In re E.N.C. (2012): Deportation, an Old Conviction, and Proof of Endangerment

The short answer

In In re E.N.C., the Supreme Court of Texas held the evidence was legally insufficient to end a deported father's parental rights In re E.N.C., 384 S.W.3d 796 (Tex. 2012). Deportation following an unknown offense from many years earlier could not prove an endangering course of conduct, "nor can mere guesswork undergird such a finding" In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The record also did not support a finding that termination was in the children's best interest In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

What the case was about

The father was an immigrant. Years before his children were born, he was convicted in another state of unlawful conduct with a minor and given probation. He was later deported In re E.N.C., 384 S.W.3d 796 (Tex. 2012). He cannot return to the United States for ten years, and the record does not say why In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

Before the children were removed, he called them about three times a week or on weekends, sometimes daily, and he sent financial support In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The Department removed the children after their mother was arrested for DWI with one child in the car In re E.N.C., 384 S.W.3d 796 (Tex. 2012). During the case, the Department allowed the father one visit a month by conference call and did not offer him a service plan In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The children's attorney ad litem recommended against ending his rights In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

The trial court terminated both parents' rights In re E.N.C., 384 S.W.3d 796 (Tex. 2012). As to the father, the State put on no evidence about the old offense or why he was deported, and the record did not contain the judgment, probation terms or charges In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The court of appeals affirmed on the endangerment ground in section 161.001(1)(E) and on best interest In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

What the court decided

Justice Green wrote the opinion of the Court In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The Court repeated that it strictly construes involuntary termination statutes in favor of the parent In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

Endangerment. "Endanger" means more than a threat of metaphysical injury, though the conduct need not be aimed at the child In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The court of appeals had "inferred a worst-case scenario." But a factfinder may draw only reasonable and logical inferences In re E.N.C., 384 S.W.3d 796 (Tex. 2012). Deportation, like incarceration, may be considered, but it is not enough by itself, and its weight depends on the circumstances In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The Court noted that many offenses can lead to deportation, including unlawful entry In re E.N.C., 384 S.W.3d 796 (Tex. 2012). It also said a deported parent can work, have a home and support a family, and his children could live with him In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

Best interest. Applying the Holley factors, the Court said the court of appeals wrongly treated a lack of contrary evidence as if it were evidence supporting termination In re E.N.C., 384 S.W.3d 796 (Tex. 2012). Nothing showed the Department considered the children living with their father in Mexico In re E.N.C., 384 S.W.3d 796 (Tex. 2012). Any gaps in his support and calls appeared largely to result from the Department's actions In re E.N.C., 384 S.W.3d 796 (Tex. 2012). Even if a foster family had more resources, the Court declined to treat that as support for a best-interest finding In re E.N.C., 384 S.W.3d 796 (Tex. 2012). No reasonable factfinder could have formed a firm belief that termination was in the children's best interest In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

Limits. The Court did not decide that the children must join their father in Mexico In re E.N.C., 384 S.W.3d 796 (Tex. 2012). It said the Department's options on remand include offering him a service plan, and that his living in Mexico should not seriously hamper those efforts In re E.N.C., 384 S.W.3d 796 (Tex. 2012). The ruling applied only to the father; the Court had denied the mother's separate petition In re E.N.C., 384 S.W.3d 796 (Tex. 2012). It reversed in part and sent the case back to the trial court In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

In the court's words

A lack of evidence does not constitute clear and convincing evidence.

In plain English: the State has to prove its case, not just point to what is missing In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

The Department is required to support its allegations against a parent by clear and convincing evidence; conjecture is not enough.

In plain English: guesses about a parent cannot replace proof In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

Why it matters for Texas families

E.N.C. applies the legal sufficiency test from In re J.F.C. (2002): How Appeals Courts Test the Evidence in Termination Cases and the best-interest factors from Holley v. Adams (1976): The Texas Best-Interest Factors. It shows that a parent's absence because of deportation or incarceration is a fact courts weigh, not an automatic ground for termination In re E.N.C., 384 S.W.3d 796 (Tex. 2012).

If you live outside the United States or have immigration concerns, ask your lawyer what evidence the Department must present and whether a service plan is available to you. This is legal information, not legal advice.

Related

• In re J.F.C. (2002): How Appeals Courts Test the Evidence in Termination Cases
• Holley v. Adams (1976): The Texas Best-Interest Factors
• In re C.H. (2002): Factual Sufficiency and the Firm-Belief Test
• In re E.R. (2012): Notice by Newspaper When CPS Knows Where to Find You
• In re N.G. (2019): Why Endangerment Findings Must Be Reviewed on Appeal