Affirm in part and reverse and render in part; Opinion Filed December 9, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00652-CV
IN THE INTEREST OF D.P.G., A CHILD
On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 87836
MEMORANDUM OPINION Before Justices Schenck, Molberg, and Nowell Opinion by Justice Schenck Mother and Father appeal the trial court’s order terminating their respective
parental rights to D.P.G.1 They both challenge the legal and factual sufficiency of
the evidence to support the trial court’s finding they constructively abandoned
D.P.G. as the predicate ground for termination of their parental rights. See TEX.
FAM. CODE ANN. § 161.001(b)(1)(N). Mother and Father do not challenge the trial
court’s finding termination of their parental rights is in the best interest of D.P.G.
We find jurisdiction over mother’s appeal and affirm the trial court’s termination
order as to her. We reverse the termination order as to Father. Because the
1 Mother and Father are not married and filed separate appeals. dispositive issues in this case are settled in law, we issue this memorandum opinion.
See TEX. R. APP. P. 47.4.
JURISDICTION OVER MOTHER’S APPEAL
As a threshold matter, we must determine whether we have jurisdiction over
Mother’s appeal.2 The following undisputed facts are germane to this determination.
The termination hearing concluded on May 6, 2020, with the trial court finding
Mother’s parental rights should be terminated. Mother was not present at the
hearing, but was represented by trial counsel. On May 14, the trial court entered an
Order Appointing Appellate Counsel in which it stated it found Mother’s parental
rights should be terminated, that Mother is entitled to appellate counsel to conduct
the appeal, and ordered the appointment of Toby Wilkinson as that counsel. The
trial court did not send a copy of that order to Wilkinson, and there is no indication
in the record that the order was sent to Mother. It is uncontested that Wilkinson only
became aware of his appointment when he received an email from the official court
reporter on July 8, 2020, in connection with the filing of the reporter’s record with
this Court. He then discovered that the trial court had entered its order of termination
on June 2. On July 9, he filed a formal notice of appeal and motion for extension of
2 Jurisdiction over Father’s appeal is not in question. The trial court entered its Order of Termination on June 2, 2020, and Father filed his notice of appeal on June 19, 2020, within 20 days of the trial court’s order. See TEX. R. APP. P. 28.4 (appeals in parental termination cases are governed by rules of appellate procedure for accelerated appeals), 26.1(b) (notice of appeal in accelerated appeal must be filed within 20 days after the judgment or order is signed). –2– time to file on behalf of Mother. Mother’s appellate counsel concedes that Mother’s
motion for extension of time was not timely filed, but urges, given the lack of notice
of her appellate counsel’s appointment, application of the rules governing
accelerated appeals violates Mother’s due process rights. Given the unique nature
of this proceeding, the elevated interests involved, and that the delay is entirely a
product of state action, we conclude that it does.
In this case, the State, through the Texas Department of Family and Protective
Services (the “Department”), sought to terminate Mother’s parental rights and the
judge, also acting as an agent of the State, albeit a separate branch of it, concluded
that her rights should be terminated, and appointed counsel to represent Mother on
appeal, as required by statute. See TEX. FAM. CODE ANN. § 107.301(a)(1). Yet the
court did not notify the individual charged with representing Mother’s interests on
appeal of the appointment, and that counsel was not afforded any opportunity to
timely file a notice of appeal or a timely motion for extension of time to file the
notice. See TEX. R. APP. P. 28.4 (appeals in parental termination cases are governed
by rules of appellate procedure for accelerated appeals), 26.1(b) (notice of appeal in
accelerated appeal must be filed within 20 days after the judgment or order is
signed). Thus, we are left to consider: (1) whether any filing in the trial court is the
functional equivalent of a written notice of appeal and to consider Mother’s due
process argument; and (2) whether the failure to notify counsel would, on the facts
before us, deny mother due process in any event. –3– We begin by noting that a notice of appeal is to be filed in the trial court, not
this Court. See TEX. R. APP. P. 25.1(a). The purpose of the notice of appeal is to
apprise the trial court and the opposing party that the party suffering an adverse
judgment intends to appeal and sets the appellate process in motion. 4 C.J.S. § 479.
