Opinion issued March 14, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00844-CV
                           ———————————
                    IN THE INTEREST OF J.G.S., A Child



                   On Appeal from the 309th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-52707


                            DISSENTING OPINION

      I respectfully dissent. I would hold that Rita Sims failed to establish a

statutorily-required predicate act to support termination of Paul Cooper’s parental

rights to J.G.S., the child who is the subject of this petition, under any of the

subsections of Family Code section 161.001(b)(1) pled, namely subsections (B), (C),

(F), or (Q). I join the majority’s opinion and judgment holding that Sims failed to
establish her right to termination of Cooper’s parental rights by clear and convincing

evidence under subsections (B), (C), and (F). However, I would also hold that Sims

failed to establish a predicate act under subsection (Q) by clear and convincing

evidence. Because I would hold that Sims failed to establish any predicate act for

termination of Cooper’s parental rights to J.G.S. under section 161.001(b)(1), as

required by law, I would deny the petition for termination, I would void Sims’

adoption of the child, J.G.S., and I would order the reinstatement of the court order

granting sole managing conservatorship of J.G.S. to Sims and possessory

conservatorship to Cooper.

              Termination Under Family Code Section 161.001(b)(1)(Q)

      The Texas Family Code requires that “the evidence in support of termination

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

rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Santosky v.

Kramer, 455 U.S. 745, 747–48 (1982)); see TEX. FAM. CODE ANN. § 161.001(b); In

re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “Consequently, termination proceedings

should be strictly scrutinized, and involuntary termination statutes are strictly

construed in favor of the parent.” Holick, 685 S.W.2d at 21.

      “Clear and convincing evidence” means “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. In


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conducting a legal sufficiency review of the evidence when the standard of proof at

trial is clear and convincing evidence, the court looks at all of the evidence in the

light most favorable to the finding to determine whether a reasonable factfinder

could have formed a firm belief or conviction that the finding was true. In re J.F.C.,

96 S.W.3d at 266. We must assume the factfinder resolved disputed facts in favor of

its finding if a reasonable factfinder could do so, and we must disregard all evidence

that a reasonable factfinder could have disbelieved or found to have been incredible.

Id. When conducting a factual sufficiency review, “[i]f, 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, then the evidence is factually insufficient.” Id.

      Section 161.001(b)(1)(Q) provides for termination of the rights of a parent for

“knowingly engag[ing] 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 [termination]

petition.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d

105, 107 (Tex. 2006) (per curiam).

      The majority acknowledges that there are three steps to prove a right to

termination under subsection (Q), but it misapplies those steps.




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      According to the majority, “During the first step, the party moving for

termination must produce evidence of criminal conduct by the parent that results in

confinement for two years or more. The burden of production then shifts to the

[incarcerated] parent.” Slip Op. at 27 (citing In re E.A.R., No. 13-08-00101-CV,

2009 WL 2625314, at *4 (Tex. App.—Corpus Christi Aug. 27, 2009, pet. filed)

(mem. op.)).

      Subsection (Q) actually says that it applies when a parent has “knowingly

engaged in criminal conduct that has resulted in the parent’s (i) conviction of an

offense” and “confinement or imprisonment and inability to care for the child for not

less than two years from the date of filing the [termination] petition.” TEX. FAM.

CODE ANN. § 161.001(b)(1)(Q) (emphasis added); see In re E.S.S., 131 S.W.3d 632,

639 (Tex. App.—Fort Worth 2004, no pet.) (“First, the party seeking termination

must establish that the parent’s knowing criminal conduct resulted in incarceration

for more than two years.”).

      Here, the evidence is plainly insufficient to establish under the clear and

convincing standard that Cooper “knowingly engaged in criminal conduct” that

resulted in his conviction of an offense. Rather, the evidence shows that his

conviction for sexual assault by the military court was overturned on due process

grounds; that ruling was then reversed by a panel of the military court of appeals




                                         4
over a strong dissent;1 and the case is still in the process of litigation. Thus, there is

no final conviction. Under the majority’s standard, a parent’s rights to a child can be

terminated even if he is wrongfully convicted of a crime and there is no evidence in

the record regarding the grounds for his continued confinement; his simply being

confined during the appeals process is enough, even if he is ultimately acquitted.

That alone is reason to hold that Sims did not present sufficient evidence to support

termination of Cooper’s rights under step one of the proof of subsection (Q). But

that is not all.

