




Reversed and Rendered in Part, Remanded, and Opinion filed November 8,
2007







Reversed and
Rendered in Part, Remanded,
and Opinion filed November 8, 2007.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-06-00659-CV
____________
 
IN THE INTEREST OF S.R.L. AND L.L.
 

 
On Appeal from the 387th
District Court
Fort Bend County, Texas
Trial Court Cause No. 05-CV-143480
 

 
O P I N I O N
Appellant Luciano Lopez appeals from the trial court=s order
terminating his parental rights to his children S.R.L. and L.L.  In five
issues, he challenges the legal and factual sufficiency of the evidence
supporting the termination findings, claims the trial court failed to render
judgment within the statutory time frame, and asserts that his counsel provided
ineffective assistance.  Because we determine the evidence is legally and
factually insufficient to support a finding that terminating appellant=s parental rights
is in the best interest of the children, we reverse and remand.




S.R.L. and L.L., ages five and three at the time of the
termination hearing, are appellant=s children with a
woman named Jessica Lopez, to whom appellant was not married but coincidentally
shared a surname.  The Texas Department of Family and Protective Services
(DFPS) became involved with Jessica in 2005 after receiving a report regarding
one of Jessica=s children with another man.  The two children at
issue in this case eventually went to live with relatives (one with a paternal
aunt and the other with a maternal aunt), and Jessica voluntarily relinquished
her parental rights.
During this time, appellant was incarcerated for assault. 
This was not his first trouble with the law.  Over the previous ten years,
appellant had been incarcerated frequently after being convicted of a series of
misdemeanor crimes, including theft, drug possession, and several assaults,
including assaults on Jessica and Jessica=s mother but not
his children.  In 2003, appellant was again convicted of assault and, with
enhancements, sentenced to ten years in prison.  DFPS sought to terminate
appellant=s parental rights, arguing among other things that he
knowingly engaged in criminal conduct resulting in incarceration and the
inability to care for his children for not less than two years from the date of
filing of the petition, as set forth in subsection Q of section 161.001 of the
Family Code.  Tex. Fam. Code Ann.
' 161.001(1)(Q)
(Vernon Supp. 2006).




At the termination hearing in June 2006, appellant
presented evidence that he had changed his life and wanted an opportunity to
parent his children.  He testified that he took anger management classes in
prison and that these classes had made a difference in his life.  He learned to
change his method of conflict resolution, as evidenced by the fact that he has
not been involved in any fights in prison.  DFPS provided appellant a service
plan, and he completed all portions that he could while in prison.  Appellant
explained the steps he has taken to prepare for a productive life outside of
prison.  To make himself employable, he took over 750 hours of electrical
training, receiving several commendations from his instructor, and he tutored
other prisoners.  Appellant married during his incarceration, and appellant
stated that he planned on living with his wife in her house after his release. 
Appellant=s mother testified that appellant is a changed man and
that she and her husband would fully support appellant and his children after
his release until he can get back on his feet.  Appellant has also maintained
contact with his children and has written letters to his two older children
(not the subject of this suit) explaining the mistakes he has made in his life
and urging them to avoid the path he took.
Appellant apparently impressed both the children=s guardian ad
litem and the trial court judge.  Even though the guardian recommended
terminating appellant=s parental rights solely based on
appellant=s history, he stated that he believed appellant Ashould have some
involvement with [the children].@  Upon further
questioning, the guardian again confirmed that he believed that appellant=s parental rights
should be terminated to give the children a stable home but hoped that
appellant could still visit the children, even though he realized such a
scenario was probably legally impossible.  The trial judge also seemed
conflicted.  He stated repeatedly that he felt he did not Ahave any choice@ but to terminate
appellant=s parental rights under subsection Q because Ahe=s been in jail so
much,@ but he wanted to
allow appellant to have access to his children.  For example, the judge stated:
I don=t see that I have
got any choice.  Is there any provision under the lawCand I don=t know of any, but
is there any provision under the law that would allow me to terminate his
parental rights and yet allow him to continue [to have] access to these
children.  I don=t know of that.
After
terminating appellant=s parental rights under subsection Q, the
judge called appellant=s mother into the courtroom and explained
to her as follows:
$                  
He had just
terminated appellant=s parental rights because he had
been in jail so much.
$                  
He had heard no
evidence that appellant had Adone anything bad@ to these children.
$                  
He would not
order appellant to stay away from his older children in appellant=s mother=s possession, but that she should
carefully monitor all visits.
$                  
He Ahope[d] there is some way that
[appellant] can have some kind of contact with these children@ but Ahe can=t award it to him@ because A[t]here=s no legal basis for it.@




