






In the Interst of CJB, a Child















IN THE
TENTH COURT OF APPEALS
 

No. 10-03-00009-CV

IN THE INTEREST OF C.J.B., A CHILD

 

From the 19th District Court
McLennan County, Texas
Trial Court # 2001-2188-1
                                                                                                                
                                                                                                         
DISSENTING OPINION
                                                                                                                

      The majority uses an erroneous standard of review for factual sufficiency of the evidence. 
The difference between the legal-sufficiency standard of review and the factual-sufficiency
standard of review is “how the evidence is reviewed.”  In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002).  What the majority does not say, and what makes a difference in this case, is that
in a factual-sufficiency review, the evidence should be viewed in a neutral light.  It is true that
the Supreme Court did not expressly say that in J.F.C., but it is implicit in the opinion.  How
else could an appellate court “consider whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its finding”?  Id.  How
else could an appellate court determine “in light of the entire record, [whether] 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”
about its finding?  Id.
      In recognizing the duty of the courts of appeals to review the factual sufficiency of the
evidence to support a guilty finding in a criminal case, where the burden of proof is “beyond a
reasonable doubt,” the Court of Criminal Appeals made a point of attempting to “harmonize”
the standards between civil and criminal cases.  Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996).  In Clewis and opinions following it, the Court has consistently stated that a
factual-sufficiency review is conducted “without the prism of ‘in the light most favorable to the
verdict’” as is required in a legal-sufficiency review.
      In cases involving findings made by a preponderance of the evidence, the courts of appeals
view the evidence in a “neutral light” when reviewing for factual sufficiency.  Nelson v. Najm,
127 S.W.3d 170, 174 (Tex. App.—Houston [1st Dist.] 2003, pet. filed); Lazell v. Stone, 123
S.W.3d 6, 9 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); Roundville Partners L.L.C.
v. Jones, 118 S.W.3d 73, 78 (Tex. App.—Austin 2003, pet. denied); General Motors Corp. v.
Iracheta, 90 S.W.3d 725, 730 (Tex. App.—San Antonio 2002, pet. denied); C&D Robotics,
Inc. v. Mann, 47 S.W.3d 194, 200 (Tex. App.—Texarkana 2001, no pet.).
      Without that neutrality, favorable evidence produced by an appellant-parent could never
cast doubt upon a jury’s verdict because it would not be considered.  This is particularly
inauspicious in a termination-of-parental-rights case, which is ordinarily dependent on
subjective factors.
[Parental-rights termination] proceedings apply imprecise substantive standards
that leave determinations unusually open to the subjective values of the
[factfinder].  In appraising the nature and quality of a complex series of
encounters among the agency, the parents, and the child, the [factfinder]
possesses unusual discretion to underweigh probative facts that might favor the
parent.  Because parents subject to termination proceedings are often poor,
uneducated, or members of minority groups, such proceedings are often
vulnerable to judgments based on cultural or class bias.
 
The State’s ability to assemble its case almost inevitably dwarfs the parents’
ability to mount a defense.  No predetermined limits restrict the sums an agency
may spend in prosecuting a given termination proceeding.  The State’s attorney
usually will be expert on the issues contested and the procedures employed at
the factfinding hearing, and enjoys full access to all public records concerning
the family.  The State may call on experts in family relations, psychology, and
medicine to bolster its case.  Furthermore, the primary witnesses at the hearing
will be the agency’s own professional caseworkers whom the State has
empowered both to investigate the family situation and to testify against the
parents.  Indeed, because the child is already in agency custody, the State even
has the power to shape the historical events that form the basis for termination.

