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Click here for the full text of this decision FACTS:E.M.N. was born on Aug. 27, 1999. She was almost 7 years old at the time of the termination trial. Donna Lynn Jourden testified that E.M.N. was her miracle child, because Jourden was addicted to cocaine while pregnant with E.M.N. While she was pregnant, Jourden also allegedly suffered abuse from E.M.N.’s father. The 2001 order establishing E.M.N.’s paternity appointed Jourden possessory conservator and joint managing conservator with E.M.N.’s father and restricted E.M.N.’s primary residence to Tarrant and Johnson counties. Authorities arrested Jourden in November 2002 for her involvement in the murder of E.M.N.’s father. E.M.N. was 3 years old at the time. After her arrest, Jourden initially placed E.M.N. and J.J., E.M.N.’s older half-sister, with Jourden’s brother. She later arranged for them to stay with her father in New Mexico, but he became ill. The New Mexico equivalent of the Texas Department of Family and Protective Services placed E.M.N. and J.J. with unrelated foster parents, who were known to Jourden, at Jourden’s request. Jourden pleaded guilty to murder, was convicted, and received 15 years of imprisonment in March 2004. She testified that she would be eligible for parole in 2010. In 2003, legal proceedings over custody of E.M.N. began in Texas and New Mexico. Elsie Christine Napier, E.M.N.’s paternal grandmother, eventually prevailed in Texas, and a court order removed Jourden as E.M.N.’s managing conservator. Napier, her niece Martha Jo Keen and Martha’s husband, Anthony B. Keen, were appointed temporary joint managing conservators of E.M.N. in January 2006. J.J. remained with the foster family in New Mexico. While in prison, Jourden sent letters, cards, gifts and occasionally money to E.M.N., and took a number of self-improvement courses. Napier filed a petition to terminate Jourden’s parental rights to E.M.N. in February 2006. A trial court terminated Jourden’s parental rights to E.M.N. on Sept. 7, 2006, after the trial court concluded that the involuntary termination requirements of Texas Family Code �161.001 had been met. Specifically, the court based its decision upon �161.001(1)(T), which provides for termination when a parent has been convicted of the murder of the other parent of the child under Texas Penal Code ��19.02 or 19.03 and when the best interest of the child requirement under Texas Family Code �161.001(2) is satisfied. Jourden appealed. In her first issue, Jourden complained that termination of her parental rights under �161.001(1)(T) violated her right against the imposition of ex post facto laws, because her criminal conviction occurred in 2004 and subsection (T) was not enacted until 2005. Furthermore, Jourden argued that the trial court’s application of subsection (T) denied her the use or benefit of defenses that existed under other, previously enacted subsections of the involuntary termination statute. HOLDING:Affirmed. In proceedings to terminate the parent-child relationship brought under �161.001, the court stated that a petitioner must establish one ground listed under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Because subsection (T) was the sole ground alleged under �161.001(1), the court stated that it must review whether the constitutional protections against ex post facto laws applied to Jourden’s case. First, the court noted that the U.S. Constitution’s ex post facto provision applies only to criminal proceedings. But the court stated that Texas Constitution Art. I, �16, the Texas Constitution’s ex post facto provision, applies to criminal cases and to civil cases involving vested rights that are legally recognized or secured. A statute that allows a court to take into consideration conduct occurring before the effective date of the statute possesses a retroactive effect, the court stated. The court found, however, that when a law is procedural or remedial in nature, retroactive application does not violate Art. I, �16. And mere retroactivity alone is not sufficient to invalidate a statute, the court stated. A valid exercise of the police power by the Legislature, to safeguard the public safety and welfare, can prevail over a finding that a law is unconstitutionally retroactive, the court stated. Parental rights are vested rights, the court stated. In determining whether a law retroactively impairs a vested right, the court stated that it must consider whether: it advances or retards the public interest; its retroactive portion gives effect to or defeats the bona fide intentions or reasonable expectations of affected persons; and it surprises people who have relied on contrary law for a long period of time. The Legislature enacted subsection (T) of �161.001(1), the court stated, in the memory of a woman whose husband was convicted of murdering her, and whose mother “undertook a lengthy and expensive court battle” to obtain custody of her four grandchildren when the murderer retained his parental rights over them. The reasoning behind subsection (T), the court stated, is not to enhance the punishment of a parent who is convicted of a crime. Instead, it is to remedy the conditions of the children, and their caregivers, in the aftermath of a parent’s conviction for the murder of the other parent. Likewise, the court found that subsection (T) did not disappoint any reasonable reliance Jourden “could have placed on the law when she was convicted of murder, nor could the termination constitute a surprise, because under subsection (E), which allows for termination if a parent engages in conduct that endangers the child’s physical or emotional well-being, murder of one parent by the other has long been considered a ground for termination.” Thus, the court held that despite Jourden’s conviction and imprisonment before subsection (T)’s enactment, the retroactive application of subsection (T) did not violate Jourden’s rights. Subsection (T)’s underlying purpose is not to add additional punishment to Jourden for murdering E.M.N.’s father, but to safeguard the public welfare and advance the public interest by facilitating termination when one parent murders the other. In addition, the court also found that legally and factually sufficient evidence supported the trial court’s order terminating Jourden’s parental rights to E.M.N. OPINION:Holman, J.; Dauphinot, Holman and McCoy, J.J.

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