*1 single Ma-Stell, brought a Appellees that the ton, Deceased, pears al. See et claim, product theories of 984785, multiple *1. albeit WL cor- but related liability, against multiple un- for action Any period time allowed for each judgment The Appellants. porate to begun rules that had appellate the der (multiple claim for the same Appellee is expired pro- this run and had not when theories) damages the same precisely begins anew on the ceeding suspended was Appel- each severally against jointly and Tex.R.App. 8.2; P. date of this order. attempt to to sever I lant. Before vote Ma-Stell, 984785,at *1. 2005 WL briefing request I would Appellants, these dissenting. Further, Justice GRAY Chief it severability. on the issue creating an undesir- may appears we Justice, GRAY, dissenting to TOM Chief because, while proceeding able course of and reinstatement order. severance counsel, the none of by able represented in 10- opinion judgment Court’s court’s intervention sought has this parties 10, September 06-00256-CV issued in this manner. 2008, September 2008. On we received I dissent from Appel- Accordingly, respectfully one of the bankruptcy a notice of 19, 2008, we also and reinstatement order. September lants. On the severance Appellees’ motion extension received On rehearing.
time to file a motion for 22, 2008, purported grant
September we motion for extension of time Appellees’ rehearing file a motion for until October 22, 2008, re- September 2008. On we Appellants regarding a letter from
ceived purported granting the Court’s order S.N., A In the Interest of Child. bankruptcy extension after the notice of had been On October 2008 we received. No. 10-08-00132-CV. acknowledged stay the automatic due Texas, having bankruptcy, received the notice of Appeals Court acknowledge but did not date Waco. stay. date of the
receipt or the effective Sept. 2008. Today purport proceeding we sever I on our own motion. would not. Rehearing Opinion Granting Nov. clarify procedural pos-
I would first that the stay by noting
ture of the Court’s granting Appel-
September 2008 order file
lees an extension of time in which to rehearing extending
their motion for until October
the due date after because it was issued
void order bankruptcy stay. notice of the
had received inquire parties regard-
I would then
ing appropriate the matter was whether severance; particular,
Appellees’ against Appellants claims ap- it proceeding In this severable. *4 Ferguson, G. Schwieger, Richard
Stan Waco, for relator. these County prove either of Segrest, gaily McLennan insufficient
John W. Waco, grounds for termination. respondent. Atty., Dist. Waco, Levy,
Charles L. for ad litem. predicate The court found four grounds termination. GRAY, Justice Before Chief Justice find challenge only of those Charles two VANCE, and Justice REYNA. de parental-rights A termination ings. least finding be based on a of at cree must OPINION finding that ground one and a in the termination is best interest REYNA, FELIPE Justice. (Ver child. Tex. Fam.Code Ann. 161.001 parent- The trial court terminated the If Supp.2008). multiple predicate non relationship and her child between S.N. court, grounds by found trial parents following a The par- bench trial. ground be any will affirm based one ents argue legally evidence is only necessary one is for termination cause factually insufficient two T.N.F., rights. predicate grounds for termination found pet. (Tex.App.-Waco or the finding the court court’s denied). Therefore, to mount successful termination is the best interest of S.N. *5 challenge appeal evidentiary on on based
We will affirm. insufficiency, challenge each party a must finding predicate ground affirmative Predicate Grounds challenge for or at minimum termination findings The decree recites affirmative finding. the best interest grounds on predicate four for termination: Here, chal- because and Charles (1) knowingly placing or allowing the child findings the lenge only court’s four two dangerous to remain in conditions or sur- termination, grounds for we (2) roundings; engaging in conduct complaints regard- not address their need knowingly placing the persons child with sup- to ing sufficiency the the evidence engaged who in conduct endangered which port predicate grounds the for termination. (3) child; the constructively abandoning (4) child; the failing comply and Best Interest the provisions establishing of a court order is Nancy and contend that there Charles necessary the for actions the return of the factually legally and insufficient evidence See child. Tex. Ann. Fam.Code court’s termi- finding the (0) (Vernon 161.001(1)(D), (E), § (N), relationship is parent-child nation of the Supp.2008). interest of the child. the best “Nancy”1 S.N.’s mother in her contends applicable of review standards the first issues that is factu- two evidence are set- parental-rights termination cases ally prove a predicate insufficient tled. ground termination under subsection
(D)
(E).
sufficiency review, a court
legal
or under subsection
“Charles”
In a
at all
in the
complaints
raises the same
in his sole issue
should look
the evidence
finding light
but
contends that
is le-
most favorable to the
also
the evidence
identity
protect
the
the child who is
To
Ann.
