












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
 2-06-448-CV
 
 
IN THE INTEREST OF                                                                            
 
 
 
J.R.S. AND H.L.M.S., CHILDREN                                                            
 
                                              ------------
 
           FROM
THE 325TH DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
Appellant J.S. appeals from
the trial court=s order
terminating his parental rights to his children J.R.S. and H.L.M.S.  We reverse, render judgment in part, and
remand for further proceedings.
                                            Background
M.R., the children=s birth mother, and B.R., her husband, filed a petition to terminate
J.S.=s parental rights.  B.R. also
sought to adopt the children.   




The trial record is
sparse.  Only two witnesses testified,
M.R. and J.S.  J.S. was incarcerated at
the time of trial, but he was represented by counsel and participated
telephonically.
M.R. testified that
termination of J.S.=s parental
rights would be in the children=s best interest.  She said that
J.S. had failed to pay child support within his ability during a one-year
period ending within six months of the date she filed the petition.  M.R. also testified that J.S. had knowingly
engaged in criminal conduct which resulted in his conviction of an offense and
confinement and inability to care for the children for not less than two
years.  On cross-examination, she
testified that she was married to J.S. from 1993 until 1999.  She described custody disputes between herself
and J.S. after they divorced and said that J.S. was restricted to supervised
visitation at some point.  She testified
that J.S. did not visit the children in 2001 and was sent to prison in 2002.  M.R. admitted that she had not told J.S.
where she and the children lived after they moved in 2001.  She also acknowledged that J.S. attempted to
send the children gifts at her parents= address, but her mother refused to accept them, and M.R. agreed with
her mother=s
decision.  She testified that J.S. did
not provide any financial support to the children before he went to prison. 




J.S. testified that he was
serving a sixty-five year sentence for robbery and a life sentence for armed
robbery and that his earliest expected release date was sometime in the year
2030.  We will summarize his testimony
regarding his convictions and sentences in more detail later in this opinion.  J.S. testified that he had a very good
relationship with his children.  He said
that M.R. interfered with his visitation privileges after their divorce and
that twice she moved without telling him her new address.  He denied that he was ever restricted to
supervised visitation.  J.S. testified
that he attempted to contact the children through M.R.=s parents, but they returned some of his letters and did not provide
him with M.R.=s
address.  When asked on cross-examination
if he had any evidence to controvert a social study that said the children were
Adoing great in the environment they have with their stepfather and
their biological mother,@ J.S.
answered, AOf course
not, no, sir.@  Although a social study appears in the clerk=s record, it was not offered as evidence at trial, and the trial court
did not take judicial notice of it.
After hearing the evidence,
the trial court orally pronounced its ruling on the record:
The Court finds from clear and convincing
evidence that termination of the parent-child relationship between [J.S.] and
the children the subject of this suit is in the best interest of the children.
 




The Court further finds from clear and convincing
evidence that [J.S.] has failed to support the children in accordance with his
ability during a period of one year ending within six months of the date of
filing of this petition and had knowingly engaged in criminal conduct that has
resulted in his conviction of an offense and confinement or imprisonment and an
inability to care for the children for not less than two years from the date
this petition was filed.
 
The Court also finds it in their best interest
that the termination be granted, and it is so ordered. 
 
On November 20, 2006, the trial court signed a
termination order that recites the foregoing findings and also adds a new
finding:
The Court finds by clear and convincing evidence that [J.S.] has-
 
. . . .
 
contumaciously
refused to submit to a reasonable and lawful court order under subchapter D,
Chapter 261, of the Texas Family Code; . . . 
 
On December 19, 2006Ctwenty-six days after the trial court signed the final orderCJ.S. filed a motion for new trial combined with a statement of points
on appeal under family code ' 263.405(b).  See Tex. Fam. Code Ann. ' 263.405(b) (Vernon Supp.
2006).  The motion for new trial was
overruled by operation of law, and J.S. appealed.




                                             Discussion
A.               
Applicability
of Family Code Section 263.405(b)
In his first issue, J.S. argues that he was not
required to file a statement of points in the trial court within fifteen days
of the termination order under family code section 263.405(b) because that
section does not apply to a private termination proceeding.  See id.  We agree.




Section 263.405(b) provides that a party intending
to appeal a final order rendered under chapter 263, subchapter E must file a
statement of points on appeal within fifteen days of the date of the final
order.  Id.  Family code chapter 263 is titled AReview of Placement of Children Under
Care of Department of Protective and Regulatory Services.@ 
Subchapter E, under which ' 263.405
appears, is titled AFinal
Order for Child Under Department Care.@  Section 263.405(a) provides that A[a]n appeal of a final order rendered under
this subchapter is governed by . . . the procedures provided by this
section.@  Id. ' 263.405(a)
(emphasis added).  Nothing in chapter 263
suggests that the Legislature intended that the procedures of ' 263.405, including the statement
of points required by ' 263.405(b),
apply in cases where, as here, the children in question were never under
Department care.  We have found no Texas
case holding otherwise.  The cases cited
by Appellees are inapposite because both concern termination proceedings
brought by the Department.  See In re
M.G.D., 108 S.W.3d 508, 516  (Tex.
App.CHouston
[14th Dist] 2003, pet. denied); In re H.R., 87 S.W.3d 691, 703  (Tex. App.C
San Antonio 2002, no pet.).  We therefore
hold that section 263.405(b) does not apply to termination cases not brought by
the Department.
In this case, the termination proceeding did not
involve the Department.  Therefore,
section 263.405(b) does not apply, and J.S. did not have to file a statement of
points for appeal.  We sustain his first
issue.  We do not reach J.S.=s eighth issue, in which he argues that
section 263.405(b) violates the separation of powers doctrine, and we deny as
moot his motion to extend time to file a statement of points.  See Tex.
R. App. P. 47.1.
B.                
Legal and
factual sufficiency
In his second through seventh issues, J.S.
challenges the legal and factual sufficiency of the evidence to support the
trial court=s
findings in support of termination under family code section 261.001.
1.                 
Applicable law




