Reversed=20
and Rendered in Part, Remanded, and Opinion filed November 8,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00659-CV
____________
IN THE=20
INTEREST OF S.R.L. AND L.L.
On Appeal from the =
387th District Court
Fort=20
Bend=20
County, Texas
Trial Court Cause =
No. 05-CV-143480
O P I N I=20
O N
Appellant=20
Luciano Lopez appeals from the trial court=3Ds order=20
terminating his parental rights to his children S.R.L. and =
L.L. In=20
five issues, he challenges the legal and factual sufficiency of =
the=20
evidence supporting the termination findings, claims the trial =
court=20
failed to render judgment within the statutory time frame, and =
asserts=20
that his counsel provided ineffective assistance. Because we =
determine the evidence is legally and factually insufficient to =
support a=20
finding that terminating appellant=3Ds parental=20
rights is in the best interest of the children, we reverse and=20
remand.
S.R.L. and=20
L.L., ages five and three at the time of the termination hearing, =
are=20
appellant=3Ds children=20
with a woman named Jessica Lopez, to whom appellant was not =
married but=20
coincidentally shared a surname. The Texas Department of =
Family and=20
Protective Services (DFPS) became involved with Jessica in 2005 =
after=20
receiving a report regarding one of Jessica=3Ds children=20
with another man. The two children at issue in this case =
eventually=20
went to live with relatives (one with a paternal aunt and the =
other with a=20
maternal aunt), and Jessica voluntarily relinquished her parental=20
rights.
During=20
this time, appellant was incarcerated for assault. This was =
not his=20
first trouble with the law. Over the previous ten years, =
appellant=20
had been incarcerated frequently after being convicted of a series =
of=20
misdemeanor crimes, including theft, drug possession, and several=20
assaults, including assaults on Jessica and Jessica=3Ds mother=20
but not his children. In 2003, appellant was again convicted =
of=20
assault and, with enhancements, sentenced to ten years in =
prison. =20
DFPS sought to terminate appellant=3Ds parental=20
rights, arguing among other things that he knowingly engaged in =
criminal=20
conduct resulting in incarceration and the inability to care for =
his=20
children for not less than two years from the date of filing of =
the=20
petition, as set forth in subsection Q of section 161.001 of the =
Family=20
Code. Tex. Fam. =
Code=20
Ann. ' =
161.001(1)(Q) (Vernon Supp. 2006).
At the=20
termination hearing in June 2006, appellant presented evidence =
that he had=20
changed his life and wanted an opportunity to parent his =
children. =20
He testified that he took anger management classes in prison and =
that=20
these classes had made a difference in his life. He learned =
to=20
change his method of conflict resolution, as evidenced by the fact =
that he=20
has not been involved in any fights in prison. DFPS provided =
appellant a service plan, and he completed all portions that he =
could=20
while in prison. Appellant explained the steps he has taken =
to=20
prepare for a productive life outside of prison. To make =
himself=20
employable, he took over 750 hours of electrical training, =
receiving=20
several commendations from his instructor, and he tutored other=20
prisoners. Appellant married during his incarceration, and =
appellant=20
stated that he planned on living with his wife in her house after =
his=20
release. Appellant=3Ds mother=20
testified that appellant is a changed man and that she and her =
husband=20
would fully support appellant and his children after his release =
until he=20
can get back on his feet. Appellant has also maintained =
contact with=20
his children and has written letters to his two older children =
(not the=20
subject of this suit) explaining the mistakes he has made in his =
life and=20
urging them to avoid the path he took.
