Majority Panel Opinion of July 16, 2019 and Dissenting Panel Opinion of

September 24, 2019 Withdrawn; Affirmed in Part, Reversed and Rendered in Part, and Reversed and Remanded in Part and En Banc Majority Opinion and En Banc Dissenting Opinion s filed Marc h 31 , 20 20.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00062

- CV

IN THE INTEREST OF L.C.L. AND M.E.M., CHILDREN

On Appeal from the 315th District Court

Harris County, Texas Trial Court Cause No. 2016

- 03785J

E N B A N C D I S S E N T I N G O P I N I O N In deciding this case members of the en banc court reach different views of the facts and the law that inform today’s judgment. But the en banc majority and dissenting opinions tell a larger story about the role of pr ocess in appellate decision

making and how failure to adhere to settled rules can skew appellate outcomes and compromise appe llate justice.2

The en banc majority violates the requirement that the court detail the evidence in its opinion and explain why i t has concluded that the evidence is factually insufficient to support the best

- interest

- of

- the

- child finding s . Through the Texas Rules of Appellate Procedure and case law, the Supreme Court of Texas calls courts of appeals to show their work when they analyze whether the trial evidence is legally or factually sufficient to support a fact finding. 1 The high court “require[s] appellate courts to explain by written opinion their analyses and conclusions as to the issues necessary for final disposition of an appeal.” 2 In keeping with this principle, the rules of appellate procedure require a court of appeals to write an opinion that advises the parties not only of the court’s decision but also
the basic reasons for that decision. 3
After a bench trial, the trial court found that terminating Mother’s parental rights would serve each of the children’s best interest. On appeal, Mother argues that the trial evidence is legally and factually insufficient to support these finding s

. The en banc court concludes that the trial evidence is legally sufficient to support
the best

- interest finding s but factually insufficient to support them

. In a factual

- sufficiency review in a parental

- rights

- termination case, a court of appeals must g ive due consideration to evidence that the factfinder reasonably could have found to be clear and convincing. 4 The court of appeals must inquire as to “whether the evidence is such that a factfinder could reasonably form a firm belief

1 See Tex. R. App. P. 47.4; In re Columbia Medical Center of Las Colinas, Subsidiary, L.P. , 2 90 S.W.3d 204, 211 (Tex. 2009); Gonzalez v. McAllen Medical Center, Inc ., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).

2 See In re Columbia Medical Center of Las Colinas, Subsidiary, L.P. , 290 S.W.3d at 211.

3 See Tex. R. App. P. 47.4; Gonzalez , 195 S.W.3d at 681.

4 In re J.F.C ., 96 S.W.3d 256, 26 6

– 6 7 (Tex. 2002).3

or conviction about the truth of the State’s allegations.” 5 This means the reviewing
court should consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding. 6 If, in light of the entire record, the dispu ted evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. 7
The law demands a heightened degree of specificity in explaining the reasons for the court of appeals’s decision if the court concludes the evidence is factually
insufficient to support a finding. 8 I f , as today, a reviewing court concludes the
evidence i s factually insufficient to support a parental

- rights

- termination finding , the

court must detail the evidence in its opinion and explain why the court has concluded
that a reasonable factfinder could not have credited the disputed evidence in favor of the finding. 9 The en banc majority’s treatment of the factual

- sufficiency challenge
contain s no details, no explanations, and no analysis of the evidence. It is not a
factual

- sufficiency review; it is a factual

- sufficiency conclusion. The legal standard for determining that the evidence is factual ly insufficient

to support a finding presents a high hurdle , one seldom cleared in the best

- interest

of

- the

- child context. 10 The standard requires a thorough and particularized analysis

5 Id . (internal quotations omitted).

6 Id

. 7 Id

. 8 See Windrum v. Kareh , 581 S.W.3d 761, 781

– 82 (Tex. 2019) ; Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761

– 62 Tex. 2003); Pool v. Ford Motor Co. , 715 S.W.2d 629, 634

– 35 ( Tex. 1986).

9 See Windrum , 581 S.W.3d at 781

– 82 ; In re J.F.C ., 96 S.W.3d at 266

– 67

. 10 See Windrum , 581 S.W.3d at 781

– 82 ; Golden Eagle Archery, Inc. , 116 S.W.3d at 761

– 62; In re J.F.C ., 96 S.W.3d at 266

– 67 ; Pool , 715 S.W.2d at 634

– 35.4

of all the facts. 11 Yet, t he en banc majority denounces the factual sufficiency of the evidence without doing any of the following tasks crucial to the process :

• identify ing the disputed evidence ;

• explain ing why the en banc majority has concluded that a reasonable factfinder could not have credited the disputed evidence in favor of the best

- interest finding s ; and

• explain ing why the en banc majority has concluded that the disputed evidence that a reasonable factfinder could not have credited in favor of the best

- interest finding s is so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination of Mother’s parental rights is in each of the children’s best interest. 12 The en banc majority bypasses the process the law requires. The en banc majority’s
individual failures to identify, unpack , and analyze all the record evidence violate s binding supreme

- court precedent. 13 And, th ose failures rob the parties, the trial court, and the public of the intended benefits of the appellate process.

Process matters. Requiring courts to show their work by reducing their reasons to writing
serves several functions. First, it operates as a check on the decision

- makers’ analytical process and faithfulness to the record. It helps to ensure that they consider the evidence and conduct the sufficiency review in accordance with applicable legal
standards so that their conclusions amount to more than judicial ipse dixit. The contemplated end product

— a written opinion with reasons

— undergirds a second

11 See Windrum , 581 S.W.3d at 781

– 82 ; In re J.F.C ., 96 S.W.3d at 266

– 67

. 12 See In re J.F.C ., 96 S.W.3d at 266

– 67

. 13 See Windrum , 581 S.W.3d at 781

– 82; I n re J.F.C ., 96 S.W.3d at 266

– 67 ; In re C.H ., 89 S.W. 3 d 17, 25

– 29 (Tex. 2002); Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998).5

purpose, which is to give the parties and the trial court the assurance of proper appellate review. In this wa y, a properly conducted sufficiency review provides that essential measure of transparency that is so vital to our rule

- of

- law system. When a court of appeals concludes that the trial evidence is factually insufficient to support a fact finding, the requi rement that the court detail the evidence and explain its analysis allows the s upreme c ourt to review the opinion to make sure that the court of appeals applied the proper legal standard and that the court of appeals did not substitute its judgment on the facts for that of the factfinder. 14
Appellate justice impacts more than the particular litigants in the case before the court. Because published appellate opinions become part of the law, giving detailed reasons in a sufficiency review serves a third func tion of developing the jurisprudence. When a reviewing court does not give reasons for its holding, neither the public, nor the bench, nor the bar has a basis for knowing what the law is or how it will be applied in the future. Giving reasons illumines t he court’s thinking, so that in keeping with stare decisis, others may apply the same rationale in like cases. Detailed analysis thus serves a fourth function of promoting uniformity and predictability in the law. By failing to show its work, the en banc court serves none of these important functions today.

/s/ Kem Thompson Frost Chief Justice

En banc court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, and Poissant. Justice Hassan authored the En Banc Majority Opinion, in which Justices Bourliot, Zimmerer, Spain, and Poissant join ed. Justice Wise authored an En Banc Dissenting Opinion , in w hich Chief Justice Frost and Justices Christopher and Jewell joined. Chief Justice Frost authored an En Banc Dissenting Opinion.

14 See Windrum , 581 S.W.3d at 781 ; Pool , 715 S.W.2d at 635.