In the Interest of I.M.S. and C.K.S., Children v. the State of Texas ( 2023 )

Opinion issued April 27, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00094-CV
———————————
IN THE INTEREST OF I.M.S. AND C.K.S., CHILDREN
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2020-49033
DISSENTING OPINION
Appellant, father, acting pro se, challenges the trial court’s order, entered after
a bench trial, terminating his parental rights to his minor children, I.M.S. and C.K.S.
(collectively, “the children”),1 in the private termination suit of appellees, mother
1
At the time the trial court entered its order terminating father’s parental rights,
I.M.S. was twelve years old and C.K.S. was ten years old.
and stepfather (collectively, “appellees”). In two issues, father contends that the trial
court erred in not appointing him counsel and the evidence is insufficient to support
the trial court’s findings that he failed to support the children in accordance with his
ability during a period of one year ending within six months of the date of the filing
of appellees’ petition2 and he knowingly engaged in criminal conduct that resulted
in his conviction of an offense and confinement or imprisonment and an inability to
care for the children for not less than two years from the date of the filing of
appellees’ petition.3
Because the majority opinion holds that the trial court should have appointed
counsel to represent father, as a matter of due process, in this private termination suit
where no statutory right to appointed counsel exists and the constitution does not
require it,4 I respectfully dissent.
2
See TEX. FAM. CODE ANN. § 161.001(b)(1)(F).
3
See id. § 161.001(b)(1)(Q).
4
See Lassiter v. Dep’t of Social Servs. of Durham Cnty., N.C., 452 U.S. 18, 31 (1981)
(explaining United States Constitution does not require appointment of counsel in
every parental-termination proceeding); In re B.L.D., 113 S.W.3d 340, 354 (Tex.
2003); In re H.D.D.B., No. 01-20-00723-CV, 2022 WL 2251655, at *8–9 (Tex.
App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.) (there is no statutory
right to counsel in private termination suit and United States Constitution “does not
require the appointment of counsel for parents in every parental-termination
proceeding”); In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet.
denied).
2
Background
Mother and father were previously married. The trial court signed a final
divorce decree in May 2013.
In their petition for termination and adoption, appellees alleged that they were
married, and father was the father of the children. According to appellees,
termination of father’s parental rights to the children was warranted because father
had failed to support the children in accordance with his ability during a period of
one year ending within six months of the date of the filing of their petition, father
knowingly engaged in criminal conduct that resulted in his conviction of an offense
and confinement or imprisonment and an inability to care for the children for not
less than two years from the date of the filing of their petition, and termination of
father’s parental rights was in the children’s best interest. Appellees also alleged
that it would be in the children’s best interest for stepfather to adopt the children.
Appellees requested that the trial court terminate father’s parental rights to the
children and permit stepfather to adopt the children.
Father answered, generally denying the allegations in appellees’ petition.
Father also filed a motion for appointment of counsel to represent him, asserting that
he did not have “sufficient funds or assets to hire an attorney to represent [his]
interest in th[e] []suit” and he was an “indigent parent.” (Internal quotations
omitted.) Father requested that the trial court appoint him counsel in accordance
3
with the Texas Family Code. Father also filed a “Declaration of Inability to Pay
Cost,” stating that he was incarcerated and “unable to pay the court cost.” Appellant
requested that he be allowed to “proceed in forma pauperis.”5 The trial court did not
rule on father’s motion to appoint counsel to represent him.6
At trial, mother testified that she was the children’s mother and father was the
children’s father. The trial court signed the final divorce decree on May 31, 2013.
Under mother and father’s final divorce decree, father was obligated to pay $450 a
month as his child support obligation, with his first payment due on June 1, 2013.
Father was to have visits with the children on certain weekends during each month.
On March 31, 2017, the trial court signed an order modifying the parent-child
relationship, which required father to have supervised visits with the children
through Guardians of Hope—a private organization that monitors parents during
5
After trial, appellant filed an “Affidavit in Support of Request to Proceed [i]n Forma
Pauperis,” requesting that he be allowed to “proceed without being required to
prepay fees, costs, or give security therefor.”
6
The trial court’s docket sheet, on July 22, 2021, contains a notation that father had
requested court-appointed counsel, but “no court[-]appointed attorney [was]
granted.” See Tex. Workers’ Comp. Comm’n v. Serv. Lloyds Ins. Co., No.
05-99-00052-CV, 2001 WL 15961, at *9 (Tex. App.—Dallas Jan. 9, 2001, no pet.)
(not designated for publication) (“A docket entry is not an order. It does not form a
part of the record; it is simply a notation for the clerk’s and the [trial] court’s
convenience. . . . The docket sheet cannot be used to show the existence of an
order.”); Guyot v. Guyot, 3 S.W.3d 243, 247–48 (Tex. App.—Fort Worth 1999, no
pet.) (judge’s notation on docket sheet did not preserve error for appeal); Miller v.
Kendall, 804 S.W.2d 933, 944 (Tex. App.—Houston [1st Dist.] 1990, no writ)
(docket sheet notation “does not constitute a ruling that [appellate court] may
review”).
4
supervised visitations. Mother testified that the reason for the change to supervised
visitation between father and the children was because father had been using
narcotics during his visits with the children and the children were put in dangerous
situations more than once. She asserted that father did not provide a safe
environment for the children to visit him; the children were “around drugs,” and
father was using narcotics, specifically methamphetamine and marijuana. Father
also repeatedly left the children unsupervised in his home and at public swimming
pools and restaurants.
According to mother, the last time that father saw the children was in June
2016. He had not spoken to the children in the last five years. He did not set up
supervised visitation through Guardians of Hope. Father made a payment to
Guardians of Hope but did not provide his driver’s license or proof of insurance,
which was required. Thus, father did not complete the registration process so that
he could have supervised visitation with the children. Mother “d[id] [her] part to set
up” the supervised visitation. No one at Guardians of Hope ever contacted mother
to say that father wanted to have visits with the children. She was only contacted by
Guardians Hope “saying [that] it wasn’t going to happen.”
Mother testified that at some point, possibly in 2017, she blocked father from
calling her cellular telephone because she had received repeated harassing telephone
calls from father, which included threats and “derogatory speech.” Father called her
5
in the middle of the night and “all day.” She would receive “65 and 70 text messages
[from father] before lunchtime.” Mother was not “able to live [her] life that way,”
and because father had “refused to stop,” mother blocked father’s telephone
communication. The harassment went on for several months before mother made
the decision to block father’s telephone communication. But father could have still
contacted mother through email, and if he had asked to talk to the children and
“remain[ed] not irate,” mother would have permitted him to speak to the children.
As to child support, mother testified that she received a payment of $650 from
father on January 11, 2016, but father did not make any other child support payments
in 2016. Father also did not make any child support payments in 2017, and mother
did not receive any child support payments from father in 2018, 2019, or 2020.
Mother received $1,455 on August 9, 2021 from the Office of the Attorney General,
but otherwise she had not received any support from father from 2016 to 2021.
When asked whether father had provided support for the children, mother testified
that he had not. Mother also testified that father had sent the children letters and
drawings, but such actions did not constitute “provid[ing] child support.”
