child for Conservatorship and for
Termination in Suit Affecting the Parent-Child Relationship based upon Mother’s
positive drug test and Mother’s alleged inability to provide appropriate caregivers
for the children. Initially, the children were placed in separate foster homes. On
October 20, 2016, Lorenzo and Melissa were moved together to a foster home and
stayed together even when they were moved to several other foster homes over the
course of the proceedings. A bench trial was initially called on December 11, 2017,
recessed, and continued multiple times over the next year (on March 5, 2018, April
23, 2018, May 2, 2018, October 30, 2018, and November 27, 2018). The trial court
signed a Decree for Termination (“final order”) on December 31, 2018, in which the
trial court (among other things) terminated the parent-child relationship between
Mother and her children, Lorenzo and Melissa.
3
STANDARD OF REVIEW
The involuntary termination of parental rights implicates fundamental
constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A.,
374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because of
the severity and permanency of terminating the parental relationship, Texas requires
clear and convincing evidence to support such an order. See generally Tex. Fam.
Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).
On appeal, Mother challenges the legal and factual sufficiency of the evidence
supporting the trial court’s order terminating her parental rights pursuant to Texas
Family Code section 161.001(b). Section 161.001(b) permits the termination of a
parent-child relationship if the trial court finds by clear and convincing evidence that
(1) one or more predicate acts enumerated in section 161.001(b)(1) was committed,
and (2) termination is in the best interest of the child. In re C.H., 89 S.W.3d 17, 23
(Tex. 2002). “Clear and convincing evidence” means “the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. §
101.007; In re J.F.C., 96 S.W.3d at 264.
Reviewing Mother’s legal sufficiency challenge under the clear and
convincing evidentiary standard, we “should look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In re J.O.A., 283
S.W.3d 336, 344 (Tex. 2009). We assume that the factfinder resolved disputed facts
in favor of its finding if a reasonable factfinder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved. In re G.M.G., 444
S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence. In
4
re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed evidence
that a reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. We give due deference
to the factfinder’s findings and we do not substitute our judgment for that of the
factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
ANALYSIS
We address Mother’s issues out of order, determining rendition issues before
remand issues because rendition affords Mother the greatest relief. 2 Accordingly,
we begin by analyzing Mother’s third issue, within which she raises several different
arguments we address in turn.
I. Endangerment Findings
Mother challenges the legal and factual sufficiency of the evidence to support
the trial court’s endangerment findings under Texas Family Code section
161.001(b)(1)(D) and (E).
Courts are authorized to terminate parental rights if the parent has “knowingly
placed or knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child” or “engaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E). The sole basis for termination of Mother’s rights was that
she tested positive for drugs both initially and throughout the proceedings. However,
there was no evidence adduced at trial connecting Mother’s positive drug tests to
2
See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per
curiam) (“Generally, when a party presents multiple grounds for reversal of a judgment on appeal,
the appellate court should first address those points that would afford the party the greatest relief.”).
5
any activity that endangered her children. A plain language reading of the statute
requires a causal connection between Mother’s drug use and the alleged
endangerment.
In many cases, competent evidence is introduced at trial to prove that a
parent’s drug use rises to the level that it endangers the children. In this case,
however, no such proof exists in the record. The caseworker testified that she
“believe[s] testing positive for drugs is endangering children”; this was the only
“evidence” presented at trial that Mother’s drug use endangered her children. The
caseworker did not identify any behavior endangering the children. When pressed
by Mother’s trial counsel, the caseworker answered that she was not able to assert a
specific act that placed the children in danger because of the Mother’s use of drugs.
The caseworker’s conclusory statement was the only support for the allegation that
Mother’s drug use endangered her children. Further, there was no evidence of
criminal charges related to Mother’s drug use nor was there proof of threat of
incarceration due to alleged drug use. Simply put, there was legally insufficient
evidence at trial to support an endangerment finding.