       The majority further states, “In the second step, the parent must produce some

evidence of how the parent will provide care for the child during the period of

confinement or that the parent has arranged with another person for that person to

provide care for the child during the period of confinement.” Slip Op. at 27 (internal

footnote omitted) (citing In re E.A.R., 2009 WL 2625314, at *4 and In re Caballero,

53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied)). The majority claims,

“If the parent seeks to meet the burden of production with evidence that another

person will care for the child during the period of confinement, the parent must prove

the proposed caregiver’s agreement to provide the care.” Id. (emphasis added)

(citing In re E.S.S., 131 S.W.3d at 640).



1
       United States v. Cooper, — M.J. —, No. 18-0282, 2019 WL 629509 (C.A.A.F. Feb.
       12, 2019).
                                            5
      However, the majority’s restatement of the requirements to satisfy the second

step of the proof required for termination under subsection (Q) overstates and

misstates the parent’s burden as set out in the authorities it cites.

      In re E.A.R., cited by the majority, actually says,

      Once TDFPS established, through [the father’s] own testimony, that his
      knowing criminal conduct resulted in his incarceration for more than
      two years, the burden of production shifted to [him] to provide some
      evidence as to how he intended to care for or arrange for care [of the
      child] during his incarceration. [He] failed to produce any such
      evidence.

2009 WL 2625314, at *4 (emphasis added) (terminating parental rights of

incarcerated father when father failed to produce any “evidence as to how he

intended to care for or arrange for” child’s care during his incarceration). There was

no requirement that the parent present evidence of an agreement by the proposed

caregiver with that parent on his behalf as the majority requires.

      Similarly, in In re Caballero, also cited by the majority, the Amarillo Court

of Appeals rejected the incarcerated father’s argument that DFPS had the burden to

show that there was no one with whom his child could be placed during the period

of his incarceration. See 53 S.W.3d at 396. In a case of first impression construing

the term “care” in subsection (Q), the court of appeals held that “once the

Department has established a parent’s knowing criminal conduct resulting in their

incarceration for more than two years, the parent must produce some evidence as to

how they would provide or arrange to provide care for the child during that period”
                                            6
and that when the parent has met that burden of production, “the Department would

have the burden of persuasion that the arrangement would not satisfy the parent’s

duty to the child.” Id. (emphasis added).

       Likewise, In re E.S.S., which the majority also cites, says, “Second, the parent

must produce some evidence as to how he would provide or arrange to provide care

for the child during [the period of incarceration].” 131 S.W.3d at 639 (emphasis

added). In that case, the Fort Worth Court of Appeals held that the incarcerated father

“met his burden of production regarding how he would arrange for the care of [the

child] in that the [pre-trial] agreement reached by the parties included naming [the

father’s] mother and brother possessory conservators with visitation rights.” Id. at

640 (emphasis added). The court stated, “Appellee [the mother] consequently had

the burden of persuasion to establish that this arrangement would not meet [the

father’s] duty to [the child].” Id. (emphasis added). The court then held that the

mother, who had had custody over the child since her divorce from the father—as

Sims has had custody over J.G.S. here—had presented no evidence that the pre-trial

agreement would not satisfy the incarcerated father’s burden of showing how he

would arrange for the care of the child. Thus, her petition to terminate the father’s

rights failed. Id.

       The In re E.S.S. court opined:

       Although [the father] admitted that he is currently serving a prison term
       that will exceed two years, there is no evidence that [the father] is
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      unable to care for [the child]. Proof that [the father] is unable to care
      for [the child] is an additional requirement not met by showing
      incarceration alone. Otherwise, the termination of parental rights could
      become an additional punishment automatically imposed along with
      imprisonment for almost any crime.

Id. at 639 (emphasis added).

      In re E.S.S. is virtually identical to this case in that Cooper, the incarcerated

father here, did show how J.G.S. would be cared for during his incarceration—

namely by his mother, Sims—and Sims, who sought to terminate Cooper’s rights,

did not carry her burden of persuasion that he had not provided for J.G.S.’s care

while he was incarcerated and would be unable to care for J.G.S. if she were not

adopted by Sims.

      Here, Cooper’s burden at the second stage was only to produce some evidence

as to how he would arrange to provide care for J.G.S. during his incarceration. He

did. He produced evidence that J.G.S. was being well cared for subject to a prior

court order in which Sims was named managing conservator of J.G.S. and Cooper

was awarded possessory rights. Sims’ own evidence in support of her termination

petition admits as much. And Sims expressed her continued intention to provide for

J.G.S. by adopting her.