Tex
Fam.Code
"Charles.”
suit,
Tex.R.App.
subject
of this
refer hereinaf-
the
shall
109.002(d)
(Vernon
2002);
P.
by
pseudonym "Nancy"
ter to the mother
the
9.8(b)(1).
by
pseudonym
and to the father
the
(1)
(2)
child;
determine
a reasonable trier of
the desires of the
the emo-
firm
fact could have formed a
belief or
physical
tional and
needs of the child
(3)
finding
conviction that its
was true. To
future;
in the
now and
the emotional
give appropriate deference to the fact-
physical danger
to the child now and
finder’s conclusions and the role of a
(4)
future;
in the
the
abilities of
re-
conducting
legal sufficiency
court
(5)
seeking custody;
the
the
individuals
view, looking
light
at the
in the
evidence
programs
to assist these indi-
available
judgment
most
to the
means
favorable
promote
viduals to
the best interest of
reviewing
that a
court must assume that
(6)
child;
by
for the child
plans
disputed
the factfinder
facts
resolved
agency
these individuals or
seek-
if
finding
of its
a reasonable fact-
favor
(7)
ing custody;
stability
A corollary
finder could do so.
to this
(8)
home or proposed placement;
requirement is that a court should disre-
parent
acts or omissions of the
gard all evidence that a reasonable fact-
may
existing parent-
indicate that
finder could
disbelieved or found to
have
one;
relationship
child
not a proper
have been incredible.
(9) any
excuse for the acts or omis-
J.F.C.,
(Tex.
parent.
sions of the
T.N.F.,
2002);
at 630.
205 S.W.3d
Adams,
Holley v.
sufficiency
In
re-
conducting a factual
T.N.F.,
(Tex.1976);
at 632.
view,
give
“a court of appeals must
due
These
factors
not exhaustive
consideration to
that the factfin-
not all
proved
need
as a condition
reasonably
der could
have found to be
C.H.,
precedent to termination.
convincing.”
clear and
Id.
T.N.F.,
27;
S.W.3d
667
denied)
in
to the doctor and treated her
pet.
(referring to evidence child took S.N.
the doctor’s instructions.
‘very
“cried
hard’ or screamed when held
accordance with
Nancy
The
had
by Father
Father
unable to con
caseworker testified
appropriately
addressed S.N.’s medical
sole
as relevant
this issue while
[him]”
ultimately
deter-
acknowledging
young
child was “too
to needs.
caseworker
desires”).
verbally
mined that S.N. should be removed from
express his
Nancy
the home because
and Charles de-
Thus,
hold that evidence of an in
we
parenting
clined to submit to a
assessment
or toddler’s conduct and statements
fant’s
admittedly
illegal
used
narcotics
like those of S.N. is not relevant
to the
their home.
issue of
the child desires termi
whether
relationship.
parent-child
nation of the
Therefore, the record contains conflict-
A.R.,
480; D.M.B.,
supervision physical and care” to meet her the effect of course of conduct which has requires parents needs and who are avail- See, v. endangering e.g., the child. Toliver able to meet her emotional needs. Servs., “24/7” Dep’t Family Tex. & Protective Nancy’s counseling In from last report (Tex.App.-Houston [1st session, concluded, “[Nancy] the counselor S.E.W., pet.); no Dist.] a safe presently capable providing is not (Tex.App.-Dallas nurturing He [S.N.].” environment Dep’t v. Protective pet.); Phillips Tex. “[Nancy] report, states in his consultation Servs., 819-20 Regulatory & ( due any changes has not made behavioral 2004, no In Tex.App.-Eastland pet.); requires to her alcohol abuse. She sub- U.P., (Tex.App. re counseling denied). in order to con- stance abuse 2003, pet. Dist.] -Houston [14th front this issue.” Guardiola testified generally such consid While capable parent abuses alcohol is not who evaluating predicate grounds ered needs of a providing for the emotional termination, it in deter is also relevant child like S.N. young mining parent poses present whether a or emotional physical or future risk of Nancy counters that there is no evidence See, e.g., to the child. Doe v. Bra danger physi- failed to for S.N.’s provide that she Servs., 226 County zoria Child Protective before removal or *8 cal and emotional needs (Tex.App.-Houston [1st re- any special that S.N. has needs which K.C., pet.); no In re Dist.] does not have or quire Nancy abilities (Tex.App.-Dallas 928-29 caseworker acquire. could not The CPS S.B., 877, pet.); 207 S.W.3d no family beginning at the involved with pet.). no (Tex.App.-Fort Worth that S.N. involvement testified CPS’s the counsel- already described initial Nan- We have had thrush at his visit. When Nancy’s sub- regarding and or’s they him new to the area observations cy told were testified abuse. Other physician, care he stance witnesses primary not have a did during drugs dur- and S.N.’s condition Nancy that abused and alcohol environment ing leading suggest to trial. She that up the months initial involvement CPS’s for positive methamphetamine also tested to care Nancy’s parenting adequate was Therefore, occasion and admitted to a CPS one the rec- basic needs. for S.N.’s prior on a that she investigator occasion conflicting regarding contains evidence ord positive would tested for cocaine have abil- Nancy adequate parental has if had been marihuana she tested. ities. Nancy using any illegal drugs denied to Programs: Nancy refers Available years three past
within the
and denied
that she
in and suc-
participated
evidence
problem.
has a
She
drinking
that she
completed
programs
cessfully
several
trial,
statements of
at
refers to
counsel
con-
to her. The record
made available
litem,
including
conceding
the ad
a lack of
programs
that
tains no evidence
similar
support
finding
to
an
evidence
affirmative
future.
would not be available in the
(P)
ground
Nancy
that
under
Thus,
to this factor
the evidence relevant
used a controlled substance in a manner
finding.
not
does
best-interest
endangered
that
S.N.
failed to com
coun-
According
Plans
Child:
to the
for
plete
a court-ordered
substance-abuse
report, Nancy
“presented
selor’s
has
program.
treatment
See Tex. Fam.Code
not
plan for her or
future and did
[S.N.’s]
161.001(1)(P) (Vernon
Supp.2008).