Conclusory statements are not evidence. See In re A.H., 414 S.W.3d 802, 807
(Tex. App.—San Antonio 2013, no pet.) (“[C]onclusory testimony, such as the
caseworker’s, even if uncontradicted, does not amount to more than a scintilla of
evidence.”). The caseworker’s conclusory statements that a parent’s drug use de
facto endangers their children is insufficient to support the trial court’s finding by
clear and convincing evidence that the standards for termination have been met
under Texas Family Code section 161.001(b)(1)(D) and (E). See In re B.R., 456
S.W.3d 612, 617 (Tex. App.—San Antonio 2015, no pet.) (“[Texas Department of
Family and Protective Services supervisor]’s agreement that it was in the children’s
best interest to terminate appellant’s parental rights and it was in their interest to
‘move on’ was conclusory.”); In re A.H., 414 S.W.3d at 807 (caseworker’s
6
conclusory testimony regarding children’s best interest constitutes insufficient
evidence); see also Vazquez v. Vazquez, 292 S.W.3d 80, 85 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (holding that, in review of divorce decree, wife’s
statements that she had signed the decree and thought conservatorship was in the
best interest of the children were conclusory and did not rise to the level of competent
evidence trial court could use to determine best interest of children). Therefore, the
Department failed to prove a causal link between Mother’s drug use and the alleged
endangerment.
Our court has previously held that (1) endangering acts need not be directed
at the child or cause actual injury or threat of injury to the child, and (2) this predicate
finding of endangerment does not require a causal connection between the parent’s
misconduct and actual harm to the child resulting from that misconduct. In re
S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.); In re
U.P., 105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied). However, a plain reading of the statute itself does not support this
interpretation. The Family Code expressly contemplates use of a controlled
substance by a parent “in a manner that endangered the health and safety of the
child.” See Tex. Fam. Code Ann. § 161.001(b)(1)(P)(i) and (ii).
Somewhere along the way, our court conflated drug use with child
endangerment such that mere drug use alone became conclusive evidence that a child
was endangered. Sections (D) and (E) are “catch-all” provisions to protect children
whose parents have been proven to endanger their children or to put their children
in circumstances that endanger them, but we are tasked with reading the statute as
the legislature intended.3 See Tex. Gov’t Code Ann. § 311.021(2) (“In enacting a
3
To the extent this court’s opinions have erroneously interpreted Texas Family Code
section 161.001(b)(1)(D) and (E) to allow termination of the parent-child relationship based solely
on a finding that a parent used a controlled substance (as defined by Chapter 481 of the Health and
Safety Code) without the additional elements required by Texas Family Code section
7
statute, it is presumed that . . . the entire statute is intended to be effective.”). We do
that not by expanding the reasons why parents can lose their rights to their children
(and children can lose their constitutional rights to their relationship with their
parents) but by making sure that the true intent of the legislature — that is, to keep
families together if at all possible — is protected by reading the statute narrowly and
as enacted by the legislature. Under the statute, and viewing the evidence in the light
most favorable to the trial court’s finding, we conclude a reasonable factfinder could
not have formed a firm belief or conviction that Mother violated Texas Family Code
section 161.001(b)(1)(D) and (E) through drug use alone. The dissent’s
interpretation of the Texas Supreme Court’s reasoning in J.O.A. leads to the absurd
conclusion that a parent’s drug use alone, without proof of any causal connection to
endangering their children’s welfare, is enough to justify terminating a parent-child
relationship. We will not presume the supreme court intended that result.
Accordingly, we hold the evidence is legally insufficient to support termination of
Mother’s parental rights under section 161.001(b)(1)(D) and (E), and we sustain
Mother’s third issue in that regard.
II. Family Service Plan
To the extent Mother also challenges the trial court’s predicate finding that
she failed to follow her family service plan on sufficiency grounds and asserts the
evidence is legally and factually insufficient to support this predicate finding, we
reject her assertion.
Mother testified that she failed to show up for all scheduled drug tests, failed
to attend individual therapy, and failed to attend domestic violence counseling.
161.001(b)(P) (“in a manner that endangered the health or safety of the child, and: (i) failed to
complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-
ordered substance abuse treatment program, continued to abuse a controlled substance”), those
opinions are overruled.
8
When viewed in the light most favorable to the trial court’s finding, the evidence is
legally sufficient to support the trial court’s determination that Mother failed to
follow her family service plan.
Reviewing all of the evidence in the light most favorable to the trial court’s
findings, we conclude that a reasonable factfinder could have formed a firm belief
or conviction as to the truth of the findings under subsection (O). See In re J.F.C.,
96 S.W.3d at 266. In light of the entire record, we also conclude that the factfinder
could have reasonably formed a firm belief that the evidence is factually sufficient.
See In re H.R.M., 209 S.W.3d at 108.
Therefore, we hold the evidence presented at trial is both legally and factually
sufficient to support the trial court’s predicate finding under Subsection (O) by clear
and convincing evidence.4 Thus, we overrule Mother’s third issue with respect to
her sufficiency challenge. Even so, termination of parental rights under section
161.001(O) must be in the children’s best interest as we discuss below.