Mother stated that father was incarcerated for the offenses of possession of
marijuana, aggravated robbery, and aggravated kidnapping. Father had “robbed his
grandparents at gunpoint and beat[en] them up.” During her testimony, mother
viewed copies of father’s judgments of conviction and explained that father had
6
pleaded guilty to the offense of “possession of over five pounds of marijuana” and
was sentenced to confinement for nine years for that offense. Father also pleaded
guilty to two felony offenses of “aggravated robbery with a deadly weapon, to wit:
[a] firearm” and was sentenced to confinement for nine years for each offense. And
father pleaded guilty to two felony offenses of aggravated kidnapping and was
sentenced to confinement for nine years for each offense. The only way for mother
to keep the children safe was through the termination of father’s parental rights,
which was in the children’s best interest.
Mother further testified that she married stepfather on October 15, 2016, after
dating for five years. Stepfather had known the children “that whole time”—since
the time that appellees began dating. Mother stated that stepfather was a “wonderful
dad” and his relationship with the children was good. The children viewed stepfather
as “their dad” and had done so for many years. They loved stepfather very much,
and stepfather took good care of the children. Appellees were requesting that the
trial court allow stepfather to adopt the children, which mother believed was in the
children’s best interest.
Stepfather testified that he was married to mother and he agreed with mother’s
testimony as to his relationship with the children. Stepfather was asking to adopt
the children if father’s parental rights were terminated. Stepfather stated that he had
provided the children a place to live and provided “everything that they ha[d].”
7
Stepfather “tr[ied] to be a father figure to them” and “guide them in a way that they[]
[would] grow into decent adults.” He provided for their needs. Stepfather had two
other children with mother, and he viewed the children as his “own blood.”
Stepfather was the “father figure” in the children’s life, and he would continue being
a father figure for them “whatever happened.”
Father testified that he was currently incarcerated, and he had been sentenced
to confinement for nine years after pleading guilty to certain offenses. He was
arrested in June 2018. When asked whether he had “robbed [his grandparents] at
gunpoint,” father stated: “That’s what the conviction state[d].” But “[i]t wasn’t [his]
gun”; he “took [the firearm] away from [his] grandfather.” Father believed that he
was eligible for parole in December 2022, but if he did not receive parole, his
sentence would be completed in 2027. When asked “[w]hat other criminal
convictions d[id] [he] have,” father responded: “I have some misdemeanors,” but
he could not recall the specific misdemeanor offenses of which he had been
convicted.
As to child support, father testified that he did not have the ability to pay child
support to mother in 2016 and 2017. He also did not make child support payments
in 2018. Father was self-employed in 2016, 2017, and 2018 in the business of
printing t-shirts, and he earned money from selling t-shirts, which was sometimes
more than $450 a month. But father did not make child support payments because
8
he was “trying to take care of [him]self.” Since he had been incarcerated, he had not
voluntarily made any child support payments. Father noted that when he was
arrested in June 2018, he was in possession of more than five pounds of marijuana,
which he had purchased for personal use. It cost him $200. When father was asked,
“who did [he] expect to put food on the table for” the children when he did not pay
child support, father stated that he had expected mother to do so and he expected
mother to provide clothing for the children as well.
Father had not seen the children since 2016, but he stated that he had “tried
very hard to see” them. Father agreed that after the trial court signed the March 31,
2017 order modifying the parent-child relationship, he was supposed to have
supervised visitation with the children through Guardians of Hope. Father stated
that he had registered with Guardians of Hope in April 2017 and “ha[d] the receipts”
saying that he had registered. But according to father, mother “never register[ed].”
Father never filed a motion with the trial court to enforce his visitation rights, and
he did not have any evidence “showing a written demand to [mother] asking her to
comply with Guardians of Hope . . . in some way that she [had] not.” As to the
reason for supervised visitation with the children, father did not dispute mother’s
testimony about his narcotics use and stated that he had failed a narcotics-use test.
He tested positive for methamphetamine and marijuana use. When father used
9
narcotics, it was not in the children’s best interest and he was not providing for the
children when that occurred.
Father also testified that he loved the children and he cared for them. His
separation from the children was not his “choosing.” He was “unwilling to
voluntarily release [his] parental rights.” He had provided support and care for the
children “to the best of [his] capabilities.” While incarcerated, he sent the children
gifts, books, cards, artwork, letters, and “age[-]appropriate poems.” He had always
been interested in “having a favorable relationship” with the children and had always
intended to pay the child support amount that had accumulated. Father informed the
trial court that after he was arrested his home was foreclosed upon and approximately
$26,000 of excess proceeds would go to mother for child support at some indefinite
point.
The trial court admitted into evidence a copy of its May 31, 2013 final divorce
decree related to mother and father. The final divorce decree ordered that mother
and father were appointed as joint managing conservators of the children, with
mother receiving the exclusive right to designate the primary residence of the
children. As to custody of the children, a standard possession order applied,
allowing father to have custody of the children on the first, third, and fifth weekends
during the month as long as he resided within “100 miles or less from the primary
10
residence of the children.” Father was ordered to pay $450 as his child support
obligation each month.
The trial court admitted into evidence a copy of a Financial Activity Report
from the Attorney General of Texas – Child Support Division, which showed the
amount father owed for child support since June 1, 2013. As of November 1, 2021,
father owed $27,166.04 in overdue child support. Father made one child support
payment in December 2013, in an amount less than his $450 monthly obligation.
Father made certain child support payments in 2014 and 2015. In 2016, father made
one payment on January 1, 2016, but no other payments that year. Father did not
make any child support payments in 2017, 2019, and 2020. In 2021, mother received
a child support payment on August 1, 2021.
The trial court also admitted into evidence a copy of its March 31, 2017 order
modifying the parent-child relationship, finding that modification was in the
children’s best interest. The order removed mother and father as joint managing
conservators of the children, appointed mother as the sole managing conservator of
the children, with the right to designate the primary residence of the children, and
appointed father as the possessory conservator of the children. The trial court found
that awarding father “access to the child[ren] would not be in the best interest of the
child[ren].” Thus, it ordered that father’s visitation with the children would be
“under the supervision of Guardians of Hope.” Within ten days of the order, father
11
was required to register with Guardians of Hope. If father failed to register with
Guardians of Hope within ten days, his visitation would be “ordered at the Harris
County Victims Assistance Center,” and father was required to contact the Harris
County Victims Assistance Center to register. Father was required to pay the cost
of using either Guardians of Hope or the Harris County Victims Assistance Center
for his supervised visitation with the children.
Additionally, the trial court admitted into evidence copies of father’s
judgments of conviction. The first judgment of conviction shows that father was
convicted of the third-degree felony offense of possession of marijuana on February
28, 2020. The date of the offense is listed as June 5, 2018. Father was sentenced to
confinement for nine years. The second judgment of conviction shows that father
was convicted of the first-degree felony offense of aggravated robbery on February
28, 2020. The date of the offense is listed as June 17, 2018. Father was sentenced
to confinement for nine years. The third judgment of conviction shows that father
was convicted for the first-degree felony offense of aggravated kidnapping on
February 28, 2020. The date of the offense is listed as June 17, 2018. Father was
sentenced to confinement for nine years. The fourth judgment of conviction shows
that father was convicted of another first-degree felony offense of aggravated
kidnapping on February 28, 2020. The date of the offense is listed as June 17, 2018.
