in the Interest of L.C.L. and M.E.M., Children ( 2020 )

Majority Panel Opinion of July 16, 2019 and Dissenting Panel Opinion of
September 24, 2019 Withdrawn; Affirmed in Part, Reversed and Rendered in
Part, and Reversed and Remanded in Part and En Banc Majority Opinion and
En Banc Dissenting Opinions filed March 31, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00062-CV
IN THE INTEREST OF L.C.L. AND M.E.M., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2016-03785J
EN BANC DISSENTING OPINION
In deciding this case members of the en banc court reach different views of
the facts and the law that inform today’s judgment. But the en banc majority and
dissenting opinions tell a larger story about the role of process in appellate decision-
making and how failure to adhere to settled rules can skew appellate outcomes and
compromise appellate justice.
The en banc majority violates the requirement that the court detail the evidence
in its opinion and explain why it has concluded that the evidence is factually
insufficient to support the best-interest-of-the-child findings.
Through the Texas Rules of Appellate Procedure and case law, the Supreme
Court of Texas calls courts of appeals to show their work when they analyze whether
the trial evidence is legally or factually sufficient to support a fact finding. 1 The
high court “require[s] appellate courts to explain by written opinion their analyses
and conclusions as to the issues necessary for final disposition of an appeal.” 2 In
keeping with this principle, the rules of appellate procedure require a court of appeals
to write an opinion that advises the parties not only of the court’s decision but also
the basic reasons for that decision.3
After a bench trial, the trial court found that terminating Mother’s parental
rights would serve each of the children’s best interest. On appeal, Mother argues
that the trial evidence is legally and factually insufficient to support these findings.
The en banc court concludes that the trial evidence is legally sufficient to support
the best-interest findings but factually insufficient to support them.
In a factual-sufficiency review in a parental-rights-termination case, a court
of appeals must give due consideration to evidence that the factfinder reasonably
could have found to be clear and convincing. 4 The court of appeals must inquire as
to “whether the evidence is such that a factfinder could reasonably form a firm belief
1
See Tex. R. App. P. 47.4; In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290
S.W.3d 204, 211 (Tex. 2009); Gonzalez v. McAllen Medical Center, Inc., 195 S.W.3d 680, 681
(Tex. 2006) (per curiam).
2
See In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 211.
3
See Tex. R. App. P. 47.4; Gonzalez, 195 S.W.3d at 681.
4
In re J.F.C., 96 S.W.3d 256, 266–67 (Tex. 2002).
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or conviction about the truth of the State’s allegations.”5 This means the reviewing
court should consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding.6 If, in light of the entire
record, 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, then the evidence is factually insufficient. 7
The law demands a heightened degree of specificity in explaining the reasons
for the court of appeals’s decision if the court concludes the evidence is factually
insufficient to support a finding.8 If, as today, a reviewing court concludes the
evidence is factually insufficient to support a parental-rights-termination finding, the
court must detail the evidence in its opinion and explain why the court has concluded
that a reasonable factfinder could not have credited the disputed evidence in favor
of the finding.9 The en banc majority’s treatment of the factual-sufficiency challenge
contains no details, no explanations, and no analysis of the evidence. It is not a
factual-sufficiency review; it is a factual-sufficiency conclusion.
The legal standard for determining that the evidence is factually insufficient
to support a finding presents a high hurdle, one seldom cleared in the best-interest-
of-the-child context.10 The standard requires a thorough and particularized analysis
5
Id. (internal quotations omitted).
6
Id.
7
Id.
8
See Windrum v. Kareh, 581 S.W.3d 761, 781–82 (Tex. 2019); Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 761–62 Tex. 2003); Pool v. Ford Motor Co., 715 S.W.2d 629, 634–35
(Tex. 1986).
9
See Windrum, 581 S.W.3d at 781–82; In re J.F.C., 96 S.W.3d at 266–67.
10
See Windrum, 581 S.W.3d at 781–82; Golden Eagle Archery, Inc., 116 S.W.3d at 761–62; In re
J.F.C., 96 S.W.3d at 266–67; Pool, 715 S.W.2d at 634–35.
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of all the facts.11 Yet, the en banc majority denounces the factual sufficiency of the
evidence without doing any of the following tasks crucial to the process:
• identifying the disputed evidence;
• explaining why the en banc majority has concluded that a reasonable
factfinder could not have credited the disputed evidence in favor of the
best-interest findings; and
• explaining why the en banc majority has concluded that the disputed
evidence that a reasonable factfinder could not have credited in favor
of the best-interest findings is so significant that a factfinder could not
reasonably have formed a firm belief or conviction that termination of
Mother’s parental rights is in each of the children’s best interest. 12
The en banc majority bypasses the process the law requires. The en banc majority’s
individual failures to identify, unpack, and analyze all the record evidence violates
binding supreme-court precedent.13 And, those failures rob the parties, the trial
court, and the public of the intended benefits of the appellate process.
Process matters.
Requiring courts to show their work by reducing their reasons to writing
serves several functions. First, it operates as a check on the decision-makers’
analytical process and faithfulness to the record. It helps to ensure that they consider
the evidence and conduct the sufficiency review in accordance with applicable legal
standards so that their conclusions amount to more than judicial ipse dixit. The
contemplated end product — a written opinion with reasons — undergirds a second
11
See Windrum, 581 S.W.3d at 781–82; In re J.F.C., 96 S.W.3d at 266–67.
12
See In re J.F.C., 96 S.W.3d at 266–67.
13
See Windrum, 581 S.W.3d at 781–82; In re J.F.C., 96 S.W.3d at 266–67; In re C.H., 89 S.W.3d
17, 25–29 (Tex. 2002); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
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purpose, which is to give the parties and the trial court the assurance of proper
appellate review. In this way, a properly conducted sufficiency review provides that
essential measure of transparency that is so vital to our rule-of-law system. When a
court of appeals concludes that the trial evidence is factually insufficient to support
a fact finding, the requirement that the court detail the evidence and explain its
analysis allows the supreme court to review the opinion to make sure that the court
of appeals applied the proper legal standard and that the court of appeals did not
substitute its judgment on the facts for that of the factfinder.14
Appellate justice impacts more than the particular litigants in the case before
the court. Because published appellate opinions become part of the law, giving
detailed reasons in a sufficiency review serves a third function of developing the
jurisprudence. When a reviewing court does not give reasons for its holding, neither
the public, nor the bench, nor the bar has a basis for knowing what the law is or how
it will be applied in the future. Giving reasons illumines the court’s thinking, so that
in keeping with stare decisis, others may apply the same rationale in like cases.
Detailed analysis thus serves a fourth function of promoting uniformity and
predictability in the law. By failing to show its work, the en banc court serves none
of these important functions today.
/s/ Kem Thompson Frost
Chief Justice
En banc court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell,
Bourliot, Zimmerer, Spain, Hassan, and Poissant. Justice Hassan authored the En
Banc Majority Opinion, in which Justices Bourliot, Zimmerer, Spain, and Poissant
joined. Justice Wise authored an En Banc Dissenting Opinion, in which Chief
Justice Frost and Justices Christopher and Jewell joined. Chief Justice Frost authored
an En Banc Dissenting Opinion.
14
See Windrum, 581 S.W.3d at 781; Pool, 715 S.W.2d at 635.
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