Opinion issued March 5, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00885-CV
                            ———————————
              IN THE INTEREST OF C. M. J. AKA C.W., Child



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-03689J


                                   OPINION

      This is an appeal from a decree terminating a mother’s parental rights and

appointing the Department of Family and Protective Services as sole managing

conservator of her child. The mother contends in her first issue that the trial court

improperly denied her motion to dismiss because the statutory deadline by which the

case was to be finalized had passed. She contends second that the trial court
erroneously granted the Department’s summary-judgment motion. Because the trial

court properly extended the finalization deadline and because there existed no

genuine issue of material fact as to whether a factfinder could form a firm belief or

conviction on the statutory-predicate ground, we overrule the mother’s first issue

and overrule her second issue in part. Because the mother’s summary-judgment

evidence required the trial court to weigh the parties’ competing evidence on the

child’s best interest, we sustain in part the mother’s second issue.

                                     Background

      This parental-termination case concerns J.L.C.’s fifth child, C.M.J. Between

2003 and the start of this case, J.L.C. had five children. Her parental rights over four

of those children were terminated after a long history of drug use, violence, and child

endangerment.

      We begin in September of 2003, the month after the mother’s first child was

born. The mother was admitted to the hospital and tested positive for cocaine.

Although she denied using cocaine, she explained that “she cooked cocaine for her

brother as he did not know how to cook cocaine and the cocaine may have been

absorbed through her skin.” The Department tried to provide the mother with a

family-services plan to ensure that she could provide her newborn son with a safe

environment, but the Department was unable to do so after it lost contact with her

and could not find her.


                                           2
      Then, in 2004, the mother was convicted of evading arrest and sentenced to

six months’ confinement for violating the conditions of the community supervision

she was on for evading arrest about a year earlier. Around eight months after the

birth of her second child, in 2006, the Department received a second report that the

mother was using crack cocaine after being released from jail. The father of the two

children refused to speak with the Department’s caseworker and “was very

threatening and hostile.” The mother again denied using drugs. Next, while her

second child was less than a month old, the mother was convicted of theft and

sentenced to eleven months in jail.

      Shortly after getting out of jail, the Department received another report

alleging that the mother’s one-year-old child was “always dirty”; that she left the

child “to be cared for by different people”; and that she allowed the child to be

“around people that were using crack and blowing smoke into [the child’s] face.”

The Department interviewed the mother, and while she again denied using drugs,

she said that she was living in a shelter and was stealing to provide for her family.

The Department again attempted to provide the mother with services, but, again, it

lost contact with her. Three months later, the mother was sentenced to thirty days’

confinement for another theft conviction. Shortly after she was released, the mother

had her third child.




                                         3
      In June of 2009, the Department requested that the mother’s three children be

placed in its conservatorship after receiving another complaint that the mother left

two of her three children with a babysitter and failed to return for almost two weeks.

The Department could not find the mother during its investigation, but it did discover

that one of her children had been living with a relative for the past two years. The

relative did not know where the mother was, which was especially problematic

because the mother had the information regarding the child’s access to Medicaid.

The relative informed the Department that the children’s father was “always loaded

on drugs,” and that, last known, the mother “was living in a crack house.” During

the pendency of that suit, the mother failed three drugs tests and refused to take two

others.

      The trial court signed a decree terminating the mother’s parental rights to her

three children. In that order, the trial court found that the mother engaged in conduct

endangering to her children and knowingly allowed her children to remain in

endangering circumstances, in violation of Texas Family Code subsections

161.001(b)(1)(D) and (E). It also found that the father violated subsection (E) and

that termination of both parents’ parental rights was in the children’s best interest.

The three children were placed in the Department’s sole managing conservatorship.

