




02-12-259-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-12-00021-CV
 



In
  the Interest of C.D.E., C.V.E., and S.D.E., Children
 
 
 
 
 
 


§
 
§
 
§
 
§
 


From the 323rd District
  Court
 
of
  Tarrant County (323-94230J-11)
 
December
  21, 2012
 
Opinion
  by Justice Walker



JUDGMENT
 
          This
court has considered the record on appeal in this case and holds that there was
error in part of the trial court’s judgment.  It is ordered that the judgment
of the trial court is affirmed in part and reversed and rendered in part.  We
affirm that portion of the trial court’s judgment that appoints the Department
as the managing conservator of C.D.E., C.V.E., and S.D.E.  We reverse that
portion of the trial court’s judgment that terminates Father’s parental rights
to C.D.E., C.V.E., and S.D.E. and render judgment denying the Department’s
petition to terminate Father’s parental rights to C.D.E., C.V.E., and S.D.E.
SECOND DISTRICT COURT OF APPEALS 
 
By_________________________________
                                                           Justice
Sue Walker
 
 
 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-12-00021-CV
 
 



In the Interest of C.D.E., C.V.E., and S.D.E.,
  Children


 


 




 
 




 


 


 



 
----------
FROM THE 323rd
District Court OF Tarrant COUNTY
----------
OPINION
----------
I.  Introduction
          Following
a bench trial, the trial court signed an order terminating Appellant Father’s
parental rights to his three daughters, C.D.E., C.V.E., and S.D.E.[1] 
In four issues on appeal, Father argues that the evidence is legally and
factually insufficient to support the trial court’s findings that grounds for
termination of his parental rights existed under Texas Family Code section
161.001(1)(D), (E), (L), and (Q).  For the reasons set forth below, we will affirm
in part and reverse and render in part.
II.  Factual and Procedural Background[2]
          The
record reveals that Father was a good provider for his family and a good parent
to his daughters.  Father supported his family as a commercial truck driver.  Father’s
mother testified that he had more contact and more interaction with his
daughters than Mother.
          In
2002, two years after Father’s youngest daughter Stephanie was born, Father was
arrested for intoxication manslaughter after a driving accident in which a
teenage boy and a teenage girl died.  At the termination trial, Father admitted
that on the day of the accident he had consumed a full bottle of Seagrams 7;
prior to that day, according to Father, he had never consumed hard liquor and
did not drink on a regular basis.  Father did not believe that he was intoxicated
at the time of the accident.[3]
 From the date of the accident in 2002 through the termination trial in late
2011, Father remained incarcerated; he ultimately received and was serving a
thirty-year prison sentence. 
          After
Father’s imprisonment, Mother became the sole provider for the three children.  Unbeknownst
to Father, Mother also became a drug addict;[4] Mother frequently moved
herself and the children to new living locations.  The girls described the last
home that they shared with Mother as a drug environment:  it had needles on the
floor, was dirty and cluttered, did not always have running water, did not have
working toilets, and did not always have food.[5]  After Mother had trouble
keeping the electricity on, she voluntarily allowed the girls to stay with an
aunt and uncle.  The aunt and uncle, however, were ultimately unable to care
for the girls, and they were placed in a group foster home.
          Father’s
sister Crystal testified at the termination trial that she was notified in May
or June 2009 that the girls had been placed in foster care.  She took them to
visit Father in prison once.[6]  Crystal agreed that it
had been very difficult for Father to significantly participate in his
children’s lives because of his incarceration.  Crystal believed that Father
would be incarcerated until the girls were close to adulthood, and she also believed
that if Father were released from prison sooner, he would do what he could to
care for his daughters.
          Crystal
did not believe that the girls (who were ten, thirteen, and fifteen at the time
of the termination trial) should have to wait until Father’s release from
prison in order to be parented.  But Crystal vacillated in her answers on what she
believed was in the children’s best interest.  She believed that they should be
given the opportunity to proceed in an environment that is conducive to their
having healthy lives and that given all the circumstances that the girls had been
through, they needed “more than just love and a roof over their head[s] and
someone to take them to and from school.  They need someone that can get them
counseling . . . .”  Crystal did not believe that Father could provide that and
said that Father had not always shown that he was a responsible parent.  Crystal
believed that it would “increase their odds [to move on and to have successful
and productive lives if] they have a stable home, stable family, and stable
mental care as well as physical care and school involvement.”  She
initially testified that adoption was the best option for the girls, even if
that meant terminating Father’s and Mother’s parental rights, but she later
testified that she wanted the girls to be allowed to contact their parents with
a letter or phone call if a counselor believed that would be beneficial to them
