In the Interest of D.L.N., a Child--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-97-178-CV

IN THE INTEREST OF D.L.N.,

A CHILD

From the 19th District Court

McLennan County, Texas

Trial Court # 95-618-1

CONCURRING OPINION

We acknowledge that a determination of an involuntary termination of parental rights must be strictly scrutinized. We also acknowledge that, because a termination involves rights of constitutional dimension, our statutes require, consistent with due process, that the grounds for termination must be proved by clear and convincing evidence. See Tex. Fam. Code Ann. 161.001, 161.206(a) (Vernon 1996 & Supp. 1998); Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 1403, 71 L. Ed. 2d 599 (1982) (citing Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)). We still, however, review those findings in the same way as findings made by a preponderance of the evidence.

I continue to believe that other courts of appeal are on the right course when they say that a higher burden of proof, i.e., clear and convincing evidence, for determination of fact issues at trial calls for a different standard for factual-sufficiency review on appeal. See, e.g., Edwards v. Texas Dep t of Protective and Regulatory Services, 946 S.W.2d 130, 135-37 (Tex. App. El Paso 1997, no writ) (holding that the appellate court should review whether the evidence was sufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegations sought to be established ); In re H.C., 942 S.W.2d 661, 663-64 (Tex. App. San Antonio 1997, no writ); Slatton v. Brazoria County Protective Services Unit, 804 S.W.2d 550, 556 (Tex. App. Texarkana 1991, no writ); Williams v. Texas Dep t of Human Services, 788 S.W.2d 922, 926 (Tex. App. Houston [1st Dist.] 1990, no writ); Interest of L.R.M. and J.J.M., 763 S.W.2d 64, 66 (Tex. App. Fort Worth 1989, no writ);Wetzel v. Wetzel, 715 S.W.2d 387, 389 (Tex. App. Dallas 1986, no writ); Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex. App. Dallas 1982, no writ); see also Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L. Rev. 391, 415 (1996).

Our constitution and statutes provide for one level of appeal as a matter of right in termination cases and a factual-sufficiency-of-the-evidence review of determinations made by the factfinder. Thus, one could argue that when constitutional rights are affected by fact determinations made under a higher burden of proof at trial, the affected party has a constitutionally-protected interest in those determinations being reviewed in a way that insures that the due-process standard was met at trial. See M.L.B. v. S.L.J., ___ U.S. ___, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996) (equal protection requires state to provide transcript in appeal of right to indigent parent whose parental interest was terminated) (decisions concerning access reflect both equal protection and due process concerns). That is to say, the rationale of Addington, Santosky, and the "Griffin-line cases" described in M.L.B. dictates that a different (higher) standard of review be applied on appeal to fact determinations made at trial under the clear-and-convincing-evidence standard required by due process. I do not believe that the current standard of review provides that kind of protection.

Finally, saying that the Court of Criminal Appeals' adoption of the traditional factual sufficiency review standard bolsters the case for maintaining the current standard in civil cases also fails to persuade me. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). I believe that the Clewis standard wrongly requires a court of appeals to find that the evidence favors an acquittal before reversing for factual insufficiency, ignoring the possibility that the evidence could preponderate in favor of a conviction and still fall short of proof beyond a reasonable doubt. See Mata v. State, 939 S.W.2d 719, 728 (Tex. App. Waco 1997, no pet.) (Vance, J., concurring).

With these comments, I concur in the judgment.

BILL VANCE

Justice

Opinion delivered and filed December 23, 1997

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