In Re DW
353 S.W.3d 188
Tex. App.2011Background
- Della appeals termination of parental rights to her three-year-old son D.W.
- Della’s mental capacity is severely limited; evidence shows she can provide only basic physical care.
- Della and D.W. were under CPS care; CPS offered services but she largely did not engage.
- Della moved frequently (at least eight residences) and failed to maintain consistent contact with CPS and counsel.
- Mother surrendered the child after an emergency room visit when her boyfriend claimed the child had sickle cell anemia (false).
- The trial court terminated parental rights and severed Della’s case from the biological father’s case; the appellate issues include notice, continuance, severance, and sufficiency of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| New trial for lack of notice | Della argues lack of actual trial notice warranted new trial | State contends counsel’s notice sufficed; rule 245 governs | No abuse of discretion; notice satisfied via counsel; Rule 8/21a applied |
| Continuance denial | Della claims crucial to have counsel present | Della failed to provide final address; state of timetable fixed | No abuse of discretion; timely dismissal date near; Della failed to stay in contact |
| Severance from father’s case | Severance undermines adoption focus and later potential termination of father | Severance prudent to complete proceedings and protect child interests | Within trial court discretion; no reversible error |
| Sufficiency of evidence to terminate under §161.001(1)(N) | Constructive abandonment with failure to visit and inability to provide safe environment | Della’s mental capacity limitations not deliberate neglect | Evidence clear and convincing; termination supported |
| Best interests of child | Holley factors favor termination for child’s safety and stability | Potential adoption or future care by father not yet determined | Termination in best interest; supported by Holley analysis |
Key Cases Cited
- Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009) (trial court discretion for new trial)
- In re C.J.O., 325 S.W.3d 261 (Tex.App.-Eastland 2010) (new trial standard; consideration of notice)
- Vela v. Sharp, 395 S.W.2d 66 (Tex.Civ.App.-San Antonio 1965) (notice requirement standard)
- Withrow v. Schou, 13 S.W.3d 37 (Tex.App.-Houston 1999) (communication with represented party)
- Santosky v. Kramer, 455 U.S. 745 (1982) (fundamental liberty interest in parental rights)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (clear and convincing standard for termination)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (factual sufficiency in termination; Holley framework)
- In re A.V., 113 S.W.3d 355 (Tex. 2003) (one ground sufficient for termination)
- In re K.G., 350 S.W.3d 338 (Tex.App.-Fort Worth 2011) (Holley factors; analysis of best interests)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors for best interest)