In the Interest of M.A.H., a Child--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-02-00234-CV

In the Interest of M.A.H., a Child

From the 220th District Court

Bosque County, Texas

Trial Court # 01-08-23001-BCFM

DISSENTING Opinion

This reversal of a termination case should not happen. My brevity should not be mistaken for the strength of my belief that this is but another case that demonstrates this Court s continuing hostility to termination cases, and the continued refusal to follow binding precedent from this State s highest court to achieve their objective. In the Interest of K.N.R., No. 10-01-300-CV (Tex. App. Waco April 24, 2002)(per curiam)(not designated for publication), rev d, 113 S.W.3d 365 (Tex. 2003); In the Interest of A.F., 91 S.W.3d 410 (Tex. App. Waco, 2002), rev d, 113 S.W.3d 363 (Tex. 2003); In the Interest of A.V., 57 S.W.3d 51 (Tex. App. Waco 2001), rev d, 113 S.W.3d 355 (Tex. 2003); In re B.L.D., 113 S.W.3d 340 (Tex. 2003); In the Interest of J.F.C., 57 S.W.3d 66 (Tex. App. Waco 2001), rev d, 96 S.W.3d 256 (Tex. 2002). Notwithstanding the recent reversal of so many of this Court s cases in this single area of the law, the Court continues, undaunted, on its course and leaves me with no option except to note my dissent.[1]

Overview

The Court errs in at least five ways.

First, Destiny s notice of appeal was filed late and she has never been required to show what she did file in the trial court was filed with the intent to invoke our jurisdiction.

Second, Chris s counsel was allowed to withdraw simply by notifying us that the trial court had allowed him to withdraw from continued representation in the trial court.

Third, the sufficiency of the evidence is not evaluated against the charge given to the jury.

Fourth, the evidence is not reviewed under the proper standard of review; or alternatively, the Court fails to apply the standard of review properly.

Fifth, the opinion does not set out in sufficient detail why the evidence in support of the verdict is factually insufficient as required by the controlling case law.

Notice of Appeal

I have fully discussed the Court s error in connection with the notice of appeal and will not repeat it here, although it does affect the validity of what we do today. In the Interest of M.A.H., 104 S.W.3d 568, 570-71 (Tex. App. Waco 2002, no pet.)(Gray, J., dissenting).

Withdrawal of Counsel

As the date for filing the Appellee s brief was quickly approaching, counsel for Chris was allowed to withdraw from his representation of Chris in the trial court. Upon presentation of the trial court s order to this Court, counsel was allowed to withdraw on appeal as well. There was no motion filed with the appellate court. There was no effort to comply with the rules regarding the method of withdrawal from a case pending in the court of appeals. See Tex. R. App. P. 6.5. We erred in allowing counsel to withdraw.

The Charge

The Court reviews only evidence of best-interest after October 18, 2000, and on its review of that evidence, reverses the judgment. There was no date limitation on what evidence the jury could consider in determining the best-interest element necessary to terminate Destiny s parental rights. The date restriction applied only to the two predicate act elements. This error is obvious from even a casual reading of the charge. The charge contained the following instruction and question:

For the parent-child relationship to be terminated in this case, it must be proved by clear and convincing evidence that after October 18, 2000 Destiny Merritt knowingly placed or knowingly allowed [M.A.H.] to remain in conditions or surroundings which endangered the physical or emotional well being of [M.A.H.] or that Destiny Merritt engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well being of [M.A.H.].

For the parent-child relationship to be terminated in this case, it must also be proved by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child.

QUESTION 1

Should the parent-child relationship between Destiny Merritt and [M.A.H.] be terminated?

The question was answered yes.

The charge also contained the instruction that in issues of law, the jury is to be guided only by the charge. Tex. R. Civ. P. 226a (III), Order of the Supreme Court, 401-402 S.W.2d (Tex. Cases) xl (Tex. 1966), amended by Order Adopting and Amending Rules of Civil Procedure, 773-774 S.W.2d (Tex. Cases) lxvi (Tex. 1988). This includes what evidence can be considered to make the findings.

By ignoring evidence outside their self-imposed date range, evidence that otherwise could be properly considered by the jury, the Court ignores substantial additional evidence in support of the determination that termination of Destiny s parental rights is in M.A.H. s best interest. This is error because it violates the manner in which we have repeatedly been instructed by the Texas Supreme Court to review the evidence in support of the verdict. We must consider the sufficiency of the evidence in light of the charge actually given. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Mars, Inc. v. Gonzalez, 71 S.W.3d 434, 437 (Tex. App. Waco 2002, pet. ref d).