III. Best Interest of the Children
Mother challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that termination of her parental rights is in the children’s best
interest.
Although prompt and permanent placement in a safe environment is presumed
to be in the children’s best interest, Tex. Fam. Code Ann. § 263.307(a), courts apply
a strong presumption that the best interest of the children is served by keeping the
4
Despite our conclusion, we are compelled to note our deep concern that Mother did not
receive a family service plan in a language she understands because her lack of understanding the
requirements and details of the plan would have an impact on her ability to successfully complete
it. However, because she has not properly preserved a complaint in that regard, we conclude based
on the record before us that the evidence is both legally and factually sufficient to support the
finding that Mother failed to comply with her family service plan.
9
children with their natural parents; the burden is on the Department to rebut that
presumption. In re D.R.A., 374 S.W.3d at 531. In determining the best interest of
the children, the factfinder may consider the nine Holley factors. Holley v. Adams,
544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include: (1) the desires of
the child; (2) the present and future physical and emotional needs of the child; (3)
the present and future emotional and physical danger to the child; (4) the parental
abilities of the persons seeking custody; (5) the programs available to assist those
persons seeking custody in promoting the best interest of the child; (6) the plans for
the child by the individuals or agency seeking custody; (7) the stability of the home
or proposed placement; (8) acts or omissions of the parent that may indicate the
existing parent-child relationship is not appropriate; and (9) any excuse for the
parents’ acts or omissions. Id.
In this case, no evidence was presented regarding the following five factors:
the present and future emotional and physical danger to the children; the parental
abilities of the persons seeking custody; the programs available to assist those
persons seeking custody in promoting the best interest of the children; and acts or
omissions of the parent that may indicate the existing parent-child relationship is not
appropriate. Additionally, there is no evidence of acts or omissions by the Mother
and no evidence of excuses for any acts or omissions as considered in factor nine.
Further, the record contains only minimal evidence of factors six and seven
— the plans for the children by the individuals or agency seeking custody, and the
stability of the home or proposed placement. In fact, the caseworker only stated that
the foster placement was intended to be permanent. Also, the only evidence adduced
at trial regarding factor one — the children’s wishes — was the caseworker’s
testimony that the children had expressed desires to be adopted.5
5
Specifically, the caseworker testified: “The children are currently in a home that is
10
The dissent makes several unwarranted complaints regarding our best interest
analysis. First, it suggests Mother’s failure to complete certain parts of her court-
ordered family service plan shows potential physical danger to the children.
Specifically, the dissent points to Mother’s failed drug tests and no-shows as
evidence that she failed to demonstrate a willingness to effect positive environmental
and personal changes within a reasonable amount of time. However, the drug
screenings and services for substance abuse treatment were contemplated as part of
Mother’s family service plan; and it has not been proven that she understood the plan
(see infra Section IV).
Further, the dissent recites from the permanency report several listed
disorders and intellectual and learning disabilities of the children diagnosed by the
Children’s Crisis Care Center. The dissent concludes: “The record reflects that at
the time of removal the children were not in a safe stable home. Like Lorenzo,
Melissa was experiencing adjustment disorder . . . .” Seemingly, the dissent implies
that the purported presence of disorders and disabilities constitutes sufficient
evidence that Mother is unable to provide for present and future physical and
emotional needs of the children.
However, there was no testimony regarding the evaluations made by the
Children’s Crisis Care Center as to Lorenzo or Melissa that present a laundry list of
diagnoses for each of them. The basis for the listed diagnoses is a
“Psychological/Psychiatric Evaluation” given by the “Children’s Crisis Care
Center” on July 25, 2016, and August 11, 2016, respectively. In Lorenzo’s case, at
meeting all of their needs. Both of the children have expressed desires to stay and expressed
desires of adoption. I believe this home could meet their long term needs.” The evidence shows,
however, that although the children had been removed from Mother’s care for almost eighteen
months at that point, the children had only been in this foster home for 25 days at the time of the
caseworker’s testimony.
11
age 5, this evaluation diagnosed him with “Child Neglect, Suspected; Intellectual
Disability, Mild; Specific Learning Disorder with Impairment in Reading, written
expression, and mathematics; Adjustment Disorder with Mixed Anxiety and
Depressed Mood; Insomnia Disorder; Enuresis [bedwetting], Nocturnal Only.”
