In the Interest of L.M. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 9, 2023
• Docket: 09-22-00307-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00307-CV __________________

IN THE INTEREST OF L.M.

__________________________________________________________________

On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-240,175 __________________________________________________________________

MEMORANDUM OPINION

Father appeals from an order terminating his parental rights to

Levi, his eleven-month-old child. 1 In its order, the trial court determined

that, along with finding it was in Levi’s best interest, the evidence

established that Father was convicted or placed on community

1We use pseudonyms to protect the minor’s identity. Tex. R. App. P. 9.8 (Protection of Minor’s Identity in Parental-Rights Termination Cases). 1 supervision in 2006 for sexually assaulting a child. 2 In his first issue,

Father argues the evidence is legally and factually insufficient to support

the trial court’s finding that he was convicted of a crime that involved the

sexual assault of a child. According to Father, the evidence shows he was

convicted of sexually assaulting an adult, not a child. In Father’s second

issue, he argues the evidence is insufficient to support the trial court’s

finding that terminating his parent-child relationship with Levi is in

Levi’s best interest.

For its part, the Department concedes “there was no testimony at

trial as to how [Father’s] conviction for sexual assault injured a child.” It

then admits the evidence presented in the trial established “the victim of

the sexual assault [the Department proved Father committed] was an

adult[.]” Because the evidence is legally insufficient to support the trial

court’s finding that Father was convicted of sexually assaulting a child,

2See Tex. Fam. Code Ann. § 161.001(b)(1)(L) (authorizing the parent-child relationship to be terminated based on a finding that the child’s parent was convicted or placed on community supervision because the parent was criminally responsible for the death or serious injury of a child under one of sixteen enumerated sections of the Penal Code, which specifically includes sexual assault). 2 we hold the trial court erred in terminating Father’s parent-child

relationship with Levi by relying on Family Code section 161.001(b)(1)(L)

(“subsection L”) as the statutory basis for terminating his rights.

As to Father’s issue challenging the trial court’s best-interest

finding, we need not reach his argument given our conclusion that the

evidence is legally insufficient to support the trial court’s subsection L

finding, which is the only predicate ground the trial court relied on to

support its order terminating Father’s rights. 3 We will reverse the trial

court’s order in part and render the judgment the trial court should have

rendered, which is a judgment denying the Department’s petition seeking

to terminate Father’s parental rights. 4

Background

Father didn’t know Mother was claiming that Levi was his child

until Levi was around four months old. When Levi was born, Mother and

Levi tested positive for the presence of methamphetamine and

3Tex. R. App. P. 47.1. 4Mother’s rights to Levi were also terminated but she did not appeal.

3 amphetamine. Levi remained in the hospital for nearly two weeks. While

there, he was placed in neonatal intensive care and given oxygen. When

Mother was admitted, she denied using drugs during her pregnancy, but

she admitted she had not received prenatal care.

Even before Levi was released from the hospital, the Department

received a referral “due to neglectful supervision of newborn [Levi.]”

Following the referral, one of the Department’s caseworkers conducted

an unannounced visit at Mother’s home. The caseworker found Mother

had no baby supplies, no bed, and no bassinet in her home. Given

concerns the Department had about Mother’s historic use of drugs and

questions about Mother’s ability to provide Levi with a safe place to live,

the Department asked the trial court to name the Department as Levi’s

temporary managing conservator before Levi left the hospital. The trial

court granted the Department’s request.

In January 2022, the Department filed an amended petition adding

Father to the case, which it had initiated against Mother in September

2021. DNA tests, which Father requested, established that Levi is

Father’s child. The Department caseworker described the investigation

4 she conducted on behalf of the Department in Levi’s case. We limit our

discussion to the facts relevant to our analysis of Father’s issues.

During the trial, Levi’s caseworker testified that even though

Father complied with his family service plan, he did not demonstrate that

he could provide Levi with a safe home based on his status as a registered

sex offender, which the caseworker based on Father’s 2006 conviction for

sexual assault. The exhibits the trial court admitted into evidence in the

trial included the judgment and other documents relevant to Father’s

2006 conviction.

The documents admitted into evidence provide information

relevant to the background that led to Father’s indictment for sexual

assault. Nothing in any of the exhibits or the testimony about the sexual

assault show that Father was convicted of sexually assaulting a child.

Instead, the probable cause affidavit for the offense, which is among the

exhibits attached to the judgment of conviction, reflects the victim of

Father’s sexual assault was an adult, not a child.