in providing closure.  Crystal did not believe that the girls’ contact with
Father should be 100% halted because Claire has a strong desire to continue a
relationship with him and seeks it out.  Crystal believed that continued contact
with Father would be in the children’s best interest and also wanted Father to
be allowed to maintain contact with his children.  Crystal did not believe that
the girls should be completely cut off from their family. 
          Father’s
mother testified that although Father could not provide financial support for
his children while he was incarcerated, he could provide emotional and mental
support and could be a good influence on his children.  Father’s
mother believed that it was in the girls’ best interest to move on with their
lives and to have a permanent home.  Father’s mother agreed that Father’s
parental rights should be terminated if that is what it takes to implement what
is in the girls’ best interest.  Father’s mother also agreed
that the best possible outcome for the girls would be for them to be adopted. 
          At
the termination trial, Father was questioned about his criminal history.  The
documents offered into evidence by the Department show:  Father pleaded guilty
to the offense of burglary of a habitation (the offense occurred on February
22, 1991); Father was placed on deferred adjudication probation for the offense
of burglary of a habitation; the State eventually filed a motion to proceed to
an adjudication based on Father’s failure to remain at the facility he was
assigned to; at the adjudication hearing, the burglary-of-a-habitation offense
was reduced to “criminal trespass-entry,” a class A misdemeanor; and pursuant
to a plea bargain at the adjudication hearing, Father was sentenced to ninety
days’ confinement in the Tarrant County Jail.[7]  Thus, the Department proved
that prior to Father’s 2004 conviction for committing the offense of
intoxication manslaughter on April 16, 2002, Father had one prior misdemeanor conviction
for criminal trespass-entry.  The misdemeanor offense of criminal trespass was
committed on February 22, 1991, before the birth of Father’s first daughter. Father
denied any other convictions.  Father testified that he had also been arrested
twice for domestic violence—once for violence against Mother and once for violence
against a previous girlfriend.  Father said that the two
charges were dismissed because he was the victim in those cases.
          The
record reveals ten instances of prior CPS history concerning the girls. Nine of
those referrals were against Mother or her paramour and were ruled out or were
ruled “UTD.”[8]  Eight of the referrals
occurred after Father was incarcerated.  The one CPS referral that mentioned Father
occurred in July 1999 when police found Claire wandering through an apartment
complex by herself.  The case was ruled reason to believe for negligent
supervision by Father.
          Father
testified that he had tried to maintain contact with his children during his
approximately nine years in prison.  Father said that he had written to
different people in his family and to CPS and had told them that he wanted
assistance in establishing a connection with his daughters.  Father, however,
did not recognize one of his daughters in a photo shown to Father during trial,
and he was not aware that his daughters had been baptized the Sunday before the
trial. 
          When
Father was asked what efforts he had made while in prison to ensure that his
girls were in a safe and protected environment, he testified that he had
written letters to the girls at every address that he had been able to obtain for
them and had asked if there was anything that they needed.  He offered to help
them overcome any emotional or mental obstacles that they were facing. Father said
he wanted his daughters to have successful lives and to turn out better than he
had.  He testified that he could encourage them through letters to “do positive
thinking and to take part in whatever life that they have.”  Father said that
his daughters wrote back to him.  The girls indicated that they enjoyed
receiving Father’s letters and wanted that contact to continue.
          Father
testified that he had no money and admitted that he had not provided
financially for his daughters for the nine years that he had been in prison. Father
planned to provide for his children after his release[9]
by renewing his commercial drivers’ license.  Father opined that upon his
release, he had “multiple avenues of job resources” because in addition to his
CDL, he had a diploma in paralegal studies and was a licensed cook. 
          Father
believed that it would be beneficial for his daughters to have a permanent
family.  Father agreed that he could not provide his daughters with a stable
living environment at the time of the trial because he was incarcerated. Father,
however, did not believe his parental rights should be terminated; he wanted to
maintain a relationship with his daughters. 
          Tyra
Sasita, the conservatorship worker for the three girls, testified that Father
had written Sasita throughout the case and had always expressed concern
regarding his children.  Sasita said that Father had tried to maintain contact
with his daughters through correspondence. 
          Sasita
provided an update on the three girls.  Sasita said that when Stephanie came
into care, she was behind in school and had been held back one grade.  At the