Appellant=20
apparently impressed both the children=3Ds guardian=20
ad litem and the trial court judge. Even though the guardian =
recommended terminating appellant=3Ds parental=20
rights solely based on appellant=3Ds history,=20
he stated that he believed appellant Ashould=20
have some involvement with [the children].@ =20
Upon further questioning, the guardian again confirmed that he =
believed=20
that appellant=3Ds parental=20
rights should be terminated to give the children a stable home but =
hoped=20
that appellant could still visit the children, even though he =
realized=20
such a scenario was probably legally impossible. The trial =
judge=20
also seemed conflicted. He stated repeatedly that he felt he =
did not=20
Ahave any=20
choice@ =
but to=20
terminate appellant=3Ds parental=20
rights under subsection Q because Ahe=3Ds been in=20
jail so much,@ =
but he=20
wanted to allow appellant to have access to his children. =
For=20
example, the judge stated:
I=20
don=3Dt see that=20
I have got any choice. Is there any provision under the=20
lawCand I=20
don=3Dt know of=20
any, but is there any provision under the law that would allow me =
to=20
terminate his parental rights and yet allow him to continue [to =
have]=20
access to these children. I don=3Dt know of=20
that.
After=20
terminating appellant=3Ds parental=20
rights under subsection Q, the judge called appellant=3Ds mother=20
into the courtroom and explained to her as follows:
$ =
; =20
He had=20
just terminated appellant=3Ds parental rights =
because he=20
had been in jail so much.
$ =
; =20
He had=20
heard no evidence that appellant had Adone anything =
bad@ to these=20
children.
$ =
; =20
He would=20
not order appellant to stay away from his older children in=20
appellant=3Ds =
mother=3Ds possession, but =
that she=20
should carefully monitor all visits.
$ =
; =20
He=20
Ahope[d] there is =
some way=20
that [appellant] can have some kind of contact with these=20
children@ but Ahe can=3Dt award it to =
him@ because =
A[t]here=3Ds no legal basis =
for=20
it.@
A trial=20
court can terminate a parent=3Ds rights=20
to his children only after finding both a statutory ground for =
termination=20
and that termination is in the children=3Ds best=20
interest. Tex. =
Fam. Code=20
Ann. ' =
161.001;=20
In re S.M.L., 171 S.W.3d 472, 476 (Tex. App.CHouston=20
[14th Dist.] 2005, no pet.). At the termination hearing, the =
trial=20
judge found only a statutory ground for termination, subsection Q, =
but did=20
not find that termination was in the children=3Ds best=20
interest, although he later included such a finding in his written =
order. =20
Appellant argues on appeal that the evidence is legally and =
factually=20
insufficient to support termination of his parental =
rights.
Parental=20
rights can be terminated involuntarily only by a showing of clear =
and=20
convincing evidence. Tex.=20
Fam. Code Ann. ' =
161.001;=20
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). =
AClear and=20
convincing evidence@ =
means=20
Athe=20
measure or degree of proof that will produce in the mind of the =
trier of=20
fact a firm belief or conviction as to the truth of the =
allegations sought=20
to be established.@ =20
Tex. Fam. Code =
Ann.=20
' =
101.007=20
(Vernon 2002); In re J.F.C., 96 S.W.3d at 264. =
When reviewing =
factual findings=20
required to be made by clear and convincing evidence, we apply a =
standard=20
of review that reflects this burden of proof. In evaluating =
the=20
legal sufficiency of the evidence, we review all the evidence in =
the light=20
most favorable to the finding to determine whether a reasonable =
factfinder=20
could have formed a firm belief or conviction that the finding was =
true. In re J.F.C., 96 S.W.3d at 266. In a =
factual=20
sufficiency review, we must also determine whether a factfinder =
could=20
reasonably form a firm belief or conviction about the truth of the =
allegations by reviewing the entire record. Id.=20
Appellant=20
argues the evidence is legally and factually insufficient to =
establish=20
either subsection Q as a statutory ground for termination or that=20
termination is in the children=3Ds best=20
interest. We agree that the evidence is insufficient to show =
that=20
the trial judge formed a firm belief or conviction that =
termination is in=20
the children=3Ds best=20
interest. =20
Termination of the parent/child relationship is a complete =
severance and=20
divests for all time the parent=3Ds rights=20
to the child. See In re J.R., 171 S.W.3d 558, 567 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2005, no pet.). Because it is such a drastic =
remedy,=20
termination proceedings should be strictly scrutinized. =20
Id. It is apparent from the trial judge=3Ds own=20
statements that he did not form a firm conviction or belief that =
appellant=20
should be deprived of all rights to his children. Indeed, he =
stated=20
several times that he wanted appellant to have a part in his=20
children=3Ds lives=20
but felt he had no choice but to terminate appellant=3Ds parental=20
rights under subsection Q. But he did have a choice. =
The=20
factfinder must find both a statutory violation and that =
termination is in=20
the children=3Ds best=20
interest. The trial judge may have believed DFPS =
conclusively=20
established a statutory ground for termination under subsection Q, =
but the=20
best interest determination is a separate inquiry. =
See In=20
re S.M.L., 171 S.W.3d at 476. Because the trial judge =
did not=20
actually form a firm conviction or belief that severing=20
appellant=3Ds=20
relationship with his children was in their best interest, we =
conclude the=20
evidence is legally insufficient.