The Department’s caseworker expressed her concerns about

whether the court should allow Father to have access to Levi. First, the

5 caseworker testified that Father is currently involved with a woman who

is a registered sex-offender. According to the caseworker, Father is the

father of this woman’s two-week-old baby. Second, the caseworker

explained that Mother is pregnant with another child. The caseworker

testified that Father, she believes, has also had a sexual relationship with

Mother and he is her unborn baby’s father. The caseworker expressed her

concern that given that Levi is an infant, he would not be able to protect

himself or verbalize what occurred should he be abused. She also

expressed her opinion that she didn’t believe it would be in Levi’s best

interest for the court to place him in a home where multiple registered

sex offenders would have access to him.

When the trial ended, the trial court terminated Mother’s and

Father’s parental rights. As previously mentioned, the trial court relied

solely on the predicate subsection L finding to terminate Father’s rights,

finding that Father had been convicted or placed on community

supervision for being criminally responsible for the death or serious

6 injury of a child. 5 Along with the trial court’s subsection L finding, it also

found that terminating Father’s rights to Levi is in Levi’s best interest. 6

The trial court appointed the Department to be Levi’s sole

managing conservator. In the section of the order appointing the

Department as Levi’s conservator, the trial court found that the

“appointment of a parent or parents would not be in [Levi’s] best interest

because the appointment would significantly impair [his] physical health

or emotional development.”

Standard of Review

A trial court’s findings terminating the parent-child relationship

must be supported by clear and convincing evidence. 7 To be clear and

convincing, the evidence “must 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.” 8

5Tex. Fam. Code Ann. § 161.001(b)(1)(L). 6Id. § 161.001(b)(2). 7Id. § 161.001(b). 8Id. § 101.007; see also In re J.L., 163 S.W.3d 79, 84 (Tex. 2005)

(cleaned up). 7 This “firm belief or conviction” standard affects our review of the

evidence on appeal. 9 Under a legal sufficiency review, we must determine

whether “a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” 10 When conducting our review and

given the appellate deference due the factfinder, we “look at all the

evidence in the light most favorable to the finding,” “assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so,” and “disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.”11

Even so, we may not disregard “undisputed facts that do not support the

finding.” 12 Thus, in a legal-sufficiency review, the factfinder remains “the

sole arbiter of the witnesses’ credibility and demeanor.” 13

Analysis

Under the Family Code, “[f]or a trial court to terminate a parent’s

right to his [child], the State must prove by clear and convincing evidence

9In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). 10In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). 11Id. 12Id. 13In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (cleaned up).

8 both that: (1) the parent committed an act prohibited under [section

161.001(b)(1)] and (2) termination is in the [child’s] best interest.” 14 As to

the prohibited act under section 161.001(b)(1), there are twenty-one

predicate grounds on which a trial court may terminate a parent’s

rights. 15 One of these predicate grounds, subsection L, allows the trial

court to terminate a parent-child relationship on a finding the parent has

“been convicted or has been placed on community supervision . . . for

being criminally responsible for the death or serious injury of a child

under” one of sixteen enumerated sections of the Penal Code when that

finding is coupled with a finding of good cause. 16 Subsection L refers to

section 22.011 of the Penal Code, which makes it an offense to sexually

assault a child. 17

To prove a claim based on subsection L, the Department must prove

both that: (1) the parent was convicted or placed on probation of at least

one of the sixteen crimes listed in subsection L and (2) the parent was

14In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). 15See Tex. Fam. Code Ann. § 161.001(b)(1). 16Id. § 161.001(b)(1)(L). 17Id. § 161.001(b)(1)(L)(vi); Tex. Penal Code Ann. § 22.011(a)(2).

9 convicted or placed on probation because the parent was “criminally

responsible for the death or serious injury of a child[.]” 18 Father argues

(and the Department concedes) that subsection L required it to prove that

Father’s 2006 conviction for sexual assault resulted because he was

criminally responsible for the death or serious injury to a child. The

Department also concedes it didn’t prove Father was criminally

responsible for the death or injury of a child based on his conviction of

sexual assault. The Department also does not claim it proved that Father

was convicted of any of the other sixteen enumerated crimes listed in

subsection L.

We agree the record shows the undisputed facts in evidence do not

support the trial court’s subsection L finding. We also conclude the

evidence before the trial court reveals no reasonable trier of fact could

have formed a firm belief or conviction that the Department proved

Father was criminally responsible for the death or injury of a child. The

18See In re J.F.-G., 627 S.W.3d at 313 n.33; In re L.S.R., 60 S.W.3d 376 (Tex. App.—Fort Worth 2001), pet. denied, 92 S.W.3d 529, 530 (Tex. 2002) (per curiam); In re A.L., 389 S.W.3d 896, 900-01 (Tex. App.— Houston [14th Dist.] 2012, no pet.); Vidaurri v. Ensey, 58 S.W.3d 142, 145 (Tex. App.—Amarillo 2001, no pet.). 10 evidence shows Father sexually assaulted an adult and there is no

evidence showing he was also criminally responsible for injuring a child

in the course of sexually assaulting the adult. 19 We sustain Father’s first

issue.