time of the termination trial, she was doing “very, very well” medically and
was on target in the fourth grade.  She is a happy-go-lucky girl who enjoys
going to school and participating in activities at the foster home.  She
attended counseling weekly and used an herbal medicine to sleep at night. 
          Chelsea
had also been held back a grade.  She was in the seventh grade at the time of
the termination trial and was on target.  She currently does not have any
problems, is very outspoken, loves life, has lots of friends, and has a great
personality. 
          Claire
was also behind one grade and experienced some struggles with education in the
beginning.  At the time of the termination trial, she was in eighth grade and
was doing very well.  Initially, Claire was more reserved, but she had opened
up, had made friends, and enjoyed spending time with her friends outside the
foster home and going shopping and to the movies.
          The
Department asked the trial court to terminate both parents’ rights to all three
girls because it was in the children’s best interest.  The Department’s plan
was for the children to be adopted, but the Department did not have an adoptive
placement for the children at the time of the termination trial. 
          The
girls’ preference was to stay at the group home where they were living because
they liked their house parents.  They did not want to consider adoption because,
to them, that would mean that Mother’s efforts to remain drug-free had failed.
          After
hearing the above testimony, the trial court found by clear and convincing
evidence under family code section 161.001(1)(D), (E), (L), and (Q) of the
family code that Father had knowingly placed or had knowingly allowed the
children to remain in conditions or surroundings that endangered the physical
or emotional well-being of the children (D), had engaged in conduct or had knowingly
placed the children with persons who engaged in conduct that endangered the
physical or emotional well-being of the children (E), had been convicted of one
of the enumerated crimes under subsection (L) for being criminally responsible
for the death or serious injury of a child, and had knowingly engaged in
criminal conduct that resulted in his conviction of an offense and confinement
or imprisonment and inability to care for the children for not less than two
years from the date of filing of the petition (Q) and that termination of
Father’s parental rights was in the children’s best interest under section
161.001(2).  See Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp.
2012).  This appeal followed.
III.  Burden
of Proof and Standards
of Review
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.  Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  Consequently, “[w]hen the State
seeks to sever permanently the relationship between a parent and a child, it
must first observe fundamentally fair procedures.”  In re E.R., No.
11-0282, 2012 WL 2617604, at *1 (Tex. July 6, 2012) (citing Santosky v.
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)).  We
strictly scrutinize termination proceedings and strictly construe involuntary
termination statutes in favor of the parent.  Id.; Holick, 685
S.W.2d at 20–21.
Termination
decisions must be supported by clear and convincing evidence.  Tex. Fam. Code
Ann. § 161.001 (West Supp. 2012), § 161.206(a) (West 2008).  Due
process demands this heightened standard because “[a] parental rights
termination proceeding encumbers a value ‘far more precious than any property
right.’”  E.R., 2012 WL 2617604, at *1 (quoting Santosky, 455
U.S. at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d
256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d 611, 616
(Tex. 2007) (contrasting standards for termination and conservatorship). 
Evidence is clear and convincing if it “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 (West 2008).
In
proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one ground listed
under subsection (1) of the statute and must also prove that termination
is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005).  Both elements must be established;
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); In re D.T., 34 S.W.3d 625, 629
(Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
In
evaluating the evidence for legal sufficiency in parental termination cases, we
determine whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction that the challenged ground for termination was
proven.  In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).  We review all
the evidence in the light most favorable to the finding and judgment.  Id. 
We resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so.  Id.  We disregard all evidence that a
reasonable factfinder could have disbelieved.  Id.  We consider
undisputed evidence even if it is contrary to the finding.  Id.  That
is, we consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could
not.  Id.
We
cannot weigh witness credibility issues that depend on the appearance and
demeanor of the witnesses, for that is the factfinder’s province.  Id. at
573-74.  And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not
unreasonable.  Id. at 573.
          If
we determine that no reasonable factfinder could form a firm belief or
conviction that Father violated section 161.001(1)(D), (E), (L), or (Q), then
the evidence is legally insufficient, and we must generally render judgment for
the parent.  J.F.C., 96 S.W.3d at 266; see Tex. R. App. P. 43.3. 