      Nine months later, in November of 2011, the mother had a fourth child. Not a

year later, the Department received a report alleging that the mother and father were


                                          4
subjecting the child to physical abuse. The allegations described a witnessed

argument between the mother and father that culminated with the father throwing

the child “on the concrete.” The following day, a Department caseworker visited the

home and observed “what appeared to be droplets of blood everywhere,” and the

caseworker called the police. The mother told the police and caseworker that she no

longer needed help and that she did not want to let the worker or the police into the

home because “the father” was “kind of crazy.” When the caseworker told the

mother that the Department wished to have the child placed with a relative because

of concerns related to the domestic violence, the mother locked the door and refused

to cooperate. The Department convinced the mother to give the baby to a relative

and then filed suit, requesting that the child be placed in its temporary

conservatorship due to concerns that the mother and father posed a danger to the

child.

         During the suit, the mother continued to test positive for cocaine and failed to

comply with court-ordered drug testing. The trial court signed a decree terminating

the mother’s parental rights to her fourth child on February 21, 2013. The trial court

supported its decree with findings that the mother’s parental rights were previously

terminated as to her other three children because she engaged in conduct that

endangered their well-being; that she failed to comply with court-ordered tasks and




                                             5
services necessary for reunification with her child; and that termination of her

parental rights was in the child’s best interest.

      Nine months later, the mother had C.M.J., the child involved in this suit. When

the child was still a year old, the child’s father—who was not the same father of the

other four children—was convicted of assaulting the mother. In February of 2016,

the Department received a report that C.M.J. was subject to neglectful supervision

and that the mother was abusing prescription drugs. The report described the mother

as sleepy, drunk, and stumbling. The report also alleged that the mother would drive

with C.M.J. in the car while she was intoxicated. The Department attempted to meet

with the mother, but she refused. The mother also would not provide information

about the child’s father, nor would she disclose her address. A Department

caseworker tried unsuccessfully nine other times to contact the mother.

      The Department filed, and the trial court granted, an emergency petition

naming the Department as temporary managing conservatorship over C.M.J.,

pending the outcome of an adversarial hearing. After the adversarial hearing, the

trial court found that despite reasonable efforts made to prevent the child’s removal,

there remained a danger to the child’s safety that warranted his immediate removal

from his parents’ care and placement in the Department’s temporary managing

conservatorship.




                                            6
      On August 30, 2016, the trial court held a status hearing to discuss the

Department’s family-service plans developed for the mother and father. The trial

court found the existence of aggravated circumstances under Texas Family Code

section 262.2015, which relieved the Department of its obligations to provide the

mother with a family-services plan or make reasonable efforts to return the child to

her care.

      About nine months later, the trial court issued an order retaining the suit on

its docket and setting hearing dates. This order added 180 days to the usual deadline

that requires parental-termination cases to be finalized by “the first Monday after the

first anniversary of the date the court rendered a temporary order appointing the

department as temporary managing conservator.” See TEX. FAM. CODE § 263.401(b).

With this order in place, the new deadline became January 19, 2018.

      On September 5, 2017, about six months before the January deadline, and

shortly after Hurricane Harvey struck Texas, the Texas Supreme Court entered an

Emergency Order Affecting Child Protection Cases that permitted trial courts to

suspend the effects of the deadline statute if “the court finds that disastrous

conditions . . . precluded compliance” and that provided “any such suspension

extends to the date the court finds it reasonably possible to proceed, taking into

account the circumstances.” Twenty-one days after the Texas Supreme Court issued

its order, the trial court signed an order retaining the suit on the court’s docket. The


                                           7
trial court found that Harris County was experiencing a state of disaster and that the

court was “incapable of commencing trial by the scheduled dismissal deadline.” The

order then listed the new dismissal deadline as October 6, 2018. Months before that

deadline, on March 3, 2018, the mother filed a motion to dismiss, arguing that the

case should automatically be dismissed because the deadline imposed by section

263.401 had passed. The trial court denied the mother’s motion.

      The Department later filed a motion for summary judgment, maintaining that

termination of the parents’ parental rights was warranted as a matter of law.