Ann.
Guardiola
appear motivated
do so.”
record,
appears
par
From the
it
that
plans
testified that CPS’s
are for S.N.’s
agreed
ties
the court
that no affirma
adopt
Nancy pre-
parents
foster
her.
tive
finding
predi
should
on this
made
her future
regarding
sented no evidence
ground
cate
because there
no evidence
was
Therefore,
plans
herself or
S.N.
in
Nancy used a controlled substance
supports
relevant
to this factor
evidence
presence and
S.N.’s
because she was never
finding.
the best-interest
in
participate
ordered to
a substance-abuse
program.
treatment
Stability
Home: Guardiola testified
parents
providing
that the foster
“a
Thus, despite the lack of
that
stable,
home” for
The foster
loving
S.N.
Nancy used a
controlled substance
she
mother testified that her husband and
hold
presence,
S.N.’s
that the evidence
physical
for all
provided
had
of S.N.’s
continuing drug
of her
and alcohol abuse
in particular
needs and described
her visits
supports
finding
present
a
that
a
poses
she
deal
pediatrician
appropriately
with a
physical
and future risk of
or emotional
Nancy
medical
herself
with S.N.’s
needs.
child and
danger to the
that termination
pro-
that the foster parents
testified
have
would be
the best interest of S.N. See
Conversely,
stable
vided S.N. a
home.
Doe,
574; K.C.,
at
Nancy has not been able to maintain
S.B.,
928-29;
acts and omissions which (d) improve Nancy’s lack of motivation finding. interest She has also failed (e) situation; of an ade- testifying that she her and the lack employment, maintain during Nancy. jobs points quate support system at different social had two 263.307(b)(1), § from but fired both CPS’s involvement See Tex. Fam.Code Ann. (13). during (8), unemployed (6), (11), statutory of them. She has been Four of the 263.307(b)(2), re- period § the 11-month between apply. most of factors do not Id. (9).4 Despite provisions (5), (7), regarding moval and the trial. The evidence two visitation, Nancy with regular visited statutory conflicting, factors is so we of (a) She con- only after removal. S.N. twice factors to be neutral: consider these really at trial that S.N. “doesn’t out, ceded Nancy’s willingness accept, “to seek Thus, Nancy’s [Nancy] know is.” who counseling and co- complete and services” abuse, her failure to continuing (b) substance CPS; operate Nancy’s and dem- with home, and her failure to maintain a stable skills. adequate parenting onstration of advantage develop of and take visitation (12). 263.307(b)(10), And the evi- Id. support S.N. all relationship closer statutory fac- regarding dence two finding. the best-interest the best-interest tors tends to contradict (a) finding: magnitude, frequency, “the Nancy’s Acts and Omis Excuses for and circumstances of the harm to the fired Nancy testified that she was sions: (b) child”; the child has and “whether of After jobs from her “because CPS.” two repeated been the of harm after victim S.N., Nancy custody of returned CPS took by the de- report initial and intervention Texas, in west which to her hometown (4). 263.307(b)(3), §Id. partment.” ability regular limited her to have visita she explained tion. She didn’t move Summary: Our evaluation closer to S.N. because she doesn’t know supports a best-interest find- Waco,” is where she “anybody precise mathemati- ing does not involve She stated lived at the time removal. listing cal calculation of rele- despite to obtain medical care for that she failed C.H., 27; factors. See vant removal because of a lack S.N. before T.N.F., Considering at 632. all because she transportation “[d]idn’t and light, in a neutral we hold the evidence (although she a doctor here town” know such that the court the evidence is one”). Therefore, if the looking for “was reasonably form a firm belief or “could Nancy’s testimony as credi accepted court Nancy’s pa- that termination of conviction” ble, to contradict the best- it would tend in the interest of S.N. rights rental best finding. interest T.N.F., Therefore, at 634. regarding Statutory Factors: Evidence Nancy’s third issue. we overrule statutory thirteen factors listed five 263.307(b) the best-in-
in section Charles (a) age physical finding: terest S.N.’s (b) vulnerabilities; part contends as of his the counsel- Charles and mental factually legally sole issue that there is Nancy’s readiness for or’s evaluation (d) harm to inapplicable perpetrator whether the deem The factors which we (a) frequency of out-of-home and nature identified. See Tex. Fam.Code are: S.N. has been (b) (9) (Vernon 263.307(b)(2), (5), (7), whether S.N. is fearful of placements; §Ann. home; (c) returning Nancy’s whether there 2002). home; history in the of abusive conduct is a *10 that, argues parental abilities. Charles the best- support evidence to insufficient he indicates that though evidence finding. interest skills,” training parenting “needs more already Desires Child: We have of “he lacks the that there is no evidence in the that there is no evidence determined However, the ability to learn those skills.” record to this factor. relevant not take that did record reflects Charles Physical Needs: Emotional and Child’s classes recom- advantage parenting of need for Guardiola testified about S.N.’s in- of CPS’s beginning from the mended opined and care” and supervision “constant on the merits is not A trial volvement. engaged in substance abuse persons that of his facing a termination parent time for cannot meet this need. Guardiola testified for the first time parental rights express to capable that is not particular Charles learning appropriate parent- an interest in record providing for S.N.’s needs. The regarding evidence ing skills. illegal used contains evidence that Charles skills and his parenting lack of Charles’s removal, though narcotics at the time of he advantage parenting to failure take pos to pleaded guilty denies it. He later the best-interest supports offered classes presently and is on com session of cocaine finding. for that He munity supervision offense. already Programs: Available We have only to testified that he has talked S.N. failed that Charles addressed evidence job since her and that his “is once removal made advantage programs to take effectively a 24-hour prevents call” which Thus, the evidence rele- to him. available providing him from for needs be S.N.’s the best-inter- supports vant to this factor cause he’s never home.5 He conceded that finding. est presently place he not does “have safe Thus, for to [S.N.] live.” Stability Home: Plans Child for supports to this factor the best-