Father was sentenced to confinement for nine years. The fifth judgment of
12
conviction shows that father was convicted for another first-degree felony offense
of aggravated robbery on February 28, 2020. The date of the offense is listed as
June 17, 2018. Father was sentenced to confinement for nine years.
The trial court also admitted into evidence copies of several letters from
mother to father, while father was incarcerated.7 The letters state that the children
are doing well and are actively involved in sports and other activities. They spend
time with mother, stepfather, and their siblings on vacations, playing with pets, and
growing a garden. The children play with other neighborhood kids and are healthy.
Appellees are raising the children to be strong-minded, independent, humble, kind,
and caring. The children are “amazing big sisters” and get along with appellees’
other two children. Appellees’ home is stable.
As to stepfather, the letters state that stepfather loves the children and has
raised them. Stepfather has been in the children’s lives since I.M.S. was two years
old and C.K.S. was eleven months old. Stepfather provided for the children
financially, since he and mother entered into a relationship and before they were ever
married. The children consider stepfather to be “their daddy.” (Internal quotations
omitted.)
The letters note that the children have received the letters and artwork that
father has sent to them. And they enjoy the gifts and letters. Mother states that she
7
These exhibits were offered into evidence by father.
13
has “protected [father’s] image” in the children’s eyes and they do not know the
details of father’s life or incarceration. The children know that father loves them.
But the children are not “ready” for a relationship with father, and they do not want
to call or write to father.
Finally, the trial court admitted into evidence a copy of a letter from father to
the children’s court-appointed amicus attorney,8 stating that father had an active
relationship with the children until 2016. In 2016, father “had a battle with drug
addiction,” and mother did not allow any form of contact between the children and
father. Since 2016, his relationship with the children “ha[d] been partial.” He had
tried to maintain communication with them through letters and artwork.
Right to Counsel
In his first issue, father argues that the trial court erred when it did not appoint
him counsel because the failure to appoint counsel for father, an indigent person,
violated his due process rights.9
8
This exhibit was offered into evidence by father.
9
The majority opinion does not address whether father preserved his complaint for
appellate review, which is necessary given that father did not assert in the trial court
that due process required the appointment of counsel; did not obtain a ruling from
the trial court on his motion to appoint counsel to represent him; and when the issue
of whether father was required to have counsel was raised at trial, father did not
object or otherwise complain about the trial court’s failure to appoint him counsel.
See TEX. R. APP. P. 33.1(a); In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (“We
have held that the rules governing error preservation must be followed in cases
involving termination of parental rights, as in other cases in which a complaint is
based on constitutional error.”); In re B.L.D., 113 S.W.3d at 354 (“[D]ue process
does not mandate that appellate courts review unpreserved complaints of . . . error
14
The Court reviews the trial court’s decision whether to appoint counsel in a
private termination suit for an abuse of discretion. In re L.F., No. 02-19-00421-CV,
2020 WL 2201905, at *11 (Tex. App.—Fort Worth May 7, 2020, no pet.) (mem.
op.); see also In re I.M.M., No. 01-17-00415-CV, 2019 WL 1768998, at *7 (Tex.
App.—Houston [1st Dist.] Apr. 23, 2019, pet. denied) (mem. op.); In re R.J.C., No.
04-09-00106-CV, 2010 WL 816188, at *3 (Tex. App.—San Antonio Mar. 10, 2010,
no pet.) (mem. op.) (“Whether due process calls for the appointment of counsel for
indigent parents in termination proceedings is left to the sound discretion of the trial
court.”). To demonstrate an abuse of discretion, an appellant must show that the trial
court acted arbitrarily, unreasonably, or without reference to guiding rules or
principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
in parental rights termination cases.”); see also In re A.E.J., No. 05-20-00340-CV,
2020 WL 5107293, at *11 (Tex. App.—Dallas Aug. 31, 2020, pet. denied) (mem.
op.) (“[Parent’s] failure to raise a timely objection to the trial court’s refusal to
appoint an ad litem attorney [under Texas Family Code section 107.021] waived the
issue.”); In re I.M.M., No. 01-17-00415-CV, 2019 WL 1768998, at *6 (Tex. App.—
Houston [1st Dist.] Apr. 23, 2019, pet. denied) (mem. op.) (“[Parent] asserts that the
trial court’s appointment of an amicus attorney violated due process and due course
of law. These arguments were not raised in the trial court, and constitutional
complaints cannot be raised for the first time on appeal.”); In re V.R.P., No.
04-04-00431-CV, 2005 WL 1552641, at *2 (Tex. App.—San Antonio July 6, 2005,
pet. denied) (mem. op.) (holding parent failed to preserve his complaint that
appointment of counsel was required by Fourteenth Amendment).
15
Although Texas Family Code section 107.013(a) requires the trial court to
appoint counsel to represent an indigent parent in a governmental-filed suit for the
termination of parental rights, Texas Family Code section 107.021 provides for the
discretionary appointment of counsel for an indigent parent in a private termination
suit. See TEX. FAM. CODE ANN. §§ 107.013(a), 107.021; In re L.F., 2020 WL
2201905, at *11; In re T.L.W., No. 12-10-00401-CV, 2012 WL 1142475, at *1 (Tex.
App.—Tyler Mar. 30, 2012, no pet.) (mem. op.); see also In re H.D.D.B., No.
01-20-00723-CV, 2022 WL 2251655, at *8–9 (Tex. App.—Houston [1st Dist.] June
23, 2022, no pet.) (mem. op.) (there is no statutory right to counsel in private
termination suit). Stated differently, the Texas Legislature has given courts the
discretion to appoint counsel for an indigent parent in a private termination suit. In
re L.F., 2020 WL 2201905, at *11; see also In re J.E.D., No. 11-19-00166-CV, 2019
WL 5617645, at *3 (Tex. App.—Eastland Oct. 24, 2019, no pet.) (mem. op.)
(“Although a trial court may appoint an attorney . . . to represent an indigent parent
in a termination proceeding that is brought by a party other than a governmental
entity, no statutory mandate exists when the suit is brought by a private party rather
than a governmental entity.”); In re R.J.C., 2010 WL 816188, at *3 (when
termination suit is brought by other parent, no mandatory requirement that trial court
appoint attorney to represent indigent parent).
16
Even though the appointment of counsel for an indigent parent in a private
termination suit is not required by Texas statute, due process may require it. See
U.S. CONST. amend. XIV; In re L.F., 2020 WL 2201905, at *11; In re J.E.D., 2019
WL 5617645, at *3; In re R.J.C., 2010 WL 816188, at *3. However, the United
States Supreme Court has held that due process does not require the appointment of
counsel in every parental-termination proceeding and the decision is best left to the
trial court. See Lassiter v. Dep’t of Social Servs. of Durham Cnty., N.C., 452 U.S.
