### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00279
- CV

B. S. and M. S. , Appellant s

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 315625, THE HONORABLE JACK WELDON JON ES , JUDGE PRESIDING

C O N C U R R I N G O P I N I O N

I concur in the Court ’ s judgment affirming the termination of Father ’ s and Mother’ s parental rights. However, I would address the merits of Father ’ s and Mother ’s challenges to the s ufficiency of t h e evidence supporting the district court ’ s endangerment findings. S ee Tex. Fam. Code § 161.001(b) (1)(D), (E) . B ecause the Court declines to review those findings, I cannot join its opinion. Ordinarily, to raise a challenge on appeal to t he legal or fac tu al sufficiency of the evidence in a civil jury trial , a party must preserve error by first raising the challenge in th e trial
court. See T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W.2d 218, 220

– 21 (Tex . 1992); Cecil v. Smith , 804 S.W.2d 509, 510 –11 ( Tex. 1991). However, the Texas Supreme Court has cautioned that “ error preservation in the trial court, which is a threshold to appellate review,2 necessarily must be viewed through the due process prism. ” In re M.S. , 115 S.W.3d 5 34 , 547 (Tex. 2003).

“ T he phrase ‘ due process, ’ although incapable of precise definition, expresses the requirement of fundamental fairness. ” In re B.L.D. , 113 S.W.3d 340 , 352 (Tex. 2003) (citing
Lassiter v. Dep ’ t of Social Serv s
. , 452 U.S. 18, 24 (1981) ). “ What f undame ntal fa irness requires in a particular situation is determined by ‘ considering any relevant precedents and then

. . .

asse ssing the several interests that are at stake. ’ ” Id . (quoting Lassiter , 452 U .S. at 25)

. Although courts “ presume that our rul es gov ernin g preservation of error in civil cases comport with due process,” that presumption can be overcome when “ assess [ing] the interests that are affected by our procedures for preservation of error. ” Id . (citing Lassiter , 452 U.S. at 27 ). “ [ I ] n the conte xt of p arental termination, ‘ due process turns on the balancing of three distinct factors ’ : (1) ‘ the private interests affected by the pro ceeding ’ ; (2) ‘ the risk of error created by the [s]tate ’ s chosen procedure ’ ; and (3) ‘ the countervailing governm ental inter es t supporting use of the challenged procedure. ’ ” In re N. G. , 577 S.W.3d 230, 23 6 (Tex. 2019) (per curiam) (quoting
In re J.F.C. , 96 S.W.3d 256, 2 73 (Tex. 2002))

.

“ The private interest affected by a termination case is a parent ’ s fundamental
li berty inter es t in t he care, custody, and control of his or her children. ” B.L.D. , 113 S.W.3d at
352 (citing Troxel v. Granville , 530 U.S. 57, 65

– 66 (2000) ). This is “ a n interest far more
pre cious than any property right

. ” Santosky v. Kramer , 455 U.S. 74 5 , 758

– 59 ( 19 82)

. “ If the Department succeeds in terminati ng a parent ’ s rights, the State will have ‘ worked a unique kind of deprivation

. . . . A parent ’ s interest in the accuracy and justice of the decision to terminate his or her parental status is

. . . a comman di ng on e. ’ ” B.L.D. , 113 S.W.3d at 352 (quo ting Lassiter , 452 U.S. at 27 )

. “ Thus, the paren t ’ s interests generally will favor reviewing unpreserved error3 that might result in reversal of a judgment to terminate. ” Id

. Additionally, “ until the State
prove s paren t al unfitness, the child and his parents share a vital interest in preventing erroneous termination of thei r natural relationship

. ” Santosky , 455 U.S. at 7 60

. The sec on d factor, the risk of error , also weighs in favor of reviewing un preserved

su ffici en c y challenges to section 161.001(b)(1)(D) and ( E ) findings

. “[W]hen parental rights have been terminated under either section 161.001(b)(1)(D) or (E), that ground becomes a basis to terminate that parent’s rights to other children ” unde r section 16 1.001 (b ) (1)(M). N.G

. , 577 S.W.3d at 234

. “ Because only one ground is req uired to terminate parental rights

— and therefore a section 161.001(b)(1)(M) ground based on a prior termination would be sufficient to terminate parental rights to anothe r child in a nothe r t ermination proceeding

— the collateral consequences of terminating p arental rights under section 161.001(b)(1)(D) or (E) are significant. ” Id

. D eclining to review the sufficiency of the evidence supporting (D) or (E) grounds “ creates th e risk that a par en t will be automat ically denied th e right to parent other children even if the evidence supporting the section 161.001(b)(1)(D) or (E) finding were insufficient. ” Id