relevant ready he not to testified that Charles finding. interest S.N., that he does not have custody take live, and that he place a safe for her Physical Danger Emotional his mother. would like for her to live with present This factor focuses on Child: plans Guardiola testified CPS’s danger Holley, future to the child. See adopt her and parents for foster S.N.’s 372; T.N.F., 205 544 S.W.2d at safe, they providing her a have been 633. While the record contains evidence Therefore, the evidence rele- stable home. usage, no evi- past narcotics there is supports factors the best- vant to these dence that has continued to use Charles finding. interest drugs is fur- illegal since removal. This that he has ther corroborated the fact and Excus- Charles’s Acts Omissions successfully community remained on su- that he has Them: conceded es Charles pervision despite provisions regular S.N. since virtually had no contact with community testing as a condition of drug provided he has no finan- her removal and Therefore, rele- the evidence supervision. having good- despite cial for her to this factor tends to contradict vant take paying job. He has failed to advan- finding. best-interest classes and other ser- tage parenting cus- regain to him to Guardiola testified vices made available Parental Abilities: S.N., admittedly not any tody of and he was has not demonstrated that Charles through- inspector requires him travel pipe hours 5. Charles testified that he worked 107 employment and New Mexico. His as a out Texas the week before trial. *11 ready custody to take of her at the time of “an adequate whether Charles has social trial. Charles’s excuses for these omis- support system” for S.N. Id. available (1) are: job prevented sions his him from (13). 263.307(b)(3),(4), § (2) service; complying plan with the he Summary: Charles himself conceded on keep job has to his in order to remain in cross-examination that S.N. “is best re- compliance with the conditions of his com- maining Considering with CPS now.” (3) munity supervision; and he has no light all the evidence in the most favorable friends or in relatives the area S.N. where to the finding, best-interest reasonable her parents. lives with foster On cross- trier of fact could formed a firm have examination, agreed he that he con- could belief conviction that termination of ceivably get job a different closer to where parental rights is in the Charles’s best S.N. community supervi- lives and have his T.N.F., interest S.N. See 205 S.W.3d at sion transferred to that county.6 viewing 634. And all the evidence in a regarding The evidence Charles’s acts light, neutral we hold that the evidence is and supports omissions the best-interest reasonably such that the court “could form finding. The his ex- evidence relevant to a firm belief or termi- conviction” cuses for his acts and omissions is conflict- nation is in the best of S.N. Id. interest ing. Therefore, we overrule sole issue Charles’s Statutory Factors: regard With challenges insofar as it the best-interest Charles, statutory sup of the factors five finding. (a) port finding: the best-interest S.N.’s age physical and and mental vulnerabili Conclusion (b) ties; history of Charles’s substance (c) abuse; his failure to submit to a recom challenge and did not Charles all parenting mended assessment or other predicate of the grounds for termination (d) services; recommended his failure to Therefore, the trial court found. we establish a safe home environment for challenges have not their addressed two (e) S.N.; parenting and his lack of skills. The grounds found. evi- 263.307(b)(1), § See Tex. Fam.Code Ann. factually is legally dence and sufficient to (12). (8), (10), (11), statutory Five findings the court’s termi- 263.307(b)(2), § not apply. factors do Id. parent-child relationship nation (9).7 (5), (6), (7), regard And the evidence regard the best interest of the child with ing statutory three of the factors tends to to each of affirm Accordingly, them. (a) finding: contradict the best-interest judgment. magnitude, frequency, “the and circum (b) judg- Chief Justice GRAY concurs child”; stances of the harm to the only ment to the extent it affirms the trial “whether the child has been the victim of court’s that terminated the repeated report harm after the initial order (c) by department”; opinion A not issue. rights. separate intervention will home; (c) charge returning psychiat- to the results of 6. Charles was arrested on cocaine evaluation; (d) shortly in Waco before S.N. was removed psychological ric or from the home in March 2007. He returned history conduct in the there is a of abusive to his hometown in west Texas about one home; (e) perpetrator whether the month later. identified. See Tex. harm S.N. has been 263.307(b)(2), (5), (6), (7), Fam.Code Ann. inapplicable which we deem factors (9). (a) frequency are: and nature of out-of-home (b) placements; whether S.N. is fearful of death. rendered moot Charles’s been ON REHEARING OPINION Dunn, v. See Dunn motions for re- have filed Appellants Verret, (Tex.1969); v. Verret they each contend that hearing in which Dist.] (Tex.Civ.App.