18, 31–32 (1981); see also In re B.L.D., 113 S.W.3d 340, 354 (Tex. 2003); In re
H.D.D.B., 2022 WL 2251655, at *8–9 (United States Constitution “does not require
the appointment of counsel for parents in every parental-termination proceeding”);
In re J.E.D., 2019 WL 5617645, at *3; In re T.L.W., 2012 WL 1142475, at *1; In re
J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied). Thus, an
indigent parent’s constitutional right to counsel under the Fourteenth Amendment’s
Due Process Clause must be determined on a case-by-case basis. See Lassiter, 452
U.S. at 27–32; In re T.L.W., 2012 WL 1142475, at *1; Lopez v. Kushner, No.
03-06-00779-CV, 2008 WL 399195, at *7 (Tex. App.—Austin Feb. 13, 2008, pet.
denied) (mem. op.); see also In re J.E.D., 2019 WL 5617645, at *3 (“On appeal,
[appellate court] look[s] at the facts and circumstances of the case to determine
whether the trial court’s failure to appoint counsel deprived the parent of due
process.”). Notably, whether due process calls for the appointment of counsel for
17
an indigent parent in a private termination suit “is left to the sound discretion of the
trial court.” In re R.J.C., 2010 WL 816188, at *3.
In determining whether due process requires appointment of counsel for an
indigent parent, the Court considers whether: (1) the petition for termination
contains allegations of neglect or abuse upon which criminal charges could be based,
(2) expert witnesses are involved in the case, (3) the case presents troublesome
points of law, either procedural or substantive, (4) the record indicates that the
absence of counsel’s guidance rendered the proceedings fundamentally unfair,
(5) the presence of counsel would have made a determinative difference, (6) and the
indigent parent demonstrates a clear desire to contest the proceedings. 10 See
Lassiter, 452 U.S. at 32–33; In re L.F., 2020 WL 2201905, at *12; In re T.L.W.,
2012 WL 1142475, at *2.
Here, appellees’ petition for termination did not allege that father abused or
neglected the children, and father is not subject to criminal charges stemming from
his relationship with the children. See Lassiter, 452 U.S. at 32–33; In re L.F., 2020
WL 2201905, at *12 (concluding due process did not require appointment of counsel
10
Father does not address these factors in his briefing and does not argue that due
process required the trial court to appoint him counsel because appellees’ petition
for termination contained allegations of neglect or abuse; expert witnesses were
involved in this case; the case presented troublesome points of law, either procedural
or substantive; the absence of counsel’s guidance rendered the proceedings
fundamentally unfair; or the presence of counsel would have made a determinative
difference. See TEX. R. APP. P. 38.1(i).
18
in part because termination petition “contained no allegations against [parent] upon
which criminal charges could be based”); In re T.L.W., 2012 WL 1142475, at *2; In
re R.J.C., 2010 WL 816188, at *4 (concluding trial court did not violate parent’s
right to due process by refusing to appoint him counsel where petition to terminate
contained no allegations that parent abused or neglected child and parent was, thus,
not subject to criminal charges stemming from his relationship with child). Thus,
father did not need counsel to assist him in protecting his privilege against
self-incrimination in this case.
Second, there were no expert witnesses involved in the trial court proceedings,
and there were no expert witnesses for father to cross-examine without the assistance
of counsel. See In re L.F., 2020 WL 2201905, at *12 (noting, in concluding that due
process did not require appointment of counsel in private termination suit, that no
expert witnesses testified); In re T.L.W., 2012 WL 1142475, at *2; In re R.J.C., 2010
WL 816188, at *4 (concluding trial court did not violate parent’s right to due process
by refusing to appoint him counsel where there were no expert witnesses to
cross-examine). Instead, only mother, stepfather, and father testified at trial, and all
the testimony presented at trial was uncomplicated. Father was also given the
opportunity to cross-examine appellees thoroughly. And the trial court allowed
father to testify uninterrupted in a narrative form.
19
Third, there were no troublesome points of law to address, and there are no
indications in the record that the absence of counsel amounted to fundamental
unfairness. See In re T.L.W., 2012 WL 1142475, at *2; In re R.J.C., 2010 WL
816188, at *4. To the extent that some objectionable evidence may have been
admitted at trial,11 there is no indication that the evidence of father’s multiple
convictions, his failure to pay child support, or mother’s and stepfather’s testimony
indicating that termination of father’s parental rights was in the children’s best
interest, was inadmissible. See In re T.L.W., 2012 WL 1142475, at *2; In re R.J.C.,
2010 WL 816188, at *4. Although counsel may have done a more thorough or
succinct job in presenting father’s arguments, father was able to convey to the trial
court that he did not want his parental rights terminated, he loved the children, and
he had attempted to contact them while he was incarcerated. See In re V.R.P., No.
04-04-00431-CV, 2005 WL 1552641, at *2 (Tex. App.—San Antonio July 6, 2005,
pet. denied) (mem. op.) (if parent had preserved his complaint, due process did not
require appointment of counsel where parent was able to and did effectively urge his
position at trial). There is no indication, based on all the evidence, that a more
thorough presentation of these arguments would have made a determinative
difference in the final result.12 See In re T.L.W., 2012 WL 1142475, at *2; In re
11
Father does not assert that any objectionable evidence was admitted at trial.
12
I disagree with the majority opinion’s conclusions that this case presented a
“troublesome point[] of law” and that had father been represented by counsel, his
20
R.J.C., 2010 WL 816188, at *4. Instead, the key facts in the termination of father’s
rights were father’s commission of five felony offenses leading to an extended
period of incarceration and father’s failure to care and support the children for a
significant portion of the children’s lives. Appointed counsel would not have made
a “determinative difference” regarding those key facts. See In re L.F., 2020 WL
2201905, at *13 (internal quotations omitted); see also Lassiter, 452 U.S. at 32–33
(in concluding parent not entitled to appointed counsel, noting evidence was
sufficiently strong that counsel would not have likely made any difference);
Blakeney v. McRee. 188 So. 3d 1154, 1160–61 (Miss. 2016) (“The assistance of
counsel would have “made a determinative difference” at trial. (Internal quotations
omitted.) Cf. In re T.L.W., No. 12-10-00401-CV, 2012 WL 1142475, at *1–3, *9–
14 (Tex. App.—Tyler no pet.) (mem. op.) (concluding presence of counsel would
not have made determinative difference in case where evidence was sufficient to
support termination of parental rights); see also Blakeney v. McRee, 188 So. 3d
1154, 1160–61 (Miss. 2016) (“[The] decision to terminate [parent’s] parental rights
was supported by substantial evidence, and the presence of an attorney would not
have changed the result of th[e] case.”); C.S. v. People, 83 P.3d 627, 637 (Colo.
