in the Interest of J.A.J

Dissenting Opinion On Denial of Motion for En Banc Rehearing filed May 10, 2007 Dissenting Opinion On Denial of Motion for En Banc Rehearing filed May 10, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-04-01031-CV ______________________ IN THE INTEREST OF J.A.J. On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 03-08998J D I S S E N T I N G   O P I N I O N  ON  D E N I A L  O F M O T I O N   F O R E N  B A N C  R E H E A R I N G En banc review of this case is necessary to secure and maintain the uniformity of this court=s decisions. See Tex R. App. p. 41.2. An intermediate court of appeals is a unitary body, even if, as is true of the Fourteenth Court of Appeals, the court normally sits in three-justice panels that do not include all of the court=s justices. See O=Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding). The decision of any such three-member panel constitutes the decision of the whole court of appeals. See id. If one panel of this court reaches a holding that is contrary to the holding of a prior panel, then this court has spoken inconsistently. See id. To remedy this undesirable and problematic situation, the appellate rules provide for en banc review to secure or maintain the uniformity of an intermediate appellate court=s decisions. See id. Texas Rule of Appellate Procedure 41.2 governs the decision to grant a motion for rehearing by the en banc court: En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court=s decisions or unless extraordinary circumstances require en banc consideration. Tex. R. App. P. 41.2(c). The Department of Family and Protective Services asserts in its motion for en banc rehearing that en banc review is necessary in this case to secure or maintain the uniformity of this court=s decisions because the panel=s opinion is contrary to other identified decisions in which this court has ruled the opposite way on one of the issues in the case. In J. R. I, this court held that the evidence at trial was legally insufficient to support termination of the mother=s parental rights and, on this basis, reversed the trial court=s judgment. See In re J. R., 171 S.W.3d 558, 579 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Although this court reversed as to termination of the mother=s parental rights, this court did not reverse the part of the trial court=s judgment appointing the Department as sole managing conservator of the mother=s children. See id. This court stated that it did not reverse this conservatorship determination because the mother had not challenged this part of the trial court=s judgment on appeal. See id. Slightly more than a year later, this court issued the panel opinion in the case at hand. See In re J. A. J., No. 14-04-01031-CV, 2006 WL 2291175, CS.W.3dC, (Tex. App.CHouston [14th Dist.] Aug. 10, 2006, no pet. h.). Coincidentally, this case involves an appeal from the same district court as in J. R. I, and though the parent is different, the attorneys representing the appellant mother and the appellee Department are also the same. See In re J. A. J., 2006 WL 2291175, at *1; In re J. R., 171 S.W.3d at 558. As in J. R. I, this court determined that there was legally insufficient evidence to support the termination of the mother=s parental rights. See In re J. A. J., 2006 WL 2291175, at *7; In re J. R., 171 S.W.3d at 579. As in J. R. I, the mother did not challenge on appeal the part of the trial court=s judgment appointing the Department as sole managing conservator of the mother=s children. See In re J. A. J., 2006 WL 2291175, at *1; In re J. R., 171 S.W.3d at 579. However, despite this failure to assign error as to the trial court=s conservatorship determination, in J. A. J., this court reversed the part of the trial court=s judgment appointing the Department as sole managing conservator of the mother=s child. See In re J. A. J., 2006 WL 2291175, at *8. In a context indistinguishable from that in J. R. I, this court has reached a holding that is the exact opposite of this court=s holding in J. R. I. See In re J. A. J., 2006 WL 2291175, at *8; In re J. R., 171 S.W.3d at 579. In the same context, the Second Court of Appeals has reached the same holding as this court=s holding in J. R. I. See In re E. A. W. S., No. 2-06-00031-CV, 2006 WL 3525367, at *18 & n.55 (Tex. App.CFort Worth Dec. 7, 2006, pet. denied) (mem. op.). With one justice dissenting, the First Court of Appeals recently reached the same holding as this court=s holding in J. A. J. See Colbert v. Dep=t of Family & Prot. Servs., Nos. 01-04-01232-CV, 01-04-01233-CV, 01-05-00124-CV, 01-05-00126-CV, 01-05-00127-CV, 2006 WL 3752371, at *15B16, C S.W.3d C, C (Tex. App.CHouston [1st Dist.] Dec. 21, 2006, no pet. h.); Colbert, 2006 WL 3752371, at *16B17 (Jennings, J., concurring and dissenting). A motion for en banc consideration is currently pending before the First Court of Appeals in that case. Furthermore, in an appeal following remand in J. R. I, this court has recently restated its agreement with its holding in J. R. I and noted its disagreement with the First Court of Appeals=s holding in Colbert. See In re J. R., No. 14-05-01216-CV, 2007 WL 1054050, at *2, n.4, C S.W.3d C, C (Tex. App.CHouston [14th Dist.] Apr. 10, 2007, no pet. h.). Clearly, the issue is a recurring one. Moreover, the issue concerns a matter of the utmost importance C the conservatorship of children. One might disagree with this court=s holding in J. R. I or one might disagree with this court=s holding in J. A. J., but it is difficult to disagree with the conclusion that there is a conflict between these two holdings and therefore a lack of uniformity in this court=s decisions. Though en banc consideration of a case is not favored, it is appropriate and necessary in this case not only to resolve the undeniable conflict so that this court may speak with one voice on this important issue, but also because the issue is likely to recur frequently. The court=s failure to resolve the issue now will only prolong the confusion and uncertainty. For all of these reasons, this court should grant en banc review. Because it does not, I respectfully dissent from this court=s denial of the Department=s motion for en banc rehearing. /s/ Kem Thompson Frost Justice Dissenting Opinion on Denial of Motion for En Banc Rehearing filed May 10, 2007. (Chief Justice Hedges and Justices Yates, Anderson, Hudson, and Mirabal[1] vote to deny the motion; Justices Fowler, Edelman, Seymore, and Guzman join this dissenting opinion). [1] Senior Justice Margaret G. Mirabal sitting by assignment.