Opinion issued March 14, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00844-CV ——————————— IN THE INTEREST OF J. G. S., A CHILD
On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2016-52707
CONCURRING OPINION
I write separately to highlight an unforeseen consequence of In re H.R.M., 209
S.W.3d 105 (Tex. 2006), that may bear reexamining by the Texas Supreme Court.
Parental Rights
“The natural right existing between parents and their children is of
constitutional dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The “involuntary termination of parental rights involves fundamental constitutional
rights.” In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). Natural parental rights have
been characterized as “essential,” “basic civil rights of man,” and “far more precious
than . . . property rights.” Stanley v. Illinois, 405 U.S. 645, 651 (1976).
“A termination decree is complete, final, irrevocable and divests for all time
that natural right as well as all legal rights, privileges, duties and powers with respect
to each other except for the child’s right to inherit.” Holick, 685 S.W.2d at 20.
Consequently, termination proceedings must be strictly scrutinized. Holick, 685
S.W.2d at 20. And involuntary termination statutes are strictly construed in favor of
the parent. Id.
“The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State.” Santosky
v. Kramer, 455 U.S. 745, 753 (1980). “Even when blood relationships are strained,
parents retain a vital interest in preventing the irretrievable destruction of their
family life.” Id.
The Texas Supreme Court “has long recognized that the ‘natural right existing
between parents and their children is of constitutional dimensions.’” In re J.F.C., 96
S.W.3d 256, 304 (Tex. 2002) (quoting Holick, 685 S.W.2d at 20, and citing In re
G.M., 596 S.W.2d at 846). Thus, a “parent’s interest in the accuracy and justice of
2 the decision to terminate his or her parental status is. . . a commanding one.” Lassiter
v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 27 (1981).
The severity of the remedy of parental-rights termination is so drastic, it
requires clear and convincing evidence of both the predicate finding underlying the
termination and the best-interest finding. TEX. FAM. CODE §§ 161.001, .206(a); see
Santosky, 455 U.S. at 747; J.F.C., 96 S.W.3d at 263–64; In re C.R., No. 2-06-099-
CV, 2008 WL 1699792, at *2 (Tex. App.—Fort Worth Apr. 10, 2008, no pet.)
(mem. op.).
Subsection (Q)
Under Subsection (Q), a court may terminate parental rights based on clear
and convincing evidence that the parent “knowingly engaged in criminal conduct
that has resulted in the parent’s: (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.” TEX. FAM. CODE § 161.001(b)(1)(Q). Although the
purpose of (Q) is to allow a prospective analysis of the child’s needs to prevent
neglect while the parent is incarcerated, it has been interpreted in a way that may
punish the parent1 without advancing the child’s needs.
1 “[T]he purpose of the State’s intervention in the parent-child relationship is to protect the best interests of the children, not to punish parents for their conduct.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003); In re J.M.G., No. 07-16-00202-CV, 2016 WL 6471337, at *3 (Tex. App.—Amarillo Oct. 27, 2016, no pet.) (mem. op.) (noting that the focus of termination under Subsection (Q)—the parent’s future 3 The issue lies in the second step of the analysis. After the party moving for
termination produces evidence of knowing criminal conduct by the parent resulting
in two or more years of confinement, in the second step, the burden shifts to the
parent. The parent must produce some evidence of how the parent will provide care
for the child while he is confined. The Texas Supreme Court, however, has held that
it is insufficient for a parent to make provisions for the child’s care unless the parent
can show that those provisions are “on [the parent’s] behalf.” In re H.R.M., 209
S.W.3d at 110 (describing as “meritless” the father’s argument that he met his burden
under (Q) because he left the child under the mother’s care when he was
incarcerated).2
Thus, it is insufficient in this case for Cooper to have arranged for Sims to
care for her granddaughter, Joanne. To satisfy (Q), Sims must have agreed to do so
“on [Cooper’s] behalf,” not merely because of her own relationship with Joanne.
imprisonment and inability to care for the child, not the parent’s past criminal conduct—“is equally applicable in [a] private-party termination” as one brought by the State) (citing In re A.V., 113 S.W.3d at 360). Termination of parental rights is not intended as “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.). 2 The Amarillo Court of Appeals has affirmed a trial court order terminating a father’s parental rights in a termination proceeding brought by a maternal grandmother. See In re J.M.G., 2016 WL 6471337, at *3; but see In re I.G., No. 13-18-00114-CV, 2018 WL 3062581, at *4–5 (Tex. App.—Corpus Christi June 21, 2018, no pet.) (mem. op.) (reversing termination of the father’s parental rights where grandparents testified they were part of his “support network” in caring for children every day before his incarceration and supported the father retaining parental rights). 4 This requirement does not reflect the imperfect and evolving relationships in a
family. And it punishes the incarcerated parent for something that has no effect on
the child’s prospective welfare. Joanne is no better or worse off if Sims is caring for
her because Sims is her grandmother or because Sims is doing so on Cooper’s behalf.