A parent=s rights to Athe
companionship, care, custody, and management@ of his or her children are constitutional interests Afar more precious than any property right.@  Santosky v. Kramer, 455
U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d
534, 547 (Tex. 2003).  In a termination
case, the State seeks not just to limit parental rights but to end them
permanentlyCto divest
the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child=s right to inherit.  TEX. FAM. CODE ANN. ' 161.206(b) (Vernon Supp. 2006); Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985).  We strictly
scrutinize termination proceedings and strictly construe involuntary
termination statutes in favor of the parent. 
Holick, 685 S.W.2d at 20-21; In re E.S.S., 131 S.W.3d 632,
636 (Tex. App.CFort Worth
2004, no pet.).
In proceedings to terminate
the parent‑child relationship brought under section 161.001 of the family
code, the petitioner must establish one ground listed under subdivision (1) of
the statute and must also prove that termination is in the best interest of the
child.  TEX. FAM. CODE ANN. ' 161.001
(Vernon Supp. 2006); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).  Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact.  Tex.
Dep=t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987).




Termination of parental
rights is a drastic remedy and is of such weight and gravity that due process
requires the petitioner to justify termination by clear and convincing
evidence.  TEX. FAM. CODE ANN. '' 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002).  This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings.  In re G.M., 596 S.W.2d 846, 847 (Tex.
1980); In re K.W., 138 S.W.3d 420, 425 (Tex. App.CFort Worth 2004, pet. denied). 
It is defined as the Ameasure 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).




The higher burden of proof in
termination cases elevates the appellate standard of legal sufficiency review.  J.F.C., 96 S.W.3d at 265.  The traditional no-evidence standard does not
adequately protect the parent=s constitutional interests.  Id.
 In reviewing the evidence for legal
sufficiency in parental termination cases, we must determine whether the
evidence is such that a factfinder could reasonably form a firm belief or
conviction that the grounds for termination were proven.  Id. at 265-66.  We must review all the evidence in the light
most favorable to the finding and judgment. 
Id. at 266.  This means
that we must assume that the factfinder resolved any disputed facts in favor of
its finding if a reasonable factfinder could have done so.  Id. 
We must also disregard all evidence that a reasonable factfinder could
have disbelieved.  Id.  We must consider, however, undisputed
evidence even if it is contrary to the finding. 
Id.  That is, we must
consider evidence favorable to termination if a reasonable factfinder could,
and disregard contrary evidence unless a reasonable factfinder could not.  The City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005).  If
we determine that no reasonable factfinder could form a firm belief or
conviction that the grounds for termination were proven, then the evidence is
legally insufficient, and we must generally render judgment for the parent[s].  J.F.C., 96 S.W.3d at 266; see Tex. R. App. P. 43.3.
This higher burden of proof
also elevates the appellate standard of factual sufficiency review.  In re C.H., 89 S.W.3d 17, 25 (Tex.
2002).  A[A] finding that must be based on clear and convincing evidence cannot
be viewed on appeal the same as one that may be sustained on a mere
preponderance.@  C.H., 89 S.W.3d at 25.  In considering whether the evidence of
termination rises to the level of being clear and convincing, we must determine
whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction that the grounds for termination were proven.  Id. 
Our inquiry here is whether, on the entire record, a factfinder could
reasonably form a firm conviction or belief that the parent violated the relevant
conduct provisions of section 161.001(1) and that the termination of the parent=s parental rights would be in the best interest of the child.  Id. at 28.




The distinction between legal
and factual sufficiency lies in how we review the evidence.  J.F.C., 96 S.W.3d at 266.  In a factual sufficiency review, in
determining whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction that its finding was true, we must consider
whether disputed evidence is such that a reasonable factfinder could not have
resolved it in favor of the finding.  Id.  If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction in the truth of its finding, then the
evidence is factually insufficient.  Id.  If we reverse on factual sufficiency grounds,
then we must detail in our opinion why we have concluded that a reasonable
factfinder could not have credited disputed evidence in favor of its
finding.  Id. at 266-67.
Nonexclusive factors that the
trier of fact in a termination case may use in determining the best interest of
the child include:
(1)    the desires of the child;
 
(2)    the emotional and physical needs of the child now and in the
future; 
 