Specifically, the Department argued that its summary-judgment evidence

conclusively established that termination of the mother’s parental rights was

supported by Texas Family Code 161.001(b)(1)(M) and that termination of her rights

was in C.M.J.’s best interest. The Department’s evidence detailed the accounts

described above. That evidence included the referral affidavits from this case and

the two previous cases, police reports, the mother’s drug-test results, the criminal

records of the mother and the father, several affidavits by Department caseworkers

who were involved with the case, and certified copies of the termination decrees of

the mother’s other four children.

      The trial granted the Department’s motion, terminating the mother’s parental

rights under section 161.001(b)(1)(M), finding “by clear and convincing evidence

that termination of the parent-child relationship between the mother and C.M.J . . .


                                          8
is in the child’s best interest,” and naming the Department as sole managing

conservator.

                                      Analysis

      The mother raises two issues on appeal. She contends that the trial court

erroneously denied her motion to dismiss. She also contends that the trial court

improperly granted the Department’s summary-judgment motion.

I.    Motion to dismiss

      The mother first contends that the trial court was required to grant her motion

to dismiss under Family Code section 263.401(a). This section was recently

amended in 2017. That amendment states that the changes made to section 263.401

“apply only to a suit affecting the parent-child relationship filed on or after

[September 1, 2017].” Act of May 28, 2017, 85th Leg., R.S., ch. 319, §§ 33–34,

2017 Tex. Gen. Laws 716, 738 (codified at TEX. FAM. CODE § 263.401(a)). Because

this suit began before the present amendment, the former provision controls here.

That provision read:

      Unless the court has commenced the trial on the merits or granted an
      extension under Subsection (b) or (b-1), on the first Monday after the
      first anniversary of the date the court rendered a temporary order
      appointing the department as temporary managing conservator, the
      court shall dismiss the suit affecting the parent-child relationship filed
      by the department that requests termination of the parent-child
      relationship or requests that the department be named conservator of
      the child.



                                          9
The trial court rendered a temporary order appointing the Department as temporary

managing conservator on July 19, 2016, which would make July 24, 2017, the first

Monday after the first anniversary of that order. On May 17, 2017, and before the

dismissal deadline, the trial court signed an order under section 263.401(a) retaining

the suit on the court’s docket. This order extended the dismissal deadline to January

6, 2018.

      The mother contends that because she brought a motion to dismiss three

months after that deadline, the trial court was required to dismiss the suit. But the

mother ignores the Texas Supreme Court’s Emergency Order Affecting Child

Protection Cases in response to Hurricane Harvey. This order, entered under

Government Code section 22.0035, permitted trial courts to suspend the effects of

263.401 if “the court finds that disastrous conditions resulting from Hurricane

Harvey precluded compliance” and provided that “any such suspension extends to

the date the court finds it reasonably possible to proceed, taking into account the

circumstances.” On September 26, 2017, the trial court, under the Texas Supreme

Court’s order, signed an order retaining the suit on the court’s docket. The trial court

found that Harris County was experiencing a state of disaster and that the court was

“incapable of commencing trial by the scheduled dismissal deadline.” It then noted

the new dismissal deadline as October 6, 2018. The mother filed her motion to




                                          10
dismiss about eight months before that deadline. Accordingly, the trial court was not

required to dismiss this suit, and we overrule the mother’s first issue.

II.   Summary judgment

      The mother maintains the Department’s summary-judgment evidence is

insufficient to support parental termination as a matter of law. We review summary

judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005). Before a trial court may terminate parental rights, the Department must prove

by clear and convincing evidence that both a predicate statutory ground under

section 161.001(b)(1) exists and that terminating parental rights is in the child’s best

interest. TEX. FAM. CODE § 161.001(b)(1); In re B.L.D., 113 S.W.3d 340, 353–54

(Tex. 2003). Normally, the Department satisfies its burden through a trial. But here,

