Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00844-CV
IN THE INTEREST OF C.C., a Minor Child
From the 229th Judicial District Court, Duval County, Texas Trial Court No. DC-18-53 Honorable Selina Nava Mireles, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
Delivered and Filed: November 25, 2020
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
Appellant L.C. appeals the trial court’s judgment terminating his parental rights to his
child, C.C.1 We reverse the portion of the trial court’s order terminating L.C.’s parental rights and
render judgment denying the Texas Department of Family and Protective Services’s termination
petition with regard to L.C. We affirm the portion of the trial court’s order appointing the
Department as C.C.’s temporary managing conservator.
BACKGROUND
On March 20, 2018, the Department filed a petition seeking termination of L.C.’s parental
rights to C.C. At the time, L.C. was incarcerated. At trial, the sole termination ground the
1 To protect the privacy of the minor child, we refer to the child and the parent by their initials. TEX. R. APP. P. 9.8(b)(2). 04-19-00844-CV
Department sought to prove with regard to L.C. was its contention he “knowingly engaged in
criminal conduct that has resulted in [his] (i) conviction of an offense; and (ii) confinement or
imprisonment and inability to care for the child for not less than two years from the date of filing
the petition.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). On November 13, 2019, the trial
court signed an order terminating L.C.’s parental rights on that ground. Because the trial court
terminated the parental rights of both L.C. and C.C.’s mother, it appointed the Department as
C.C.’s temporary managing conservator. L.C. timely appealed.
Pursuant to Anders v. California, 386 U.S. 738 (1967), L.C.’s first court-appointed
appellate attorney filed a brief containing a professional evaluation of the record and stating he
“was unable to identify any non-frivolous grounds for appeal.” After reviewing the Anders brief
and the record, we determined a non-frivolous ground for appeal existed. Specifically, we
concluded the record raised questions about whether the evidence supported a finding that L.C.
knowingly engaged in criminal conduct for which he was convicted and imprisoned, as required
by subsection Q. We therefore abated the appeal and remanded this case to the trial court for
appointment of new appellate counsel.
L.C.’s newly appointed appellate counsel filed a brief arguing the evidence is legally
insufficient to support the trial court’s termination of L.C.’s parental rights under subsection Q. In
his brief, L.C. explains the record shows “[t]he State failed to introduce a copy of the judgement
[sic] of conviction, offense reports, officer testimony, or any other evidence which would show
that [L.C.] has ‘knowing[ly] committed’ an offense which resulted in his confinement.” He further
notes, “It is not clear from the record what offense led to [L.C.’s] confinement.” In the prayer of
his brief, he asks us to reverse the portion of the order terminating his parental rights and “remand
the case to trial for conservatorship, possession, and access by L.C.”
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In response, the Department concedes “that there is insufficient evidence to support the
trial court’s finding that [L.C.] knowingly engaged in criminal conduct that resulted in his
incarceration and that this constitutes reversible error.” It argues, however, that we should affirm
the portion of the order appointing it as C.C.’s conservator because L.C. did not challenge the
factual findings underlying that appointment.
ANALYSIS
Termination of L.C.’s Parental Rights
Standard of Review and Applicable Law
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). At trial, the Department had the burden to show, by clear and convincing evidence,
both a statutory ground to terminate L.C.’s parental rights and that termination was in C.C.’s best
interest. TEX. FAM. CODE ANN. § 161.001; In re A.H., 414 S.W.3d 802, 806 (Tex. App.—San
Antonio 2013, no pet.).
When reviewing the legal sufficiency of the evidence, we apply well-established standards
of review. See TEX. FAM. CODE §§ 101.007, 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002). To determine whether the Department produced clear and convincing evidence, a legal
sufficiency review requires us to “‘look at all the evidence in the light most favorable to the finding
to determine whether a reasonable trier of fact could have formed a firm belief or conviction that
its finding was true.’” In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d
at 266). “If, after conducting its legal sufficiency review of the record evidence, a court determines
that no reasonable factfinder could form a firm belief or conviction that the matter that must be
-3- 04-19-00844-CV
proven is true, then that court must conclude that the evidence is legally insufficient.” In re J.F.C.,
96 S.W.3d at 266. If the evidence is legally insufficient to support the order of termination,
“[r]endition of judgment in favor of the parent would generally be required.” Id.