2004) (“[T]he simplicity of the hearing and the weight of the evidence against
[parent] presented at the hearing were such that the absence of counsel did not render
the proceeding fundamentally unfair.”); In re Adoption of K.L.P., 735 N.E.2d 1071,
1079 (Ill. App. Ct. 2000) (determining parent not denied due process and presence
of counsel would not have made determinative difference where “the evidence in
th[e] case was not closely balanced”). The record makes clear that this is a typical
parental-rights-termination case in which the focus concerned “[father’s]
relationship with [his] child[ren]”—a matter on which a parent is “uniquely well
informed and to which the parent must have given prolonged thought.” See Lassiter,
452 U.S. at 29. Father has neither identified any “troublesome points of law” nor
other evidence that he would have presented—or opposing evidence he would have
rebutted more effectively—if he had been appointed counsel. See TEX. R. APP. P.
38.1(i). And these failures are fatal to his complaint.
21
counsel cannot change the fact that [parent] was convicted of murdering his wife’s
father in front of his children, and was sentenced to life imprisonment, and has not
had a relationship with [his children] for almost a decade.”); J.C.N.F. v. Stone Cnty.
Dep’t of Human Servs., 996 So. 2d 762, 771–72 (Miss. 2008) (parent not denied due
process when presence of counsel would not have precluded fact finder from finding
parental rights should have been terminated); C.S. v. People, 83 P.3d 627, 637 (Colo.
2004) (“Given the weight of the evidence and the history of the case, there was little
that a . . . court-appointed attorney could have done in th[e] hearing to turn the tide
in [parent’s] favor.”); K.D.G.L.B.P. v. Hinds Cnty. Dep’t of Human Servs., 771 So.
2d 907, 911 (Miss. 2000) (“[T]he evidence supporting the [fact finder’s] decision to
terminate [parent’s] parental rights was so overwhelming that the presence of
counsel would not have changed the outcome of the trial.”).
Finally, although father demonstrated a clear desire to contest the proceedings
and to maintain a relationship with the children, this alone does not “tip the scales
of due process” to entitle father to appointed counsel in this private termination suit.
See In re T.L.W., 2012 WL 1142475, at *2; In re R.J.C., 2010 WL 816188, at *4.
Based on the foregoing, I cannot say that the facts and circumstances of the
present case indicate that father was denied due process by the failure of the trial
court to appoint counsel to represent his interests. See In re T.L.W., 2012 WL
221142475, at *1–3. Thus, I would hold that the trial court did not err in failing to
appoint counsel to represent father in this private termination suit.
I would overrule father’s first issue.
Sufficiency of Evidence13
In his second issue, father argues that the trial court erred in terminating his
parental rights to the children because the evidence is insufficient to support the trial
court’s findings that he failed to support the children in accordance with his ability
during a period of one year ending within six months of the date of the filing of
appellees’ petition and he knowingly engaged in criminal conduct that resulted in
his conviction of an offense and confinement or imprisonment and an inability to
care for the children for not less than two years from the date of the filing of
appellees’ petition.14 See TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (b)(1)(Q).
A parent’s right to “the companionship, care, custody, and management” of
his children is a constitutional interest “far more precious than any property right.”
13
Because the majority opinion sustains father’s first issue, the majority opinion does
not reach father’s second issue. See TEX. R. APP. P. 47.1. Because I would overrule
father’s first issue, it is necessary to also address father’s second issue.
14
Father also appears to argue that the trial court erred in terminating his parental
rights to the children because the evidence is insufficient to support the trial court’s
finding that he voluntarily left the children alone or in the possession of another
without providing adequate support of the children and remained way for a period
of at least six months. See TEX. FAM. CODE ANN. § 161.001(b)(1)(C). But this
argument need not be addressed because the trial court did not make such a finding
and did not terminate father’s parental rights on such a basis.
23
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The
United States Supreme Court has emphasized that “the interest of [a] parent[] in the
care, custody, and control of [his] children . . . is perhaps the oldest of the
fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his
natural parental right” is “essential,” “a basic civil right of man,” and “far more
precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted). Consequently, the Court “strictly construe[s]
involuntary termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012).
Because termination of parental rights is “complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.”
Holick, 685 S.W.2d at 20. Clear and convincing evidence is “the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the
standard of proof is “clear and convincing evidence,” the Texas Supreme Court has
held that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–68.
24
In conducting a legal-sufficiency review in a termination-of-parental-rights
case, the Court must determine whether the evidence, viewed in the light most
favorable to the finding, is such that the fact finder could reasonably have formed a
firm belief or conviction about the truth of the matter on which the parties moving
for termination bore the burden of proof. Id. at 266. In viewing the evidence in the
light most favorable to the finding, the Court “must assume that the factfinder
resolved disputed facts in favor of its finding if a reasonable factfinder could do so,”
and it “should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible.” In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005) (internal quotations omitted). But this does not mean the Court must
disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d at
266. Because of the heightened standard, the Court must also be mindful of any
undisputed evidence contrary to the finding and consider that evidence in the
analysis. Id. If the Court determines that no reasonable trier of fact could have
formed a firm belief or conviction that the matter that must be proven is true, it must
hold the evidence to be legally insufficient and render judgment in favor of the parent
whose rights were sought to be terminated. Id.
In conducting a factual-sufficiency review in a termination-of-parental-rights
case, the Court must determine whether, considering the entire record, including
evidence both supporting and contradicting the finding, a fact finder reasonably
25
could have formed a firm conviction or belief about the truth of the matter on which
the parties moving for termination bore the burden of proof. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). The Court should consider whether the disputed evidence is
such that a reasonable fact finder could not have resolved the disputed evidence in
favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.” In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).
In order to terminate the parent-child relationship between father and the
children, appellees, as the parties moving for termination, must have established, by
clear and convincing evidence, one or more of the acts or omissions enumerated in
Texas Family Code section 161.001(b)(1) and that termination of father’s parental
rights is in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b);
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (both
elements must be established). “Only one predicate finding under section
161.001[(b)](1) is necessary to support a judgment of termination when there is also
a finding that termination is in the child[ren]’s best interest.” In re A.V., 113 S.W.3d
355, 362 (Tex. 2003). Thus, if multiple predicate grounds are found by the trial
court, an appellate court may affirm on any one ground because only one is necessary
26
for termination of parental rights. See In re J. G. S., 574 S.W.3d 101, 115 (Tex.
App.—Houston [1st Dist.] 2019, pet. denied); In re T.G.R.-M., 404 S.W.3d 7, 13
(Tex. App.—Houston [1st Dist.] 2013, no pet.).
A. Criminal Conviction and Confinement Without Provision of Care for
Children
In a portion of his second issue, father argues that the evidence is insufficient
to support the trial court’s finding that he knowingly engaged in criminal conduct
that resulted in his conviction of an offense and confinement or imprisonment and
an inability to care for the children for not less than two years from the date of the
filing of appellees’ petition because although he “cannot deny being incarcerated
due to a plea bargain,” “caring for the [children]” “has always been important to
him” and “mere imprisonment will not stand alone.” (Internal quotations omitted.)
See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q).
Texas Family Code section 161.001(b)(1)(Q) permits termination of parental
rights on clear and convincing evidence that a parent “knowingly engaged in
criminal conduct that has resulted in the parent’s: (i) conviction of an offense; and
(ii) confinement or imprisonment and [an] inability to care for the child[ren] for not
less than two years from the date of [the] filing [of] the petition.” Id.