the Department chose to proceed through summary judgment under Rule of Civil

Procedure 166a.1




1
      In her brief, the mother fairly questions whether the Texas Constitution
      permits the termination of parental rights by summary judgment. See, e.g., In
      re G.M.G., 44 S.W.3d 46, 61–62 (Tex. App.—Houston [14th Dist.] 2014, no
      pet.) (Christopher, J., concurring) (questioning constitutionality of
      termination by summary judgment). Nevertheless, the mother’s
      constitutionality argument is not preserved for appellate review because she
      failed to raise the issue in the trial court. See TEX. R. APP. 33.1 (requiring
      preservation of issues); see also In re L.M.I., 119 S.W.3d 707, 710–11 (Tex.
      2003) (stating that constitutional complaints in parental-termination cases
      must be raised in trial court to be preserved for appellate review).
                                          11
      In the typical summary-judgment case, the movant must establish that there

are no genuine issues of material fact and that it is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166(a); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28

S.W.3d 22, 23 (Tex. 2000). If the movant satisfies this standard, the burden shifts to

the nonmovant to raise a genuine issue of material fact that will preclude summary

judgment. Willrich, 28 S.W.3d at 23. Unlike most civil cases, which are governed

by a preponderance-of-the-evidence standard, parental-termination cases employ the

“clear and convincing” standard. See TEX. FAM. CODE § 161.001(b). Accordingly,

we must first determine whether this clear-and-convincing evidentiary standard

alters the typical summary-judgment standard. The supreme court’s decision in

Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413 (2000) is particularly

instructive.

      In Huckabee, the issue was whether the court of appeals properly reversed a

trial court’s order denying summary judgment in favor of a broadcaster being sued

for defamation by a public figure. Id. at 416–17. In defending the court of appeals’

reversal, the broadcaster argued that, because defamation requires a plaintiff to

“establish actual malice by clear and convincing evidence,” the appropriate

summary-judgment standard should be the federal standard: whether “the evidence

in the record could support a reasonable jury finding that the plaintiff has shown




                                         12
actual malice by clear and convincing evidence.” Id. at 420 (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255–56 (1986)).

      In rejecting the broadcaster’s argument, the Supreme Court cited Casso v.

Brand, 776 S.W.2d 551, 555–57 (Tex. 1989), its decision holding that neither the

United States Constitution nor the Texas Constitution required a special summary-

judgment procedure in public-figure defamation cases. Huckabee, 19 S.W.3d at 421.

Although alterations made to the Rules of Civil Procedure after Casso “obviated, to

some extent, the differences in summary judgment procedure between [the Federal

and Texas] systems,” the Supreme Court concluded that Casso was premised on two

“practical considerations, which remain valid today.” Id.

      The first consideration was the “difficulty in adapting review under a

heightened evidentiary standard to Texas summary judgment practice.” Id.

“Requiring the trial court to determine at the summary judgment stage whether a

reasonable juror could find the evidence to be clear and convincing suggests that the

trial court must weigh the evidence,” which stood in sharp contrast to extant Texas

law that prohibits the weighing of evidence at the summary-judgment stage. Id. at

421–22. The second consideration was that the vague “clear-and-convincing

standard provides little guidance regarding what evidence is sufficient for a plaintiff

to avoid summary judgment.” Id. at 422. Accordingly, the court concluded, absent

“authority that would constitutionally require it, we decline to adopt the clear-and-


                                          13
convincing standard at the summary judgment stage of a public-figure defamation

case.” Id. at 423.

      In contrast, it is well established that a parent’s natural right to the custody of

her children is of significant constitutional dimension. See Santosky v. Kramer, 455

U.S. 745, 753 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The right is

“far more precious than any property right.” Santosky, 455 U.S. at 758–59.

Unsurprisingly, parental-termination cases have been described as “the ‘death

penalty’ cases of civil law.” In re K.G.M., 171 S.W.3d 502, 506 (Tex. App.—Waco

2005, no pet.) (Vance, J., concurring). “Termination is a drastic remedy and is of

such weight and gravity that due process requires the state to justify termination of

the parent-child relationship by proof more substantial than a preponderance of the

evidence.” In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). And termination

proceedings are “strictly scrutinized.” Holick, 685 S.W.2d at 20.

