In the Interest of A.S., a Child Appeal from 324th District Court of Tarrant County (concurring and dissenting memorandum opinion )

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00284-CV IN THE INTEREST OF A.S., A CHILD ---------FROM 324TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 324-575353-15 ---------- MEMORANDUM CONCURRING AND DISSENTING OPINION1 ---------I. Introduction Because I conclude that the evidence is insufficient with regard to the trial court’s best interest finding as to Appellant Father’s parental rights to A.S.,2 I 1 See Tex. R. App. P. 47.4. 2 Hereafter, we will refer to A.S. by the same pseudonym—“Ann”—used by the majority opinion and likewise refer to other interested parties in the same manner. See Tex. R. App. P. 9.8(b)(2); see also Tex. Fam. Code Ann. § 109.002(d) (West 2014). dissent from this portion of the majority opinion. I concur in the remainder of the opinion. II. Due Process in Termination-of-Parental-Rights Cases 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 2014); 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., 385 S.W.3d 552, 554 (Tex. 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. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21. Due process demands use of the heightened standard of clear and convincing evidence because “[a] parental rights termination proceeding encumbers a value ‘far more precious than any property right.’” E.R., 385 S.W.3d at 555 (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 also E.N.C., 384 S.W.3d at 802. We are required to perform “an exacting review of the entire record” in determining whether the evidence is sufficient to support the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014); see In re 2 E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). While undisputed evidence of just one of the Holley factors recited in the majority opinion may be sufficient in a particular case to support a finding that termination is in the best interest of the child, the presence of scant evidence relevant to each factor will not support such a finding. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). That is, “[a] lack of evidence does not constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808. There is also a strong presumption that keeping a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). III. Analysis Section 161.001(b)(1)(Q) provides that, along with the best interest finding, parental rights may be terminated if the parent knowingly engaged in criminal conduct that resulted in the parent’s conviction and “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(b)(1)(Q) (West Supp. 2016).3 While we can consider the evidence related to incarceration in the best interest determination, the law implicitly recognizes that it is fundamentally unfair to terminate a parent’s rights without more, i.e., a showing of how the 3 The supreme court has interpreted this subsection as referring to two years after the termination petition is filed and has held the subsection constitutional even when applied to a parent imprisoned before the subsection’s effective date. In re A.V., 113 S.W.3d 355, 356–57 (Tex. 2003). Evidence of parole is relevant to this issue, but “[m]ere introduction of parole-related evidence . . . does not prevent a factfinder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years. Parole decisions are inherently speculative.” In re H.R.M., 209 S.W.3d 105, 108–09 (Tex. 2006). 3 parent’s incarceration and his prior criminal conduct—short of murdering the child’s other parent or sexually assaulting or abusing any child—is endangering to the child. See In re E.M.N., 221 S.W.3d 815, 827 (Tex. App.—Fort Worth 2007, no pet.) (observing that “there is a significant distinction in the effect on the child, for example, between a parent’s conviction and incarceration for writing bad checks, and a parent’s conviction and incarceration for murder of the child’s other parent”). As we previously stated in E.S.S., Texas cases have considered the involuntary termination of the rights of an imprisoned parent, and have held that mere imprisonment will not, standing alone, constitute engaging in conduct which endangers the emotional or physical well-being of a child. . . . Proof that Appellant is unable to care for E.S.S. 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. In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.) (citations omitted); see In re D.T., 34 S.W.3d 625, 636–37 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g) (distinguishing appellant’s conviction for writing bad checks from convictions in which child endangerment could easily have been inferred from the underlying conduct, such as aggravated sexual assault of a child). Here, many witnesses, including Father, agreed that it was unfair to Ann, who had not seen Father in two years, to have to wait at least three and a half more years to have a father in her life. But, with the exception of CPS caseworker Brenda McDade, no one connected the dots as to why—other than 4 point to the fact that Father was incarcerated—termination would, therefore, be in Ann’s best interest. McDade testified that Father’s termination would be in Ann’s best interest because if Father’s rights were terminated and she were adopted by Daria, Ann would gain access to more government benefits—an adoption subsidy, Medicaid until age eighteen, and college tuition. But such a conclusion puts the cart before the horse. Because government benefits always flow from a termination- followed-by-adoption situation, the best interests of all children of struggling parents could be realized with such a fix. While providing access to government benefits reflects our society’s compassion in the face of unfortunate circumstances, the availability of these benefits should not provide an affirmative basis to create the very circumstance the benefits are designed to ameliorate. Daria testified that Father’s rights should be terminated because Ann did not know Father. Since the only reason Ann did not know her father is because he was incarcerated, the basis of Daria’s opinion boils down to this—because Father is incarcerated, termination is in Ann’s best interest.4 As explained above, the law does not support such an assumption. Strikingly, Daria voiced no complaint at the prospect of having managing conservatorship of Ann instead of adopting her. She readily admitted that nothing would be wrong with that outcome. 