Affirmed and Majority and Concurring Opinions filed June 4, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-01070-CV

                    IN THE INTEREST OF P.W., A CHILD


                    On Appeal from the 315th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2017-05035J

                    CONCURRING OPINION
      Based on the Supreme Court of Texas’s pronouncements in In re N.G., this
court must determine whether the appellant’s challenge to the subsection (D) and
subsection (E) findings holds merit, and we must detail our analysis, even if
another finding listed in the final order as a termination ground provides a proper
basis for the predicate act required under section 161.001(b)(1) and even if the
appellant does not challenge the trial court’s best-interest-of-the-child finding.1 In
In re N.G. the supreme court did not address whether nonconstitutional law

1
  See In re N.G., No. 18-0508, —S.W.3d—,—, 2019 WL 2147263, at *3–4 (Tex. May 17, 2019)
(per curiam).
required the court of appeals to review the appellant’s challenge to the trial court’s
findings under (D) and (E).2 I write separately to address this question and to note
that, even if, contrary to the N.G. court’s conclusion, allowing (D) and (E) findings
to go unreviewed on appeal when the parent has presented the issue to the
appellate court did not violate the parent’s due-process and due-course-of-law
rights, nonconstitutional law would allow the parent to get appellate review of the
parent’s challenge to the (D) and (E) findings.

              The Supreme Court of Texas’s Constitutional Grounds for Requiring
                     Review of a Challenge to (D) and (E) Findings
          Shortly after oral argument in today’s case, the supreme court issued its
opinion in In re N.G.3 In assessing the appellate-review-of-(D)-and-(E)-findings
issue, the N.G. court went directly to constitutionality, without first addressing
whether Texas statutes and procedural rules allowed the mother to get appellate
review of her challenge to the (D) and (E) findings.4 The N.G. court applied the
factors the Supreme Court of the United States used in Santosky v. Kramer and the
Supreme Court of Texas used in In re J.F.C.5               Balancing these factors, and
considering that the risk of error carries big consequences for future parental rights,
the N.G. court reasoned that a parent’s fundamental liberty interest in the right to
parent outweighs the state’s interest in having courts decide only what is necessary
for final disposition of the appeal.6 Therefore, the N.G. court decided that allowing
(D) and (E) findings to go unreviewed on appeal when the parent has presented the

2
    See In re N.G., 2019 WL 2147263, at *1–4.
3
    See id.
4
    See id.
5
  See Santosky v. Kramer, 455 U.S. 745, 759–68, 102 S. Ct. 1388, 1398–1402, 71 L.Ed.2d 599
(1982); In re J.F.C., 96 S.W.3d 256, 273–274 (Tex. 2002); In re N.G., 2019 WL 2147263, at *3–
4.
6
    In re N.G., 2019 WL 2147263, at *4.

                                                2
issue to the appellate court would violate the parent’s due-process and due-course-
of-law rights.7 On that basis, the high court held that the court of appeals violated
the appellant/mother’s due-process and due-course-of-law rights by failing to
review the trial court’s (D) or (E) findings when the mother had presented the
issue.8

           Though today’s case does not fall within the scope of the N.G. court’s
holding, to comply with the high court’s deliberate pronouncements on this
subject, this court must determine whether the appellant’s challenge to the (D) and
(E) findings holds merit based on the supreme court’s constitutional grounds.9 An
analysis of the statute under nonconstitutional grounds would yield the same
outcome — appellate review of the challenge to the (D) and (E) findings — but
without declaring any statute, rule, or procedure unconstitutional.