We also=20
conclude the evidence is factually insufficient to support a best =
interest=20
finding. That a parent is imprisoned does not automatically=20
establish that termination of parental rights is in the =
child=3Ds best=20
interest. See In re C.T.E., 95 S.W.3d 462, 466 (Tex.=20
App.CHouston=20
[1st Dist.] 2002, pet. denied) (ATermination=20
of parental rights should not become an additional punishment for=20
imprisonment for any crime.@). =20
Though appellant has a violent and unstable past, he presented =
substantial=20
and uncontradicted evidence that he has turned his life =
around. He=20
took anger management classes, which helped him change his =
attitude about=20
conflicts and keep him out of fights in prison. He complied =
with all=20
portions of the service plan possible in prison. Appellant =
developed=20
job skills and has a home and family support structure in place to =
help=20
him upon release. Given this evidence of changes in=20
appellant=3Ds life and=20
the judge=3Ds finding=20
that appellant has never Adone=20
anything bad@ =
to these=20
children, we conclude the evidence is factually insufficient for =
the trial=20
court to have formed a firm conviction or belief that terminating=20
appellant=3Ds parental=20
rights is in the children=3Ds best=20
interest. See In re W.C., 98 S.W.3d 753, 766 =
(Tex.=20
App.CFort Worth=20
2003, no pet.) (finding factually insufficient evidence to support =
best=20
interest finding where mother, despite past bad conduct, had =
Amade=20
significant progress, improvements, and changes in her =
life,@ =
had a=20
good support system in place, and had done everything possible to =
have her=20
children returned); In re C.T.E., 95 S.W.3d at =
467B69=20
(holding evidence to support best interest finding factually =
insufficient=20
when, among other things, incarcerated father had prepared to be =
reunited=20
with his family by taking parenting courses, anger management =
classes, and=20
job training); In re K.C.M., 4 S.W.3d 392, 399 (Tex.=20
App.CHouston=20
[1st Dist.] 1999, pet. denied) (reversing best interest finding =
for=20
factual insufficiency based on the way mother turned her life =
around while=20
incarcerated).
We sustain=20
appellant=3Ds first=20
three issues. We reverse the trial court=3Ds=20
judgment, render judgment that terminating appellant=3Ds parental=20
rights to S.R.L. and L.L. is not in the children=3Ds best=20
interest, and remand for further proceedings consistent with this=20
opinion.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Opinion filed November 8, 2007.
Panel=20
consists of Justices Yates, Fowler, and Guzman.
In his fourth issue, appellant =
argues that=20
the trial court should have dismissed the suit because it did not =
make=20
this best interest finding during the oral rendition and thus the =
court=20
did not render final judgment within the statutory deadline, which =
fell in=20
between the time of the oral rendition and the written =
order. =20
See Tex. Fam. =
Code=20
Ann. ' 263.401(a) (Vernon Supp. 2006) =
(providing a=20
one-year deadline for final order or dismissal in certain suits =
affecting=20
the parent/child relationship). In his fifth issue, =
appellant argues=20
his trial counsel was ineffective in many respects, including by =
failing=20
to move for dismissal before the statutory deadline. Because =
we find=20
the evidence legally and factually insufficient to sustain the =
termination=20
order, we need not reach these issues.
We note that the Attorney General =
concedes=20
these issues in its appellate=20
brief. |