Melissa, at age 4, was similarly diagnosed with “Adjustment Disorder with Mood
Conduct; Unspecified Communication Disorder; Child Neglect; Upbringing away
from parents; Disruption of family by separation or divorce; Encounter for Mental
Health Services for Victim of Child Neglect.”
These diagnoses do not constitute proof of endangerment by Mother or proof
of instability in the home. First, there is no evidence in the record regarding the
qualifications of any person or persons who actually performed the evaluations or
made the diagnoses. Second, these evaluations were made more than a month after
the children had been separated from their Mother and each other. Third, there is no
evidence or testimony as to whether any of the disorders or disabilities were present
before the children’s removal from Mother’s care, or if they were instead caused by
the traumatic separations from Mother and each other. Melissa and Lorenzo were
removed from their Mother’s home on June 23, 2016 (at the ages of 4 and 5,
respectively) and kept in separate housing apart from each other until October 20,
2016, when they were placed together. The guardian ad litem testified at trial that,
“The one thing that I do believe is very important to the children as well as in their
best interest is to remain together; that’s paramount, I believe to their wellbeing.
They are very, very bonded.” It would have been unreasonable for the trial court to
rely upon the evaluations as proof that these issues existed prior to the removal of
Lorenzo and Melissa from Mother’s home because there was no testimony or other
evidence in the record that supports such a reliance.
Contrary to the dissent’s assertion, having the listed disorders and disabilities
12
does not constitute evidence of an unstable or unsafe home. Nor does the existence
of the disorders and disabilities constitute evidence of Mother’s inability to provide
for the children’s emotional or physical needs. Even assuming the children’s
removal from their Mother and each other was not the cause of the listed diagnoses,
there was no proof that Mother did not provide for the children’s physical and
emotional needs, or that she is unable to provide for their needs in the future.
We also note that the dissent fundamentally misstates evidence in the record.
For instance, the dissent relies upon and presumes that the caseworker who testified
at trial is correct regarding Lorenzo not being enrolled in school at the time of
removal when, in fact, there is evidence in the Department’s initial evaluation that
Lorenzo was enrolled in a school.6 Notably, there is also no evidence that Mother
was not homeschooling Lorenzo (an act specifically carved out of reasons for
termination in the best interest of a child, Tex. Fam. Code Ann. § 161.001(c)(1)).
After viewing the evidence in the light most favorable to the trial court’s
finding, we conclude the trial court could have formed a firm belief or conviction
that termination of Mother’s parental rights was in the best interest of the children.
We therefore hold the evidence is legally sufficient to support the trial court’s finding
that termination of Mother’s parental rights was in the best interest of the children.
However, viewing the evidence in a neutral light and weighing all the
evidence, we conclude the majority of the Holley factors substantially weigh against
the best interest finding in this case.7 Cognizant of the (1) constitutional concerns
6
The dissent opines that this is a matter of credibility that we must leave to the factfinder;
however, the record is clear that the caseworker who testified at trial gave testimony contradicting
the affidavit of the only caseworker with first-hand knowledge (the one who did the initial
investigation and determined that Lorenzo was, in fact, enrolled in school).
7
A Holley factor weighing in favor of the best interest finding is the children’s desire.
According to the caseworker’s testimony, the children expressed a desire to be adopted. Although
there is only minimal evidence of the plans for the children by the agency seeking custody and the
13
related to parental termination, (2) clear instructions from the Texas Supreme Court
to strictly scrutinize termination proceedings and strictly construe involuntary
termination statutes, (3) strong presumption that preservation of the parent-child
relationship is in the children’s best interest, (4) obligation under a factual
sufficiency review to consider all evidence equally, and (5) the reports submitted by
other caseworkers which conflict with the conclusory statements and misstatements
in the caseworker’s testimony, we conclude based on the record before us that a
reasonable factfinder could not have formed a sufficiently firm belief or conviction
that termination of Mother’s parental rights would be in the children’s best interest.
See In re D.D.M., No. 01-18-01033-CV, 2019 WL 2939259, at *8 (Tex. App.—
Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.). Accordingly, we sustain
Mother’s third issue that the evidence is factually insufficient to support a finding
that termination is in the children’s best interest.
IV. Constitutional Rights Violation
In her second issue, Mother alleges the trial court violated her constitutional
rights under the United States and Texas Constitutions. We address her contentions
below.
A. Right to Due Process and Due Course of Law
Mother challenges termination of her parental rights for failure to comply with
the family service plan for reunification under Texas Family Code section
161.001(O)8 because the plan was not in her native Spanish language in violation of
her due process and due course of law rights.
