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When parents relinquish their parental rights for purposes of adoption, or the State convinces a court to take away those parental rights in cases of abuse, the parents' rights are said to be "terminated."   These cases are called termination cases.

Termination cases cannot occur in a vacuum.  They must be accompanied by appointment of the State, or of an adoption agency or prospective adoptive parents, as temporary conservators of the child.  If parental rights were terminated without further action, then there would be no one in charge of the child.

In adoption cases where a biological parent changes his or her mind about termination, or in termination cases brought by the State because of child abuse, the terminated parent may appeal the trial court's decision on termination.  There has been a dispute among Texas' Courts of Appeals whether reversing the trial court on its termination decision automatically reverses the appointment of a conservator.  Some courts have held that a parent need attack only the termination decision, while other courts have ruled that a parent must appeal both the termination and the conservatorship decisions. 

The Texas Supreme Court, in In re: J.A.J., has resolved the issue:  The Court ruled that on appeal, a parent must challenge both the decision to terminate and the decision to appoint a conservator if the parent wants his or her child back. 

The Court rested its decision on two grounds.  First, the Court first noted that the grounds for termination are not the same as those warranting appointment as a conservator, so reversing a termination decision is not necessarily inconsistent with leaving a conservatorship order in place. 

Second, the Court observed that the burden of proof for the two issues is different:  Termination of parental rights must be proved by clear and convincing evidence, while a preponderance of the evidence governs conservatorship decisions.  Thus, it would be possible to conclude the the evidence did not warrant termination but did justify retaining a third person or entity as the child's conservator.

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In a case called In re: A.S., a divided Beaumont Court of Appeals affirmed a trial court's termination of parental rights without a reporter's record.  The majority said that it could tell that the appeal would be frivolous based upon the record from a post-trial hearing. The majority refused the appellant's request that the trial itself be transcribed before considering the appeal.

This is an astounding decision.  At the post-trial hearing, counsel for the Texas Department of Family and Protective Services (TDFPS) told the trial court what the evidence had been at trial.  The parent's appellate attorney, who did not try the case, was unable to respond with any particularity.  Although the appellate attorney had spoken with the attorney who represented the parent at trial, the appellate attorney had no opportunity to review the trial evidence - by reviewing the reporter's record - because the Beaumont Court's majority decided it didn't need the reporter's record to conclude that the appeal was frivolous. 

Thus, the Court's majority decided the appeal of a termination case based on the recollection of the attorney for TDFPS of what the evidence at trial showed.

In dissent, Justice Gaultney put the matter bluntly:  "An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence."  Citing a United States Supreme Court opinion, Justice Gaultney further inquired how an appellate attorney could "adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record."

We hope that the appellate attorney files a petition for review with the Texas Supreme Court.  Cutting corners when it comes to due process undermines confidence in the judicial system.

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