Section 161.001(b)(1)(Q) “fills a gap” in the bases for termination by allowing
a prospective analysis of the anticipated care of the children while a parent is
incarcerated and an opportunity for intervention to avoid neglect of the children
27
during a prolonged incarceration. See In re A.V., 113 S.W.3d at 360; In re J. G. S.,
574 S.W.3d at 118; In re D.J.H., 381 S.W.3d 606, 612 (Tex. App.—San Antonio
2012, no pet.). The provision exists not to mete out additional punishment on parents
for their criminal conduct, but to “ensure that the child[ren] will not be neglected”
while their parent is away in prison. In re A.V., 113 S.W.3d at 360; In re J. G. S.,
574 S.W.3d at 118; In re A.R., 497 S.W.3d 500, 503 (Tex. App.—Texarkana 2015,
no pet.). Thus, if a parent is convicted and sentenced to serve at least two years’
confinement and will be unable to provide for his children during that time, Texas
Family Code section 161.001(b)(1)(Q) allows for the termination of parental rights
to ensure that the children will not be neglected. In re A.V., 113 S.W.3d at 360; In
re A.R., 497 S.W.3d at 503. The primary focus of section 161.001(b)(1)(Q)—like
section 161.001 generally—is the protection of the children’s best interests. In re
A.V., 113 S.W.3d at 360; In re J. G. S., 574 S.W.3d at 118.
The requirement of clear and convincing evidence of an “inability to care for
the child[ren]” is not met on the mere showing of prolonged incarceration. In re
J. G. S., 574 S.W.3d at 118; In re D.J.H., 381 S.W.3d at 611 n.3. “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.); see also In re J. G. S., 574 S.W.3d
28at 118. Therefore, evidence of a two-year incarceration is only the first of a
three-step analysis. In re J. G. S., 574 S.W.3d at 118.
In the first step, the parties moving for termination must produce evidence of
criminal conduct by the incarcerated parent that results in confinement for two or
more years. Id. at 119. The burden of production then shifts to the incarcerated
parent. Id.
In the second step, the incarcerated parent must produce some evidence of
how he will provide care for the children during the period of confinement or that
the incarcerated parent has arranged with another person for that person to provide
care for the children during the period of confinement. Id.
If the incarcerated parent seeks to meet the burden of production with
evidence that another person will care for the children during the period of
confinement, the incarcerated parent must prove the proposed caregiver’s agreement
to provide the care. Id.; In re E.S.S., 131 S.W.3d at 640 (“[Incarcerated parent] met
his burden of production regarding how he would arrange for the care of [child] in
that the agreement reached by the parties included naming [parent’s] mother and
brother possessory conservators with visitation rights.”).
The Texas Supreme Court has held that an incarcerated parent relying on
another’s provision of care to avoid termination under Texas Family Code section
161.001(b)(1)(Q) must demonstrate that the care is being provided on behalf of the
29
parent, not out of an existing duty or inclination to care for the children. In re
H.R.M., 209 S.W.3d at 110–11; see also In re J. G. S., 574 S.W.3d at 119; In re
D.L.A., No. 04-18-00182-CV, 2018 WL 4412506, at *9 (Tex. App.—San Antonio
Sept. 18, 2018, pet. denied) (mem. op.) (“The care must be offered by a person who
agrees to assume the incarcerated parent’s obligation to care for the child[ren] during
the incarceration.”); cf. In re I.G., No. 13-18-00114-CV, 2018 WL 3062581, at *4
(Tex. App.—Corpus Christi–Edinburg June 21, 2018, no pet.) (mem. op.) (holding
grandparents’ care as part of “working relationship” with incarcerated parent met
parent’s burden). An incarcerated parent cannot meet his burden merely by
producing evidence that there is a non-incarcerated parent or grandparent who is
willing and able to care for the children; instead, the incarcerated parent must present
evidence that the alternative caregiver is providing care on behalf of the incarcerated
parent. In re H.R.M., 209 S.W.3d at 110–11; see also In re J. G. S., 574 S.W.3d at
119; In re D.Z.R.-M., No. 14-13-01084-CV, 2014 WL 1390289, at *9 (Tex. App.—
Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (holding evidence of aunt’s
care did not meet incarcerated parent’s burden because aunt’s care was “on her own
behalf, rather than agreeing to assume the [parent’s] obligation to care for the [c]hild
while the [parent was] incarcerated”).
If the incarcerated parent’s burden of production is met, the third step shifts
the burden to the parties seeking to terminate the parental rights of the incarcerated
30
parent. In re J. G. S., 574 S.W.3d at 119–20; In re S.R., No. 13-15-00114-CV, 2015
WL 3657747, at *2 (Tex. App.—Corpus Christi–Edinburg June 11, 2015, no pet.)
(mem. op.). Those parties then have the burden of persuasion to show by clear and
convincing evidence that the incarcerated parent’s provision or arrangement would
not adequately satisfy the incarcerated parent’s duty to the children. In re J. G. S.,
574 S.W.3d at 120; In re S.R., 2015 WL 3657747, at *2; In re D.J.H., 381 S.W.3d
at 611 n.3.
Appellees, as the parties moving to terminate father’s parental rights, had the
initial burden to show that father had been confined for more than two years since
the date they petitioned to terminate his parental rights to the children.15
On February 28, 2020, father pleaded guilty and was convicted of the felony
offense of possession of marijuana, two felony offenses of aggravated robbery, and
two felony offenses of aggravated kidnapping. See TEX. HEALTH & SAFETY CODE
ANN. § 481.121(a) (“[A] person commits [the] offense [of possession of marijuana]
if the person knowingly or intentionally possesses a usable quantity of
[marijuana].”); TEX. PENAL CODE ANN. §§ 20.04(a) (“[A] person commits [the]
offense [of aggravated kidnapping] if he intentionally or knowingly abducts another
15
Father does not appear to assert in his briefing that appellees, as the parties moving
for termination, failed to meet their initial burden nor does father appear to dispute
that he knowingly engaged in criminal conduct that resulted in his incarceration for
at least two years from the date of the filing of appellees’ petition. See TEX. R. APP.
P. 38.1(i).
31
person . . . .”), 29.03(a) (“A person commits [the] offense [of aggravated robbery] if
he commits robbery as defined in [Texas Penal Code] [s]ection 29.02 . . . .”); see
also id. § 29.02(a) (“A person commits [the] offense [of robbery], if, in the course
of committing theft . . . and with intent to obtain or maintain control of the property,
he: (1) intentionally[] []or knowingly . . . causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death.”); In re G.S., No. 02-19-00390-CV, 2020 WL 1294925, at *4–5
(Tex. App.—Fort Worth Mar. 19, 2020, pet. denied) (mem. op.) (holding evidence
sufficient to support trial court’s finding that incarcerated parent knowingly engaged
in criminal conduct that resulted in his conviction and confinement, where parent
pleaded guilty to offense of aggravated robbery); In re H.O., 555 S.W.3d 245, 248–
49, 251 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (noting trial court found
incarcerated parent knowingly engaged in criminal conduct that resulted in his
conviction and confinement and terminated parental rights, where parent pleaded
guilty to offense of possession of controlled substance). For each offense, father
was sentenced to confinement for nine years, with the sentences to run concurrently.