-Houston [1st *12 legal them should address this Court writ). 1978,no challenging insufficiency complaints factual ter- grounds four for of the two appeal the as a whole But while because, parental rights them mination of moot, relief not been rendered has appeal if of this remains the outcome even rehearing filed in the motion sought may unchanged, consequences collateral change not the out Charles’s behalf will they findings to the attach adverse grant counsel’s Accordingly, come. we grant rehearing challenge. We will re insofar as counsel motion to dismiss complaints. of these address the merits rehear of the motion for quests dismissal Nevertheless, initial decision to affirm our ing as moot. change. not judgment will Party Death of Opinion Breadth of filing After the motion for rehear appellate current rules written The ing, Appellant “Charles” filed counsel courts from ad- discourage appellate re to dismiss because of Charles’s motion “necessary” is dressing beyond much what cites v. Com cent death. Counsel Olson prac- There are a number opinions. 901 Lawyer Discipline, mission for empha- for this tical and historical reasons 1995, (Tex.App.-El 520 Paso no here con- opinions. sis on shorter But writ), proposition appeal for the that the is appellate an sider and when no property moot because there are now more than court’s should address opinion Olson, rights According at stake. a civil re- minimally “necessary” to that which is rendered moot the death of a appeal is appeal. solve party judgment unless “the affected parties’ property rights, opposed as ad Appellate Rule of Procedure 47.1 523-24; purely rights.” Id. at personal appellate opin court scope dresses the Cano, 587, v. 79 accord Casillas ions, appeals must providing, “The court of 2002, (Tex.App.-Corpus 591-92 Christi no opinion that is as hand a written down pet.). but that addresses ev practicable brief as necessary to final ery issue raised and however, appeal, judgment In this Tex.R.App. P. disposition appeal.” rights. If it de property does affect were 47.1; Disposal Sys., Inc. v. see also Tex. the termination decree termined (Tex.2002) Perez, 593, (per 594 80 S.W.3d reversed, parent-child then the should curiam). This is not new standard. relationship Charles and his between Tex.R.App. (Tex. 90(a), P. 707-708 S.W.2d restored, and she daughter would be would Cases) (Tex.1986, 1997);1 amended entitled to a share of his lxxxv potentially be (Tex. 452(a), P. 629-630 S.W.2d Accordingly, appeal has not estate. Tex.R. Civ. 90(a) clearly practicable. Where the issues are pertinent language former Rule settled, Rule memo- somewhat from the current rule. court shall write a brief varies 90(a) provided: pub- opinion which should not be randum every appeals shall decide The court lished. (Tex. Tex.R.App. necessary 90(a), issue raised substantial 707-708 S.W.2d P. appeal and hand down a disposition (Tex.1986, 1997). Cases) amended lxxxv as opinion which shall be as brief written Cases) (Tex.1982, 1986);2 repealed judicial xli economy”); FFP v. Mktg. Co. Tex., IV, Lone Star v. R.R. Long Gas Co. Comm’n Lane Master Trust 169 S.W.3d (Tex.1989) 709, 2005, (per cu 411 (Tex.App.-Fort Worth Ice, riam); Campo Light see El & pet.) (addressing also additional issue “in the Co., J.B., v. Tex. & Supply judicial economy”); Water Co. Mach. 147 interest of re In (Tex.Civ.App.-Dallas S.W. (Tex.App.-Waco denied) denied) (declining pet. to address addition (addressing writ additional issues retrial). points disposi al not affect likely which would to arise on But the more Galveston, tion); Harrisburg v. question Worcester relevant appel- when should an Ry., & San Antonio S.W. 343-44 late court exercise its discretion to address writ) (Tex.Civ.App.-San Antonio *13 additional issues. (same).
(op. reh’g) on With the 2002 appel amendments to the late rules came emphasis an increased on presented An initial issue in 2002, brevity appellate of opinions. In Nancy’s rehearing motion for is whether Supreme Ap Court amended Rule of appellate may an court address additional pellate govern Procedure 47.4 to the issu properly issues which have been raised ance of “brief opinion[s]” memorandum in presented and but which are not “neces predecessor lieu of the gov rule which sary” disposition appeal. to the final of the opinions Compare erned when should be3 See, yes. e.g., short answer is Edin Tex.R.App. Tex.R.App. 47.4, P. P. 47.4 with Trevino, burgh Hosp. Auth. v. (Tex.Cases) (Tex. 948-949 S.W.2d cxxx (Tex.1997) (addressing 81 issue not es 2002). amended Rule Under current disposition appeal provide sential to of 47.4: retrial); guidance trial court with on Cin An opinion designated must be a memo- Cates,
cinnati
Ins.
v.
927
Co.
S.W.2d
Life
opinion
it
any
randum
unless
does
of the
(Tex.1996)
may
court
(appellate
following:
grounds
summary-judgment
consider
“that
(a)
preserved
law,
movant
review and trial
establishes a new rule of
al-
rule,
court did not rule on in the
of
existing
interest
ters or modifies an
or
(Tex.1941,
added).
1983)
governed ap-
(emphasis
2. The Rules of Civil Procedure
amended
pellate proceedings
adoption
until the
Rule
451 was amended
1983 to conform
Appellate Procedure in
Rules of
1986. See
provid-
with Rule 452. As amended Rule 451
Adams, Comment,
Today;
ed,
Jennifer
Law
Gone
Appeals
"The Court of
shall decide all
Tomorrow,
663-65
Baylor
controlling
presented by proper points
issues
L.Rev.