Santosky v. Kramer, 455 U.S. 745, 762–63, 102 S.Ct 1328, 1399–1400, 71 L.Ed.2d 599
(1982).
      My conclusion is that we should review the factual sufficiency of the evidence supporting
findings made under a clear-and-convincing-evidence standard in a neutral light.  The majority
has failed to do so.  Rather, the analysis makes no distinction between the standards and is
essentially the same for both.  It fails to recognize that the evidence can preponderate in favor
of the finding but still fail the clear-and-convincing test.  See In re C.H., 89 S.W.3d 17, 25
(Tex. 2002) (evidence can be more than a preponderance and not clear and convincing).
      But even if the majority had properly applied our factual-sufficiency standard of review,
there are factors other than the Holley factors that should be considered in reviewing a finding
that termination is in the best interest of a child.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex.
1976).  Holley predates the current version of the Family Code by a number of years and was a
termination action between private parties, where one parent would still enjoy the parent-child
relationship.  The Legislature has now adopted other factors that must be considered when
TDPRS has been named temporary managing conservator of a child and the question of
placement is being considered i.e., those listed in section 263.307 of the Family Code.  Tex
Fam. Code Ann. § 263.307 (Vernon 2002).  In termination proceedings brought by the
Department, such as in this case, the Department is named temporary managing conservator by
the court.
      If the determination were being made as of ten months prior to trial, I would agree that the
evidence is legally and factually sufficient to support the jury’s findings.  However, in the
majority’s analysis, the status at the time of trial was:
      •    Cheryl thought that, with time, she and C.J.B. could reestablish their bond;
      •    Krista Kumahata had move to Houston in July of 2001 and had not been around
C.J.B.;
      •    Several of Cheryl’s friends testified that she was good with their children;
      •    Cheryl was currently in AA and NA, had a sponsor, was in the fourth step of a
twelve-step program;
      •    Cheryl participated in individual counseling; C.J.B. participated in therapy;
      •    Cheryl agreed that C.J.B. needed therapy and his problems needed to be addressed;
she had a planned daily routine for C.J.B.;
      •    Cheryl had a daycare selected and had an insurance plan to include C.J.B.;
      •    Cheryl would work with a therapist on C.J.B.’s problems;
      •    After being discharged from the Freeman Center, Cheryl had been in the same
apartment and had the same job;
      •    Cheryl’s counselor at the Freeman Center gave her an excellent prognosis for
maintaining her sobriety;
      •    Her apartment was clean and orderly, even on surprise visits;
      •    In ten months, no evidence suggested that Cheryl might have begun to drink again.
      Where is the “clear” and “convincing” evidence of best interest?  The Department’s
decision was “not to risk” C.J.B.’s well-being.  According to the majority:
      •    Jeanie Cochrane, the current foster-parent, knew nothing about Cheryl, but testified to
what she “thought” was inappropriate sexual behavior in a child less than three years
old;
 
      •    Dr. Chieza was “concerned” about sexual abuse or “exposure to things like that” in
the past;
 
      •    Dr. Chieza compared C.J.B.’s behavior to those associated with fetal-alcohol
syndrome;
 
      •    Dr. Chieza was “concerned” that C.J.B.’s problems would be reinforced;
 
      •    Dr. Chieza recommended “play therapy”;
 
      •    Dr. Grossman “believed” that C.J.B. was re-enacting sexual behavior he witnessed or
experienced; 
 
      •    Dr. Grossman said children who have suffered neglect “can have these behaviors”;
 
      •    Belinda Honey “believed” it would be detrimental to place C.J.B. back with Cheryl;
 
      •    Jesse Guardiola “became concerned” after reading a report about the second removal
some ten months earlier; he “felt” Cheryl might contact her former husband again; he
no longer trusted Cheryl;
 
      •    Dr. Chieza was “concerned” that a relapse by Cheryl would reinforce C.J.B.’s
problems.

Dr. Chieza saw C.J.B. once, and Dr. Grossman spoke only about C.J.B. and said nothing
about Cheryl.
      I believe that a neutral review of all of the evidence shows that, as of the time of trial, no
reasonable factfinder could conclude by clear-and-convincing evidence that termination of
Cheryl’s parental rights was in C.J.B.’s best interest.  The jury’s determination could have
been made only on speculation and conjecture and by giving undue weight to historical events
that suggested a status for Cheryl that was not true at the time of trial.
      Under the Family Code, the public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child;  and
(3) encourage parents to share in the rights and duties of raising their child after the
parents have separated or dissolved their marriage. 

Tex. Fam. Code Ann. § 153.001 (Vernon 2002).
      As we said in In re A.M.C., “termination is a drastic remedy.”  In re A.M.C., 2 S.W.3d
707, 710 (Tex. App.—Waco 1999, no pet.).  Because of the constitutional dimension of the
right, the final and irrevocable nature of a termination decree, and the enunciated public policy
of this State in assuring that a child will have frequent and continuing contact with its parents
who have shown the ability to act in the best interest of the child, I would hold the evidence to
be factually insufficient to support the “best interest” finding and reverse the judgment and
remand the cause to the trial court for further proceedings.



                                                                   BILL VANCE
                                                                   Justice

Dissenting opinion delivered and filed May 12, 2004