      Here, as in In re E.S.S., there is literally no indication that Cooper failed to

satisfy his burden of producing some evidence that he—through a prior court

order—had arranged to provide for J.G.S. during the period of his incarceration. He


                                          8
necessarily was unable to fulfill his possessory rights to J.G.S., accorded to him in

the same court order, during the period of his incarceration, but that had no bearing

on the uncontested evidence that J.G.S. has been and continues to be well cared for

during the period of his incarceration. Nor is there any evidence that J.G.S. will cease

to be well cared for by Sims throughout Cooper’s period of incarceration or that

Cooper will be unable to fulfill his parental responsibilities upon his release, which

the evidence shows could be this year. Rather, the record shows that, if his conviction

is overturned and he is released, Cooper may be entitled to funds he could use to

support J.G.S., which remains a real, if remote, possibility. Because there is no

evidence to support the second step of the proof required for termination under

subsection (Q), Sims’ petition for termination fails on this ground too.

          The majority reasons, however, that because the child was placed in Sims’

care pursuant to a prior court order and the child is well cared for, Sims should be

allowed to renege on the terms of the court order appointing her sole managing

conservator and appointing Cooper possessory conservator and to terminate

Cooper’s rights to the child—guaranteed by the same court order—and to adopt the

child because she is not acting “on his behalf” in caring for the child, she is

exercising her own rights to the child, which gives her grounds to terminate his

rights.




                                           9
      This reasoning is directly contrary to the reasoning and holding of the Texas

Supreme Court in Holick, a subsection (C) abandonment case, in which the niece

with whom a mother left her children as caretaker in her absence attempted to

terminate the mother’s rights to the children. The court held that the parent was not

required to produce evidence of an agreement by the parent and the caretaker that

the caretaker would care for the children on the parent’s behalf—as the majority

holds here. See Holick, 685 S.W.2d at 21 (holding, in termination case involving

question of whether mother voluntarily abandoned her children, that “provide” under

section 161.001(b) includes “make arrangements for adequate support” of child and

does not require personal support of child).

      The supreme court pointed out in Holick both that “the evidence in support of

termination must be clear and convincing before a court may involuntarily terminate

a parent’s rights” and that “termination proceedings should be strictly scrutinized,

and involuntary termination statutes are strictly construed in favor of the parent.” Id.

at 20. It held that the mother’s rights to her children could not be terminated for

abandonment and the children adopted by the niece with whom she had left them

during financial difficulties for over six months—even though the mother had

obtained employment, did not send money to support the children, did not write or

visit the children, and only called and talked to them once, and the niece and her

husband provided for all the children’s needs—because the mother had voluntarily


                                          10
arranged for the niece to provide adequate support for the children and the children

were in fact provided for. Id. at 19–21. That is parallel to the case here.

      Ultimately, the majority rests its construction of the parent’s burden of

production of evidence to satisfy the second step of the proof required for

termination under subsection (Q) on its construction of In re H.R.M., a 2006 Texas

Supreme Court per curiam opinion—i.e., an opinion that did not purport to change

the law. In that per curiam case, the Texas Supreme Court stated,

      Absent evidence that the non-incarcerated parent agreed to care for the
      child on behalf of the incarcerated parent, merely leaving a child with
      a non-incarcerated parent does not constitute the ability to provide
      care. If it did, then termination under subsection Q could not occur in
      any instance where one parent is not incarcerated and is wiling and able
      to care for the child.

In re H.R.M., 209 S.W.3d at 110 (emphasis added). The majority opines with respect

to In re H.R.M.,

      The Texas Supreme Court has held that a parent relying on another’s
      provision of care to avoid termination under Subsection (Q) must
      demonstrate that the care is being provided on behalf of the parent, not
      out of an existing duty or inclination to care for the child. In re H.R.M.,
      209 S.W.3d 105 (Tex. 2006). . . .

      An incarcerated parent cannot meet his burden merely by producing
      evidence that there is an unincarcerated parent or grandparent who is
      willing and able to care for the child; instead, the parent must present
      evidence that the alternative caregiver is providing care on behalf of
      the parent. [Id.]

Slip Op. at 27–28 (emphasis added) (additional citations omitted). This construction

of In re H.R.M. misreads and overstates the burden of proof required by the Texas
                                          11
Supreme Court for a parent to sustain his burden at the second step of subsection

(Q).

