In re P.W.

579 S.W.3d 713

In the INTEREST OF P.W., a Child

NO. 14-18-01070-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed June 4, 2019

Kem Thompson Frost, Chief Justice

In this accelerated appeal in a termination-of-parental-rights case, we consider as an issue of apparent first impression whether a parent may get review of the sufficiency of the evidence to support the trial court's findings under subsections (D) and (E) of Family Code section 161.001(b)(1), even though the parent does not challenge either the trial court's finding under another subsection of section 161.001(b)(1) or the trial court's finding that termination of the parent's parental rights is in the child's best interest. Based on recent cases from the Supreme Court of Texas, we must determine whether the appellant's challenge to the subsection (D) and subsection (E) findings has merit and detail our analysis, even if another finding that is listed in the final order as a ground for termination provides a proper basis for the predicate act required under section 161.001(b)(1) and even if the appellant does not challenge the trial court's best-interest-of-the-child finding. We have the power to grant an appropriate appellate remedy if we sustain the appellant's challenge to the trial court's findings, and this appellate remedy would preclude the Department of Family and Protective Services from using the trial court's termination order as a basis for a subsection (M) finding in a future case seeking termination of the appellant's parental rights as to another child. Thus, contrary to the Department's arguments, the issue of whether the evidence suffices to support the trial court's findings stands ripe for resolution. This issue is not moot, and our opinion addressing the issue does not amount to an advisory opinion.

We conclude that the record contains legally and factually sufficient evidence to support the trial court's finding under subsection (E), so we need not address the sufficiency of the evidence to support the trial court's finding under subsection (D). We affirm the trial court's final order terminating the parent-child relationship between the appellant and the child ("Final Order").

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant ("Mother") gave birth to Philip¹ in 2017, in Oregon. Mother listed John ("Father") as Philip's father on the child's birth certificate. When Father went to jail for domestic abuse, Mother and Philip moved to Houston, Texas.

The Department became involved with the family when Mother and four-month-old Philip were admitted to a hospital in Harris County because Mother was having suicidal ideations and harming herself. Mother blamed these behaviors on Father's threat to leave her. Mother told hospital staff members that she did not want to harm Philip. Mother said that she needed help and explained that she could not take care of the child.

Mother told a Department investigator that before she met Father she was "doing as many drugs as possible." Mother confirmed that she had been diagnosed with bipolar disorder and major depressive disorder. The domestic-abuse charges for which Father had been incarcerated arose out of an incident in which Father physically abused Mother when he was intoxicated. In commenting on the abuse, Mother reported that Father was under great stress as a result of the couple being homeless.

Before Mother's release from the hospital, she agreed to let Casa de Esperanza, a children and family services charity, care for Philip until she could get her life more settled. Three months later, the Department initiated this suit requesting termination of Mother's parental rights under subsections (C), (D), (E), (K), (N), and (O) of section 161.001(b)(1) of the Family Code and asking the trial court to name the Department as Philip's sole managing conservator. In the meantime, the trial court named the Department as Philip's temporary managing conservator. At some point, presumably after Father's release from jail, Mother moved back to Oregon to be with Father, without ever having visited Philip.

Trial on the Department's petition seeking termination of the parental rights of Mother and Father began fifteen months after Mother left Philip in the care of Casa de Esperanza. At trial, the Department's caseworker, Mitchelle Joseph, testified that the Department initiated its investigation when it received allegations that Mother had attempted to stab herself in the stomach while she was home with Philip. The caseworker testified that she believed it would be in the child's best interest to have Mother's parental rights terminated because Mother had never contacted Philip and Mother had failed to provide him with financial support, failed to demonstrate the ability to provide him with a stable home, and had not addressed Mother's own mental health and substance-abuse issues.

The volunteer advocate (sometimes referred to as the "Texas Court Appointed Special Advocate" or the "CASA volunteer"² ), Samuel Todd, recommended termination of Mother's parental rights because Mother had shown no interest in working on her family service plan. According to Todd, Philip was thriving in a loving foster home. Todd recommended that Philip remain with his foster parents.

In closing argument, the Department urged the trial court to terminate Mother's parental rights under subsections (N) (constructive abandonment) and (O) (failure to complete the court-ordered family service plan) of Family Code section 161.001(b)(1). The guardian ad litem agreed with the Department.