Application
The Department concedes it did not meet its burden of proof to show termination of L.C.’s
parental rights was warranted under subsection Q. After reviewing the record, we agree. There is
no evidence identifying the offense that resulted in L.C.’s conviction and subsequent incarceration.
As a result, there is no evidence upon which the trial court could have relied to form a firm belief
or conviction that L.C. “‘knowingly [as opposed to negligently] engaged in criminal
conduct’ . . . that resulted in his conviction.” In re C.D.E., 391 S.W.3d 287, 300–01 (Tex. App.—
Fort Worth 2012, no pet.) (emphasis and alteration in original). Accordingly, we reverse the
portion of the trial court’s judgment that terminates L.C.’s parental rights under subsection Q. See
id.; see also In re A.B.R., No. 04-18-00634-CV, 2019 WL 287349, at *1 (Tex. App.—San Antonio
Jan. 23, 2019, no pet.) (mem. op.). Because the evidence is legally insufficient to support
termination, we render judgment denying the Department’s petition as to L.C. In re J.F.C., 96
S.W.3d at 266; In re A.B.R., 2019 WL 287349, at *1.
Appointment of Department as C.C.’s Conservator
The Department contends that even though “the portion of the judgment terminating
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00844-CV
IN THE INTEREST OF C.C., a Minor Child
From the 229th Judicial District Court, Duval County, Texas Trial Court No. DC-18-53 Honorable Selina Nava Mireles, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
Delivered and Filed: November 25, 2020
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
Appellant L.C. appeals the trial court’s judgment terminating his parental rights to his
child, C.C.1 We reverse the portion of the trial court’s order terminating L.C.’s parental rights and
render judgment denying the Texas Department of Family and Protective Services’s termination
petition with regard to L.C. We affirm the portion of the trial court’s order appointing the
Department as C.C.’s temporary managing conservator.
BACKGROUND
On March 20, 2018, the Department filed a petition seeking termination of L.C.’s parental
rights to C.C. At the time, L.C. was incarcerated. At trial, the sole termination ground the
1 To protect the privacy of the minor child, we refer to the child and the parent by their initials. TEX. R. APP. P. 9.8(b)(2). 04-19-00844-CV
Department sought to prove with regard to L.C. was its contention he “knowingly engaged in
criminal conduct that has resulted in [his] (i) conviction of an offense; and (ii) confinement or
imprisonment and inability to care for the child for not less than two years from the date of filing
the petition.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). On November 13, 2019, the trial
court signed an order terminating L.C.’s parental rights on that ground. Because the trial court
terminated the parental rights of both L.C. and C.C.’s mother, it appointed the Department as
C.C.’s temporary managing conservator. L.C. timely appealed.
Pursuant to Anders v. California, 386 U.S. 738 (1967), L.C.’s first court-appointed
appellate attorney filed a brief containing a professional evaluation of the record and stating he
“was unable to identify any non-frivolous grounds for appeal.” After reviewing the Anders brief
and the record, we determined a non-frivolous ground for appeal existed. Specifically, we
concluded the record raised questions about whether the evidence supported a finding that L.C.
knowingly engaged in criminal conduct for which he was convicted and imprisoned, as required
by subsection Q. We therefore abated the appeal and remanded this case to the trial court for
appointment of new appellate counsel.
L.C.’s newly appointed appellate counsel filed a brief arguing the evidence is legally
insufficient to support the trial court’s termination of L.C.’s parental rights under subsection Q. In
his brief, L.C. explains the record shows “[t]he State failed to introduce a copy of the judgement
[sic] of conviction, offense reports, officer testimony, or any other evidence which would show
that [L.C.] has ‘knowing[ly] committed’ an offense which resulted in his confinement.” He further
notes, “It is not clear from the record what offense led to [L.C.’s] confinement.” In the prayer of
his brief, he asks us to reverse the portion of the order terminating his parental rights and “remand
the case to trial for conservatorship, possession, and access by L.C.”