Father admitted that he was currently incarcerated, and he had been sentenced to
confinement for nine years after pleading guilty to certain offenses. He had been
incarcerated since June 2018—when he was arrested. Father testified that he
32
believed he was eligible for parole in December 2022,16 but if he did not receive
parole, he would remain incarcerated until 2027. Appellees filed their petition for
termination on August 17, 2020, and father still had more than two years’
confinement remaining at that time. Thus, I would conclude that appellees met their
initial burden of establishing a two-year period of confinement following a
conviction. See In re J. G. S., 574 S.W.3d at 119.
16
See In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (stating parent’s testimony
concerning his parole eligibility was “barely more than conjecture”); In re J.L.V.,
No. 09-19-00316-CV, 2020 WL 1161098, at *8 (Tex. App.—Beaumont Mar. 11,
2020, pet. denied) (mem. op.) (“[Incarcerated parent’s] testimony about parole
[was] mere speculation and [did] not prevent [the] factfinder from forming a firm
belief or conviction that he would be incarcerated for longer than two years . . . .”);
In re H.O., 555 S.W.3d 245, 252 (Tex. App.—Houston [1st Dist.] 2018, pet. denied)
(“Although the availability of parole is relevant to determining whether a parent will
be released from confinement within two years of the filing of a termination petition,
[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” (first alteration in original) (internal quotations omitted)); In re
K.R.L., No. 14-10-00187-CV, 2010 WL 4069351, at *6 (Tex. App.—Houston [14th
Dist.] Oct. 19, 2010, no pet.) (mem. op.) (explaining although incarcerated parent
anticipated early release, his belief was speculative, and he provided no
documentation to trial court to support his belief). Here, father’s testimony
recognized that there was no guarantee that he would be granted parole, and father
presented no evidence to support his belief that he would receive parole in
December 2022. See In re H.O., 555 S.W.3d at 252–53 (evidence sufficient to
support trial court’s finding that parent would remain incarcerated two years from
date termination petition filed, although father presented evidence that he would be
eligible for parole). Further, even if father did receive parole in December 2022,
appellees filed their petition to terminate father’s parental rights on August 17, 2020,
and father still had more than two years’ confinement remaining at that time. See
In re J. G. S., 574 S.W.3d 101, 120 (Tex. App.—Houston [1st Dist.] 2019, pet.
denied).
33
Because appellees met their initial burden, the burden shifted to father to
produce some evidence of his ability to care for the children during his period of
incarceration or an agreement from another to provide care for the children on his
behalf. See id. at 121. Father asserts in his briefing that “caring for the [children]”
“has always been important to him.” But father failed to produce any evidence at
trial that he was able to care for the children during his period of confinement, and
father did not present any evidence of an agreement from another to provide care for
the children on his behalf. See In re B.D.A., 546 S.W.3d 346, 358 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (“The record demonstrates that [incarcerated
parent] ha[d] not adequately cared for or supported the children and that he ha[d]
made no arrangements for their care during his incarceration . . . . He did not make
any efforts to produce some evidence as to how he would provide or arrange to
provide care for the children during his incarceration.”); see also In re A.T.M., No.
13-21-00008-CV, 2021 WL 2584402, at *10 (Tex. App.—Corpus Christi–Edinburg
June 24, 2021, no pet.) (mem. op.) (“There was no evidence that any person had ever
taken care of the child on [incarcerated parent’s] behalf in the past, nor was there
any evidence that any person would be able to adequately care for the child on
[incarcerated parent’s] behalf in the future.”). Instead, when asked “who did [he]
expect to put food on the table for” the children, father stated that he had expected
mother to do so, and father stated that he expected mother to provide clothing for the
34
children as well. Cf. In re H.R.M., 209 S.W.3d at 110 (evidence mother cared for
child “d[id] not show that she agreed to care for [child] on [incarcerated parent’s]
behalf, particularly where . . . she [was] seeking to terminate [incarcerated parent’s
parental rights]” (emphasis omitted)); see also In re R.K.P.-R., No.
10-21-00265-CV, 2022 WL 172381, at *3 (Tex. App.—Waco Jan. 19, 2022, pet.
denied) (mem. op.) (“Cases discussing the incarcerated parent’s provision of support
through other people contemplates that the support will come from the incarcerated
parent’s family or someone[, other than the non-incarcerated parent,] who has
agreed to assume the incarcerated parent’s obligation to care for the child.” (internal
quotations omitted)).
To the extent that father relies on the evidence that he sent the children gifts,
books, cards, artwork, letters, and “age[-]appropriate poems” while incarcerated, as
proof of his “support,” I note that father also admitted that he had not voluntarily
made any child support payments since he had been incarcerated. Although, when
deciding whether an incarcerated parent is able to care for the children, a court may
consider the availability of both financial and emotional support from the
incarcerated parent, participation in a child’s life through letters is not always
enough, particularly given the history in this case of father’s general absence from
the children’s lives. See Brazoria Cnty. Children’s Protective Servs. v. Frederick,
176 S.W.3d 277, 279–80 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (although
35
parent sent birthday cards to child while incarcerated, in considering incarcerated
parent’s ability to provide emotional support, noting parent had not spent significant
amount of time with child prior to incarceration); In re B.M.R., 84 S.W.3d 814, 818–
19 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (although incarcerated parent
testified that he “would participate in [his] child’s life through letters and phone
calls,” noting parent, prior to incarceration, rarely saw child, failed to utilize his
numerous visitation opportunities afforded to him in divorce decree, and parent had
history of making little contact with his other children); see also In re A.G.D., No.
07-15-00201-CV, 2016 WL 316879, at *4 (Tex. App.—Amarillo Jan. 22, 2016, no
pet.) (mem. op.) (noting “care” not defined in Texas Family Code section
161.001(b)(1)(Q) and explaining “courts have interpreted it to encompass both
financial and emotional support”); In re J.L.V., No. 09-19-00316, 2020 WL
1161098, at *6–8 (Tex. App.—Beaumont Mar. 11, 2020, pet. denied) (mem. op.)
(although incarcerated parent testified “he sent some letters and cards” to child and
“he wanted to provide emotional support to [child] and be present in his life,”
holding evidence sufficient “to show that [parent’s] incarceration would prevent
[him] from caring for [child] and [parent] had not provided care for [child] while he
was incarcerated”). Here, the undisputed evidence shows that father had not seen
the children since June 2016—more than two years before he was incarcerated. In
2017, father was removed as a joint managing conservator of the children and
36
required to participate in supervised visitation through Guardians of Hope, but that
visitation never occurred. Despite the fact that father was required to make a $450
child support payment every month since June 1, 2013, father only made one
payment in 2013, in an amount less than his $450 monthly obligation. Further,
mother only received one $650 child support payment from father in 2016, and no
child support payments from father in 2017, 2018, 2019, and 2020. The copies of
the several letters sent by mother to father, during father’s incarceration, indicated
that the children were not “ready” for a relationship with father, and did not want to
call or write to father.17 To the extent that the children like receiving letters and gifts
from father—although the record is not clear on how often this occurs—the evidence
presented at trial does not demonstrate an ability by father to provide consistent care
to the children or fulfill his responsibility to care for the children while he is
incarcerated. See In re H.P., No. 07-19-00394-CV, 2020 WL 2107810, at *4 (Tex.