In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own.  In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).  We determine whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief
that Father violated section 161.001(1)(D), (E), (L), or (Q).  See Tex.
Fam. Code Ann. § 161.001; In re C.H., 89
S.W.3d 17, 28 (Tex. 2002).  If,
in light of the entire record, 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
in the truth of its finding, then the evidence is factually insufficient.  H.R.M.,
209 S.W.3d at 108.
IV.
No Evidence
to Support the
Trial Court’s
Section
161.001(1) Findings
 
In
his four issues, Father challenges each of the section 161.001(1) findings made
by the trial court.  We address each of the findings below.
A. 
Section 161.001(1)(D) and (E)
          In
his first and second issues, Father argues that there is no evidence or
insufficient evidence to support the trial court’s endangering environment and
endangering conduct findings under section 161.001(1)(D) and (E).  Father
argues that he has been in prison for the past nine years, so he did not
knowingly place or knowingly allow the children to remain in an endangering
environment and did not engage in endangering conduct nor knowingly place the children
with others who did.
Under subsection (D), it must be the environment itself that
causes the child’s physical or emotional well-being to be endangered, not the
parent’s conduct.  And
there must be proof that the parent was aware of the potential for danger to
the child in such an environment and disregarded that risk.  In re N.R.,
101 S.W.3d 771, 775–76 (Tex. App.—Texarkana
2003, no pet.).  In a suit to involuntarily terminate the rights of an
imprisoned parent under subsection (E), mere imprisonment will not, standing
alone, constitute engaging in conduct that endangers the emotional or physical
well-being of the children.  Boyd, 727 S.W.2d at 533–34.  However, if
the evidence, including the imprisonment, shows a course of conduct that has
the effect of endangering the physical or emotional well-being of the children,
a finding of endangerment is supportable.  Id. at 534; In re M.R.,
243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (recognizing
continuing criminal conduct and repeated incarceration may be part of a
continuing course of conduct that is endangering under subsection (E)).
Here,
no evidence exists that Father was aware of a potential for danger to the
children in their environment or with their Mother and that Father disregarded
that risk; Father testified that he did not know that Mother had a drug
problem.[10] No
evidence exists in the record that Mother did have a drug problem when Father
was first incarcerated almost nine years before the termination trial. 
Although there is some evidence that Mother’s home was a dangerous environment,
the record is devoid of evidence tending to show that Father knew anything
about the condition of Mother’s home.  Mother and the girls moved frequently
and some of Father’s letters to the girls were returned, showing that he did
not know where Mother and the children were living, much less the conditions of
their various homes.  And because Father did not know about Mother’s drug
problem or the conditions of the various homes, there is no support in the
record for the Department’s argument that Father endangered the children by
failing to alert the Department concerning the children’s potential
endangerment.  
In
support of the (D) ground for termination, the Department argues that Father’s
imprisonment exposed the children to an unstable lifestyle.  But Father’s
incarceration alone is insufficient to support termination under subsection
(D).  See Boyd, 727 S.W.2d at 533–34.  In support of both the (D) and
(E) grounds for termination, the Department points to the children’s CPS
history and to Father’s criminal history.  Only one prior CPS referral involved
Father, for neglectful supervision; all other CPS history referenced by the
Department was “ruled out” or “ruled UTD.”  Father’s only prior conviction was
for a class A misdemeanor offense that occurred before the birth of his first
daughter.  These two pieces of evidence do not demonstrate a course
of conduct by Father that endangered his daughters, which is required under
subsection (E).  See In re E.N.C., No. 11-0713, 2012 WL 4840710,
at *6 (Tex. Oct. 12, 2012) (recognizing that it is the Department’s burden “to
show the offense was part of a voluntary course of conduct” that endangered the
children and holding evidence legally insufficient to support termination on
subsection (E) grounds); In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2000, no pet.) (stating that termination under subsection (E)
must be based on more than a single act or omission; there must be a course of
conduct by the parent); see also Tex. Fam. Code Ann.
§ 161.001(1)(E).
Viewing
the evidence in the light most favorable to the judgment, assuming that the trial
court as the finder of fact resolved disputed facts in favor of its finding if
a reasonable factfinder could do so, and disregarding all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible, see
J.P.B., 180 S.W.3d
at 573, no
evidence exists that Father knowingly placed or knowingly allowed the children
to remain in conditions or surroundings that endangered their physical or
emotional well-being as required to authorize termination of his parental
rights under section 161.001(1)(D).  See Walker v. Dep’t of Family &
Protective Servs., 251 S.W.3d 563, 566–67 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (holding evidence legally insufficient to support termination
of father’s rights on (D) and (E) grounds because he was in jail at the time
CPS investigated and removed the children from mother); In
re K.W., 138 S.W.3d 420, 430–31 (Tex. App.—Fort Worth 2004, pet. denied)
(holding evidence legally insufficient to support trial court’s endangerment
finding under section 161.001(1)(D)); In re T.H., 131 S.W.3d 598, 603–04 (Tex. App.—Texarkana
2004, pet. denied) (holding evidence legally insufficient to support trial
court’s finding as to “knowingly” element of subsection 161.001(1)(D)); N.R.,
101 S.W.3d at 775–76 (explaining that to support subsection (D) finding,
evidence must show that parent was aware of the potential for danger to the
child in such an environment and disregarded that risk); In re D.T., 34
S.W.3d 625, 632–33 (Tex. App.—Fort Worth 2000, pet.
denied) (holding evidence legally insufficient to support subsection (D) ground
for termination).  Likewise, viewing the evidence in the light
most favorable to the judgment, assuming that the trial court as the finder of
fact resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and disregarding all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible, see J.P.B., 180 S.W.3d
at 573, no
evidence exists that Father engaged in conduct or knowingly placed the girls
with persons who engaged in conduct that endangered their physical or emotional
well-being as required to authorize termination of a parent’s rights under
section 161.001(1)(E).  See Walker, 251 S.W.3d at 566–67; K.W.,
138 S.W.3d at 432 (holding evidence legally insufficient to support endangering
conduct finding); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied) (noting scienter is required to support finding
under subsection (E) that parent knowingly placed children with a person who
engaged in endangering conduct).
          Having
held that the evidence is legally insufficient to support the section
161.001(1)(D) and (E) findings, we need not conduct a factual sufficiency
analysis on the section 161.001(1)(D) and (E) findings.  We sustain Father’s
first and second issues.
B.  Section
161.001(1)(L)
In
his third issue, Father argues that there is no evidence to support the trial
court’s finding under section 161.001(1)(L) that he had been convicted of one
of the offenses listed under subsection (L), involving death or serious injury
to a child.  The Department concedes that the evidence is legally insufficient
to support the trial court’s section 161.001(1)(L) finding.  We agree and
sustain Father’s third issue.
C.  Section
161.001(1)(Q)
In
his fourth issue, Father argues that there was no evidence or insufficient
evidence to support the trial court’s finding under section 161.001(1)(Q).  Texas
Family Code section 161.001(1)(Q) states that
          [t]he court
may order termination of the parent-child relationship if the court finds by
clear and convincing evidence:
 
