In Re DO
338 S.W.3d 29
Tex. App.2011Background
- In May 2008, DFPS removed D.O., S.O., and M.L.O. from M.O.W. and filed a termination suit; Department named temporary sole managing conservator.
- Maternal grandmother R.K. intervened seeking permanent managing conservatorship; jury later found grounds for termination and to appoint the Department as managing conservator.
- Children were 14, 13, and 10; parents M.O.W. and C.D.O. had extensive methamphetamine use and prior criminal history; imprisonment related to offenses.
- The record showed endangerment from ongoing parental drug use, domestic violence, and unstable living conditions affecting the children’s well-being.
- Court ordered termination of parental rights and appointment of the Department as permanent managing conservator; R.K. did not appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of best-interest finding | M.O.W. argues best interest lacks proof. | M.O.W. and C.D.O. contend evidence supports best interest for termination. | Sufficient evidence supports best interest and termination. |
| Sufficiency of endangerment/ground finding under §161.001(1)(E) | Evidence does not establish endangerment by conduct. | Evidence shows pattern of drug use/endangerment; supports termination. | Evidence legally and factually sufficient for endangerment ground. |
| Admission of swastika evidence | Livesay's testimony about a Nazi symbol was irrelevant and prejudicial. | Evidence was relevant to endangerment/best interest; probative value outweighed prejudice. | Admission was not an abuse of discretion; harmless if error occurred. |
| Jury instruction on relative appointment (Section 263.404) | Trial court should have given instruction prioritizing relative placement. | Section 263.404 applies only when rights are not terminated; instruction not required. | No reversible error; instruction not warranted and any error harmless. |
| Sufficiency of evidence to name Department as managing conservator | Department’s appointment lacks sufficient basis. | Evidence supports Department as managing conservator and termination. | Evidence supports Department as permanent managing conservator. |
Key Cases Cited
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (clear-and-convincing standard for termination; factual/legal sufficiency tests)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (no-fact finder error unless reasonable people could differ)
- In re J.L., 163 S.W.3d 79 (Tex.2005) (reiteration of sufficiency standards in termination cases)
- In re A.V., 113 S.W.3d 355 (Tex.2003) (best interest and grounds considerations in termination)
- Doyle v. Tex. Dep't of Protective & Regulatory Servs., 16 S.W.3d 390 (Tex.App.-El Paso 2000) (endangerment standard requires more than mere potential harm)
- In re J.P.H., 196 S.W.3d 289 (Tex.App.-Eastland 2006) (affirming review standards for termination findings)
- In re C.H., 89 S.W.3d 17 (Tex.2002) (consideration of record evidence in sufficiency review)
- Murray v. Tex. Dep't of Family & Protective Servs., 294 S.W.3d 360 (Tex.App.-Austin 2009) (Rule 403 balancing and relevance in evidence)
- In re J.T.G., 121 S.W.3d 117 (Tex.App.-Fort Worth 2003) (endangerment considerations and parental conduct)
- In re J.O.A., 283 S.W.3d 336 (Tex.App.-Houston [14th Dist.] 2009) (conduct and stability considerations in termination)