(3)    the emotional and physical danger to the child now and in the
future; 
 
(4)    the parental abilities of the individuals seeking custody; 
 
(5)    the programs available to assist these individuals to promote the
best interest of the child;
 
(6)    the plans for the child by these individuals or by the agency
seeking custody;




 
(7)    the stability of the home or proposed placement;
 
(8)    the acts or omissions of the parent which may indicate that the
existing parent‑child relationship is not a proper one; and
 
(9)    any excuse for the acts or
omissions of the parent.
Holley
v. Adams, 544 S.W.2d 367, 371‑72 (Tex. 1976).  These factors are not exhaustive; some listed
factors may be inapplicable to some cases; other factors not on the list may
also be considered when appropriate.  C.H.,
89 S.W.3d at 27.  Furthermore, undisputed
evidence of just one factor may be sufficient in a particular case to support a
finding that termination is in the best interest of the children.  Id. 
On the other hand, the presence of scant evidence relevant to each Holley
factor will not support such a finding.  Id.
 
2.                 
Best interest
In his seventh issue, J.S. argues that the
evidence is factually insufficient to support the trial court=s finding that termination is in the
children=s best
interest.  We agree.




The record reflects almost no evidence touching on
the Holley factors.  There is no
evidence of the children=s
desires.  There is no evidence of the
emotional and physical needs of the children now and in the future.  There is no evidence of emotional and
physical danger to the children now and in the future.  The is no evidence of M.R.=s and B.R.=s
parental abilities.[1]  There is no evidence of programs available to
assist them to promote the best interests of the children.  There is no evidence of their plans for the
children.  There is no evidence of the
stability of M.R. and B.R.=s
home.
J.S.=s
imprisonment for robbery potentially touches the eighth Holley factor,
acts or omissions which may indicate that the existing parent-child
relationship is not a proper one.  But
there was no evidence that J.S.=s
imprisonment had any effect on the day-to-day lives of the childrenCwho have lived with M.R. since the
divorce and before J.S. was imprisonedCor
their best interests.  And the crimes for
which he was convicted did not involve J.R.S. and H.L.M.S. or any other
children.  Cf.  Rogers v. Dep=t
of Family & Protective Servs., 175 S.W.3d 370, 378 (Tex. App.CHouston [1st Dist.] 2005, pet. dism=d w.o.j.) (holding evidence factually
sufficient to support best-interest finding when father was serving lengthy
prison sentence for causing severe bodily injury to his child).




Looking beyond the Holley factors, our
review of the record finds no other evidence regarding the children=s best interest, and, significantly,
Appellees= brief
points us to none.  Based on the entire
record before us, we hold that while there is slight evidence relevant to the
eighth Holley factor, a factfinder could not
reasonably form a firm conviction or belief that the termination of J.S.=s parental rights would be in the best interest of the children.  See C.H., 89 S.W.3d at 25.  Therefore, the evidence is factually
insufficient under the clear and convincing standard to support the trial court=s best-interest finding.  We
sustain J.S.=s seventh
issue.
3.                 
Contumacious
refusal to submit to an order under subchapter D, chapter 261
 
In his second and third issues, J.S. argues that
the evidence is legally and factually insufficient to support the trial court=s finding that he contumaciously
refused to submit to a reasonable and lawful court order under family code
subchapter D, chapter 261.  See Tex. Fam. Code Ann. ' 261.001(1)(I).  We agree.




Subchapter D of chapter 261 concerns the
Department=s
investigations of child abuse or neglect allegedly committed by a person
responsible for a child=s
care, custody, or welfare.  Tex. Fam. Code Ann. '' 261.301-.316 (Vernon Supp.
2006).  There is no evidence that the
trial court made any orders under subchapter D or that J.S. failed to submit
with any such order.  Appellees argue
that J.S. failed to pay child support as ordered in the final divorce decree,
but an order to pay child support is not an order under chapter 261, subchapter
D.  Moreover, Appellees did not plead
failure to submit to such an order as a ground for termination.  Termination can only be
upheld on a ground that was both pleaded by the party seeking termination and
found by the trier of fact.  Vasquez
v. Tex. Dep=t of
Protective & Regulatory Servs., 190 S.W.3d
189, 194 (Tex. App.CHouston [1st
Dist.] 2005, pet. denied).
Therefore, we sustain J.S.=s second and third issues.
                                             Conclusion
Having sustained J.S.=s first, second, third, and seventh issues and not reaching his
remaining issues, we reverse the trial court=s order; render judgment in J.S.=s favor on the ground of contumacious refusal to submit to an order
under subchapter D, chapter 261; remand the remainder of the case for further
proceedings; and deny as moot J.S.=s motion to extend time to file a statement of points under ' 263.405(b).  See Tex. R. App. P. 43.2 (c), (d).
 
 
ANNE GARDNER
JUSTICE
 
PANEL F:    DAUPHINOT, HOLMAN, and GARDNER, JJ.
 
DELIVERED:  July 19, 2007




[1]The
social study contained in the clerk=s record reflects information
potentially relevant to this and other factors, but as we have already noted,
the social study was not offered as evidence, and the trial court did not take
judicial notice of it.


