             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00367-CV
      ___________________________

  IN THE INTEREST OF Q.M., A CHILD



  On Appeal from the 323rd District Court
          Tarrant County, Texas
      Trial Court No. 323-107863-18


Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
 Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      The Texas Department of Family and Protective Services challenges the denial

of its petition to terminate Father’s parental rights. In its sole issue, the Department

says the evidence conclusively and overwhelmingly establishes a statutory ground for

termination under Section 161.001 of the Family Code, and the evidence is therefore

legally and factually insufficient to support the denial of termination.

      But the Department does not address the trial court’s implied finding that

termination was not in the child’s best interest. That finding would, by itself and

independent of any statutory ground, support the denial of termination. Because the

Department has not addressed all possible bases for the judgment, we affirm.

                                 I.     BACKGROUND

       Q.M.’s entry into this world was not an easy one. After a premature birth, Q.M.

tested positive for opiates and went through severe withdrawal. Mother admitted to

using cocaine, marijuana, and heroin throughout her pregnancy. Mother believed that

her off-and-on boyfriend, Father, might be Q.M.’s biological parent, but Father was

unsure. Father had a criminal record for drug possession, was unemployed, and told

caseworkers that he did not believe he would be able to care for Q.M. financially. Father

also tested positive for marijuana early on in the case. The Department filed a petition

to terminate Mother’s and Father’s parental rights the month after Q.M.’s birth. The

trial court named the Department as Q.M.’s temporary managing conservator, and the

Department placed her in a foster home.

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      As the case progressed, Mother failed to appear at multiple hearings and

eventually executed an affidavit relinquishing her parental rights. But after a DNA test

confirmed his parenthood, Father sought the return of Q.M. The court ordered Father

to engage in a service plan designed to improve his fitness as a parent. The Department

ultimately went to trial to terminate Father’s parental rights under the theory that he

had not lived up to and completed the service plan.

      At trial, the Department’s witnesses agreed that Father had taken several positive

steps pursuant to the service plan. Among the more notable improvements, Father

obtained a job working upwards of forty hours per week, took multiple drug tests

showing that he was maintaining sobriety, rearranged and cleaned his home to make it

more suitable for Q.M., and attended twenty-eight weekly visitations during which,

caseworkers agreed, Father cared for and nurtured Q.M. However, the Department’s

witnesses also testified concerning Father’s shortcomings under the plan, which ranged

from lesser areas of noncompliance (such as his failure to attend certain parenting

classes) to one major error: allowing Mother to attend a visitation while she was

intoxicated.

      Following the close of the evidence, the trial court granted termination as to

Mother and denied termination as to Father. The Department appeals the denial of

termination as to Father.




                                           3
                II.    APPLICABLE LAW AND STANDARD OF REVIEW

       A parent’s rights to the companionship, care, custody, and management of his

or her children are constitutional interests far more precious than any property right.

In re A.C., 560 S.W.3d 624, 629–30 (Tex. 2018) (quoting Santosky v. Kramer, 455 U.S.

745, 758–59, 102 S. Ct. 1388, 1397 (1982)). In a termination case, the State seeks not

just to limit parental rights but to erase them permanently—to divest the parent and

child of all legal rights, privileges, duties, and powers normally existing between them,

except the child’s right to inherit. 1 Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re

A.B., 412 S.W.3d 588, 591 (Tex. App.—Fort Worth 2013) (en banc) (per curiam), aff’d,

437 S.W.3d 498 (Tex. 2014).

       Because of these “irrevocable consequences,” due process mandates a clear and

convincing evidence standard of proof. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019)

(per curiam). The Texas Family Code allows for involuntary termination of parental

rights if the State shows by clear and convincing evidence that a parent engaged in an

enumerated ground for termination and that termination is in the best interest of the

child. Tex. Fam. Code Ann. § 161.001(b); In re C.W., 586 S.W.3d 405, 406 (Tex. 2019)

(per curiam).



       1
         “Unsurprisingly, parental-termination cases have been described as the death
penalty cases of civil law.” In re C.M.J., 573 S.W.3d 404, 410 (Tex. App.—Houston [1st
Dist.] 2019, no pet.) (internal quotation marks omitted); see In re A.M., No. 18-0905,
2019 WL 5275657, at *1 (Tex. Oct. 18, 2019) (Blacklock, J., concurring in denial of pet.)
(citing In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)).

