In re K.P.
2016 Tex. App. LEXIS 5605
| Tex. App. | 2016Background
- DFPS obtained temporary managing conservatorship of KP (b. 2003) in 2011 after concerns about Mother’s unstable housing, untreated bipolar/depression, and KP’s mental-health hospitalization; a 2012 final order named DFPS sole managing conservator and Mother possessory conservator with supervised visits.
- Mother has a long history of inconsistent contact with DFPS and KP, failed multiple service plans, and has tested positive on several hair drug tests (cocaine and marijuana) between 2011–2015; Mother disputes some test results.
- KP has diagnoses (depression, ADHD, bipolar disorder), has been in DFPS custody since 2011, and has lived in a therapeutic foster home since August 2015 where his needs are being met.
- CASA/guardian ad litem and DFPS recommended termination, citing Mother’s drug use, failure to complete services, instability, and the emotional harm to KP from inconsistent contact.
- At the November 2015 trial the court found (by clear and convincing evidence) Mother engaged in conduct endangering KP (Tex. Fam. Code §161.001(b)(1)(E)), that circumstances had materially changed since the 2012 denial of termination (Tex. Fam. Code §161.004), and that termination was in KP’s best interest; Mother appeals.
Issues
| Issue | Mother’s Argument | DFPS’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to terminate under §161.001(b)(1)(E) (endangerment) | Positive drug tests and other evidence are speculative/insufficient without expert interpretation; KP hadn’t lived with Mother since 2009 so risk is attenuated | Mother’s repeated drug use (while caring for sibling), unstable housing, untreated mental illness, inconsistent visits, and partner’s drug use show a voluntary course of conduct endangering KP | Affirmed — evidence legally and factually sufficient to show endangerment |
| Termination in child’s best interest | KP wants to return; no adoptive placement yet; Mother now employed and caring for another child who was not removed | KP needs stability; majority of Holley factors favor termination (stability, parental abilities, plans, prior failures) and prompt permanent placement is presumed in child’s best interest | Affirmed — evidence legally and factually sufficient that termination is in KP’s best interest |
| Reliance on §161.004 (termination after prior denial) though not pleaded at trial | Implied argument that relying on pre-2012 acts/service-plan was improper because DFPS didn’t plead §161.004 and earlier service plan was excluded | DFPS argued the pre-2012 evidence established prior acts and materially changed circumstances supporting §161.004 | Court rejects affirmance solely on §161.004/failure-to-comply ground because DFPS did not plead it and the pre-2012 service plan was excluded |
| Removal as possessory conservator | Mother argued lack of proof that circumstances materially and substantially changed since the prior order | Termination itself and endangerment finding constitute materially changed circumstances; termination divests parental rights anyway | Affirmed — removal upheld because termination divests parental rights and endangerment finding supports change of circumstances |
Key Cases Cited
- Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) (heightened proof—clear and convincing—required to terminate parental rights)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (due process requires clear-and-convincing standard in termination proceedings)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (parental drug use while caring for other children can be evidence of endangerment)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (standard for legal sufficiency review under clear-and-convincing evidence)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (standard for factual sufficiency review under clear-and-convincing evidence)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (non-exhaustive factors for determining child’s best interest)