In the context of parental termination, subject to a statutory obligation to appoint
counsel to pursue an appeal, one might wonder, what further purpose the seprate
notice from appointed counsel achieves? While an order appointing counsel for a
possible appeal, standing alone, obviously does not absolve counsel with notice of
his appointment of his obligation to file the necessary notice, we would be inclined
to find that when the trial court fails to give notice of the appointment to the very
person charged with timely filing it, the order of appointment has served every
legitimate interest underlying the requirement of filing a notice of appeal.
Accordingly, under the circumstances presented here, it might be argued that the
appointment either served as the notice of appeal or that the failure to serve notice
to counsel operated as a functional denial of notice of the judgment to the party,
implicating rule 306a(4). 3 At this stage we are aware of no controlling authority
developing those questions and will pretermit further development of them because,
3 While in the ordinary case, notice to a party of a judgment surely suffices to trigger the relevant appellate periods, this is hardly the ordinary case. The State is engaged with a litigant whom it contends is manifestly unable to manage her affairs. In a typical case, we would fairly assume that litigants are communicating with their counsel to confirm timely management of deadlines and when selecting appellate counsel are tracking developments in their case. In this case, however, there is no indication mother was even notified of the appointment and, had she been notified, she would likely presume the lawyer was also notified and acting according to its terms and purposes. –4– as set forth infra, we conclude that application of the rules concerning perfection of
Mother’s appeal is unconstitutional as applied here.
Parental rights are “far more precious than any property right,” and when the
State initiates a termination proceeding, “it seeks not merely to infringe that
fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 758–
59 (1982). The termination of parental rights involves fundamental constitutional
rights, and our constitution and statutes provide for one level of appeal as a matter
of right in termination cases. In re T.V., 8 S.W.3d 448, 449 (Tex. App.—Waco 1999,
no pet.). As we have previously noted, the accelerated deadline to file a notice of
appeal in parental terminations cases is a trap for the unwary. In re R.J.S., 219
S.W.3d 623, 627 (Tex. App.—Dallas 2007, pet. denied). Because of the accelerated
nature of these cases, trial courts must act expeditiously when appointing new
counsel for the appeal. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In doing so,
it is imperative that the court notify court appointed counsel of the fact of the
appointment. Failure to do so creates the risk, realized in this case, that counsel will
not have the ability under our rules to timely file the notice of appeal. Worse still,
where the parent is informed of the appointment, or even where the parent is merely
deemed to be on notice of it, the appointment order would affirmatively discourage
the parent from pursuing a timely pro se appeal or retaining separate counsel. While
there is no federal due process requirement by which the states would be obliged to
–5– provide for appellate review of trial court judgments, 4 once the right to pursue
appellate review has been recognized, the State itself cannot arbitrarily deny it.
Griffin v. Illinois, 351 U.S. 12, 18 (1956); Lindsey v. Normet, 405 U.S. 56, 77 (1972);
see also TEX. CONST. art. 1 §13.
While the Department, the parent, and the child all share an interest in a quick
and final decision, finality cannot trump a parent’s constitutional right to be heard,
including by appeal where the right to appeal exists. Stanley v. Illinois, 405 U.S.
645, 646 (1972); In the Interest of M.S., 115 S.W.3d 534, 548 (Tex. 2003); see
also In re B.G., 317 S.W.3d 250, 258 (Tex. 2010) (holding failure to file requisite
statement of appellate points could not, consistent with due process, form a basis for
denying parent appellate record and concluding family code section 263.405 was
unconstitutional as applied to parent); In re J.O.A., 283 S.W.3d at 339, 347 (holding
that despite parents’ failure to file timely statement of appellate points, due process
required they be allowed to appeal; “section 263.405(i) 5 is unconstitutional as
applied when it precludes a parent from raising a meritorious complaint about the
insufficiency of the evidence supporting the termination order”).
4 M.L.B. v. S.L.J., 519 U.S. 102, 131 (1996) (Thomas, J., dissenting) (acknowledging the court’s “oft- affirmed view that due process does not oblige the states to provide for any appeal, even from a criminal conviction”). 5 Section 263.405(i) has been repealed. It barred an appellate court’s consideration of any issue not presented to the trial court in a timely filed statement of points. –6– To be clear, this case does not involve private litigants bungling deadlines in
a contest implicating their respective property rights. Here, the State, through its
executive branch, sought to terminate Mother’s parental rights. Thus, this case
involves a fundamental liberty interest with heightened procedural protections.
