Unpublished QEW Opinion out of Texas Court of Appeals


This is the second time recently a well-reasoned QEW case has been unreported, which means it can’t be used as precedent. The first was in Washington. In re K.S., 199 Wash.App. 1034 (2017). This one is out of the Texas Court of Appeals.

First, because I’ve been getting a lot of emails lately about foster parent issues, here are the witnesses who testified:

Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent, and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings or findings regarding expert witnesses.

The Court then analyses the 2015 Guidelines (which it appears would have been governing this case since it was started in October 2016, i.e. initiated prior to December, 2016. 25 CFR 23.143) and concludes none of those people are QEWs.

The failure of the Department to produce the kind of competent evidence expressly required under the Act to support termination constitutes a failure of proof. See City of Keller,
168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”); see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reversing involuntary-commitment order as unsupported by legally sufficient evidence where State
failed to introduce expert testimony as required by involuntary-commitment statute). Therefore, even viewing all of the evidence in the light most favorable to the verdict, because the record does not contain the statutorily required qualified-expert testimony, we conclude that the evidence is legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at 319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights because not supported by testimony of qualified expert witness as required under ICWA); Doty-Jabbaar, 19 S.W.3d at 877 (same).