(2001) (discussing development
procedural
of
cross-points
or
of error and announce its con-
governing
appellate
opin-
rules
Texas
court
Id.,
opinion.”
clusions in a written
661-662
ions).
provided, "Opinions
Former Rule 452
(Tex.Cases)
(Tex.1983, repealed
cv
appeals
of the courts of
shall be as brief as
1986)
added).
(emphasis
practicable
yet dispose
every
and
of
substan-
necessary
disposition
tial
issue raised
efficiency
emphasis
3.
In addition to the
on
clearly
appeal.
herein,
Where the issues are
discussed
more detail
settled,
only
the court shall write
a brief mem-
represented
amendments
a trade-off of com
opinion,
pub-
which should not
orandum
peting
increasingly
interests "to eliminate the
452(a),
lished.”
Tex.R. Civ. P.
629-630
frequent practice
designating
Ap
of
of
Courts
(Tex.Cases)
(Tex.1982, repealed
xli
DNP,
peals opinions as
Do Not Publish.”
1986).
Babcock,
Chip
Supreme
Texas
Court Considers
Abolishing Unpublished Opinions,
provided
The former Rule 451
more broad-
Houston
22;
ly
Sept.-Oct.
appellate
courts should "decide all
2001 at
see also
Lawyer,
Baron,
Ap
presented
by proper assign-
Pamela
issues
to them
Stanton
Texas Courts of
Online,
(2003).
peals
4 Tex
ments of error.”
Id.
B.J. 557
66 Tex. B.J.
on
its own
charged
fact which
Subcommittee
existing
an
rule to a novel
applies
Performance Measures
Appellate Court
likely to recur
in future
situation
to the Commit-
“to make recommendations
cases;
the best
the full Council as to
tee and to
(b)
issues of constitutional
involves
the rider.”
complying
means
legal
important
or other
issues
law
Subcomm., Per-
Measures
Performance
Texas;
jurisprudence
surveying
After
9.
Measures
formance
(c)
law;
existing
criticizes
appellate
justices
intermediate
(d)
apparent
an
conflict
resolves
from the other
gathering
data
courts
authority.4
states,
identified several
the Subcommittee
Tex.R.App.
added).
(emphasis
P. 47.4
it
im-
impractical
make
factors which
brevity
emphasis
The increased
meas-
prudent
establish performance
by the
primarily
Legislature.
driven
Texas
at 13-
justices. See id.
ures for individual
Appellate
Meas
Court PERFORMANCE
Instead,
made the
the Subcommittee
Subcomm.,
ures
Judicial
Performance
followingrecommendations:
Comm.,
Council,
Tex
Measures
Judicial
(1)
performance measures
The current
Performance Measures:
Texas Courts
developed by the courts
that were
*14
Appeals
(2000), http://www.courts.state.
9
Board
Legislative Budget
the
appeals,
Perf_Measu
tx.us/tjc/publications/
(LBB),
of
and the
Office
Governor’s
re/COA/Final_Report.pdf.
the
In
and
should continue
Budget
Planning
76th
directed
Judi
Legislature
the Texas
by
management
used for caseload
cial
to:
Council
uniform
each court
accordance with
develop measures which
the
evaluate
by
approved
reporting
data
standards
justices
of
the courts
work
individual
on
appeals. Through the
the courts of
of appeals.
developed
The measures
on
of Chief Justices’ Committee
Council
ap-
the
Judicial
must be
Texas
Council
Equalization
Docket
and Performance
proved by
Legislative
the
Board
Budget
Measures,
appeals
the
of
should
courts
the
The data
and
Governor’s Office.
ensure
there
uniform
continue to
is
obtained for these
be re-
measures will
of these measures.
reporting
ported
System
in the Texas Judicial
An-
(2)
accurate
development
the
of
While
Report.
nual
quantitative measures to
and reliable
26, 1999,
R.S.,
Act May
of
76th
ch.
Leg.,
performance
the
of individual
evaluate
IV,
1,§
art.
1999 Tex. Gen. Laws
justices
practica-
appeals
court of
is not
5446, 5938.
ble,
courts of
should continu-
appeals
directive,
efficiently
legislative
ously
ways
operate
In
to this
find
response
sacrificing
justice
quality
the Texas Judicial Council created a Com-
without
remaining true to the rule
law.5
mittee on Judicial Performance Measures
while
arguments
grounds
issuing
well-presented legal
to a
parties’
4.
for
a memo-
These four
not
grounds
opinion are the same
provide
randum
than to
a full discus-
few sentences
opinion
formerly determined whether an
competing
rea-
arguments and a
sion of the
Tex.R.App.
47.4,
published. See
should be
P.
explanation
disposition.
for
See
soned
(Tex.Cases)
(Tex.1997,
948-949 S.W.2d
cxxx
Inc.,
Ctr.,
195
v. McAllen Med.
Gonzalez
2002).
amended
curiam)
(Tex.2006) (per
682
S.W.3d
("The plaintiffs here
to a written
are entitled
arguable
emphasis
that Rule
5.
It is
47.4's
why
stating
jury’s verdict can
opinion
opinions
counterpro-
brief memorandum
is
aside.”).
