Opinion
No. 10-19-00237-CV
11-20-2019
In the INTEREST OF J.G. and A.P., Children
Spring R. Thummel, Thummel Law Firm PLLC, Brian Emory Howell, Clark, Clark & Howell LLP, Waco, for Real party in interest. Patrick O. Brady, Sheehy Lovelace & Mayfield, Waco, for Appellant. Barry N. Johnson, Plano, Sterling A. Harmon, Seminole, Kristin Kaye, McLennan County District Attorney, for Appellee.
Spring R. Thummel, Thummel Law Firm PLLC, Brian Emory Howell, Clark, Clark & Howell LLP, Waco, for Real party in interest.
Patrick O. Brady, Sheehy Lovelace & Mayfield, Waco, for Appellant.
Barry N. Johnson, Plano, Sterling A. Harmon, Seminole, Kristin Kaye, McLennan County District Attorney, for Appellee.
Before Chief Justice Gray, Justice Davis, and Justice Neill
JOHN E. NEILL, Justice
In four issues, appellant, Augustine Perez, challenges the trial court's order, entered after a bench trial, terminating his parental rights to J.G. and A.P. Specifically, Perez contends that the evidence is legally and factually insufficient to support the predicate grounds for termination under sections 161.001(b)(1)(D) and (E) of the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D)-(E) (West Supp. 2018). We affirm as modified.
In his notice of appeal, Perez indicates that the style of this case is In the Interest of J.G., A.P., and L.G., children. However, the record reflects that Perez is not the father of L.G. and that his parental rights were therefore terminated as to J.G. and A.P. only. Neither the mother of all three of the children nor the father of L.G. have filed notices of appeal in this matter. Accordingly, we cannot construe Perez's notice of appeal to encompass L.G. Without a proper notice of appeal, there is nothing preserved for appellate review pertaining to L.G. See Tex. R. App. P. 25.1(c) ("A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal."); see also Brooks v. Northglen Ass'n , 141 S.W.3d 158, 171 (Tex. 2004) ("Northglen did not file a notice of appeal from the trial court's judgment, did not notice a cross-appeal, and did not petition this court for review on the point. Accordingly, Northglen did not preserve this issue for our review."). Because there is not a proper notice of appeal corresponding with L.G. in this proceeding, we modify the style of this case to delete L.G.
I. ANALYSIS
In its termination order, the trial court stated that the predicate grounds for termination of Perez's parental rights as sections 161.001(b)(1)(D), (E), (N), and (O) of the Family Code and that termination of Perez's parental rights is in the best interest of the children. See id. § 161.001(b)(1)(D), (E), (N), (O). On appeal, Perez only challenges the sufficiency of the evidence pertaining to the predicate grounds for termination under sections 161.001(b)(1)(D) and (E) of the Family Code.
Perez does not challenge the trial court's best-interest findings, nor does he challenge the trial court's findings under sections 161.001(b)(1)(N) and (O) of the Family Code. Therefore, the trial court's best-interest findings, as well as the trial court's findings under sections 161.001(b)(1)(N) and (O), are binding on this Court, and we need not address them in this opinion. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp. , 938 S.W.2d 440, 445 (Tex. 1997) ; McGalliard v. Kuhlmann , 722 S.W.2d 694, 696 (Tex. 1986) ; see also In re K.L.G. , No. 14-09-00403-CV, 2009 WL 3295018, at *2, 2009 Tex. App. LEXIS 8011 at *7 (Tex. App.—Houston [14th Dist.] Oct. 15, 2009, no pet.) (mem. op.) ("Appellant did not raise a challenge to the predicate ground in subsection Q or to the best-interest finding. Second, because they were unchallenged, findings supporting termination of appellant's parental rights to K.L.G. are binding, and no review of the other predicate grounds or the best-interest finding is necessary." (citing In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003) )).
Appellee, the Department, represented by the Criminal District Attorney for McLennan County, Texas, filed a letter brief conceding that the findings under section 161.001(b)(1)(D) and (E) of the Family Code "should be removed from the final order terminating Appellant[ ] Augustine Perez's parental rights." Because appellee agrees that Perez is entitled to the relief requested, and because appellee has waived any complaint pertaining to sections 161.001(b)(1)(D) and (E) of the Family Code, we sustain Perez's issues on appeal to the extent that the parties agree that sections 161.001(b)(1)(D) and (E) of the Family Code should be removed from the trial court's order as predicate grounds for termination. In sustaining Perez's issues on appeal, we are simply accepting appellee's waiver and specifically not reviewing the evidence for sufficiency to support these predicate grounds. See, e.g., Menon v. Water Splash, Inc. , No. 14-14-00012-CV, 2018 WL 344040, at *3, 2018 Tex. App. LEXIS 194 at *8 (Tex. App.—Houston [14th Dist.] Jan. 9, 2018, no pet.) ("On the other hand, a litigant also can concede or waive issues and arguments on appeal....").
II. CONCLUSION
Based on the foregoing, we modify the trial court's termination order to delete the findings under sections 161.001(b)(1)(D) and (E) of the Family Code. Given that Perez does not challenge the remaining two predicate grounds for termination of his parental rights under section 161.001 of the Family Code or the best-interest grounds, we otherwise affirm the trial court's termination order in all other respects. See TEX. FAM. CODE ANN. § 161.001(b) (stating that in an involuntary termination proceeding, the Texas Department of Family and Protective Services must establish: (1) at least one ground under subsection (b)(1) of section 161.001 ; and (2) that termination is in the best interest of the child); see also In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section 161.001 [ (b) ](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest.").