          (1) that
the parent has:
 
          (Q)
knowingly engaged in criminal conduct that has resulted in the parent’s:
 
          (i)
conviction of an offense; and
 
          (ii) confinement or imprisonment and inability
to care for the child for not less than two years from the date of filing the
petition[.]
Tex.
Fam. Code Ann. § 161.001(1)(Q) (West 2008). 
Father was convicted of the offense of intoxication manslaughter; he is serving
a thirty-year sentence for this offense.  In challenging the legal and factual
sufficiency of the evidence to support the section 161.001(1)(Q) ground for
terminating his parental rights, Father argues that the evidence fails to show
that he knowingly engaged in the criminal conduct––intoxication
manslaughter––that resulted in his conviction and confinement.
Accordingly,
the issue before us is whether the evidence establishes by clear and convincing
evidence, as required by subsection (Q), that Father “knowingly” engaged
in the criminal conduct that resulted in his conviction of and confinement for
intoxication manslaughter.  See id.  Under Texas Penal Code section
49.08(a), a person commits the offense of intoxication manslaughter if the person
operates a motor vehicle in a public place and is intoxicated and by reason of
that intoxication causes the death of another by accident or mistake.  Tex.
Penal Code Ann. § 49.08(a) (West 2011).  Intoxication
manslaughter requires no proof of a culpable mental state; it is, by statute, a
strict-liability crime.  Wooten v. State, 267 S.W.3d 289, 305 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied); Reidweg v. State, 981 S.W.2d 399, 406
(Tex. App.—San Antonio 1998, pet. ref’d) (op. on reh’g)
(same).  Thus, Father’s mere conviction for the strict-liability offense of intoxication
manslaughter cannot automatically supply the knowing element required by
subsection (Q).
          We
have located no published case law addressing the “knowingly” element of
subsection (Q).  Cf. Smith v. Dep’t of Family & Protective Servs.,
No. 01-07-00648-CV, 2008 WL 2465795, at *6 (Tex. App.—Houston
[1st Dist.] June 19, 2008, no pet.) (mem. op.) (rejecting father’s argument
that “knowingly” as used in section 161.001(1)(Q) meant father had to know that
he was the father of the child).  Nor does the family code define “knowingly.” 
We therefore turn to the rules of statutory construction to determine what the
term “knowingly” as used in subsection 161.001(1)(Q) means and, consequently,
what it required the Department to prove by clear and convincing evidence in
order establish section 161.001(1)(Q) grounds for terminating Father’s parental
rights.
In
construing statutes, our primary objective is to give effect to the legislature’s
intent.  Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d
628, 635 (Tex. 2010) (citing Galbraith Eng’g Consultants, Inc. v. Pochucha,
290 S.W.3d 863, 867 (Tex. 2009)).  And we are to rely on the plain meaning of
the text as expressing legislative intent unless a different meaning is
supplied by legislative definition or is apparent from the context or the plain
meaning leads to absurd results.  Tex. Gov’t Code Ann. §
311.011 (West 2005); see
also Fitzgerald v. Advanced Spine Fixation Sys., 996
S.W.2d 864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses
should be the surest guide to legislative intent”).  Courts should give effect
to “every sentence, clause, and word of a statute so that no part thereof
[will] be rendered superfluous.”  City
of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) (quoting Spence v. Fenchler, 107
Tex. 443, 457, 180 S.W. 597, 601 (1915)).  Additionally, we strictly construe
involuntary termination statutes in favor of the parent.  Holick, 685
S.W.2d at 20–21.  By the rule of strict
construction, “it is not meant that the statute shall be stintingly or even
narrowly construed, but it means that everything shall be excluded from its
operation which does not clearly come within the scope of the language used.”
Norman J. Singer & J.D. Shambie Singer, 3 Statutes and Statutory Construction, §
58:2, at 110 (7th ed. 2008); see Jennings v. WallBuilder Presentations, Inc.,
378 S.W.3d 519, 523 (Tex. App.—Fort Worth 2012, no pet.).
Given
its common and ordinary meaning, the term “knowingly” means “in a knowing
manner” and “with awareness, deliberateness or intention.”  See Webster’s
Third New Int’l Dictionary 1252 (2002); accord Hardy v. State, 102