       In In re H.R.M., the child’s mother, who had been named sole managing

conservator of the child, sought to terminate the father’s possessory rights. However,

there the resemblance to this case ends. Although the father in In re H.R.M. “testified

that if he had to, he could go to his mother for help and support, . . . neither his

mother nor anyone else testified that they were willing to care for [the child] on [the

father’s] behalf during his incarceration.” Id. Moreover, the record showed that the

father “had multiple convictions and sentences. He had been on parole for a robbery

conviction, but his parole was revoked in 2002 [four years before the date the case

was decided], when he was convicted of enticing a child”; he “received a seven-year

sentence for that offense”; he “had just under thirteen years left to serve of his

robbery sentence”; and he “acknowledged that the parole board had twice denied

him parole already.” Id. at 109. In short, a jury could have reasonably formed a firm

belief or conviction that the mother was the child’s sole provider, that the father had

not been in a position to exercise his possessory rights during H.R.M.’s childhood,

that he was unlikely to be in a position to care for the child in the future, and that the

father had made no arrangements to provide any care or support for the child and

had no plans to care for the child should he be paroled or released.




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      In re H.R.M. is not only distinguishable on its facts but, as a per curiam

opinion, it was not intended to and did not change the law with respect to the second

stage of the burden of proof under subsection (Q). Thus, I cannot conclude that In re

H.R.M. supports the majority’s interpretation of that case.

      Finally, I would also hold that Sims did not satisfy her burden with respect to

the third stage of the proof required to terminate an incarcerated parent’s rights under

subsection (Q). As recited by the majority,

      If the parent’s burden of production is met, the third step shifts the
      burden to the party seeking to terminate parental rights. In re S.R., No.
      13-15-00114-CV, 2015 WL 3657747, at *2 (Tex. App.—Amarillo June
      11, 2015, no pet.). That party then has the burden of persuasion to show
      by clear and convincing evidence that the parent’s provision or
      arrangement would not adequately satisfy the parent’s duty to the child.
      Id.; In re D.J.H., 381 S.W.3d at 611 n.3.

Slip Op. at 29 (emphasis added).

      As stated above, Sims herself showed by clear and convincing evidence that

J.G.S. was being well cared for pursuant to the court order appointing her J.G.S.’s

managing conservator and that she intends to continue to fulfill all parental duties

for J.G.S. during the period of Cooper’s incarceration. Moreover, Sims failed to

show by clear and convincing evidence either that that arrangement would fail or

that Cooper would be unable to uphold his parental responsibilities in the future if

his parental rights were not terminated. Rather, Cooper produced some evidence that

his period of incarceration was likely to end within the year, either because his


                                          13
previous sentence was ending or because the case against him was still not finally

resolved and could result in reversal of his conviction. Sims produced no evidence

to carry her burden of persuasion that Cooper would be unable to work or provide a

home for J.G.S. upon his release or would otherwise be unable to fulfill his rights

and obligations to J.G.S. See In re E.S.S., 131 S.W.3d at 640 (holding that mother’s

petition seeking termination of incarcerated father’s parental rights failed because

she did not meet burden of persuasion to establish that pre-trial arrangement naming

father’s mother and brother as possessory conservators of child would not meet

father’s duty to child).

       I join the majority’s opinion and judgment that Sims failed to show by clear

and convincing evidence that she was entitled to termination of Cooper’s parental

rights under Family Code subsections 161.001(b)(1) (B), (C), and (F) and that she

failed to present clear and convincing evidence that termination of Cooper’s parental

rights would be in J.G.S.’s best interest. However, I disagree with the majority’s

opinion and judgment that Sims showed her right to termination of Cooper’s parental

rights to J.G.S. under subsection (Q). I would hold that the evidence is legally and

factually insufficient to support termination of Cooper’s parental rights to J.G.S.

under subsection (Q), just as the evidence is insufficient under each of the other

sections of 161.001(b) pled. Nor has Sims shown that termination is in J.G.S.’s best

interest.


                                         14
      Accordingly, because I would hold that Sims failed to establish by clear and

convincing evidence any of the predicate acts required for termination of Cooper’s

parental rights, I respectfully dissent from the majority’s opinion holding that Sims

satisfied her burden of proving her right to termination under subsection (Q) and

remanding this case to the trial court for additional evidence on whether termination

was in J.G.S.’s best interest.

                                 CONCLUSION

      I would deny the petition to terminate Cooper’s parental rights to J.G.S., and

I would void Sims’ adoption of J.G.S. I would remand the case to the trial court with

instructions to reinstate the court order awarding sole possessory conservatorship of

J.G.S. to Sims and possessory conservatorship to Cooper.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Keyes, dissenting.

Justice Landau, concurring.




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