                                             4
       The high evidentiary burden at trial “also warrants a heightened standard of

review” on appeal. N.G., 577 S.W.3d at 235. When a party attacks the legal sufficiency

of an adverse finding on an issue on which it has the burden of proof, it must

demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in

support of the issue. In re E.J.R., 503 S.W.3d 536, 541 (Tex. App.—Corpus Christi–

Edinburg 2016, pet. denied) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.

2001) (per curiam)); In re A.L.D.H., 373 S.W.3d 187, 192 (Tex. App.—Amarillo 2012,

pet. denied). We review the entire record in the light most favorable to the finding,

assuming that the trier of fact resolved disputed facts in favor of its finding if a

reasonable factfinder could do so. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We

will sustain such a legal sufficiency challenge and reverse an adverse finding only if as a

matter of law, the evidence conclusively establishes the “contrary proposition” to the

finding. In re M.I.A., No. 04-19-00227-CV, 2019 WL 5030241, at *3 (Tex. App.—San

Antonio Oct. 9, 2019, no pet.). “In other words, [the Department] must conclusively

establish that any reasonable trier of fact would have unavoidably formed a firm belief

that Father had committed an act listed in section 161.001 and that termination was in

the best interest of the child.” Id. (citing E.J.R., 503 S.W.3d at 541 n.3).

       Normally, when an appellant attacks the factual sufficiency of the evidence

supporting the factfinder’s adverse resolution of an issue on which he had the burden

of proof at trial, he must show that the finding was against the great weight and

preponderance of the evidence. Id. (citing Dow Chem., 46 S.W.3d at 242). In termination

                                             5
cases, the standard is heightened: we review the entire record and determine whether

the trial court’s failure to form a firm conviction or belief that a parent’s rights must be

terminated is “contrary to the overwhelming weight of the evidence and clearly wrong.”

Id. In conducting this review, we may not gainsay the trial court’s weighing of the

evidence, and we must defer to the trial court’s credibility determinations so long as

they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). “We examine

the record in this case in light of the high evidentiary burden that [the Department]

bore and our required appellate deference to the trial court’s decision that the evidence

did not meet it.” M.I.A., 2019 WL 5030241, at *3 (quoting E.J.R., 503 S.W.3d at 542).

  III.     UNCHALLENGED BEST INTEREST FINDING SUPPORTS THE JUDGMENT

         In its sole issue, the Department brings a legal and factual sufficiency challenge

against the trial court’s denial of termination. According to the Department, the

evidence is legally insufficient because the Department conclusively proved at trial that

Father did not complete his service plan, and any reasonable factfinder would have

therefore ordered termination under Subsection O of the termination statute. As to

factual insufficiency, the Department argues that the trial court’s implied finding

concerning Subsection O was against the overwhelming weight of the evidence and

clearly wrong. However, the State does not challenge the evidence or the trial court’s

implied findings as they relate to the other element that the Department was required

to prove in the trial court: the child’s best interest.



                                              6
       When no findings of fact or conclusions of law are filed following a bench trial,

the trial court’s judgment implies all findings necessary to support it. In re K.W., 138

S.W.3d 420, 425 (Tex. App.—Fort Worth 2004, pet. denied). When a reporter’s record

is filed, these implied findings are not conclusive, and an appellant may challenge them

by raising both legal and factual sufficiency of the evidence issues. Id. Where such

issues are raised, the applicable standard of review is the same as that to be applied in

the review of jury findings or a trial court’s findings. Id. at 426.

       The trial court’s written judgment simply stated that as to Father, “The Court

denied the Department’s petition for termination.” Ordinarily, for purposes of implied

findings, we might interpret such a judgment as either an implicit rejection of the State’s

statutory ground for termination under Subsection O or an implied finding that

termination was not in the child’s best interest.

       However, the State argues that based on the trial court’s remarks at trial, we

should hold that the trial court impliedly found one, but not the other. During the final

stages of trial, the trial court quizzed the Department about the logical underpinnings

of its statutory ground for termination. The questions grew into a debate, during which

the trial court expressed its view that there was a flaw in the Department’s ground: that

Father had inadequate time to comply with the service plan. The Department observes

that during this exchange, the trial court did not mention Q.M.’s best interest. Shortly

after the debate ended, the trial court denied termination as to Father without orally

pronouncing any findings of fact or conclusions of law. The Department insists that

                                             7
because the trial court only commented on the statutory ground—and not best

interest—in the lead-up to its pronouncement, the trial court impliedly found against

the Department only on the statutory ground, and the trial court did not reach the

question of best interest. Therefore, the Department takes the position that in order to

prevail on appeal, it need only challenge the trial court’s implied rejection of the

statutory ground, and we should remand for a hearing on the unaddressed subject of

the child’s best interest.