French mathema-
cannot be set
The
quest
efficiency
in the stated
be-
ductive
it
philosopher
and
Blaise Pascal stated
tician
more
distill the
cause it is often
difficult to
(3)
Administration,
The Office of
opinion,
Court
must
balance a need to exer-
input
guidance
with
from the courts
judicial
cise
restraint
foregoing
appeals,
study
should continue to
authority
rights
limitations on our
whether the statistical data currently re-
litigants.
As a matter of
pro-
due
ported
published
presented
in a
cess, a parent appealing from a termi-
clear,
what,
understandable format and
nation
right
meaningful
decree has a
any,
if
additional data should be collect-
D.M.,
appellate
In
review. See
re
ed.
(Tex.App.-Waco
(footnote
pet.). A
added).
proceeding
child
a termination
Id. at 28-31
parent’s
shares her
interest
in preventing
In
legislatively
addition to a
mandated
the erroneous termination
parent-
quest
efficiency,
important limiting
an
relationship
child
until
unfitness
factor
guide
which must
an appellate
M.S.,
is established.
court’s determination of which “additional”
D.M.,
(Tex.2003);
547-48
address,
any,
issues to
if
is the constitu
409 & n.
par-
7.
shares the
“[T]he State
prohibition
tional
against issuance of advi
ent’s interest in an
just
accurate and
deci-
sory opinions.
II,
Article
section 1 of the
B.L.D.,
sion.”
re
In
Texas
provides
sepa
Constitution
for the
D.M.,
(Tex.2003); accord
244 S.W.3d at
ration of governmental powers among the
412. And the State has an interest in the
three
government.
branches of
Tex.
prompt resolution
pro-
of a termination
II, §
Const. art.
Supreme
Court
M.S.,
ceeding.
548;
115 S.W.3d at
has
provision
construed this
in part as
D.M.,
Balancing Rights Restrictions with defining cases, In may what “additional is Similar to criminal this be appellate sues” should be addressed in an consequence” classified as a “collateral 1992) statement, way, longer (translating this "I have made this letter than 16th ed. Pascal’s usual, because I lack the time to it make plus longue parceque je "Je n'ai fait celle-ci short.” courte.”). pas plus n'ai eu le de la faire Quotations loisir Bartlett, John Familiar (Justin ed., Little, Co., Kaplan, 270 Brown &
61 the merits of findings part affirmative on these failure on our address court’s State, predicate grounds. v. 55 Scott complaint regarding her two Cf. 593, (Tex.Crim.App.2001) S.W.3d 597 grounds effectively for termination at issue (“[t]he charges of criminal will resolution deprives “meaningful appellate her of always carry possibility of collateral a mat- to which she is entitled as review” E.M.N., consequences”); D.M., 244 S.W.3d process. ter of due See 815, (Tex.App.-Fort n. 13 825 Worth at 413. (termination pet.) parental rights Nevertheless, the ad litem and attorney consequence collateral mother’s convic any contend that further review the State father). tion of child’s A crimi for murder contrary best inter- in this case is to S.N.’s may challenge nal defendant such collater providing the State’s est and interest consequences al in a application. habeas stable, permanent her do not a home. We 3(c) 11.07, § Ann. art. Proc. Tex.Code Crim. consid- disagree important that these are (Vernon State, Supp.2008); see Lebo v. 90 case, In the this how- erations. context of S.W.3d 327 n. 8 (Tex.Crim.App.2002); ever, to mean- Nancy’s right hold Hargett, Ex 819 parte S.W.2d ingful appellate requires that we review Altschul, (Tex.Crim.App.1991); In re the merits of complaints. address her (Tex.App.-Waco pet. ref'd). Dangerous Surroundings Conditions or
However, person whose rights any have been must file terminated in her first issue contends attack on the collateral termination decree factually that the evidence is insufficient to within six months after the decree is prove that she or allowed knowingly placed signed. 161.211 Tex. Fam.Code Ann. in dangerous S.N. to remain conditions or (Vernon B.L.D., 2002); at 353. surroundings. (“The I, § But Tex. Const. art. writ cf. Nancy’s Department focuses on corpus right, habeas is writ of drug primary alcohol as the abuse shall suspended.”); v. never see Foster supporting finding. Howev- this Foster, (Tex.Civ. 230 S.W. 1064-65 er, predicate ground for termination is this dism’d) (district App.-Galveston writ S.N.’s and sur- concerned with “conditions *16 to authority grant court has relief habeas rather “con- roundings” Nancy’s than by custody modifying determination ren 6 Compare duct.” Ann. Tex. Fam.Code court); dered in a different district see 161.001(1)(D) with Ann. Tex. Fam.Code Legate Legate, 248, also v. 87 Tex. 28 S.W. S.K., § 161.001(1)(E); see In re 198 (district 281, (1894) 282 jurisdic court has 2006, 899, 902 (Tex.App.-Dallas S.W.3d tion grant custody habeas relief in child denied); 424, pet. D.J.J., In re 178 S.W.3d matter). 2005, pet.). 429 no (Tex.App.-Fort Worth 161.211, According to section has conflicting record contains legal remedy no the evidence challenge available consequences flowing regarding Nancy’s drugs collateral from the abuse of and al- Nevertheless, this, any parties termination decree. Because of cohol. argues grounds Department
6. The we should con- are interre- that termination J.T.G., 117, Nancy's sider this issue and second issue re 126 lated. See In 121 S.W.3d (which 2003, challenges jury's finding pet.). she Worth While (Tex.App.-Fort that no grounds engaged knowingly placed agree frequently or in conduct S.N. we that these interrelated, engaged persons not in with who in conduct which we do find them to be so S.N.) together endangered these because this case. 62 appear agreed
court
that there is one occasion and admitted to a
have
CPS inves-
tigator
no evidence she used a controlled sub-
on a another occasion that she
addition,
In
presence.