But the requirement leads to an arbitrary result when, as here, the relative has a
difficult relationship with the parent but there is no concern about the child’s future
welfare. Put differently, Cooper cannot show that Sims is providing care on his
behalf, even if the arrangement began that way, when Sims is suing to terminate his
parental rights. The deterioration of Cooper’s relationship with his mother, however,
does not affect the care Joanne continues to receive. Because Joanne’s welfare is
unaffected by whether Cooper arranged for care on his own behalf, a predicate
finding under (Q) is not a result that sounds in the best interest of the child. The
result of a termination proceeding should not rise or fall based on whether the
Department or a relative initiates it.
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Opinion issued March 14, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00844-CV ——————————— IN THE INTEREST OF J. G. S., A CHILD
On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2016-52707
CONCURRING OPINION
I write separately to highlight an unforeseen consequence of In re H.R.M., 209
S.W.3d 105 (Tex. 2006), that may bear reexamining by the Texas Supreme Court.
Parental Rights
“The natural right existing between parents and their children is of
constitutional dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The “involuntary termination of parental rights involves fundamental constitutional
rights.” In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). Natural parental rights have
been characterized as “essential,” “basic civil rights of man,” and “far more precious
than . . . property rights.” Stanley v. Illinois, 405 U.S. 645, 651 (1976).
“A termination decree is complete, final, irrevocable and divests for all time
that natural right as well as all legal rights, privileges, duties and powers with respect
to each other except for the child’s right to inherit.” Holick, 685 S.W.2d at 20.
Consequently, termination proceedings must be strictly scrutinized. Holick, 685
S.W.2d at 20. And involuntary termination statutes are strictly construed in favor of
the parent. Id.
“The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State.” Santosky
v. Kramer, 455 U.S. 745, 753 (1980). “Even when blood relationships are strained,
parents retain a vital interest in preventing the irretrievable destruction of their
family life.” Id.
The Texas Supreme Court “has long recognized that the ‘natural right existing
between parents and their children is of constitutional dimensions.’” In re J.F.C., 96
S.W.3d 256, 304 (Tex. 2002) (quoting Holick, 685 S.W.2d at 20, and citing In re
G.M., 596 S.W.2d at 846). Thus, a “parent’s interest in the accuracy and justice of
2 the decision to terminate his or her parental status is. . . a commanding one.” Lassiter
v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 27 (1981).
The severity of the remedy of parental-rights termination is so drastic, it
requires clear and convincing evidence of both the predicate finding underlying the
termination and the best-interest finding. TEX. FAM. CODE §§ 161.001, .206(a); see
Santosky, 455 U.S. at 747; J.F.C., 96 S.W.3d at 263–64; In re C.R., No. 2-06-099-
CV, 2008 WL 1699792, at *2 (Tex. App.—Fort Worth Apr. 10, 2008, no pet.)
(mem. op.).
Subsection (Q)
Under Subsection (Q), a court may terminate parental rights based on clear
and convincing evidence that the parent “knowingly engaged in criminal conduct
that has resulted in the parent’s: (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.” TEX. FAM. CODE § 161.001(b)(1)(Q). Although the
purpose of (Q) is to allow a prospective analysis of the child’s needs to prevent
neglect while the parent is incarcerated, it has been interpreted in a way that may
punish the parent1 without advancing the child’s needs.