The Family Code requires that a service plan “be in writing in a language that
stability of the home or proposed placement, these two factors (even if weak) could be weighed in
favor of the best interest finding by the factfinder.
8
See Tex. Fam. Code Ann. § 161.001(O).
14
the parents understand, or made otherwise available.” Tex. Fam. Code Ann. §
263.102(a)(2). In addition, the Family Code requires that the service plan must be
written “in a manner that is clear and understandable to the parent in order to
facilitate the parent’s ability to follow the requirements of the service plan.” Id. §
263.102(d).
It is uncontroverted that Mother was not provided with a written service plan
in a language that she understands. The dissent opines that, because the trial court
instructed Mother her parental rights could be terminated if she did not successfully
complete a family service plan, she understood exactly what she was supposed to do
under the service plan. The record contains no evidence of the trial court reading
the requirements of the family service plan into the record in the Mother’s presence
or at any time such that Mother would have had it translated in its entirety by the
Spanish language translator provided at the hearings.
Despite the Department’s uncontroverted failure to provide Mother with a
service plan in Spanish, Mother failed to follow the requirements of Texas Rule of
Appellate Procedure 33.1(a) to preserve her complaint for appellate review. See
Tex. R. App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (complaint
based on constitutional error must be preserved in the trial court). Were this a
criminal case, we would not stop at a Rule 33.1(a) analysis and would instead
analyze this issue under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)
(en banc), in which the Court of Criminal Appeals outlined the three classifications
of rules contained in the Texas criminal adjudicatory system: (1) absolute
requirements and prohibitions; (2) rights of litigants which must be implemented by
the system unless expressly waived; and (3) rights of litigants which are to be
implemented upon request. However, the Texas Supreme Court has so far declined
to follow the Court of Criminal Appeals’ Marin analysis in parental rights
termination cases (even though it does so in juvenile justice cases). See In re B.L.D.,
15
113 S.W.3d at 351. Therefore, we are unable to examine Mother’s due process and
due course of law challenge and accordingly overrule her second issue in that regard.
B. Right to Equal Protection
Mother also claims the trial court violated her rights to equal protection under
the Fourteenth Amendment to the United States Constitution when it allowed a
caseworker to testify that “a parent would be unfit if the parents’ country of origin
was not the United States.”
However, the record is devoid of any references to Mother’s country of origin.
Moreover, Mother’s trial counsel neither mentioned any specific issues concerning
national origin nor did counsel assert an equal protection violation. Furthermore,
the majority of examples Mother cites in her brief are of caseworker testimony
concerning the children’s fathers, both of whom were (at the time of trial) residents
of countries other than the United States. Because Mother failed to assert her equal
protection complaint in the trial court, we do not examine it here and accordingly
overrule her second issue. See Tex. R. App. P. 33.1(a); Dreyer v. Greene, 871
S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim, including a constitutional claim,
must have been asserted in the trial court in order to be raised on appeal.”).
CONCLUSION
We hold the evidence is legally insufficient to support termination of Mother’s
parental rights under Texas Family Code section 161.001(b)(1)(D) and (E). We
further hold there is (1) legally and factually sufficient evidence to support
termination of Mother’s parental rights under Texas Family Code section
161.001(b)(1)(O), and (2) legally sufficient evidence to support a finding that
termination of Mother’s parental rights is in the best interest of the children. But we
hold there is factually insufficient evidence to support a finding that termination of
Mother’s parental rights is in the children’s best interest. Therefore, we reverse the
16
portion of the final order regarding the findings under Texas Family Code section
161.001(b)(1)(D) and (E) and render judgment deleting these findings. We reverse
the portion of the final order regarding the finding under Texas Family Code section
161.001(b)(2) and remand the case to the trial court for further proceedings limited
to Texas Family Code section 161.001(b)(2).9 See Tex. R. App. P. 43.2(d). We
affirm the remaining challenged portions of the final order.
/s/ Meagan Hassan
Justice
En banc court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell,
Bourliot, Zimmerer, Spain, Hassan, and Poissant. Justice Hassan authored the En
Banc Majority Opinion, in which Justices Bourliot, Zimmerer, Spain, and Poissant
joined. Justice Wise authored an En Banc Dissenting Opinion, in which Chief
Justice Frost and Justices Christopher and Jewell joined. Chief Justice Frost
authored an En Banc Dissenting Opinion.
9
In light of our disposition, we need not address Mother’s remaining issues, none of which
is a rendition issue necessary to the disposition of the appeal. See Tex. R. App. P. 47.1.
17