A trial court can terminate a parent=s rights to his
children only after finding both a statutory ground for termination and that
termination is in the children=s best interest.  Tex. Fam. Code Ann. ' 161.001; In re
S.M.L., 171 S.W.3d 472, 476 (Tex. App.CHouston [14th
Dist.] 2005, no pet.).  At the termination hearing, the trial judge found only
a statutory ground for termination, subsection Q, but did not find that
termination was in the children=s best interest, although he later
included such a finding in his written order.[1] 
Appellant argues on appeal that the evidence is legally and factually
insufficient to support termination of his parental rights.
Parental rights can be terminated involuntarily only by a
showing of clear and convincing evidence.  Tex.
Fam. Code Ann. ' 161.001; In re J.F.C., 96 S.W.3d
256, 263 (Tex. 2002).  AClear and convincing evidence@ means Athe 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 (Vernon
2002); In re J.F.C., 96 S.W.3d at 264.  When reviewing factual findings required to be made by
clear and convincing evidence, we apply a standard of review that reflects this
burden of proof.  In evaluating the legal sufficiency of the evidence, we
review all the evidence in the light most favorable to the finding to determine
whether a reasonable factfinder could have formed a firm belief or conviction
that the finding was true.  In re J.F.C., 96 S.W.3d at 266.  In a
factual sufficiency review, we must also determine whether a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations
by reviewing the entire record.  Id. 




Appellant argues the evidence is legally and factually
insufficient to establish either subsection Q as a statutory ground for
termination or that termination is in the children=s best interest. 
We agree that the evidence is insufficient to show that the trial judge formed
a firm belief or conviction that termination is in the children=s best interest.[2] 
Termination of the parent/child relationship is a complete severance and
divests for all time the parent=s rights to the child.  See In re J.R.,
171 S.W.3d 558, 567 (Tex. App.CHouston [14th Dist.] 2005, no pet.). 
Because it is such a drastic remedy, termination proceedings should be strictly
scrutinized.  Id.  It is apparent from the trial judge=s own statements
that he did not form a firm conviction or belief that appellant should be
deprived of all rights to his children.  Indeed, he stated several times that
he wanted appellant to have a part in his children=s lives but felt
he had no choice but to terminate appellant=s parental rights
under subsection Q.  But he did have a choice.  The factfinder must find both a
statutory violation and that termination is in the children=s best interest. 
The trial judge may have believed DFPS conclusively established a statutory
ground for termination under subsection Q, but the best interest determination
is a separate inquiry.  See In re S.M.L., 171 S.W.3d at 476. 
Because the trial judge did not actually form a firm conviction or belief that
severing appellant=s relationship with his children was in
their best interest, we conclude the evidence is legally insufficient.




We also conclude the evidence is factually insufficient to
support a best interest finding.  That a parent is imprisoned does not
automatically establish that termination of parental rights is in the child=s best interest.  See
In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.CHouston [1st
Dist.] 2002, pet. denied) (ATermination of parental rights should not
become an additional punishment for imprisonment for any crime.@).  Though
appellant has a violent and unstable past, he presented substantial and
uncontradicted evidence that he has turned his life around.  He took anger
management classes, which helped him change his attitude about conflicts and
keep him out of fights in prison.  He complied with all portions of the service
plan possible in prison.  Appellant developed job skills and has a home and
family support structure in place to help him upon release.  Given this
evidence of changes in appellant=s life and the
judge=s finding that
appellant has never Adone anything bad@ to these
children, we conclude the evidence is factually insufficient for the trial
court to have formed a firm conviction or belief that terminating appellant=s parental rights
is in the children=s best interest.  See In re W.C.,
98 S.W.3d 753, 766 (Tex. App.CFort Worth 2003, no pet.) (finding
factually insufficient evidence to support best interest finding where mother,
despite past bad conduct, had Amade significant progress, improvements,
and changes in her life,@ had a good support system in place, and
had done everything possible to have her children returned); In re C.T.E.,
95 S.W.3d at 467B69 (holding evidence to support best
interest finding factually insufficient when, among other things, incarcerated
father had prepared to be reunited with his family by taking parenting courses,
anger management classes, and job training); In re K.C.M., 4 S.W.3d 392,
399 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (reversing best
interest finding for factual insufficiency based on the way mother turned her
life around while incarcerated).
We sustain appellant=s first three
issues.  We reverse the trial court=s judgment, render
judgment that terminating appellant=s parental rights
to S.R.L. and L.L. is not in the children=s best interest,
and remand for further proceedings consistent with this opinion.
 
 
/s/      Leslie B. Yates
Justice
 
 
 
 
Judgment rendered
and Opinion filed November 8, 2007.
Panel consists of
Justices Yates, Fowler, and Guzman.




[1]  In his fourth issue, appellant argues that the trial
court should have dismissed the suit because it did not make this best interest
finding during the oral rendition and thus the court did not render final
judgment within the statutory deadline, which fell in between the time of the
oral rendition and the written order.  See Tex. Fam. Code Ann. '
263.401(a) (Vernon Supp. 2006) (providing a one-year deadline for final order
or dismissal in certain suits affecting the parent/child relationship).  In his
fifth issue, appellant argues his trial counsel was ineffective in many
respects, including by failing to move for dismissal before the statutory
deadline.  Because we find the evidence legally and factually insufficient to
sustain the termination order, we need not reach these issues.


[2]  We note that the Attorney General concedes these
issues in its appellate brief.