1 “[T]he purpose of the State’s intervention in the parent-child relationship is to protect the best interests of the children, not to punish parents for their conduct.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003); In re J.M.G., No. 07-16-00202-CV, 2016 WL 6471337, at *3 (Tex. App.—Amarillo Oct. 27, 2016, no pet.) (mem. op.) (noting that the focus of termination under Subsection (Q)—the parent’s future 3 The issue lies in the second step of the analysis. After the party moving for
termination produces evidence of knowing criminal conduct by the parent resulting
in two or more years of confinement, in the second step, the burden shifts to the
parent. The parent must produce some evidence of how the parent will provide care
for the child while he is confined. The Texas Supreme Court, however, has held that
it is insufficient for a parent to make provisions for the child’s care unless the parent
can show that those provisions are “on [the parent’s] behalf.” In re H.R.M., 209
S.W.3d at 110 (describing as “meritless” the father’s argument that he met his burden
under (Q) because he left the child under the mother’s care when he was
incarcerated).2
Thus, it is insufficient in this case for Cooper to have arranged for Sims to
care for her granddaughter, Joanne. To satisfy (Q), Sims must have agreed to do so
“on [Cooper’s] behalf,” not merely because of her own relationship with Joanne.
imprisonment and inability to care for the child, not the parent’s past criminal conduct—“is equally applicable in [a] private-party termination” as one brought by the State) (citing In re A.V., 113 S.W.3d at 360). Termination of parental rights is not intended as “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.). 2 The Amarillo Court of Appeals has affirmed a trial court order terminating a father’s parental rights in a termination proceeding brought by a maternal grandmother. See In re J.M.G., 2016 WL 6471337, at *3; but see In re I.G., No. 13-18-00114-CV, 2018 WL 3062581, at *4–5 (Tex. App.—Corpus Christi June 21, 2018, no pet.) (mem. op.) (reversing termination of the father’s parental rights where grandparents testified they were part of his “support network” in caring for children every day before his incarceration and supported the father retaining parental rights). 4 This requirement does not reflect the imperfect and evolving relationships in a
family. And it punishes the incarcerated parent for something that has no effect on
the child’s prospective welfare. Joanne is no better or worse off if Sims is caring for
her because Sims is her grandmother or because Sims is doing so on Cooper’s behalf.
But the requirement leads to an arbitrary result when, as here, the relative has a
difficult relationship with the parent but there is no concern about the child’s future
welfare. Put differently, Cooper cannot show that Sims is providing care on his
behalf, even if the arrangement began that way, when Sims is suing to terminate his
parental rights. The deterioration of Cooper’s relationship with his mother, however,
does not affect the care Joanne continues to receive. Because Joanne’s welfare is
unaffected by whether Cooper arranged for care on his own behalf, a predicate
finding under (Q) is not a result that sounds in the best interest of the child. The
result of a termination proceeding should not rise or fall based on whether the
Department or a relative initiates it. And the relief here is affected by the result
compelled by In re H.R.M. Instead of denying the petition to terminate Cooper’s
parental rights based on the lack of evidence under Subsections (C), (F), and (Q),
because the case is resolved on the best-interest analysis, we are constrained to
remand for further proceedings.
The In re H.R.M. Court was concerned that allowing an incarcerated parent to
rely on a non-incarcerated conservator’s care to meet his Subsection (Q) burden
5 might create a scenario in which “termination under subsection Q could not occur in
any instance where one parent is not incarcerated and is willing and able to care for
the child.” Id. While Subsection (Q) may be unavailable under that scenario, that
does not mean that termination is unavailable entirely. The abandonment subsections
remain as a basis for termination if the parent—whether incarcerated or otherwise—
is out of touch with the child for the statutorily set timeframe and not providing care.
See TEX. FAM. CODE § 161.001(b)(1)(B), (C), & (F).
Here, though, Sims failed to meet the requirements to establish termination
based on abandonment. In light of the court’s duty to strictly construe termination
statutes in favor of the parent, Subsection (Q) should not provide a backdoor to
termination when one parent is incarcerated. This is especially true when the
conservator cannot establish abandonment and must resort to a distinction between
care on behalf of the incarcerated parent or in spite of the parent without any
evidence of how that distinction affects the child, impacts the child’s best interest,
or signals any risk of future neglect.
Conclusion
For these reasons, I urge the Texas Supreme Court to reconsider its conclusion
in In re H.R.M. and hold that Subsection (Q) can be met with evidence that a named
conservator has and plans to continue to provide care for the child without
additionally requiring proof that the care is “on behalf of” the parent. To the extent
6 the evidence establishes that the incarcerated parent lacks involvement in the child’s
life and relies unduly on the conservator to provide for the child’s physical and
emotional needs, other predicates for termination are available.
Sarah Beth Landau Justice
Panel consists of Justices Keyes, Higley, and Landau.
Justice Landau, concurring.
Justice Keyes, dissenting.