Affirmed in Part, Reversed in Part, and Remanded, and Majority and
Dissenting Opinions filed August 20, 2020.




                                       In The

                       Fourteenth Court of Appeals

                               NO. 14-20-00169-CV

                    IN THE INTEREST OF M.P., A CHILD


                    On Appeal from the 306th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 18-CP-0111

                            DISSENTING OPINION

      The majority sends a message to deadbeat parents: don’t take drug tests;
don’t work the service plan; don’t do any counseling or participate in any parenting
classes; don’t respond to the caseworker’s phone calls; don’t visit your children;
don’t turn yourself in when there is an outstanding warrant for your arrest; and, of
course, don’t attend the trial. Then, there will be insufficient evidence to support
the termination of your parental rights.

      I agree with the majority’s affirmance of the trial court’s judgment to
terminate Father’s parental rights because there is legally and factually sufficient
evidence to support the requisite findings for termination. But I disagree with the
majority’s conclusion that there is factually insufficient evidence to support the
trial court’s findings under Section 161.001(b)(1)(D) and (E) of the Family Code.

      Moreover, the Supreme Court of Texas should grant review in this case to
address whether due process requires a factual sufficiency review of (D) and (E)
findings and a new trial limited to those findings when a court of appeals affirms
the termination of parental rights.

      For the reasons detailed below, I respectfully dissent.

I.    Factually Sufficient Evidence of Section 161.001(b)(1)(D)

      There is undisputed evidence that the following circumstances existed before
the four-week-old child was removed from Father’s care: (1) Father used illegal
drugs, including marijuana and methamphetamine; (2) Father kept the child in an
“unlivable” home that was covered in animal feces; (3) Father and Mother did not
do dishes or laundry; (4) Father and Mother did not feed the child in a timely
manner; (5) while in Father and Mother’s care, the child suffered unexplained
“non-accidental trauma,” including bleeding in her brain, that resulted in
hospitalization; and (6) the child tested positive for cocaine and methamphetamine.

      In its factual sufficiency review, the majority discounts this evidence by (1)
speculating that it is possible Father used drugs outside the home or otherwise
away from the child; (2) noting the absence of evidence—not conflicting
evidence—from Archibald to corroborate Aunt’s testimony about the living
conditions in the home; (3) noting the absence of evidence—not conflicting
evidence—of Father’s knowledge of Mother’s drug use; and (4) speculating that
Mother’s drug use provides an alternate basis for inferring the introduction of
drugs into the child.


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      Considering the totality of the evidence, viewed in a neutral light, a
reasonable factfinder could have formed a firm belief or conviction that Father
knowingly allowed the child to remain in dangerous conditions. The majority
substitutes its judgment for that of the trial court’s.

II.   Factually Sufficient Evidence of Section 161.001(b)(1)(E)

      In addition to the undisputed evidence discussed above, there is undisputed
evidence that Father (1) failed to complete or even attempt most of the service
plan; (2) lied about his use of drugs and refused to take drug tests; (3) made three
visits with the child during the eleven-month period of removal and failed to visit
the child for more than seven months before trial; (4) failed to respond to over half
a dozen phone calls from the Department and had no contact with the Department
for the two months leading up to trial; (5) expressed a desire to relinquish his
parental rights to the child; and (6) refused to attend trial because there was an
outstanding warrant for his arrest based on a complaint that had been filed about
nine months prior.

      Again, the majority takes a “divide and conquer” approach to the evidence
and relies on the absence of other evidence—not conflicting evidence—to
disregard the trial court’s finding of physical or emotional endangerment. The
majority suggests that because there is some evidence that Father was unable to
read, his failure to follow the service plan should be excused. The majority notes
that there is no evidence that Father was ever convicted or incarcerated for the
criminal offense alleged in the complaint, and there is no evidence “about the
when, where, or what extent Father used illegal drugs.” Of course there is an
absence of evidence about some of these facts because Father refused drug testing,
failed to complete the assessments and therapies required by the service plan,



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failed to turn himself in after knowing there was a warrant for his arrest, and failed
to attend the trial.

       All of this evidence of Father’s actions and failures, both before and after the
child’s removal, shows a conscious course of conduct from which the trial court
could have formed a firm belief or conviction that Father endangered the child’s
physical or emotional well-being.

III.   Due Process Satisfied

       Finally, I am concerned with the remedy employed by the majority, and I
hope the Supreme Court of Texas will grant review to clarify whether its holding
in In re N.G., 577 S.W.3d 230 (Tex. 2019), mandates a factual sufficiency review
as a matter of due process under the federal and Texas constitutions.

       The majority charts an unprecedented course by remanding this case to the
trial court for a new trial on the issues of predicate grounds (D) and (E), although
the majority upholds the trial court’s order terminating Father’s parental rights.
The majority cites no authority for remanding a parental termination case for a new
trial on issues that are unnecessary to affirm or reverse the termination of parental
rights. I have found none.1 A new trial on these issues would be inconsistent with
the requirement that there be a live case or controversy between the parties for a
court to have subject matter jurisdiction. The result of such a new trial will have
no impact on Father’s parental rights to the child.


       1
          The majority’s comparison of this case to In re A.J.A.R., No. 14-20-00084-CV, 2020
WL 4260343 (Tex. App.—Houston [14th Dist.] July 24, 2020, no pet. h.) (mem. op.), is
inapposite because we reversed the termination of parental rights in that case, but here the court
affirms the termination of parental rights. At least one court has modified a trial court’s
judgment to delete a Section 161.001(b)(1)(E) finding after holding that the evidence was
factually insufficient to support that finding, though the evidence was legally and factually
sufficient to support termination. See In re H.J.Y.S., No. 10-19-00325-CV, 2019 WL 8071614,
at *10 (Tex. App.—Waco Feb. 26, 2019, no pet.) (mem. op.).

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      The Texas courts of appeals derive their “peculiar powers”2 to conduct a
factual sufficiency review in civil cases under the Factual Conclusivity Clause of
the Texas constitution. See Tex. Const. art. V, § 6(a). But due process under the
United States Constitution requires only a legal, not factual, sufficiency review.
See generally Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality
op.); see also In re N.G., 577 S.W.3d at 234 (no meaningful distinction between
federal due process and state due course of law).

      In In re N.G., the supreme court held that due process requires the courts of
appeals to provide a “meaningful appeal” of challenged findings under Section
161.001(b)(1)(D) and (E) due to the collateral consequences of a prior termination
under (D) or (E). See 577 S.W.3d at 237. Although the court held that the court of
appeals “erred in failing to review the legal and factual sufficiency of the
evidence,” the court did not explain why a review that satisfies due process—legal
sufficiency—would be inadequate to provide a meaningful appeal. See id. at 239
(emphasis added).

      I believe that due process is satisfied by a review of the legal sufficiency of
the evidence to support challenged Section 161.001(b)(1)(D) and (E) findings, and
this court need not exercise its power under the Factual Conclusivity Clause to
review the factual sufficiency of the evidence for findings that are unnecessary to
the resolution of the appeal. To the extent there is any confusion on this matter,
the Supreme Court of Texas should grant review and clarify what type of review is
required to satisfy a parent’s right to due process.




      2
          In re King’s Estate, 150 Tex. 662, 664–65 (1951).

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IV.   Conclusion

      I concur in this court’s judgment so far as it affirms the trial court’s final
order of termination and conservatorship. But I would also affirm the remainder of
the trial court’s judgment. Because the majority does not, I dissent.




                                       /s/       Ken Wise
                                                 Justice


Panel consists of Justices Wise, Bourliot, and Spain. (Spain, J., majority).




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