S.W.3d 123, 131–32 (Tex. 2003) (utilizing definition of “cash” set forth in Webster’s
Third New Int’l Dictionary as providing ordinary meaning of the word “cash”
as used in statute).  At least one case has used a similar definition of knowingly
in connection with examining the sufficiency of the evidence to support
termination on (D) and (E) grounds.  See In re D.P., 96 S.W.3d 333, 336
(Tex. App.––Amarillo 2001, no pet.).  The penal code defines knowingly as 
A person acts knowingly, or with knowledge,
with respect to the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the circumstances
exist.  A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to cause
the result.
Tex.
Penal Code Ann. § 6.03 (West 2011) (also
defining “intentionally,” “recklessly,” and “criminal negligence”).  The Texas
Supreme Court has explained that the culpability continuum, from the lowest to the
highest mental states, includes gross negligence, knowingly, willful, and then
intentional.  See Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115, 118
(Tex. 1984).  The dictionary definitions of “knowingly,” the penal code
definition of “knowingly,” and the supreme court’s explanation of where “knowingly”
falls on the culpability continuum make it clear that, whatever “knowingly”
means, it means more than mere negligence.  Keeping in mind that we must
strictly construe involuntary termination statutes in favor of parents and that
under the principle of strict construction we are to exclude from subsection (Q)’s operation all conduct that does
not clearly come within the scope of the language used––that language being
“knowingly engaged in criminal conduct”––we hold that to establish that a
parent “knowingly engaged in criminal conduct” as set forth in subsection (Q), the
Department must prove more than mere negligence.  Accord E.N.C., 2012
WL 4840710, at *7 (refusing to hold that parent’s commission of any offense
that could lead to imprisonment automatically constitutes endangerment because
“[o]ur nation’s Constitution forbids such a far-reaching interpretation of our
parental rights termination statutes”).
The
Department offered very little evidence concerning Father’s intoxication
manslaughter conviction other than the judgment for that conviction.  Father
testified that, prior to the date of the car accident forming the basis of the
intoxication manslaughter charges against him, he did not drink hard liquor and
did not drink on a regular basis.  Father said that on the day of the accident,
he consumed a full bottle of Seagrams 7.  Father testified that he was not
intoxicated at the time of the accident and that his conduct was accidental;
“[i]t was not premeditated[,] and it wasn’t foreseen.”  This is the only
evidence in the record bearing on the issue of whether Father “knowingly
engaged in criminal conduct” as required to support a termination finding under
section 161.001(1)(Q).
On
appeal, the Department argues nonetheless that “[t]he trial court was entitled
to find that Appellant knew he was drunk after drinking a full bottle of
Seagrams 7,” and that “the trial court was entitled to find that Appellant
knowingly drove while intoxicated.”  But the Department did not elicit evidence
supporting these contentions at the termination trial.  No evidence exists
concerning the size of the bottle of Seagrams 7 that Father drank—an
airplane mini bottle or a one gallon bottle.  No evidence exists regarding the
period of time over which Father consumed the Seagrams 7 on the day of the
accident or how long before the accident he consumed it.  No evidence exists
concerning whether Father vomited or slept after drinking the Seagrams 7 and
before the accident.  No evidence exists concerning the time of day or night
that the accident occurred.  No evidence exists as to whether Father was
speeding, ran a red light, drove the wrong way on a one-way street, or
committed any type of traffic offense in connection with the accident.  No
evidence exists of Father’s driving conduct at all.  No evidence exists of
Father’s blood-alcohol level.  In short, viewing the evidence in the
light most favorable to the judgment, assuming that the trial court as the
finder of fact resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, and disregarding all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible, the
record contains no evidence from which the trial court could have formed a firm
conviction or belief that Father “knowingly [as opposed to negligently] engaged