In his second issue, Father argues the evidence is legally and

factually insufficient to support the trial court’s best-interest finding. But

having found the evidence legally insufficient to support the trial court’s

subsection L finding, we need not decide whether legally or factually

sufficient evidence supports the trial court’s best-interest finding as it

relates to the trial court’s decision to terminate Father’s parental rights.

Next, we must decide whether Father’s challenge to the trial court’s

best-interest finding nonetheless still requires us to address the trial

court’s decision naming the Department as Levi’s sole managing

conservator. To begin, we note Father didn’t raise a separate issue

challenging the trial court’s finding appointing the Department as Levi’s

managing conservator by claiming there is insufficient evidence to show

19Tex. Fam. Code Ann. § 161.001(b)(1)(L). 11 that appointing him would have significantly impaired Levi’s physical

health or emotional development, which is what the trial court found.

When a trial court terminates the parent-child relationships of both

parents, the Family Code provides the trial court with three choices as to

whom it should name as the child’s managing conservator: (1) a suitable

competent adult, (2) the Department, or (3) a licensed child-placing

agency. 20 When Family Code section 161.207 is the sole basis of the trial

court’s appointment of the Department as a child’s conservator, the

parent’s challenge to the trial court’s best-interest finding is considered

as raising an issue challenging the trial court’s appointment of the

Department as the child’s managing conservator. 21

On the other hand, when the trial court has appointed the

Department as the child’s managing conservator based on its authority

under Chapter 153 of the Family Code—the chapter addressing

conservatorship, possession, and access—the parent must challenge the

20Tex. Fam. Code Ann. 161.207(a). 21See id. § 161.207; In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008) (holding the parent’s challenge to Department’s appointment as the child’s managing conservator “was subsumed in her appeal of the parental-rights termination order”). 12 trial court’s appointment of the Department as the child’s managing

conservator to preserve a challenge to the Department’s appointment. 22

When the Department amended its petition adding Father to the

suit, it asked the trial court to name it as Levi’s sole managing

conservator should the court determine that appointing Levi’s parents

would not be in Levi’s best interest because their appointment would

significantly impair Levi’s physical health or emotional development.

The trial court’s order tracks the findings that Family Code section

153.131 requires, which indicates to us the trial court appointed the

Department as Levi’s conservator under the authority granted to it by

Chapter 153 and not Chapter 161. The trial court’s order appointing the

22See Tex. Fam. Code Ann. §§ 153.001-.709 (West & Supp. 2022) (Although the legislature amended some sections of Chapter 153 after the Department sued, none of the changes are relevant to the issues in Father’s appeal. For convenience, we cite the current version of the statute when referring to the statute in the opinion.); In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007) (explaining that parent must raise an issue in the appeal challenging trial court’s appointment of the Department when the findings show the Department was appointed under Family Code section 153.131 because a challenge based on findings under section 153.131 is not subsumed by a parent’s claim that terminating the parent-child relationship is not in the child’s best interest); In re C.D.E., 391 S.W.3d 287, 301 (Tex. App.—Fort Worth 2012, no pet.) (same). 13 Department as Levi’s managing conservator states: “The court finds the

appointment of a parent or parents would not be in [Levi’s] best interest

because the appointment would significantly impair [his] physical health

or emotional development.” 23

Since Father didn’t specifically challenge the trial court’s

conservatorship findings or the trial court’s decision appointing the

Department to be Levi’s managing conservator based on its authority to

do so under Chapter 153, the part of the trial court’s order appointing the

Department as Levi’s sole managing conservator is not overturned by our

judgment reversing the trial court’s order terminating Father’s parental

rights. 24

Conclusion

We conclude that the evidence is legally insufficient to support the

trial court’s subsection L findings. We reverse that portion of the trial

court’s order terminating Father’s parental rights and as to the

Department’s claims against Father, we render judgment denying the

23Tex.Fam. Code Ann. § 153.131. 24In re J.A.J., 243 S.W.3d at 615-17; In re C.D.E., 391 S.W.3d at

301-02. 14 Department’s claims seeking to terminate Father’s parental rights.25 The

rest of the trial court’s order terminating Mother’s parent-child

relationship with Levi and appointing the Department as Levi’s sole

managing conservator is affirmed.

REVERSED AND RENDERED IN PART; AFFIRMED IN PART.

_________________________ HOLLIS HORTON Justice

Submitted on January 17, 2023 Opinion Delivered March 9, 2023

Before Horton, Johnson and Wright, JJ.

25Tex. R. App. P. 43.2. 15