          Review of the Mother’s Challenge Based on Nonconstitutional Grounds

           Mother has not argued that the Fourteenth Amendment’s Due Process
Clause or the Texas Constitution’s Due Course of Law provision require this court
to review her challenge to the trial court’s (D) and (E) findings. Instead, Mother
relies on a line of cases from this court and other intermediate courts of appeals
requiring review of (D) and (E) findings under certain circumstances based on
nonconstitutional grounds.10 Mother concedes that none of these cases involve the

7
    Id.
8
    Id.
9
    In re N.G., 2019 WL 2147263, at *1–4.
10
   See In re S.J.N., No. 14-18-00529-CV, 2018 WL 6494256, at *6 (Tex. App.—Houston [14th
Dist.] Dec. 11, 2018, pet. denied) (mem. op.); In re T.M.T., No. 14-18-00442-CV, 2018 WL
6053667, at *8 (Tex. App.—Houston [14th Dist.] Nov. 20, 2018, no pet.) (mem. op.); In re
J.E.M.M., 532 S.W.3d 874, 885 n.9 (Tex. App.—Houston [14th Dist.] 2017, no pet.); In re C.
M.-L.G., No. 14-16-00921-CV, 2017 WL 1719133, at *8 (Tex. App.—Houston [14th Dist.] May
2, 2017, pet. denied) (mem. op.); In re S.G.F., No. 14-16-00716-CV, 2017 WL 924541, at *4
                                            3
procedural posture presented in today’s case: the appellant/parent challenges
predicate-act findings under subsections (D) and (E), yet does not challenge either
the trial court’s finding under another subsection of section 161.001(b)(1) or the
trial court’s finding that termination of the parent’s parental rights is in the child’s
best interest.

         Under Texas law, trial courts must recite the specific grounds for
termination in their final termination orders.11 So, parties properly may assert
appellate complaints against these grounds, and an appellate court holds the power
to delete a finding under (D) or (E) and affirm the final order as modified if, for
instance, the reviewing court holds the evidence legally insufficient to support the
finding.12 In that scenario, the reviewing court could delete these grounds from the
trial court’s final order. This appellate remedy would bar the Department of
Family and Protective Services from proceeding under subsection (M) in a future
case brought to terminate Mother’s parental rights as to another child. Thus, it
would be reasonable and appropriate to extend the existing line of court-of-appeals
cases to apply to today’s fact pattern, as Mother urges. Doing so would provide
Mother an opportunity for appellate review of her challenge to the (D) and (E)
findings under nonconstitutional law.13 And, this approach would mirror what the

(Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.) (mem. op.); In re J.J.G, No. 14-15-
00094-CV, 2015 WL 3524371, at *4 (Tex. App.—Houston [14th Dist.] June 4, 2015, no pet.)
(mem. op.); In re C.M.C., 554 S.W.3d 164, 171 (Tex. App.—Beaumont 2018, no pet.); In re
L.D., No. 01-17-00471-CV, 2017 WL 6374663, at *4 (Tex. App.—Houston [1st Dist.] Dec. 14,
2017, pet. denied) (mem. op.).
11
     See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 306.
12
  See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 306; In re A.A.M., 2007 WL 1558701, at *3,
n.3; In re C.M.C., 554 S.W.3d at 173.
13
   See In re S.J.N., 2018 WL 6494256, at *6; In re T.M.T., 2018 WL 6053667, at *8; In re
J.E.M.M., 532 S.W.3d at 885 n.9; In re C. M.-L.G., 2017 WL 1719133, at *8; In re S.G.F., 2017
WL 924541, at *4; In re J.J.G, 2015 WL 3524371, at *4; In re C.M.C., 554 S.W.3d at 171; In re
L.D., 2017 WL 6374663, at *4.

                                                 4
high courts usually do in similar circumstances.

          Before addressing whether the Fourteenth Amendment’s Due Process
Clause requires a state to prove the grounds for terminating a party’s parental
rights by clear and convincing evidence, the Supreme Court of the United States in
Santosky first determined that, under the New York law applicable in that case,
proof by clear and convincing evidence was not required, and proof by a “fair
preponderance of the evidence” would suffice.14 So, the Santosky court needed to
address whether the Fourteenth Amendment’s Due Process Clause required proof
by clear and convincing evidence.15