      The constitutional authority for incorporating the clear-and-convincing

standard into the summary-judgment standard that was lacking in the public-figure-

defamation context exists here. “If anything, persons faced with forced dissolution

of their parental rights have a more critical need for procedural protections than do

those resisting state intervention into ongoing family affairs.” Santosky, 455 U.S. at

753. In light of these constitutional considerations, we conclude that, in the context




                                          14
of a parental-termination case, the clear-and-convincing standard applies at the

summary-judgment stage.2

      As the Huckabee court described, the clear-and-convincing summary-

judgment standard is difficult to satisfy.

      On a cold summary judgment record, without having observed a single
      witness, it would take keen insight to forecast accurately whether
      probative evidence would or would not produce a “firm belief or
      conviction” in the mind of the trier of fact. The distinction, in a paper
      record, between evidence that will merely raise a fact issue and
      evidence that will be clear and convincing is generally subtle, if not
      wholly subjective.

Huckabee, 19 S.W.3d at 422–23. Hence, the court noted, “We believe it obvious that

this determination may be more easily and accurately made after a trial on the

merits.” Id. at 423.

      We now apply this clear-and-convincing standard to the summary-judgment

evidence in this case, beginning first with the predicate-statutory ground. The



2
      A Colorado Court of Appeals has taken a nearly identical approach. See
      People in Interest of A.E., 914 P.2d 534 (Colo. App. 1996). In A.E., the court
      acknowledged that the Colorado Supreme Court had “ruled that because the
      applicable standard of proof in a summary judgment motion is whether there
      is a genuine issue of material fact, neither the ‘clear and convincing’ nor the
      ‘preponderance of the evidence’ standard is applicable.” Id. at 538 (quoting
      Neves v. Potter, 769 P.2d 1047 (Colo. 1989). Nevertheless, the court reasoned,
      because “termination of the parent-child legal relationship is a drastic remedy
      that affects a parent’s liberty interest, a court deciding a summary judgment
      motion seeking to terminate parental rights must apply the standard of clear
      and convincing evidence to the applicable statutory criteria.” Id.

                                             15
Department moved for summary judgment on the predicate-statutory ground under

section 161.001(b)(1)(M). That provision states that the Department satisfies its

burden of establishing a predicate ground with evidence that the parent had her

“parent-child relationship terminated with respect to another child based on a finding

that the parent’s conduct was in violation of Paragraph (D) or (E).” Evidence of a

prior decree reflecting the requisite findings under subsection (D) or (E) satisfies the

Department’s burden under subsection (M). See In re A.C., 394 S.W.3d 633, 641

(Tex. App.—Houston [1st Dist.] 2012, no pet.). Here, the Department’s summary-

judgment evidence included trial-court decrees terminating the mother’s parental

rights over her other four children. The first decree was signed on February 1, 2011,

and contained findings that the mother violated both subsections (D) and (E). The

second decree was signed on February 21, 2013, and contained findings that the

mother violated subsections (O) and (M).

      Although Huckabee suggested that, under the clear-and-convincing summary-

judgment standard, summary disposition may never be appropriate because it is

likely impossible for a trial judge to apply the standard without being forced to weigh

the evidence, see Huckabee, 19 S.W.3d at 422–23, we believe that a case such as

this, where the Department moves for summary judgment on the predicate-statutory

ground under section 161.001(b)(1)(M), presents a scenario where a trial court can

grant summary judgment without having to weigh the evidence. Subsection (M)


                                          16
requires only that the Department establish that the mother had her parental rights as

to other children terminated for her violation of subsections (D) or (E). Absent

evidence that the decrees were suspended or reversed, we cannot see how the mother

could produce any evidence that would create a fact issue on the decrees that contain

findings that she violated subsections (D) and (E). Under this circumstance,

summary judgment on whether the parent violated section 161.001(b)(1)(M) is

appropriate because decrees showing that the parent violated subsections (D) or (E)

satisfy the Department’s burden under subsection (M) as a matter of law, with no

evidence weighing required. See In re A.C., 394 S.W.3d at 640–41. Summary

judgment on a child’s best interest, however, presents different concerns.