Mother is indigent; thus, the trial court was required to (and did) appoint counsel to
represent her. TEX. FAM. CODE ANN. § 107.301(a)(1). The statutory right to
appointed counsel gives rise to constitutional considerations of due process in the
administration of that right. In re S.K.S., 236 S.W.3d 875, 891 (Tex. App.—
Texarkana 2007, pet. denied). And yet, the trial court, another State actor, in
appointing counsel failed to give notice of the appointment. In effect, the trial court
failed to provide Mother with counsel, as mandated by statute, and foreclosed her
right to appeal within the rules. Accordingly, we conclude that section 263.405 of
the family code (acceleration of appeals of termination orders) and the appellate
rules concerning the perfection of appeals, as applied in this particular case, with
respect to Mother, are unconstitutional and do not preclude this Court from
considering Mother’s appeal. See, e.g., In re E.R., 385 S.W.3d 552, 562, 567 (Tex.
2012) (due process prevails over state law time limit).
BACKGROUND
D.P.G. was born on August 9, 2019. He was removed from his parents’ care
shortly thereafter and placed into foster care due to a report that Mother had abused
amphetamines and during her pregnancy, as confirmed by D.P.G.’s positive test –7– results for amphetamines. 6 Both parents met with a Child Protective Services
caseworker on August 15, 2019, to discuss possible family placement for the child.
The maternal grandparents and a paternal aunt were identified as possible
placements. Those potential placements did not come to fruition, however.
On August 16, the Department filed an Original Petition for Protection of a
Child, for Conservatorship, and for Termination in Suit Affecting the Parent–Child
Relationship, seeking, among other things, to immediately be named the sole
managing conservator of D.P.G. The record establishes Mother was served with the
petition, but Father was not.
Early in the case, the Department prepared a family service plan to address
the issues that led to the removal of D.P.G. from Mother’s care. That plan was
prepared with Mother’s input. The plan’s goal was for reunification and included
services that were geared toward alleviating or mitigating the cause necessitating the
placement of D.P.G. in foster care. The Department did not prepare a family service
plan for Father, presumably as his paternity had not yet been confirmed.
The trial court held an adversary hearing on August 22. The appellate record
does not contain a transcript of that hearing. The temporary order entered following
the hearing indicates Mother and Father appeared at that hearing, both unrepresented
by counsel. At that hearing, the trial court ordered Mother to (1) submit to drug and
6 Mother has two other children who are not in her care. Father is not related to those children.
–8– alcohol dependency assessments, (2) participate in psychosocial evaluation and
counseling, (3) attend parenting classes, (4) submit to drug testing, (5) abstain from
using drugs, (6) attend Narcotics Anonymous/Alcoholics Anonymous (“NA/AA”)
meetings three times a week, (7) maintain stable housing and income, and (8) comply
with each requirement set out in the Department’s service plan, which included
attending Intensive Outpatient Program/Supportive Outpatient Program
(“IOP/SOP”) classes. The trial court also ordered Father to submit to genetic tests
to determine parentage.
A status hearing was conducted on October 15. The appellate record does not
contain a transcript of that hearing. The status hearing order indicates Father
appeared at that hearing, unrepresented by counsel, and Mother did not appear.
Father was apparently incarcerated at that time as he appeared at the hearing wearing
an orange jumpsuit.
A permanency hearing took place on January 9, 2020. Father attended that
hearing, again unrepresented by counsel; Mother did not attend. The transcript of
that hearing reveals that Father’s principal concern to that point was with
establishing his biological relation to D.P.G. Father was advised the genetic testing
had established that he is D.P.G.’s father. The Department asked the court to order
Father to (1) complete a substance abuse assessment, (2) attend NA/AA meetings,
(3) attend IOP/SOP classes, (4) submit to a psychosocial evaluation, and (5) attend
counseling and parenting classes. The court did so. In addition, the Department –9– advised, at this point, that it was seeking to terminate Mother’s and Father’s parental
rights.7 As a result of the Department’s pronouncement, the trial court appointed
trial counsel to represent Mother and Father. On January 23, the trial court entered
an order adjudicating Father as the biological parent of D.P.G.
