Opinion issued August 16, 2012




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00703-CV
                          ———————————
                 IN THE INTEREST OF D.J.W., A CHILD



                   On Appeal from the 313th District Court
                           Harris County, Texas
                     Trial Court Case No. 2010-04338J



                           DISSENTING OPINION

      Because the evidence is legally insufficient to support the trial court’s

finding that appellant, N.W., engaged in conduct that endangered the physical or

emotional well-being of her child, I respectfully dissent. See TEX. FAM. CODE.

ANN. § 161.001(1)(E) (Vernon Supp. 2012).
                                 Standard of Review

      A parent’s right to “the companionship, care, custody, and management” of

her children is a constitutional interest “far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal

citation omitted). The United States Supreme Court has emphasized that “the

interest of parents in the care, custody, and control of their children is perhaps the

oldest of the fundamental liberty interests recognized by this Court.” Troxel v.

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas

Supreme Court has also concluded that “[t]his natural parental right” is “essential,”

“a basic civil right of man,” and “far more precious than property rights.” Holick

v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings

should be strictly scrutinized. Id.

      Because termination of parental rights “is complete, final, irrevocable and

divests for all time that natural right . . . , the evidence in support of termination

must be clear and convincing before a court may involuntarily terminate a parent’s

rights.”   Id. (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92;

Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). Clear and convincing

evidence is “the measure 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 2008); In re J.F.C., 96

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S.W.3d 256, 264 (Tex. 2002).        Because the standard of proof is “clear and

convincing,” the Texas Supreme Court has held that the traditional legal and

factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264–66.

      Instead of requiring just more than a scintilla of evidence to support a

finding, we, in conducting our legal-sufficiency review in parental-rights

termination cases, must determine whether the evidence, viewed in the light most

favorable to the finding, is such that the fact finder could reasonably have formed a

firm belief or conviction about the truth of the matter on which DFPS bore the

burden of proof. See id. at 266. In viewing the evidence in the light most

favorable to the finding, we “must assume that the fact finder resolved disputed

facts in favor of its finding if a reasonable fact finder could do so,” and we “should

disregard all evidence that a reasonable fact finder could have disbelieved or found

to be incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re

J.F.C., 96 S.W.3d at 266).

      However, a fact finder may not, from meager circumstantial evidence,

reasonably infer an ultimate fact, none more probable than another. Hammerly

Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997).              This Court has

explained that under the law of evidence, the term “inference” means,

      [A] truth or proposition drawn from another which is supposed or
      admitted to be true. A process of reasoning by which a fact or
      proposition sought to be established is deduced as a logical

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      consequence from other facts, or a state of facts, already proved.

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting BLACK’S LAW DICTIONARY

700 (5th ed. 1979)). Thus, to “infer” a fact, one “must be able to deduce that fact

as a logical consequence from other proven facts.” Id. In other words, there must

be a logical and rational connection between the facts in evidence and the fact to be

inferred. United States v. Michelena–Orovio, 702 F.2d 496, 504 (5th Cir. 1983),

aff’d on reh’g, 719 F.2d 738 (5th Cir. 1983) (en banc).

      It is important to be mindful that “‘[w]hen the evidence offered to prove a

vital fact is so weak as to do no more than create a mere surmise or suspicion of its

existence, the evidence is no more than a scintilla and, in legal effect, is no

evidence.’”   Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). To raise a

genuine issue of material fact, “the evidence must transcend mere suspicion.” Id.

Evidence that is “so slight as to make any inference a guess is in legal effect no

evidence.” Id. And, in regard to the sufficiency of evidence in circumstantial-

evidence cases, one inference cannot be based upon another inference to reach a

conclusion. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).

Conclusions based on such stacking do not constitute evidence. Id.




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                                  Endangerment

      In proceedings to terminate the parent-child relationship brought under

section 161.001, the Department of Family & Protective Services (“DFPS”) must

establish, by clear and convincing evidence, one or more of the acts or omissions

enumerated under subsection (1) of section 161.001 and that termination is in the

best interest of the child. TEX. FAM. CODE ANN. § 161.001. Both elements must

be established, and 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).         “Only one predicate finding under section

161.001(1) is necessary to support a judgment of termination when there is also a

finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355,

362 (Tex. 2003).

      Under section 161.001(1)(E), a court may terminate the parent-child

relationship only if the court finds by clear and convincing evidence that the parent

has “engaged in conduct or knowingly placed the child with persons who engaged

in conduct which endangers the physical or emotional well-being of the child.”

TEX. FAM. CODE ANN. § 161.001(1)(E). “Endanger” means to expose to loss or

injury or to jeopardize. Boyd, 727 S.W.2d at 533. Although such endangerment

requires more than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment, it is not necessary that the conduct be directed

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at the child or that the child actually suffer injury. In re J.T.G., 121 S.W.3d 117,

125 (Tex. App.—Fort Worth 2003, no pet.). The specific danger to the child’s

well-being may be inferred from parental misconduct standing alone. Boyd, 727

S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004,

pet. denied).

      In its briefing to this Court, appellee, DFPS argues that the evidence is

legally sufficient to support termination of N.W.’s parental rights to her child

because (1) “it is simply unimaginable that [N.W.] was unaware the child’s father

or someone else in the household was abusing” the child’s infant brother, who died

as a result of physical abuse and (2) N.W. “tested positive for marijuana on the

date of the first adversary hearing and on two occasions after she signed the Family

Service Plan in this case” and she admitted to having had smoked marijuana since

she was “15 or 16 years old.”