          The Supreme Court of Texas, in In re J.F.C., likewise took a tiered
approach, looking first to nonconstitutional law.16 Before addressing whether the
Fourteenth Amendment’s Due Process Clause or the Texas Constitution’s Due
Course of Law provision prevents courts from supplying an omitted best-interest
finding in support of the termination judgment, the J.F.C. court first determined
that nonconstitutional law required courts to supply an omitted best-interest finding
in support of the termination judgment.17 Thus, the J.F.C. court needed to address
whether due process or due course of law blocks courts from supplying an omitted
best-interest finding in support of the termination judgment.18

          Texas courts presume that Texas statutes, rules, and procedures comport
with constitutional due-process and due-course-of-law requirements.19                Under

14
     See Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.
15
     See id.
16
     See In re J.F.C., 96 S.W.3d at 262–272.
17
     See id.
18
     See id.
19
  See In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009); In re B.L.D., 113 S.W.3d 340, 352 (Tex.
2003); In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000).

                                                 5
supreme-court precedent, Texas courts are to decide cases on nonconstitutional
grounds whenever possible.20 That means a court should reach a constitutional
question only when the court cannot resolve the issue on nonconstitutional
grounds.21 This self-imposed restraint both honors the separation of powers and
promotes comity between the branches of government.22

          In keeping with this tiered approach, the supreme court has directed a two-
prong inquiry, cautioning that Texas courts should examine the constitutionality of
a statute only (1) when a party properly raises the question and (2) the court
concludes it must answer the constitutional question to decide the case.23 Today’s
appeal meets neither prong.

          Mother has not raised any constitutional issue on appeal or assigned error
based on the constitutionality of any statute, rule, or procedure. Nor would this
court have to address the statute’s constitutionality to resolve the issues presented.
Today’s appeal is precisely the type of case in which courts should avoid resolving
a controversy on constitutional grounds.

          Before the supreme court’s pronouncements in In re N.G., a Texas court
would not need to decide whether the Due Process Clause or Texas’s Due Course
of Law provision requires review of a challenge to the (D) and (E) findings
because the court could decide the issue on nonconstitutional grounds.24 Indeed,

20
     VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex. 2007).
21
     See In re B.L.D., 113 S.W.3d at 349.
22
  See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 249
(2012) (stating that a plausible basis for the constitutional-doubt canon is that it represents “a
judgment that courts should minimize the occasions on which they confront and perhaps
contradict the legislative branch”).
23
     In re Doe 2, 19 S.W.3d at 284.
24
  See VanDevender, 222 S.W.3d at 433; In re B.L.D., 113 S.W.3d at 349; In re Doe 2, 19
S.W.3d at 284; In re S.J.N., 2018 WL 6494256, at *6; In re T.M.T., 2018 WL 6053667, at *8; In
                                                6
before In re N.G., Texas courts of appeals could review a challenge to (D) and (E)
findings without resorting to constitutional law.25 With its recent pronouncements,
the N.G. court appears to have forged a different path, a shorter one that does not
require the first-tier, nonconstitutional inquiry outlined in the high court’s prior
precedent.

       The prior precedent and tiered methodology serve important jurisprudential
values. Requiring courts to consider nonconstitutional grounds before deeming
statutes or procedural rules unconstitutional minimizes the occasions on which the
judicial branch confronts and perhaps contradicts the legislative branch. This
methodology promotes comity with lawmakers and honors the constitutional
separation of powers by reserving decisions on the constitutionality of legislative
enactments for cases in which the parties have raised a constitutional challenge and
the court must decide the constitutional issue to resolve the case.




                                          /s/       Kem Thompson Frost
                                                    Chief Justice



Panel consists of Chief Justice Frost and Justices Spain and Poissant. (Frost, C.J.,
majority).




re J.E.M.M., 532 S.W.3d at 885 n.9; In re C. M.-L.G., 2017 WL 1719133, at *8; In re S.G.F.,
2017 WL 924541, at *4; In re J.J.G, 2015 WL 3524371, at *4; In re C.M.C., 554 S.W.3d at 171;
In re L.D., 2017 WL 6374663, at *4.
25
  See In re N.G. 2019 WL 2147263, at *3–4; VanDevender, 222 S.W.3d at 433; In re B.L.D.,
113 S.W.3d at 349; In re Doe 2, 19 S.W.3d at 284.


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