Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 13, 2009

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

In re J.G.C.G.,   No. 02-08-00200-CV    (Apr. 16, 2009)   (McCoy, J., joined by Gardner and Walker, JJ.).

Held:    The trial court did not abuse its discretion by denying Appellant’s request for a mistrial with regard to a juror on pain medication. Appellant’s complaint did not fall under article 35.16 of the code of criminal procedure (challenges for cause) because the juror had already been seated when he apprised the trial court of his medical condition, and there was nothing in the record of voir dire to show that the juror withheld information about it. Additionally, the trial court did not abuse its discretion under article 36.29 of the code of criminal procedure (juror disabilities) because the juror indicated to the trial court that his medication did not interfere with his ability to listen and nothing else indicated that the juror was unable to fully and fairly perform his duties as a juror.

In re D.M.F.,   No. 02-08-00212-CV    (Apr. 16, 2009)   (op. on reh’g) (Livingston, J., joined by Dixon W. Holman, J. (Senior Justice, Retired, Sitting by Assignment); Cayce, C.J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:    The evidence is legally insufficient to support termination under either subsection H or O of family code section 161.001(1). Subsection H requires an abandonment of the mother and child, with knowledge of the pregnancy, both before and after the child is born. There is no clear and convincing evidence that Appellant-father so abandoned D.M.F. and the mother. He did not know the mother was pregnant until two weeks before she gave birth, and he did not know that he was D.M.F.’s father until DNA testing was completed almost a year after D.M.F. was born; he acknowledged his paternity upon completion of the DNA testing. In addition, there was no clear and convincing evidence supporting termination under O because no specific order was admitted into evidence or identified as an order with which Appellant-father had not complied. Regardless, subsection O likewise applies only to a parent from whom the child was removed; because Appellant-father was only an alleged parent at the time the child was removed from the mother, the evidence does not support termination under subsection O.

Dissent:   There is legally sufficient evidence, both direct and circumstantial, to support termination under subsection H. The majority opinion assumes an elevated burden for scienter that can never be met in most termination cases under subsection H and thwarts the public policy behind subsection H of encouraging fathers and alleged fathers with knowledge of the pregnancy to provide support and medical care to the mother during the pregnancy and through birth.

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