. The third factor weighs in favor of the State , which “ has a strong in terest in

en suring t hat our trial courts have an opportunity to correct errors as a matter of judicial
economy. ” B.L.D. , 113 S.W.3d at 353

. “ Appellate review of potentially reversible error never presented to a trial court would undermine the Legislature ’ s dual inte nt to e n sure finality in these cases and expedite their resolution. ” Id . On the other hand, “ [ t ] he State ’ s foremost interest in suits affecting the parent

- chi ld relationship is the best interest of the child ” and therefore , the
State “ shares the parent ’ s inter e s t in an accurate and just decision. ” Id

. “ In that regard, the
State ’ s interest favors reviewing unpreserved error that bears on the accuracy of the verdict. ” Id

.4 Overall , however , “ the State ’ s interests weigh heavily toward applying our procedu ral ru l e s to bar review of unpreserved error. ” Id

. Balancing the three factors, I would conclude that when a parent argues on appeal that t here i s insufficie nt evidence to support endangerment findings under either section
161.001 ( D) or (E) , due process demand s that the appellate court review that claim, even if it wa s not preserved in the court below. T he Texas Supreme Court reached a similar conclusio n when addressing “ whether a parent, whose parenta l rights were terminated by the trial co urt under

mu ltiple g rounds, is entitled to appellate review of the section 161.001(D) and (E) grounds because of the consequences these grounds could have on their parental rights to other children

— even if another gr ound alone is sufficient to uphold termi nation

. ” N. G. , 577 S.W.3d at
233

. The court concluded that a parent is entitled t o appellate review of those grounds as a matter of due process . It explained:

The state has a substantial, legitimate interest in protecting children and looking out for their b est int e rests, but parents also have a fundamental liberty interest in the right to parent

— particularly, a righ t to parent other children not involved in the termination proceeding at hand. In any parental termination proceeding, the state is immediately concern e d with the child in that case, but the state ’ s interest in allowing certain grounds to remain un reviewed on appeal should not outweigh the parent ’ s interest in parental rights to another child.

. . . Balancing these factors, and conside ring that th e risk o f error has significant consequences for future parental rights, we conclude that the parent ’ s fundamental liberty inte rest at stake outweighs the state ’ s interest in deciding only what is necessary for final disposition of the appeal

. Allowing se ction 1 6 1.001(b )(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court thus viol ates the parent ’ s due process and due course of law rights.

Id . at 236

– 37 (internal citations omitted)

.5 Although N.G. did not add res s error pre servation , I believe the court ’ s reasoning in that case is applic able here

. The State undoubtedly has an interest in resolving termination appeals expeditiously, and appella te courts declining to review unpreserved sufficienc y challenges furthe r s that int erest. However, p arents have a fundamental liberty interest in the care, custody, and control of their children, and declining to review unpre served sufficiency challenges to endangerment findings under (D) and (E) grounds , w hen the pare nts hav e raised th e issue on appeal , r isks wr ongfully depriving parents of their rights to future children in future termination proceedings. Th at is a risk I am unwilling to take

. As the Texas Supreme Court explained in N.G. :

A parent may b e denied the fundame n tal libert y interest in parenting only after they have been provided due process and due course of law, and terminating parental rights based on a challenged, unreviewed section 161.0001(b)(1)(D) or (E ) finding runs afoul of this princ iple. When a parent has presen ted the issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent ’ s only chance for review of a finding that will be binding as to par e ntal right s to other children.

Id . at 235 (internal citations omitted). Finally, I am troubled that our Court does not appear to be consistent on this issue. Recently, a different panel of this Court handed down its opinion in A. K. an d T. A.

v. Tex as Dep a rtm ent of F am ily and Protective Services , No. 03

- 22

- 00285

- CV , 2022 WL 14989625 (Tex. App.

— Austin Oct. 27, 2022, no pet. h.) (mem. op.) , a ca se that also involved a parent ’ s unpreserved legal and factual sufficiency challenge s to endange rment finding s under (D ) and (E )

. “ I n the interest of justice and because of the importance of the righ ts involved , ” this Court chose to review the findings. See i d . at *5 n.3. I do not believe that it is6 prudent for our Court to review unpreserved suff iciency chall enges i n s ome case s but not in others

. We should consistently review those challenges o r consistently decline to review them. I would choose to consistently review them. For these reasons, I concur in the judgment only.

________________ _____________ _______ ___ ___ Gisela D. Triana , Justice Before Chief Justice Byrne, Justices Triana and Smith Filed: November 10, 2022