App.—Amarillo May 1, 2020, pet. denied) (mem. op.) (although incarcerated parent
testified he provided Christmas gifts to child “through the Angel Tree Foundation,”
evidence did not demonstrate ability to provide consistent care for child and did not
fulfill parent’s responsibility to care for child while incarcerated); In re G.S., 2020
WL 1294925, at *5 (holding evidence sufficient to support trial court’s finding that
parent was unable to care for child while incarcerated, even where incarcerated
17
Father offered copies of these letters into evidence at trial.
37
parent testified he wrote to child weekly, sent child gifts, and did “everything [he]
possibly could from prison” (internal quotations omitted)).
I would conclude that father did not meet his burden to produce evidence of
an ability to support the children while incarcerated or an agreement with another
person to care for the children on father’s behalf. Thus, appellees had no burden to
prove that the arrangement proffered by father would not satisfy his duty to the
children. See In re H.O., 555 S.W.3d at 253.
Viewing the evidence in the light most favorable to the trial court’s finding, I
would conclude that the trial court could have formed a firm belief or conviction that
father knowingly engaged in criminal conduct that resulted in his conviction of an
offense and confinement or imprisonment and father had an inability to care for the
children for not less than two years from the date of the filing of appellees’ petition.
See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). And, viewing the evidence in a
neutral light, I would conclude that a reasonable fact finder could have formed a firm
belief or conviction that father knowingly engaged in criminal conduct that resulted
in his conviction of an offense and confinement or imprisonment and father had an
inability to care for the children for not less than two years from the date of the filing
of appellees’ petition. See id.
Further, I would conclude that the trial court could have reconciled any
disputed evidence in favor of a finding that father knowingly engaged in criminal
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conduct that resulted in his conviction of an offense and confinement or
imprisonment and father had an inability to care for the children for not less than
two years from the date of the filing of appellees’ petition. And any disputed
evidence was not so significant that a fact finder could not have reasonably formed
a firm belief or conviction that father knowingly engaged in criminal conduct that
resulted in his conviction of an offense and confinement or imprisonment and father
had an inability to care for the children for not less than two years from the date of
the filing of appellees’ petition.
Accordingly, I would hold that the evidence is legally and factually sufficient
to support the trial court’s finding that father knowingly engaged in criminal conduct
that resulted in his conviction of an offense and confinement or imprisonment and
father had an inability to care for the children for not less than two years from the
date of the filing of the petition. See id.
Thus, I would overrule this portion of father’s second issue.
As previously noted, only one predicate finding under Texas Family Code
section 161.001(b)(1) is necessary to support termination of father’s parental rights
to the children. See In re A.V., 113 S.W.3d at 362. Accordingly, because I would
hold that the evidence is legally and factually sufficient to support the trial court’s
finding, under Texas Family Code section 161.001(b)(1)(Q), that father knowingly
engaged in criminal conduct that resulted in his conviction of an offense and
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confinement or imprisonment and father had an inability to care for the children for
not less than two years from the date of the filing of appellees’ petition, it is not
necessary to address the remaining portion of father’s second issue challenging the
trial court’s finding under Texas Family Code section 161.001(b)(1)(F), i.e., that
father failed to support the children in accordance with his ability during a period of
one year ending within six months of the date of the filing of appellees’ petition. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(F); In re A.V., 113 S.W.3d at 362; In re L.W.,
No. 01-18-01025-CV, 2019 WL 1523124, at *16 (Tex. App.—Houston [1st Dist.]
Apr. 9, 2019, pet. denied) (mem. op.); see also TEX. R. APP. P. 47.1.
B. Best Interest of Children
In his notice of appeal, appellant stated that he sought to “challenge the [trial
court’s] best interest finding[],” but in his appellant’s brief, appellant does not argue
that trial court erred in terminating his parental rights to the children because the
evidence is insufficient to support the trial court’s finding that termination of his
parental rights was in the children’s best interest. Father makes no reference to the
trial court’s best-interest finding at all.
The Court reviews the arguments actually raised and briefed on appeal. See
TEX. R. APP. P. 38.1; Klentzman v. Brady, 312 S.W.3d 886, 889 (Tex. App.—
Houston [1st Dist.] Dec. 31, 2009, no pet.). An appellant’s brief “must contain a
clear and concise argument for the contentions made, with appropriate citations to
40
authorities and to the record.” TEX. R. APP. P. 38.1(i). A pro se appellant bears the
burden of discussing his assertions of error. See Yoonessi v. D’Arcy, No.
05-07-00689-CV, 2008 WL 4981631, at *1 (Tex. App.—Dallas Nov. 25, 2008, pet.
denied) (mem. op.). Although the Court construes pro se pleadings and briefs
liberally, it holds pro se litigants to the same standards as licensed attorneys and
requires them to comply with applicable laws and rules of procedure. See Garrett
v. Lee, No. 01-21-00498-CV, 2021 WL 5702177, at *2 (Tex. App.—Houston [1st
Dist.] Dec. 2, 2021, pet. denied) (mem. op.); In re N.E.B., 251 S.W.3d 211, 211–12
(Tex. App.—Dallas 2008, no pet.); see also Hopes-Fontenot v. Farmers New World
Life Ins. Co., No. 01-12-00286-CV, 2013 WL 4399218, at *1 (Tex. App.—Houston
[1st Dist.] Aug. 15, 2013, no pet.) (mem. op.) (pro se litigant must properly present
his case on appeal; appellate court “may not make allowances or apply different
standards for litigants appearing without . . . counsel”). A failure to provide
substantive analysis of an issue or cite appropriate authority waives a complaint on
appeal. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—
San Antonio 2011, no pet.); Washington. v. Bank of N.Y., 362 S.W.3d 853, 854–55
(Tex. App.—Dallas 2012, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex.
App.—Dallas 2006, no pet.) (“[The Court] ha[s] no duty to brief appellant’s issue
for [him]. Failure to cite to applicable authority or provide substantive analysis
waives an issue on appeal.”).
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To the extent that father has attempted to raise a complaint on appeal related
to the trial court’s finding that termination of father’s parental rights was in the
children’s best interest, I would hold that father has waived his complaint because it
is inadequately briefed. See Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677–78
(Tex. App.—Dallas 2004, pet. denied) (appellate court cannot remedy deficiencies
in appellant’s brief and argue his case for him).
Conclusion
Although parental rights are fundamental, they are not the only rights at stake
in a termination-of-parental-rights case. The children also have rights and should be
afforded the chance to pursue their lives now with appellees, rather than be forced
to endure more time in limbo awaiting a new trial, and another potential appeal, in
this case. I would overrule both of father’ issues on appeal and affirm the trial court’s
order terminating the parental rights of father. Because the majority opinion does
otherwise, I respectfully dissent.
Julie Countiss
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
Countiss, J., dissenting.
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