In Re KG
350 S.W.3d 338
Tex. App.2011Background
- DFPS twice sought termination of Mother's rights to K.G.; initial petition denied in 2008 with DFPS named permanent managing conservator; second petition filed June 2009; May 2010 trial culminated in termination based on constructive abandonment; Mother had pre-existing CPS history involving drug use and neglect concerns; K.G. desired adoption by foster family and voiced preference for adoption over preservation of Mother’s rights; Mother’s housing instability, mental health issues, incomplete service plan, and irregular visitation contributed to risk if reunification occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 161.004 must be pleaded/proved after prior denial | DFPS argues termination can rely on 161.001; 161.004 not exclusively required | Mother contends only 161.004 supports after denial | Not necessary to rely exclusively on 161.004; 161.001 grounds upheld |
| Sufficiency of constructive abandonment evidence | DFPS showed failure to visit and inability to provide safe environment | Mother challenges proof of reasonable efforts and safe environment | Evidence legally and factually sufficient for 161.001(1)(N) constructive abandonment |
| Reasonable efforts to reunify | DFPS made service plans, encouraged treatment, and arranged visits | Mother lacked meaningful engagement; efforts insufficient | Rational basis for finding reasonable efforts; not dispositive to reversal |
| Evidence of safe environment and regular contact | Mother’s housing instability and mental health issues impeded safety | Mother argues visits were adequate and timing affected contact | Court could find absence of safe environment and lack of regular contact supporting termination |
Key Cases Cited
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (strict scrutiny of termination; best interests are central)
- In re M.R.J.M., 280 S.W.3d 494 (Tex.App.-Fort Worth 2009) (constructive-abandonment elements; reasonable efforts may suffice)
- In re J.P.B., 180 S.W.3d 570 (Tex.2005) (clear-and-convincing standard; termination supported by evidence in light of standard)
- Santosky v. Kramer, 455 U.S. 745 (1982) (constitutional dimension of parental rights; heightened protection in termination cases)