Discord on the 14th Court of Appeals in In The Interest of LCL and MEM

In this case, en banc reconsideration was granted. The en banc majority opinion authored by Justice Meagan Hassan concluded that the state did not meet the standard of proof for termination of parental rights with clear and convincing evidence. Justice Wise authored an en banc dissenting opinion (joined by Frost, C.J., and Christopher and Jewell, J.J.). Chief Justice Frost authored a separate en banc dissenting opinion in which she seems to sound alarm bells regarding due process deficiencies and the lack of access to predictable appellate decisions. The original panel majority memorandum opinion (7/16/2019) was authored by Justice Ken Wise.

To the extent this court’s opinions have erroneously interpreted Texas Family Code section 161.001(b)(1)(D) and (E) to allow termination of the parent-child relationship based solely on a finding that a parent used a controlled substance (as defined by Chapter 481 of the Health and Safety Code) without the additional elements required by Texas Family Code section 161.001(b)(P) (“in a manner that endangered the health or safety of the child, and: (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance”), those opinions are overruled. […] [T]the Department failed to prove a causal link between Mother’s drug use and the alleged endangerment. The conclusory statement of a caseworker that drug use, per se, demonstrates child endangerment, was not sufficient evidence to terminate parental rights. […] The dissent makes several unwarranted complaints regarding our best interest analysis. First, it suggests Mother’s failure to complete certain parts of her court-ordered family service plan shows potential physical danger to the children. Specifically, the dissent points to Mother’s failed drug tests and no-shows as evidence that she failed to demonstrate a willingness to effect positive environmental and personal changes within a reasonable amount of time. However, the drug screenings and services for substance abuse treatment were contemplated as part of Mother’s family service plan; and it has not been proven that she understood the plan (see infra Section IV).

En Banc Majority Opinion (3/31/2020) of Justice Meagan Hassan (joined by Bourliot, Zimmerer, Spain, and Poissant, JJ)

An appellate court cannot reweigh the evidence on appeal, nor can it substitute its judgment of the children’s best interest for the considered judgment of the trial court that decided the matter. In overturning the trial court’s best-interest determination, the majority violates both of these principles.

En banc dissenting opinion (3/31/2020) of Justice Wise (joined by Frost, C.J., and Christopher and Jewell, JJ)

[T]he en banc majority and dissenting opinions tell a larger story about the role of process in appellate decisionmaking and how failure to adhere to settled rules can skew appellate outcomes and compromise appellate justice. . . . The en banc majority’s treatment of the factual-sufficiency challenge contains no details, no explanations, and no analysis of the evidence. It is not a factual-sufficiency review; it is a factual-sufficiency conclusion.”

Chief Justice Frost en banc dissenting opinion (3/31/2020)

I respectfully dissent from the majority vote (5-4) of the en banc Court to review this case en banc and to hold oral argument in this case. [. . .] The dissenting panelist contends that Mother’s due-process rights were violated because she was not given a service plan in Spanish, but there was no such objection in the trial court and Mother did not raise this issue in her brief. Under clear Texas Supreme Court precedent, this due-process argument was waived.

Dissent of Justice Tracy Christopher from grant of reconsideration en banc (10/22/2019).

The majority both admits the record provides no evidence Mother ever received the family service plan in Spanish and opines that because she completed some of the family service plan, she must have had constructive understanding of the requirements therein. I disagree. The record also shows Mother lacked working proficiency in English (there was a Spanish-language translator assisting her at every court hearing and she and her caseworker often communicated via Google translation of texts). It is unreasonable and an abuse of discretion to have terminated Appellant’s parental rights without providing her with a family service plan in Spanish because her right to a plan “in writing in a language that the parents understand” is guaranteed by statute.

Hassan, J., dissenting (9/24/2019)

The record establishes a voluntary, deliberate, and conscious course of conduct by Mother that endangered the children’s emotional and physical wellbeing. Over the course of two years Mother tested positive for cocaine six times and failed to attend at least four additional drug screenings scheduled during the pendency of the underlying action, allowing the presumption that Mother continued to use illegal drugs. Continued illegal drug use after children’s removal is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct.

Majority Opinion (Justice Wise) (7/16/2019) (citations omitted)

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