positive
stance in S.N.’s
tested
for cocaine and
would have
regarding
limited
in the record
marihuana if she had been tested.
evidence
the home environment at the time of S.N.’s
Conversely, Nancy
using any
denied
ille-
suggests
Nancy provided
removal
that
gal drugs
past
years
within
three
adequate living
S.N. with
conditions which
that
drinking problem.
denied
she has a
endanger
physical
did not
her
or emotional
Although
conflicting
there is
well-being.
issue,
that
we hold
the evidence re
Therefore,
that the
we hold
evidence is garding Nancy’s history of substance
factually
jury’s
insufficient to sustain the
unwillingness
abuse and her
or
inability
finding
Nancy knowingly placed
or
problem try
admit she has this
or
to ad
dangerous
allowed S.N. to remain in
condi-
it
jury
dress
is such that the
could reason
D.J.J.,
surroundings.
tions or
178 ably form a firm belief or
conviction
Accordingly,
at 429-30.
sustain
S.W.3d
we
engaged
endangered
she
in conduct which
Nancy’s first issue.
C.R.,
368,
S.N. See
263
2008
S.W.3d
WL
M.R.,
*5;
at
Evidence by parent abuse is often cited as conduct We dismiss Charles’s motion for rehear- finding which will an affirmative ing grant as moot due to his death. We parent engaged that the has a course of Nancy’s rehearing. motion for Because endanger conduct the effect of which has issue, Nancy’s have second we overruled See, C.R., ing e.g., In the child. re challenge because she does not two (Tex.App.-Dallas at 371 predicate grounds for termination found M.R., pet.); no 818- court, previ- and because have pet.); (Tex.App.-Fort Worth ously Nancy’s overruled third issue chal- & Dep’t Family Toliver v. Tex. Protective lenging finding, the court’s best-interest rvs., (Tex.App. Se prior affirming our the trial decision 2006, no pet.). Houston [1st Dist.] undisturbed. judgment court’s remains Nancy’s substance abuse counselor stat- *17 Chief Justice GRAY concurs the report, “[Nancy]
ed in his consultation has judgment separate A of the Court. any changes not made due to behavioral opinion provides not follow. He the will requires her alcohol abuse. substance She following note.* counseling in to confront this abuse order that issue.” Other witnesses testified during drugs abused and alcohol leading up
the to trial. She also months on positive methamphetamine
tested for * (The judicial pages wandering of one facet of in its first 10 that Court takes a tour restraint Kraus, Greg GIVENS, E. Shannon Joan Givens, Individually
ory and as In D. the
dependent Executor of Estate Sewell, Givens, Harold L. J.
William Company, Appellants, Title
and Alamo
v. WARD, Appellees. and Dianna
Elvis
No. 10-07-00320-CV. Texas, Appeals
Court
Waco.
Oct.
ground upon
my dissenting
appellant
that
explains why I was correct in
show
Crittenden,
(remem-
rehearing
Fagan
opinion
being sought
on
v.
which termination
(Tex.App.-Waco
pet.
future)
was not
happening in the
ber this is all
J.,
denied)
dissenting)
argued
(Gray, C
when I
evidence at the time
supported
sufficient
that we had failed to address the issues
difficult to
was made. It is
the determination
existing rights
par-
then
controlled the
imagine
speculative
for a de-
a more
reason
right-
property
in real
and a
ties with interest
dispute that is
termination that resolves no
Court, however,
of-way that crossed it. The
dispute that
relevant to the resolution of the
any
Fagan
Opinion
avoids
mention of
in its
because,
on
parties
proceeding.
exists between the
to this
they
Rehearing. Maybe
if
that is
hand,
proceeding
in the actual
On the other
actually
judicial
restraint dis-
exercised
us,
currently
cannot even
before
State
Rehearing
Opinion
in this
cussed in the
case,
on
or its
challenge the Court's determination
opin-
reason
there would be no
methodology
deciding
because a
this issue
they
The issues
address in the
ion at all.
challenge
holding on
to the Court's
successful
Rehearing
potentially
Opinion
relevant
Opinion
in the
on Rehear-
the issue addressed
child, and
appellant
has another
if
if
judgment
ing
change the
which the
would not
rights
parental
terminate her
State seeks to
affirm,
termination
State seeks
child,
act discussed
and if
deny
I
the motion
rights in
case. would
this
only
Rehearing
Opinion on
is the
basis
in the
rehearing
opinion and thus
without an
termination,
*18
attempted
and the trial
for that
if
judgment of the Court to
concur in the
court,
yet
that as
un-filed case to terminate
extent,
extent,
affirms
only
that it
rights
yet unborn or
to an as
court.)
child,
judgment
of the trial
allow the
refused to
even conceived
notes
Notes
notes dence