A bench trial took place by video conference on April 29 and May 6. Mother
and Father appeared solely through their trial counsel. The trial court heard
testimony from Amber Davidson (Department caseworker), Larry Barksdale (Child
Protective Services supervisor), and Maria Yanez (Court Appointed Special
Advocates (CASA) advocate).
Testimony of Amber Davidson
Davidson testified that, at the adversary hearing in August 2019, Mother and
Father told her they were living in a motel, and Father admitted to marijuana use.
Davidson met with Mother on August 28, 2019. At that meeting, Mother admitted
she has a substance abuse problem, her drugs of choice are methamphetamine and
marijuana, and she had been struggling with addiction for a couple of years.
Davidson met with Mother and Father during their one and only visitation
with D.P.G. on September 3, 2019. During that meeting, Davidson gave Mother and
Father her contact information, including phone numbers and email address.
7 Prior to this point, the record does not indicate that Father was served or otherwise advised of any effort to terminate his rights. Rather, as noted, Father appeared to be first interested in establishing the fact of paternity. –10– Davidson recalled that Mother and Father argued as to whether Father was in fact
D.P.G.’s father. Another visitation was scheduled for September 23. Neither parent
attended. According to Davidson, neither parent made any attempt to see D.P.G.
after September 3, and during the pendency of the case, they had not sent any cards,
letters, gifts or anything at all to indicate they want to maintain a relationship with
the child. Davidson last communicated with Mother on September 12, when Mother
texted her new contact information, including an apartment address. Davidson
attempted to see that apartment on September 17 and 24, but was not able to obtain
access to the apartment. Davidson did not advise Mother and Father of her plan to
visit their apartment prior to her arrivals. Thereafter, Davidson attempted to contact
Mother through Mother’s mother without success.
The Department attempted to place D.P.G. with a relative. The two potential
placements did not work out. 8 The Department prepared a family service plan for
Mother, with Mother’s input. Davidson confirmed her review of the case file
revealed the Department did not prepare a family service plan for Father. Mother,
who did participate in a service plan nevertheless failed to complete a drug and
alcohol assessment or the requisite parenting classes, did not attend any sessions for
NA/AA, did not participate in IOP/SOP classes, and did not maintain stable income
8 The maternal grandparents already had custody of Mother’s eldest child, and due to their age, they were not in a position to care for an infant. Father’s sister likewise indicated that she was not able to care for an infant. –11– and housing, as she promised in entering the service plan. Mother completed the
initial random drug testing, but failed to submit to subsequent testing as agreed. At
the adversary hearing, before he was determined to be the biological parent, Father
was ordered to submit to drug testing. He did not do so.
Mother and Father were both incarcerated at some time during the pendency
of the case. Father was still incarcerated at the January 9, 2020 permanency hearing
and indicated that he believed he would be released in a couple of weeks. Davidson
was not aware of any signed order requiring Father to complete the services the
Department requested. Davidson believed Mother was released from jail in March
2020, but admitted she did not know whether she had been released. She also
admitted she did not know whether Father had been released, but thought he had
been based on an inmate search. Davidson attempted to locate Mother and Father
by reaching out to Mother’s mother and Father’s sister. Those attempts were not
successful.
Davidson testified D.P.G. is thriving in his foster placement. He is
developmentally on target and is well bonded with the foster family. The foster
parents are interested in adopting D.P.G. Davidson expressed her belief that it is in
the best interest of D.P.G. to terminate Mother’s and Father’s parental rights because
they had not attempted to complete the court ordered services, did not have a stable
home, and could not take care of themselves.
–12– Testimony of Larry Barksdale
Barksdale was present at the permanency hearing on January 9, 2020. He
testified that Father was present at that hearing. At that hearing, the Department
requested that the court order Father to complete various services. The court did so.
No written order was provided to Father, and Father never contacted the Department
asking for an order. Father was in shackles at that hearing and could not take notes
about the services he was to complete. Father indicated he believed he would be
released from jail in a couple of weeks. Barksdale testified that had Father been
released at that time, he would have had a chance to complete the ordered services.
Barksdale admitted the services were not designed for an incarcerated person and he
did not know if Father could participate in the services where he was being detained.
Father failed to maintain contact with the Department, and Barksdale did not receive
any information from Father indicating he was working on completing the required
services.