      The majority concedes that the record evidence establishes that the child’s

infant brother died as a result of physical-abuse injuries inflicted only “one to three

weeks” prior to his death and the father pleaded guilty to the crime. But it then

opines that “the trial court reasonably could have concluded that [N.W’s] admitted

drug use affected her parenting abilities by impairing her ability to perceive and

protect [the child] from the physical and emotional impact of such injuries inflicted

in the home by the father.”       The majority also states that “[d]rug use that

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significantly impairs a parent’s ability to care for a child jeopardizes the child’s

physical and emotional well-being.” And the majority thus holds that the evidence

is legally sufficient to support the trial court’s termination of N.W.’s parental rights

under section 161.001(1)(E).

        Although evidence pertaining to the use of narcotics may, in certain

circumstances, constitute legally-sufficient evidence to support the termination of

parental rights, the evidence presented in this case concerning the mother’s use of

narcotics lacks any detail. For example, as the majority candidly concedes, DFPS

failed to present any evidence regarding the frequency of the mother’s narcotics

use. There is simply no evidence in the record before this Court that N.W. used

marijuana during the week that the child’s infant brother was physically abused by

the father.   Nor is there any evidence that N.W. ever used marijuana in the

presence of her children or in any way that would have actually endangered them.

      Here, the majority simply assumes that because N.W. admitted to having

used marijuana, she must have therefore used it the week that the child’s infant

brother was abused and killed. From this assumption, the majority further assumes

that she must have used such an amount of marijuana that it impaired her ability to

perceive any danger from the father and protect the child’s infant brother.        The

majority’s conclusion does not logically follow from its premises and does not

constitute an “inference.” See Marshall Field Stores, Inc., 859 S.W.2d at 400.

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Again, as noted above, evidence that is “so slight as to make any inference a guess

is in legal effect no evidence.” Ford Motor Co., 135 S.W.3d at 601. And, again,

in regard to the sufficiency of evidence in circumstantial-evidence cases, one

inference cannot be based upon another inference to reach a conclusion. Marathon

Corp., 106 S.W.3d at 728. Conclusions based on such stacking do not constitute

evidence.    Id.   If stacked inferences do not constitute evidence, stacked

assumptions cannot constitute evidence.

      The majority, in support of its holding, asserts that the autopsy report that

was prepared following the death of the child’s infant brother allowed a reasonable

fact finder to conclude that the infant brother “died as a result of cruel abuse on

multiple occasions, beginning at least one week prior to his death.”          Here,

however, DFPS offered no expert evidence to explain how the child’s infant

brother would have, or even could have, demonstrated that it was suffering from

such injuries. Indeed, there is no evidence in the record that demonstrates anything

more than that the father, over one week, physically abused and killed the child’s

infant brother, a crime for which the father was punished by the State and in which

N.W. was never implicated. There is no direct or circumstantial evidence that

anyone else was involved in the crime, was a witness to the crime, was in any way

aware of the crime, or should have been aware of the crime.




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      But, even if the trial court, or this Court, might be inclined to guess or

suppose, based upon information disclosed in the autopsy report, that the child’s

infant brother might have shown signs of physical abuse prior to his death, and

even if the trial court, or this Court, might wonder if N.W.’s marijuana use affected

her ability to perceive such abuse, the evidentiary gap in DPFS’s case to terminate

the mother’s parental rights to her remaining child based upon this factual theory is

obvious.

       The bottom line is that DFPS’s petition to terminate the mother’s parental

rights, and the majority opinion, are based primarily upon the suspicion that N.W.

should have been aware of the abuse that the child’s infant brother suffered at the

hands of the father one week prior to his death. Yet, there is simply no competent

evidence, presented by either an expert or fact witness with personal knowledge,

that the child’s infant brother would have exhibited signs of abuse. There is also

no evidence that N.W., but for any asserted narcotics-related impairment, would

have noticed physical injuries to the child’s infant brother prior to his death. The

only evidence presented by DFPS related to this theory was the testimony from the

paternal grandmother, who speculated that “somebody should have seen something

was going on,” and the caseworker who similarly testified that she was concerned

how the mother “could not know” that the child was being abused. The testimony

from these two witnesses, along with the autopsy report, could not have allowed a

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reasonable fact finder to form a firm belief or conviction to terminate N.W.’s

parental rights under section 161.001(1)(E).

      The evidence presented by DFPS in this case contrasts with the evidence

considered by the Texas Supreme Court in In re J.P.B., 180 S.W.3d 570 (Tex.

2005). In In re J.P.B., the supreme court affirmed a termination decree based upon

evidence and expert testimony that a child’s multiple injuries “were likely caused

by excessive force such as abrupt yanking, pulling, or punching, and were probably

not the result of” alternative causes such as the child’s medical care; “a parent

should have known that something was wrong with a child with such injuries”; and

both “parents should have noticed high-pitched screams” from the child as a result

of his physical injuries. Id. at 574. DFPS presented no such evidence in this case.

      The majority even agrees that, “if available,” the type of “explanatory expert

opinion testimony” that was presented in In re J.P.B. would “ideally” have been

presented by DFPS in this case prior to terminating the mother’s parental rights.

But, by acknowledging that such evidence is “ideal[]” in circumstances like those

presented here and nevertheless affirming the trial court’s termination decree, the

majority disregards the “clear and convincing” burden of proof that is imposed in

parental-rights termination cases.   Perhaps DFPS did not present such expert

evidence because an expert could not truthfully so testify in this case. DFPS has

never asserted that such evidence would not have been “available” to it. And, even

                                        10
assuming that DFPS’s factual theory is true, there is no legal obstacle that would

have prevented DFPS from obtaining and presenting such explanatory testimony to

the fact finder.

       In sum, I would hold that the evidence is legally insufficient to support

termination of N.W.’s parental rights to her remaining child under section

161.001(1)(E).




                                            Terry Jennings
                                            Justice


Panel consists of Justices Jennings, Massengale, and Huddle.

Justice Jennings, dissenting.




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