in criminal conduct”—the strict-liability offense
of intoxication manslaughter—that resulted in his
conviction.  See id. (holding evidence legally insufficient to
support termination when the court of appeals essentially affirmed the trial
court’s finding on the basis of supposition by inferring a worst-case scenario
not supported by facts in the record).
Because
we hold that the evidence is legally insufficient to show that Father knowingly
engaged in criminal conduct under subsection (Q), we need not address Father’s
other challenges to the subsection (Q) finding.  Additionally, having held that
the evidence is legally insufficient to support the section 161.001(1)(Q)(i)
finding, we need not conduct a factual sufficiency analysis on the section
161.001(1)(Q)(ii) finding.  We sustain Father’s fourth issue.
V.  Conservatorship
          Father
did not raise an issue in this appeal challenging the appointment of the
Department as the managing conservator of the girls.  When the Department is
appointed as managing conservator solely based on family code section 161.207 as
a consequence of the trial court’s termination order, a parent’s challenge to
the Department’s conservatorship appointment is automatically subsumed within
the parent’s appeal of the termination order, and a separate issue on appeal
challenging the Department’s conservatorship is not required.  See Tex.
Fam. Code Ann. § 161.207 (West 2008) (requiring trial court to appoint managing
conservator when it terminates parental rights); In re D.N.C., 252
S.W.3d 317, 319 (Tex. 2008) (holding parent’s challenge to Department’s
conservatorship appointment was subsumed in appeal of parental-rights
termination order when Department was appointed conservator solely based on
section 161.207 as a result of termination order).  When, however, a trial
court’s termination judgment appoints the Department as managing conservator pursuant
to section 153.131, and the trial court has made the specific findings that
section 153.131 requires—that appointment of the parent or parents as managing
conservator(s) would not be in the best interest of the child because the
appointment would significantly impair the child’s physical health or emotional
development—then a parent appealing the termination judgment must specifically
challenge the trial court’s section 153.131 findings and the appointment of the
Department as conservator.  See Tex. Fam. Code Ann. § 153.131 (West
2008) (authorizing appointment of Department as nonparent managing conservator
if the trial court makes certain findings); J.A.J., 243 S.W.3d at 615–17
(holding parent must raise appellate issue specifically challenging trial
court’s section 153.131 findings or challenging appointment of Department as
conservator under section 153.131 because such a challenge is not subsumed
within the parent’s challenge to the termination order). 
In
the present case, the trial court made section 153.131 findings.  The order
terminating Father’s rights contains a finding that “[t]he Court finds that the
appointment of either parent as Managing Conservator would not be in the best
interest of the children because the appointment would significantly impair the
children’s physical health or emotional development.”  As previously mentioned,
Father did not challenge these findings.  Accordingly, because there is no
independent challenge to this statutory basis for the appointment of the
Department as managing conservator of the girls, we affirm the Department’s
appointment per section 153.131 as managing conservator.  See J.A.J.,
243 S.W.3d at 617 (explaining procedure to be followed by a parent, the Department,
and the trial court when a judgment terminating parental rights is reversed by
the court of appeals but the Department’s conservatorship pursuant to section
153.131 is affirmed).
VI.  Disposition
          Having
sustained Father’s four issues, we reverse the trial court’s judgment
terminating Father’s parental rights to Claire, Chelsea, and Stephanie and
render judgment denying the Department’s petition to terminate Father’s
parental rights to Claire, Chelsea, and Stephanie.  Because Father’s challenge
to the Department’s section 153.131 conservatorship was not subsumed within his
appeal of the termination order and was not challenged on appeal, we affirm the
trial court’s appointment of the Department as the managing conservator of Claire,
Chelsea, and Stephanie.
 