Testimony of Maria Yanez (CASA volunteer)
Yanez attempted to observe a visit between Mother and D.P.G. at the end of
September 2019, but Mother did not attend. Yanez expressed her belief Mother and
Father cannot meet D.P.G.’s physical and emotional needs due to their drug use. She
received no indication that Mother and Father have a stable home. She was unable
to find an address for them.
–13– Yanez was able to observe D.P.G. with his foster family. Yanez described
D.P.G. as being a happy baby and indicated that he and the other children in the
home were “engage[d] as a normal family.” Yanez confirmed that she had not
received any cards, letters, gifts or anything that would indicate Mother and Father
want to continue a relationship with D.P.G. Like Davidson, Yanez expressed her
belief that it was in the best interest of D.P.G. to terminate Mother’s and Father’s
parental rights. She confirmed the foster parents are motivated to adopt D.P.G. and
stated the foster family members are the only faces D.P.G. has consistently seen
since his birth.
At the conclusion of the trial on the merits, the trial court found Mother and
Father had constructively abandoned D.P.G. and the Department had made
reasonable efforts to return the child to Mother and Father, Mother and Father had
not regularly visited or maintained significant contact with D.P.G., and Mother and
Father had demonstrated an inability to provide D.P.G. with a safe environment.
TEX. FAM. CODE ANN. § 161.001(b)(1)(N). The court further found that termination
of the parent–child relationship between Mother and Father and D.P.G. to be in the
best interest of D.P.G. On June 2, 2020, the trial court entered its order terminating
Mother’s and Father’s parental rights to D.P.G and appointing the Department
Permanent Managing Conservator of D.P.G.
DISCUSSION
The involuntary termination of parental rights involves fundamental –14– constitutional rights. In re G.M., 596 S.W.2d 846 (Tex. 1980). The Supreme Court
has stated that a natural parent’s desire for—and his right to—the companionship,
care, custody, and management of his child is an interest “far more precious than
any property right.” Santosky, 455 U.S. at 758–59. A termination decree is final
and irrevocable, divesting for all time that natural right as well as all legal rights,
privileges, duties, and powers between the parent and child except for the child’s
right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Courts have
recognized that termination of a parent’s rights to his child is “traumatic, permanent,
and irrevocable.” In re M.S., 115 S.W.3d 534, 549 (Tex. 2003). For these reasons,
the Texas Family Code and the Due Process Clause of the United States Constitution
require that grounds for termination of parental rights be proved by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001; Santosky, 455 U.S. at 753–
54. And for the same reasons, we strictly construe involuntary termination statutes
in favor of the parent. In re E.R., 385 S.W.3d at 563.
To apply the clear and convincing evidence standard of proof in parental
termination cases, we ask whether the proof is such that a reasonable fact finder
could have formed a firm belief or conviction about the truth of the allegations. In
re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). In our legal sufficiency review, we
consider all the evidence in the light most favorable to the finding. Id. at 266. We
assume that the fact finder resolved disputed evidence in favor of the finding if a
reasonable fact finder could do so, and we disregard all contrary evidence that a –15– reasonable fact finder could have disbelieved or found incredible. Id.
For a trial court to terminate a parent’s right to his child, the State must prove
by clear and convincing evidence that the parent committed an act prohibited under
the family code’s section 161.001(b)(1) and that termination is in the child’s best
interest. TEX. FAM. CODE ANN. § 161.001(b)(1–2).
In this case, the trial court, as the fact finder, concluded Mother and Father
constructively abandoned D.P.G., a predicate ground for termination under section
161.001(b)(1) of the family code. Id § 161.001(b)(1)(N). To establish constructive
abandonment, the Department had to prove by clear and convincing evidence the
child has been in the permanent or temporary managing conservatorship of the
Department for not less than six months; and (i) the Department has made reasonable
efforts to return the child to the parent; (ii) the parent has not regularly visited or
maintained significant contact with the child; and (iii) the parent has demonstrated
an inability to provide the child with a safe environment. Id. If there is legally or
factually insufficient evidence of one or more of these elements, then the finding of
constructive abandonment fails. In re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort
Worth 2000, pet. denied).