-2- 04-19-00844-CV
In response, the Department concedes “that there is insufficient evidence to support the
trial court’s finding that [L.C.] knowingly engaged in criminal conduct that resulted in his
incarceration and that this constitutes reversible error.” It argues, however, that we should affirm
the portion of the order appointing it as C.C.’s conservator because L.C. did not challenge the
factual findings underlying that appointment.
ANALYSIS
Termination of L.C.’s Parental Rights
Standard of Review and Applicable Law
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). At trial, the Department had the burden to show, by clear and convincing evidence,
both a statutory ground to terminate L.C.’s parental rights and that termination was in C.C.’s best
interest. TEX. FAM. CODE ANN. § 161.001; In re A.H., 414 S.W.3d 802, 806 (Tex. App.—San
Antonio 2013, no pet.).
When reviewing the legal sufficiency of the evidence, we apply well-established standards
of review. See TEX. FAM. CODE §§ 101.007, 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002). To determine whether the Department produced clear and convincing evidence, a legal
sufficiency review requires us to “‘look at all the evidence in the light most favorable to the finding
to determine whether a reasonable trier of fact could have formed a firm belief or conviction that
its finding was true.’” In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d
at 266). “If, after conducting its legal sufficiency review of the record evidence, a court determines
that no reasonable factfinder could form a firm belief or conviction that the matter that must be
-3- 04-19-00844-CV
proven is true, then that court must conclude that the evidence is legally insufficient.” In re J.F.C.,
96 S.W.3d at 266. If the evidence is legally insufficient to support the order of termination,
“[r]endition of judgment in favor of the parent would generally be required.” Id.
Application
The Department concedes it did not meet its burden of proof to show termination of L.C.’s
parental rights was warranted under subsection Q. After reviewing the record, we agree. There is
no evidence identifying the offense that resulted in L.C.’s conviction and subsequent incarceration.
As a result, there is no evidence upon which the trial court could have relied to form a firm belief
or conviction that L.C. “‘knowingly [as opposed to negligently] engaged in criminal
conduct’ . . . that resulted in his conviction.” In re C.D.E., 391 S.W.3d 287, 300–01 (Tex. App.—
Fort Worth 2012, no pet.) (emphasis and alteration in original). Accordingly, we reverse the
portion of the trial court’s judgment that terminates L.C.’s parental rights under subsection Q. See
id.; see also In re A.B.R., No. 04-18-00634-CV, 2019 WL 287349, at *1 (Tex. App.—San Antonio
Jan. 23, 2019, no pet.) (mem. op.). Because the evidence is legally insufficient to support
termination, we render judgment denying the Department’s petition as to L.C. In re J.F.C., 96
S.W.3d at 266; In re A.B.R., 2019 WL 287349, at *1.
Appointment of Department as C.C.’s Conservator
The Department contends that even though “the portion of the judgment terminating
[L.C.’s] parental rights should be reversed,” we should affirm the order appointing the Department
as C.C.’s temporary managing conservator because L.C. did not challenge the trial court’s factual
findings on conservatorship. We agree. See In re J.A.J., 243 S.W.3d 611, 612–13 (Tex. 2007).
While L.C. requests a remand on the issue of conservatorship in the prayer of his appellate brief,
he does not specifically challenge the findings underlying the trial court’s conservatorship ruling.
See id. at 615 (concluding challenge to conservatorship findings was not subsumed in challenge
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of termination order); see also In re J.M.T., No. 04-19-00807-CV, 2020 WL 3547971, at *7 n.6
(Tex. App.—San Antonio July 1, 2020, no pet. h.) (refusing to disturb a trial court’s
conservatorship ruling because parent only challenged termination). Nor does he present any
argument or authority showing that ruling was erroneous. See TEX. R. APP. P. 38.1. As a result, we
affirm the portion of the trial court’s order appointing the Department as C.C.’s temporary
managing conservator.
CONCLUSION
We reverse the portion of the trial court’s order terminating L.C.’s parental rights to C.C.
and render judgment denying the Department’s termination petition with regard to L.C. We affirm
the portion of the trial court’s order appointing the Department as C.C.’s temporary managing
conservator.
Beth Watkins, Justice
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