 
SUE WALKER
JUSTICE
 
PANEL: 
WALKER, MCCOY, and MEIER, JJ.
 
DELIVERED:  December 21,
2012




[1]In accordance with Texas
Rule of Appellate Procedure 9.8(b)(2), the opinion will refer to the children
using the following aliases: C.D.E. will be referred to as Claire, C.V.E. will
be referred to as Chelsea, and S.D.E. will be referred to as Stephanie.


[2]Because Father does not
challenge the best interest finding, we do not include testimony from the trial
pertinent to only that finding.


[3]Father testified that his
conduct was accidental; “[i]t was not premeditated[,] and it wasn’t foreseen.”  Father
did agree, however, that his conduct was criminal. 


[4]Father testified that
other than an attempted-but-failed phone conference while the termination case
was pending, he had no communication with Mother for at least eight years prior
to the termination trial.  Father said that he did not know of Mother’s drug
addiction.  The Department’s questioning of Father about his knowledge of
Mother’s drug use is minimal; the Department asked whether Father had “ever
known [Mother] to have a drug problem,” to which Father answered “no.”  The
Department did not ask Father any questions about any drug use by Mother during
her marriage to Father.  Nor did the Department produce any records showing any
criminal-drug-use history by Mother.


[5]The Department did not
question Father about the condition of the home when he lived with Mother.


[6]Crystal testified that
Father is incarcerated in a prison that is a five-hour drive south. 


[7]The Department’s
questioning of Father concerning these documents suggests that the Department
thought Father had been convicted of multiple offenses on multiple dates.  But
the Department offered into evidence only the documents showing a deferred
adjudication on a burglary-of-a- habitation charge and a subsequent judgment
adjudicating Father’s guilt in that case for the plea-bargain-reduced offense
of the class A misdemeanor offense of criminal trespass-entry.  And Father
denied committing any other offenses.


[8]The term “UTD” is not
defined in the record but presumably means “unable to determine.”


[9]Father testified that he
could be released on the day of the termination trial, and when asked if he
anticipated that happening, Father said that he did not know the mind of TDC. 


[10]Even if the trial court,
as the trier of fact, chose to disbelieve Father’s testimony as not credible,
this does not prove that the opposite is true.  See Earvin v. Dep’t of Family
& Protective Servs., 229 S.W.3d 345, 349 (Tex. App.—Houston [1st Dist.]
2007, no pet.).  That is, disbelief of Father’s testimony that he did not know
does not, standing alone, prove that he did know.