Mother’s Appeal
Mother does not dispute that D.P.G. was in the Department’s care for more
than six months, that the Department made reasonable efforts to return D.P.G. to her,
and that she did not regularly visit or maintain significant contact with D.P.G. She –16– challenges the trial court’s finding concerning the final element only, that she
demonstrated an inability to provide D.P.G. with a safe environment. In doing so,
Mother claims the Department was required to conduct a social study of Mother’s
home to determine whether she could provide D.P.G. with a safe environment and
that the Department could have conducted such a study because it always knew
where Mother resided.
As an initial matter, we note the record establishes the Department did not
always know the whereabouts of Mother and Mother failed to maintain contact with
the Department to make a home study possible. In addition, Mother fails to support
her argument the Department had a duty to conduct a home study with any legal
authority and ignores the fact that the safe environment determination encompasses
a multitude of factors, several of which support the trial court’s finding she has
demonstrated an inability to provide D.P.G. with a safe environment. In re N.A.V.,
No. 04-19-00646-CV, 2020 WL 1250830, at *6 (Tex. App.—San Antonio Mar. 17,
2020, pet. denied) (mem. op.). Those factors include the child’s age and physical
and mental vulnerabilities; the willingness and ability of Mother to seek out, accept,
and complete counseling services and to cooperate with and facilitate an appropriate
agency’s close supervision; the willingness and ability of Mother to effect positive
environmental and personal changes within a reasonable period of time; and whether
Mother demonstrates adequate parenting skills. See In re M.R.J.M., 280 S.W.3d
494, 506 (Tex. App.—Fort Worth 2009, no pet.). –17– The trial court heard evidence D.P.G. came into the care of the Department
days after his birth due to allegations of substance abuse. Mother admitted to having
used methamphetamine and marijuana throughout her pregnancy knowing that
doing so was harmful to the child. Upon his birth, D.P.G. tested positive for drugs.
At the time of trial, D.P.G. was less than a year old and in need of constant care and
attention. A service plan was put into place for Mother to foster reunification. Early
in the case, Mother was ordered to complete drug and alcohol assessment, to submit
to a psychosocial evaluation and individual counseling, to complete parenting
classes, to attend NA/AA or Celebrate Recovery three times a week, to maintain
stable income and housing, and to submit to random drug testing. Mother did not
complete any of the required services, other than submitting to the initial drug
testing. After September 2019, Mother did not maintain contact with the Department
and did not provide the Department with any information about her living or
employment circumstances. In light of the foregoing, the trial court could
reasonably find by clear and convincing evidence that the Department proved
Mother demonstrated an inability to provide D.P.G. with a safe environment. See,
e.g., In re G.P., 503 S.W.3d 531, 534 (Tex. App.—Waco 2016, pet. denied)
(upholding finding of failure to provide safe environment where mother failed to
provide Department with any information about her living or employment
circumstances, failed to make child support payments, failed to seek out and accept
counseling services, refused to take required drug tests, and failed to even maintain –18– contact with her child); In re J.J.O., 131 S.W.3d 618, 630 (Tex. App.—Fort Worth
2004, no pet.) (considering evidence that mother had failed a drug test, had attended
only half of her parenting classes, and did not complete a psychological evaluation
or participate in counseling in upholding the trial court’s determination she had
demonstrated inability to provide her child with safe environment). We conclude
that the evidence was legally and factually sufficient to support the trial court’s
finding on Mother’s ability to provide a safe environment for D.P.G. We overrule
Mother’s sole issue.
Father’s Appeal
Father does not dispute that D.P.G. was in the Department’s care for more
than six months, and that he did not regularly visit or maintain significant contact
with D.P.G. He challenges the trial court’s findings the Department made
reasonable efforts to return D.P.G. to Father, and Father demonstrated an inability
to provide D.P.G. with a safe environment. For the reasons set forth herein, we
conclude the Department failed to present clear and compelling proof Father could
not provide D.P.G. with a safe environment, and pretermit consideration of his
complaint concerning the trial court’s finding the Department made reasonable
efforts to return the child to Father. TEX. R. APP. P. 47.1; In re D.T., 34 S.W.3d at
633 (holding that constructive-abandonment finding fails if there is no evidence of
one or more elements of subsection (N).