The trial court terminated Mother's parental rights based on findings that Mother had engaged in the conduct described in subsections (D), (E), (N), and (O) of Family Code section 161.001(b)(1) and based on the court's finding that terminating Mother's parental rights would be in Philip's best interest. The trial court terminated Father's parental rights under Family Code section 161.002 providing for the termination of the rights of an alleged biological father.

II. ISSUES AND ANALYSIS

In her appellate brief, Mother concedes the sufficiency of the evidence to support the trial court's findings as to constructive abandonment under subsection (N) and that termination of Mother's parental rights is in Philip's best interest, but Mother nonetheless asks this court to review the sufficiency of the evidence to support the trial court's findings under subsections (D) and (E) because of the collateral consequences of these findings. Mother relies on a line of cases in which this court has concluded that when asked to address findings under subsections (D) and (E), this court should do so even if a finding under another subsection supports the final termination order because of potential collateral consequences that a finding under subsection (D) or (E) might be used to support a finding under subsection (M) in a future action to terminate the appellant's parental rights as to another child.³ See In re S.J.N. , No. 14-18-00529-CV, 2018 WL 6494256, at *6 (Tex. App.—Houston [14th Dist.] Dec. 11, 2018, pet. denied) (mem. op.). The parties have not cited, and research has not revealed, any case addressing whether this review of a (D) or (E) finding is available if the appellant did not challenge another finding under Family Code section 161.001(b)(1) and the trial court's best-interest-of-the-child finding. Thus, this case presents an issue of apparent first impression.

Mother contends the evidence is insufficient to support the termination of her parental rights under (D) and (E). In response, the Department argues that because Mother has conceded the (N) ground and the trial court's best-interest determination, a review of the (D) or (E) ground would result in an advisory opinion. See Valley Baptist Med. Ctr. v. Gonzalez , 33 S.W.3d 821, 822 (Tex. 2000). Under the Supreme Court of Texas's interpretation of the Texas Constitution, Texas courts have no jurisdiction to issue advisory opinions. See, e.g. , Cadena Com. USA Corp. v. Texas Alco. Bev. Comm'n , 518 S.W.3d 318, 336 (Tex. 2017) (citing Tex. Const. art. IV, §§ 1, 22 ); Valley Baptist Med. Ctr. v. Gonzalez , 33 S.W.3d at 822 (citing Tex. Const. art. II, § 1 ); Morrow v. Corbin , 122 Tex. 553, 62 S.W.2d 641, 645–46 (1933) ( Tex. Const. art. V, §§ 3, 6 ). Alternatively, the Department argues that the record contains sufficient evidence to support the trial court's findings on the (D) and (E) grounds.

A. The Effect of the Supreme Court of Texas's Opinion in In re N.G.

On the heels of oral argument in today's case, the Supreme Court of Texas issued its opinion in In re N.G. See No. 18-0508, 577 S.W.3d 230, 236–37, 2019 WL 2147263, at *4 (Tex. May 17, 2019) (per curiam). The N.G. court applied the factors the Supreme Court of the United States used in Santosky v. Kramer and the Supreme Court of Texas used in In re J.F.C. See Santosky v. Kramer , 455 U.S. 745, 759–68, 102 S.Ct. 1388, 1398–1402, 71 L.Ed.2d 599 (1982) ; In re J.F.C. , 96 S.W.3d 256, 273–274 (Tex. 2002) ; In re N.G. , 577 S.W.3d at 235–37, 2019 WL 2147263, at *3–4. Balancing these factors, and considering that the risk of error would mean significant consequences for future parental rights, the N.G. court concluded that a parent's fundamental liberty interest in the right to parent outweighs the state's interest in deciding only what is necessary for final disposition of the appeal. In re N.G. , 577 S.W.3d at 236–37, 2019 WL 2147263, at *4. Therefore, the N.G. court decided that allowing (D) and (E) findings to go unreviewed on appeal when the parent has presented the issue to the appellate court violates the parent's due-process and due-course-of-law rights. See id.

The N.G. court held that the court of appeals violated the mother's due-process and due-course-of-law rights by failing to review the trial court's findings under (D) and (E) when the appellant/mother had presented the issue. Id. The N.G. court also concluded that due process and due...