       Our supreme court rejected a similar argument in In re W.E.R., 669 S.W.2d 716,

716 (Tex. 1984) (per curiam). There, a trial court denied an adoption, and it did not

render findings of fact or conclusions of law. Id. Nonetheless, the court of appeals

held “that comments made by the trial judge at the conclusion of the adoption hearing

amounted to a finding that the adoption was denied for the sole reason that the

petitioner was a single man.” Id. The court of appeals held that this reasoning was

objectionable, and it reversed the denial of adoption. Id. In reversing the court of

appeals, the supreme court held that it was not permissible to use a judge’s remarks at

trial to limit what may be implied from the judgment. Id. “The court of appeals was

not entitled to look to any comments that the judge may have made at the conclusion

of a bench trial as being a substitute for findings of fact and conclusions of law.” Id.

“The judgment of the court of appeals conflicts with many decisions of this court which

hold that in the absence of findings and conclusions, the judgment of the trial court



                                           8
implies all necessary fact findings in support of the judgment.” Id. at 717; see also In re

Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002) (reaffirming W.E.R.’s reasoning).

       The rule of W.E.R. governs here. The debate between the trial court and the

Department was not a conversational series of findings of fact and conclusions of law,

and the reasoning that the trial court expressed during that debate does not limit the

scope of what may be implied from the judgment.2 We imply “all findings” necessary

to support the judgment, not merely the ones that are most convenient for attack on

appeal. See W.E.R., 669 S.W.2d at 717 (emphasis added). Thus, the trial court impliedly

made two findings with one stone: it determined that neither statutory grounds nor

best interest were satisfactorily proven.

       To prevail on its legal sufficiency challenge, then, the Department must

conclusively establish that any reasonable trier of fact would have unavoidably formed

a firm belief that Father had committed an act listed in Section 161.001 and that

termination was in the best interest of the child. M.I.A., 2019 WL 5030241, at *3 (citing

E.J.R., 503 S.W.3d at 541). Similarly, to succeed on a factual sufficiency challenge, the

Department must establish that the trial court’s implied findings on the statutory




       2
         Moreover, the Department does not mention another exchange near the end of
trial, during which the trial court thoughtfully questioned whether the Department’s
concerns about Father were “subjective,” unrelated to any real threat of “abuse or
neglect” to Q.M., based predominately on Father’s financial status, and beyond the
Department’s limited mandate. The Department does not argue that these questions
have bearing on the trial court’s implied findings.

                                            9
ground and best interest were contrary to the overwhelming weight of the evidence and

clearly wrong. See id.

       But in its brief, the Department only discusses whether Father committed a

prohibited act; it does not argue that best interest was proved conclusively or by the

overwhelming weight of the evidence. The implied finding that termination was not in

Q.M.’s best interest would, by itself, warrant a denial of termination. “When, as here,

an appellant does not challenge an independent ground that may, under the record

presented, support the judgment that appellant seeks to reverse, this Court may not

address either the challenged grounds or the unchallenged ground and has no choice

but to overrule the challenges that the appellant has chosen to assert.” In re K.A.,

No. 02-19-00099-CV, 2019 WL 4309168, at *11 (Tex. App.—Fort Worth Sept. 12,

2019, pet. denied) (mem. op.); In re M.C.D., No. 02-13-00061-CV, 2013 WL 3771338,

at *5 (Tex. App.—Fort Worth July 18, 2013, pet. denied) (per curiam) (mem. op.); In re

J.P., No. 02-10-00448-CV, 2012 WL 579481, at *3 (Tex. App.—Fort Worth Feb. 23,

2012, no pet.) (mem. op. on reh’g). Because the Department has not challenged an

independent basis—the implied finding on best interest—that supports the trial court’s

judgment, we must overrule the Department’s challenge concerning the statutory

ground for termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).




                                          10
          We overrule the Department’s sole issue.3

                                   IV.   CONCLUSION

          We affirm the trial court’s judgment denying termination of Father’s parental

rights.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Delivered: February 20, 2020




       The attorney ad litem for Q.M. also filed a notice of appeal, though she adopted
          3

the Department’s brief in all respects. We overrule her sole appellate issue for the same
reasons that we overrule the Department’s issue.

                                            11