The evidence established D.P.G. came into the Department’s care due to –19– Mother’s actions, not Father’s. There is no evidence Father had knowledge of
Mother’s drug use during her pregnancy. In addition, in this case paternity was
questioned, and was the principal point in issue from Father’s perspective until it
was confirmed. Nevertheless, Father appeared at the adversary hearing, the status
hearing and the permanency hearing. Father did not receive confirmation of his
parentage until the permanency hearing, which took place five months after D.P.G.
was born and only approximately three months prior to trial. Father was still
incarcerated at that time. Unlike Mother, the Department did not prepare a service
plan for Father. Father was not ordered to complete services until January 2020 and
the Department failed to establish it was possible for Father to participate in and
complete the required services while he was incarcerated or at any time between
confirmation of his parental relation and the trial. Indeed, the record is unclear as to
when Father may have been released from jail, if at all. Because Father was not the
reason for the removal of D.P.G., and given the uncertainty of Father’s biological
relation to D.P.G. and the circumstances surrounding the court’s order that he
complete services, the timing of that order, and the effect imprisonment may have
had on Father’s ability to work on completing the services, we conclude Father’s
alleged failure to participate in and complete court ordered services does not
establish he was unable to provide D.P.G. with a safe environment at the time of
trial.
As to other factors that may be considered in connection with a finding of –20– inability to provide a child with a safe environment, the burden of proof was on the
Department to prove Father’s inability to provide D.P.G. with a safe environment,
not on Father to prove his ability. In re A.S., 261 S.W.3d 76, 90 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). Davidson’s conclusory opinion that Father
had not shown any stability or ability to care for the child is not supported by any
facts. Thus, the finding that Father has demonstrated an inability to provide D.P.G.
with a safe environment is not supported by clear and convincing evidence. See In
re J.L.G., No. 06-16-0087-CV, 2017 WL 1290895, at *10 (Tex. App.—Texarkana
Apr. 6, 2017, no pet.) (mem. op.) (holding evidence insufficient for constructive
abandonment when there was no evidence, other than conclusory opinions,
regarding father’s financial resources, employment history, home environment,
parenting skills, or ability or inability to care for the child); see also Earvin v. Dep’t
of Family & Protective Servs., 229 S.W.3d 345, 348 (Tex. App.—Houston [1st Dist.]
2007, no pet.). We conclude that the evidence is legally insufficient to support the
trial court’s finding concerning Father’s ability to provide D.P.G. with a safe
environment. TEX. R. APP. P. 47.1. Because the trial court’s finding of constructive
abandonment under subsection (N) is not supported by legally sufficient evidence,
the finding cannot support the trial court’s order of termination. See TEX. FAM. CODE
ANN. § 161.001(b). We sustain Father’s sole issue.
Department as Managing Conservator
The Department requested conservatorship pursuant to Family Code section –21– 153.131 and the trial court made the specific findings that the statute requires: that
appointment of Father as D.P.G.’s managing conservator would not be in his best
interest because it would significantly impair his physical health or emotional
development, and that appointment of the Department was in D.P.G.’s best interest.
TEX. FAM. CODE ANN. § 153.131. Father did not specifically appeal these findings
or the conservatorship order. Because appointment of the Department as managing
conservator under section 153.131 is a basis for appointment separate and apart from
appointment solely as a consequence of a termination decree, separate challenges
are required on appeal. In re J.A.J., 243 S.W.3d 611, 613 (Tex. 2007). Accordingly,
we do not disturb the trial court’s order awarding the Department permanent
managing conservatorship.
CONCLUSION
We affirm the trial court’s order terminating Mother’s parental rights to
D.P.G. We reverse the trial court’s order terminating Father’s parental rights to
D.P.G., and we render judgment denying the Department’s request for termination
of Father’s parental rights.
/David J. Schenck/ 200652F.P05 DAVID J. SCHENCK JUSTICE
–22– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF D.P.G., A On Appeal from the 196th Judicial CHILD, District Court, Hunt County, Texas Trial Court Cause No. 87836. No. 05-20-00652-CV Opinion delivered by Justice Schenck. Justices Molberg and Nowell participating.
In accordance with this Court’s opinion of this date, the trial court’s June 2, 2020, Order of Termination in this cause is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s order finding Father constructively abandoned D.P.G. and terminating the parent child relationship between Father and D.P.G. and RENDER judgment denying the Texas Department of Family and Protective Services’ request that Father’s parental rights be terminated as to D.P.G. In all other respects, the trial court’s order is AFFIRMED.
Judgment entered this 9th day of December, 2020.
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