4 The undisputed record reflects that Father had loved Ann since her birth and had provided and had cared for her until his incarceration. 5 In fact, most of the debate during Father’s case was about which one of Father’s relatives would take care of Ann while he was incarcerated; no one ever suggested that Ann would be abandoned if Father’s rights were not terminated, that she would be subjected to an unacceptable level of impermanency and instability if Father’s parental rights were not terminated, or how she would be affected by less permanency and stability if she were not adopted and instead remained with Daria in a managing conservatorship. As to Ann’s lack of contact with her father, the evidence shows that Father’s attempts at maintaining contact with Ann while incarcerated were actively thwarted. Father testified that he had sent letters and drawings to Ann approximately every two weeks, but McDade admitted that she had not delivered more than “a couple” of them to Ann, and she did not know if Ann had read them or not, because she did not know if Ann could read. As none of his letters were offered into evidence, the record is silent as to whether these letters were appropriate or inappropriate for the five-year-old child to receive. Thus, we cannot glean whether Father’s attempts at maintaining contact with his daughter were either in her best interest or against it. And despite the fact that McDade admitted that she had set Father up for failure—by preparing a service plan that she knew he could not successfully perform while incarcerated—the record also reflects that Father had taken steps on his own initiative to change his life and develop better work, life, and parenting skills while incarcerated. Because McDade also did not bother to engage with 6 Father in any manner or even inquire about his post-incarceration plans, Father was denied the opportunity over the course of the CPS case to demonstrate that he did not present an emotional or physical danger to Ann. And while DFPS’s preparation and administration of a service plan for a parent constitutes evidence that the State made “reasonable efforts” to return the child to the parent, see In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.), McDade agreed that she knew that Father could not perform the tasks in the plan that she prepared while he was incarcerated, and other than prepare a plan that doomed Father to failure at the outset, she took no steps to administer it beyond sending it to him.5 As attached to the February 16, 2016 permanency hearing order, Father’s plan provided that he would perform the tasks “upon his release from incarceration.” In that order, the trial court wrote in that the specific steps required for Father to have his level of supervision reduced in the visitation requirement was “release from incarceration and successful completion of service plan.” Father’s service plan required, upon his release from incarceration, that he maintain legal and steady employment, participate in a substance abuse assessment, have visitation with Ann, maintain safe, stable, and appropriate housing, participate in individual and family counseling, refrain from involvement in criminal activities, illegal acts, and the use of illegal drugs, submit to random drug testing, and remain in contact with his CPS caseworker throughout the case. 5 At trial, Father asked for communication and visitation rights with Ann while he was in jail so that he could bond with her. If granted parole, his plan was to get a job and show DFPS that he could take care of Ann, become a productive, tax-paying citizen, and send Ann to college. Father’s brother Ian, who testified that he had owned his own remodeling and repair business for twenty years and earned more than $100,000 annually, also testified that when Father was released from jail, he would provide him a job in his business, would allow Father and Ann to live with him, and would provide other financial support to Father and Ann. 7 In short, on this record, no evidence was adduced that Father’s absence from Ann’s life while he was incarcerated constituted a threat to Ann’s emotional well-being. Cf. In re M.V., Jr., No. 02-09-00219-CV, 2010 WL 598710, at *5 (Tex. App.—Fort Worth Feb. 18, 2010, no pet.) (mem. op.) (stating that a parent’s inability to provide adequate care for the child, lack of parenting skills, exercise of poor judgment, and repeated instances of immoral conduct may also be considered when looking at best interest). While a trial court may consider incarceration as a best-interest factor, see In re J.B.W., 99 S.W.3d 218, 229 (Tex. App.—Fort Worth 2003, pet. denied), it is only one factor that must be considered in light of the entire record and balanced against the strong presumption that keeping a child with a parent is in the child’s best interest. Because I do not believe that DFPS met its clear and convincing burden with regard to the sufficiency of the evidence on the best interest finding as to Father, I dissent to this portion of the majority’s opinion. /s/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE DELIVERED: January 26, 2017 8

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