      Unlike the wholly objective inquiry that subsection (M) calls for, a child’s

best-interest determination under subsection 161.001(b)(2) calls for a delicate

weighing and balancing of numerous factors that are unique to each child and

parent.3 Accordingly, when the mother submitted summary-judgment evidence of



3
      See In re K.M.L., 443 S.W.3d 101, 117 (Tex. 2014) (describing certain Holley
      factors as “weigh[ing] in favor of the foster care placement and in favor of
      termination”); In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (same); Lenz v.
      Lenz, 79 S.W.3d 10, 19 (Tex. 2002) (“Suits affecting the parent-child
      relationship are intensely fact driven, which is why courts have developed
      best-interests tests that consider and balance numerous factors.”); Green v.
      Remling, 608 S.W.2d 905, 908 (Tex. 1980) (“The trial judge is better situated
      to weigh all of the surrounding circumstances and arrive at a judgment which
      in his discretion will best protect the best interest of the child.”); Taylor v.
      Meek, 276 S.W.2d 787, 790 (Tex. 1955) (noting that “presumption that to be
                                         17
her paying money to C.M.J.’s caregiver, the trial court could not rule on the

Department’s summary-judgment motion on best interest without weighing the

parties’ competing summary-judgment evidence. See supra note 3; Huckabee, 19

S.W.3d at 422–23 (“Texas law has always emphasized that trial courts must not

weigh the evidence at the summary judgment stage.”). Thus, the trial court

improperly granted the Department’s summary-judgment on C.M.J.’s best interest.

      Our holding should not be read as a categorical prohibition against summary

judgment on best interest in parental-termination cases. There may be circumstances

where it is appropriate. See, e.g., Dowell v. Dowell, 276 S.W.3d 17, 22 (Tex. App.—

El Paso 2008, no pet.) (“There may be instances where the acts or omissions of the

parent, standing alone, are sufficient to establish as a matter of law that termination

is in the best interest of the children.”); In re T.H., No. 05-99-01142-CV, 2000 WL

1853042, at *2 (Tex. App.—Dallas 2000, no pet.) (rejecting argument that summary

judgment is never appropriate for parental-termination cases). But see In re E.N.C.,

384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing

evidence.”) (Christopher, J., concurring). But summary judgment on a child’s best

interest will rarely be appropriate.4 We overrule in part and sustain in part the


      raised by [a child’s] natural parents is to the child’s best interest . . . should be
      considered by the trial judge in weighing the evidence”).
4
      We also note that the trial court granted the Department’s summary-judgment
      motion at the pretrial conference three days before this case was set for trial,
      where the mother appeared and asked for a continuance, explaining “I’ve just
                                           18
mother’s second issue. The trial court must commence a new trial no later than 180

days after the issuance of our mandate in this case. See TEX. R. APP. P. 28.4(c).

                                    Conclusion

      We affirm the trial court’s denial of the mother’s motion to dismiss and its

ruling on the Department’s summary-judgment motion on the predicate-statutory

finding under Family Code subsection 161.001(b)(1)(M). We reverse and remand

on the trial court’s granting of the Department’s summary-judgment motion on

C.M.J.’s best interest.



                                              Richard Hightower
                                              Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Publish.




      met [my attorney] today . . . . [W]hy can’t I get the same opportunity as CPS.
      They filed three continuances . . . . All I’m asking is give me some time so we
      could talk . . . . [W]e haven’t even prepared for the [summary-judgment]
      response . . . .”
                                         19
