IN THE INTEREST OF CHILD v. << (2017)

CONCURRING OPINION

The father in this appeal conceded the sufficiency of the evidence to support the trial court's finding that he endangered his child by use of a controlled substance under the circumstances described in Family Code section 161.001(b)(1)(P).¹ I therefore decline to join the majority's unnecessary dictum, which analyzes whether the evidence was sufficient to support the trial court's additional finding that the father failed to comply with the provisions of a court order under the circumstances described in Family Code section 161.001(b)(1)(O).²

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.³ Accordingly, it is a well-established and often-invoked principle of appellate review in this court that when an appellant fails to challenge all of the predicate grounds found by a trial court under section 161.001(b)(1) in support of a termination decree, any complaint about the sufficiency of the evidence to support the unchallenged findings is waived, and the court need not address other predicate grounds that are challenged on appeal.⁴ This sound and prudent rule reflects the “cardinal principle” of judicial restraint: “if it is not necessary to decide more, it is necessary not to decide more.”⁵

With these observations, I concur solely in the judgment affirming the decree of termination.

FOOTNOTES

1.   “The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence ․ that the parent has ․ used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and: (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance ․” TEX. FAM. CODE § 161.001(b)(1)(P).

2.   “The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence ․ that the parent has ․ failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child ․” TEX. FAM. CODE § 161.001(b)(1)(O).

3.   E.g., In re A.V., 113 S.W.3d 355, 362 & n.39 (Tex. 2003).

4.   E.g., In re A.H.L., No. 01-16-00784-CV, 2017 WL 1149222, at *3 & n.* (Tex. App.—Houston [1st Dist.] Mar. 28, 2017, no pet. h.) (mem. op.) (noting the waste of “both appointed-lawyer resources and judicial resources” occasioned by purporting to challenge a predicate ground for termination while “simultaneously defeating” that issue “by conceding the sufficiency of at least one predicate ground”); In re T.L.B., No. 01-16-00806-CV, 2017 WL 1019520, at *10 n.5 (Tex. App.—Houston [1st Dist.] Mar. 16, 2017, no pet. h.) (“Because only one predicate ground is needed to support a termination order, we need not address Mother's other sub-issues ․”); In re D.E.B., No. 01-16-00562-CV, 2016 WL 7671378, at *5 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016, pet. filed) (mem. op.) (“Because Mother concedes that at least one predicate finding is supported by legally and factually sufficient evidence, we not need not address her first three issues, challenging the sufficiency of the evidence to support the other predicate findings.”); In re J.-M.A.Y., No. 01-15-00469-CV, 2015 WL 6755595, at *4 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, pet. denied) (mem. op.) (“Because the judgment could be affirmed on ․ unchallenged grounds, we uphold the judgment concerning the statutory grounds for termination and do not address Mother's challenge to the sufficiency of the evidence under subsection (E).”); Toliver v. Tex. Dept. of Family & Protective Servs., 217 S.W.3d 85, 102 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

5.   VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex. 2007) (quoting 6PDK Labs., Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)).

Michael Massengale Justice

Justice Massengale, concurring in the judgment.