By limiting their review of the evidence, the Court avoids the discussion of substantial unsavory evidence in support of termination, evidence in support of the verdict. If the Court gets away with moving the date restriction down in the charge, so that it also applies to the best-interest element, the Court can ignore,

1. Destiny lived wherever, and with whomever, with her two small children. This resulted in living in 8 different places during the year after M.A.H. was born, including with a registered sex offender.

2. Destiny left both her children alone with a registered sex offender, with whom she was living.

3. Destiny left M.A.H. with a woman, whom she had just met, without adequate supplies for an infant. The woman purchased the necessities with her own funds. M.A.H. remained with this woman for some substantial period of time before Destiny even checked on M.A.H.

4. Destiny s employment history was very unstable and included work as a topless dancer.

5. Destiny had a criminal history that included an arrest for theft by check and an arrest for theft by appropriation.

6. Destiny used marijuana and methamphetamine while pregnant with M.A.H.

7. Destiny took no action to establish paternity to secure support for M.A.H. Paternity was established by the Attorney General 21 months after M.A.H. was born because Destiny applied for food stamps.

8. Additional evidence of Destiny s inability or unwillingness to maintain a clean home and of inadequate parenting skills which compromised M.A.H. s health and safety.

9. Destiny s loss of her right as sole managing conservator of her daughter that is only 2 years older than M.A.H. Destiny s mother intervened in the suit affecting the parent-child relationship. Thus, Destiny now must share managing conservatorship of her oldest daughter with her mother.

10. The results of CPS investigations into Destiny s treatment of her children prior to October 18, 2000.

To determine the evidence is factually insufficient, a way must be found to categorically ignore this evidence. The Court has done so; but in doing so, it errs by not evaluating the evidence against the charge as given.

Standard of Review

The Court has examined the evidence of events that occurred after October 18, 2000 regarding the best interest of M.A.H. and determined that it was legally sufficient to terminate Destiny s parental rights. Based on this determination, we know that when all the evidence is reviewed in the light most favorable to the finding, a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

This means,

1. Disputed facts were resolved in favor of the finding; Id.

2. Evidence that a reasonable factfinder could have disbelieved or found to have been incredible was disregarded; Id.

3. Undisputed facts that did not support the finding were taken into consideration; Id.

4. But nevertheless, a reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true.

So, having made that determination, the Court moves on to the factual sufficiency review.

The question in a factual sufficiency review is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). But rather than resolving disputed facts in favor of the finding as in conducting a legal sufficiency review when conducting a factual sufficiency review, the court of appeals should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Thus, the distinction between legal and factual sufficiency review in termination cases, where the burden of proof is clear and convincing, deals only with the way disputed evidence is viewed.

Evidence that a reasonable factfinder could have disbelieved or found to have been incredible is disregarded under both legal and factual sufficiency reviews. Undisputed facts that do not support the finding are taken into consideration under both legal and factual sufficiency reviews. But rather than resolving disputed evidence in favor of the finding, the reviewing courts must hold the evidence is factually insufficient if 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 that the finding is true. Id. This is why the Supreme Court was careful to state that the distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one in some cases. Id.

If we find factually insufficient evidence, we should and I read that as the must form of should detail why we have concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding. Id. at 266-67.

Evaluated against this understanding of the standard of review, the Court s opinion demonstrates that it did not use the proper standard, or did not properly apply it. Because the Court has intentionally recounted Background facts that it contends it cannot consider in evaluating the finding of best interest, see Maj. Op., pg. 2 fn. 1, I limit my analysis to the evidence discussed under the heading Legal And Factual Sufficiency. Maj. Op., pg. 3. The only evidence discussed under legal sufficiency was about David Brown, the registered sex offender. The Court discusses all the remaining evidence under its factual sufficiency analysis. The Court must have, therefore, determined the evidence, other than that about David Brown, falls within the category of disputed evidence.

There are four paragraphs of facts discussed in the Court s factual sufficiency analysis.

