C. W. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00654-CV
C. W., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. CV38,793, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING
MEMORANDUM OPINION
C.W. (Father) appeals from the trial court’s judgment terminating his parental
rights to L.B. (Child, a daughter).1 A jury found that Father had committed acts or omissions
meeting one or more of the grounds for termination of parental rights found at Texas Family
Code Section 161.001(b)(1). The jury also found that terminating Father’s parental rights to
Child was in her best interest under Section 161.001(b)(2). The trial court signed a judgment
based on the jury’s verdict, terminating Father’s parental rights to Child under six subsections of
Section 161.001(b)(1).
In three issues, Father contends that (1) the evidence was legally insufficient to
support a finding against him under Subsection (D); (2) we should reverse the portion of the trial
court’s judgment about child-support arrearages and render judgment that he need not pay
1
We refer to appellant and the child at issue using “Father” and “Child” or by their
initials. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2).
arrearages; and, (3) assuming we do not render judgment under his second issue, remand to the
trial court to rule on whether the Department of Family and Protective Services (Department)
waived arrearages. We modify the trial court’s judgment to remove the portion relating to
child-support arrearages and affirm the judgment as modified.
BACKGROUND
Child was born in July 2016 and lived with her mother (Mother) for the first part
of her life. The Department removed Child from Mother’s care in 2017 and, following a brief
return, again in 2018 after it received reports of neglect and drug use by Mother. At the time of
removal, Father was in prison. The Department placed Child with a foster family and put the
parents on service plans.
The Department sought termination of Mother’s and Father’s parental rights to
Child, which would allow the foster family to adopt her. Mother voluntarily relinquished her
rights to Child,2 and the case proceeded to a jury trial on the issue of whether Father’s parental
rights should be terminated. At trial, Father told the jury he wanted to have “the opportunity to
raise [his] daughter.” Father admitted, however, that he has never parented or seen Child, who
was three years old at the time of trial, because he has been in prison since she was born. At the
conclusion of the trial, the jury found by clear and convincing evidence that Father’s parental
rights should be terminated. See Tex. Fam. Code § 161.001(b). The trial court terminated Father’s
parental rights to Child based on Subsections (D), (E), (F), (N), (O), and (P) and the best-interest
finding. Father now appeals.
2
Mother did not file a notice of appeal and, consequently, is not a party to this appeal.
See Tex. R. App. P. 25.1(c).
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DISCUSSION
I. Review under Subsection (D)
To terminate the parent-child relationship, a court must find by clear and
convincing evidence that (1) the parent has committed one of the enumerated statutory grounds
for termination and (2) it is in the child’s best interest to terminate the parent’s rights. Tex. Fam.
Code § 161.001(b). In his first issue, Father contends that the evidence was “legally insufficient
to show that [he] knowingly placed or knowingly allowed [Child] to remain in conditions or
surroundings which endanger her physical or emotional well-being,” under Family Code
Section 161.001(b)(1)(D).
It is well established that only one ground under Section 161.001(b)(1) is
necessary to support a judgment in a termination case—even if the trial court based the
termination on more than one ground—so long as there is also a finding that termination is in the
child’s best interest. See In re N.G., 577 S.W.3d 230, 232 (Tex. 2019); Spurck v. Texas Dep’t of
Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin 2013, no pet.). On
appeal, Father does not challenge any of the other grounds for termination that are included in
the trial court’s judgment—Subsections (E), (F), (N), (O), or (P). In addition, he does not
challenge the trial court’s finding that termination is in Child’s best interest. Father therefore
concedes that he is not entitled to a reversal of the termination of his parental rights because any
one unchallenged statutory ground, along with the best-interest finding, is sufficient to support
termination. See Tex. Fam. Code § 161.001(b)(1)–(2).
Nevertheless, Father asks that we review the legal sufficiency of the evidence
under Subsection (D) and modify the trial court’s judgment to remove that finding as it may have
collateral consequences under Subsection (M). See In re N.G., 577 S.W.3d at 239. Father points
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out that under Subsection (M), a finding under either Subsection (D) or Subsection (E) could
be used in future proceedings to terminate his parental rights to other children. See Tex. Fam.
Code § 161.001(b)(1)(M). However, we need not review Father’s challenge under Subsection (D)
because the potential collateral consequences are triggered separately by the Subsection (E)
portion of the trial court’s judgment, which he does not challenge. See A.C. v. Texas Dep’t of
Family & Protective Servs., 577 S.W.3d 689, 698–700 & n.2 (Tex. App.—Austin 2019,
pet. denied); In re K.M., Nos. 01-19-00285-CV, 01-19-00286-CV, 2019 WL 3949483, at *8
(Tex. App.—Houston [1st Dist.] Aug. 22, 2019, pet. denied) (mem. op.) (“Because we have
determined that sufficient evidence supports termination under at least one predicate that could
underlie a future subsection (M) termination, we see no basis for addressing Father’s first issue,
in which he contends the evidence is legally and factually insufficient to support the trial court’s
finding under subsection (D).”).
II. Provision in Judgment About Child-Support Arrearages
The trial court’s judgment included the following provision:
13.1. Child support arrearage owed to the Department for child support not paid
by [Father] during the pendency of this suit IS/IS NOT waived.
The trial court did not circle either “IS” or “IS NOT” to convey its ruling.
In his second and third issues, Father contends that this portion of the judgment
should be reversed and either “judgment rendered that [Father] is not obligated to pay
arrearages” or the suit “remanded with instructions to the trial court to choose between whether
arrearages are or are not waived.” The Department “agree[s] that the inclusion of this
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provision . . . , especially in its current form, is in error” and requests that we “modif[y] to
remove the offending provision.”
We review a determination of child-support arrearages for an abuse of discretion.
In re N.V.R., 580 S.W.3d 220, 224 (Tex. App.—Tyler 2019, pet. denied) (citing Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)); Beck v. Walker, 154 S.W.3d 895, 901
(Tex. App.—Dallas 2005, no pet.). A trial court needs to follow “particular procedures” to enter
a final award of child-support arrearages. N.V.R., 580 S.W.3d at 225; In re G.L.S., 185 S.W.3d 56,
59 (Tex. App.—San Antonio 2005, no pet.). First, the court must tally the arrearage amount
based on the payment evidence presented. N.V.R., 580 S.W.3d at 225; Beck, 154 S.W.3d at 903.
After making the tally, the court should consider any offsets or counterclaims before entering a
final award. N.V.R., 580 S.W.3d at 225; G.L.S., 185 S.W.3d at 59; Beck, 154 S.W.3d at 903.
The petitioner must prove the arrearage, and the respondent must prove any applicable offsets or
counterclaims. N.V.R., 580 S.W.3d at 225; Beck, 154 S.W.3d at 903.
The trial court did not undertake any of the particular procedures required to
support an award of child-support arrearages. The Department agrees that we should remove the
provision about arrearages from the judgment. We therefore sustain Father’s second and third
issues in part and modify the judgment by removing this provision. See Tex. R. App. P. 43.2(b)
(empowering courts of appeals to “modify the trial court’s judgment and affirm it as modified”).
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CONCLUSION
We modify the trial court’s judgment to remove the provision about child-support
arrearages. We affirm the judgment as modified.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Modified and, as Modified, Affirmed
Filed: February 20, 2020
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