The first of these four paragraphs discusses the evidence of unhygienic care and rashes of M.A.H. Though I do not believe this is by any means a fair portrayal of the evidence on this topic, the analysis actually is faulty. The dispute about this evidence arises from Destiny s testimony. And the critical thread of this testimony was the general pattern in which the rashes would occur. Destiny would present M.A.H. to a sitter or for visitation with a rash. After treatment, it would clear up. M.A.H. would be returned to Destiny. When M.A.H. was again presented for visitation or to the sitters, M.A.H. would again have the rash. But where in the opinion is the discussion of why a reasonable factfinder would have been unable to resolve the disputed facts in favor of the finding? See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

The second paragraph is about the prospective adoptive mother and M.A.H. s father. Again, I could have described the evidence where it is not as disparaging, but let us take it in the negative light in which the Court presents it. The Court presents this as admissions uncontroverted evidence presented through admissions obtained from an interested witness. This leads me to ask, what is a review of this evidence doing in the factual sufficiency part of the analysis if it is undisputed an admission against interest? Only disputed evidence, which in the legal sufficiency analysis is resolved in favor of the finding, is reviewed differently in the factual sufficiency analysis. The purpose of evaluating disputed evidence differently in the factual sufficiency analysis is to determine if the evidence against the finding would have caused a reasonable factfinder to be unable to resolve the disputed fact in favor of the finding. Thus, this evidence should not be evaluated any differently under the factual sufficiency analysis than it was under the legal sufficiency analysis.

Then we have the third paragraph of the factual sufficiency analysis. It begins with two and a half lines devoted to Destiny s stability and efforts at self improvement. The Court neglects to mention that during this period of time when she was staying with her grandmother, she was sleeping with David Brown, the registered sex offender. And although Destiny attended MCC at one time or another, the Court also neglects to mention that she had quit before the trial started.

And the less studious reader may fail to observe that while the Court notes that the majority of the CPS investigations were ruled out, this necessarily means that CPS determined there was a reason to believe some of the allegations of abuse. These determinations included reasons to believe physical neglect and neglectful supervision had occurred. I also find it intriguing how the Court puts such great emphasis on compliance with CPS s safety plan but downplays the CPS recommendation to terminate. But again I must ask under the factual sufficiency analysis, was this evidence disputed? No. Based on J.F.C., this evidence should be viewed the same under the legal sufficiency analysis as under the factual sufficiency analysis because the only difference in the two analyses relates to how disputed evidence is analyzed.

The fourth and final paragraph for the factual sufficiency analysis is interesting. As presented, it is a discussion about testimony presented by Destiny s aunt about Destiny s ability to keep herself, M.A.H., and their home clean and by Destiny s grandmother about the grandmother s health and willingness to help Destiny. As presented, it does not discuss the disputed nature of this evidence. And again, if it is undisputed, it is treated the same in the legal sufficiency analysis as it is in the factual sufficiency analysis. But some of this evidence, especially what was presented by Destiny s aunt, was hotly disputed by people who had actually been in the homes and the disputed nature of the evidence is not mentioned. Further, we are not told why a reasonable factfinder could not have resolved the disputed evidence in favor of the finding.

And then, BAM, there is the magic statement virtually every appellant is looking for we find that the evidence is not factually sufficient. If you have read this far, you already know that I disagree with that statement. But more fundamentally, having already properly determined the evidence was legally sufficient, has the Court explained to you why a reasonable factfinder would have resolved the disputed evidence against the finding? Moreover, has the Court explained why that particular disputed evidence is the crucial evidence, so crucial that when the disputed evidence is credited in support of the finding that parental rights are terminated, but because a reasonable factfinder could not have credited the disputed evidence in support of the finding, the evidence is not factually sufficient to terminate parental rights? The Court has certainly not shown this to my satisfaction.

Detailing the Evidence

Based on my analysis of the evidence discussed above, I must also conclude that the opinion does not adequately detail why the Court concludes that a reasonable factfinder could not have credited the disputed evidence in favor of the finding as required by the Texas Supreme Court. See In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002).

Conclusion

There is no need to reverse the judgment and prolong the uncertainty in this child s life. I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed July 28, 2004

[1] In this case, as will be more fully discussed, the Court has assisted their own efforts by allowing Chris s counsel to withdraw at a critical time in this appeal. And this may lead to further problems due to the very short amount of time to find a lawyer willing to take up the task of representation and file a motion for rehearing in this Court or a petition for review with the Texas Supreme Court.