in the Interest of D.O., S.O., and M.L.O., Children
338 S.W.3d 29
| Tex. App. | 2011Background
- D.O. (14), S.O. (13), M.L.O. (10) were living with M.O.W. in 2008; C.D.O. was incarcerated.
- May 8, 2008, M.O.W. arrested for methamphetamine possession and DFPS removed the children the same day.
- DFPS filed a Petition for Protection, Conservatorship, and Termination seeking to terminate M.O.W.’s and C.D.O.’s parental rights.
- Trial court named the Department temporary sole managing conservator and placed children in foster care; maternal grandmother R.K. intervened seeking permanent managing conservatorship.
- Jury found grounds for termination and the Department should be managing conservator; trial court terminated rights and appointed the Department; R.K. did not appeal.
- M.O.W. and C.D.O. appeal the termination order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is legally and factually sufficient evidence to terminate rights for best interest | M.O.W. and C.D.O. contend lack of sufficient evidence | Department argues evidence supports endangerment and best interest | Sufficient evidence supports termination and Department as conservator |
| Admission of S.O.'s swastika testimony | Admission was improper and prejudicial | Evidence was relevant to endangerment and best interest | Admissible; any error harmless |
| Failure to submit a jury instruction about relative priority | Section 263.404 supports instruction | Section 263.404 applies only when rights are not terminated | Instruction not required; no reversible error; verdict unaffected |
| Effect of jury findings on R.K.’s appointment as conservator | Relative placement priority should have been given | Court could appoint Department; record supports decision | findings support Department as permanent managing conservator; no reversal |
Key Cases Cited
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (clear-and-convincing standard; sufficiency review framework)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal sufficiency review; vacating no findings needed if evidence supports)
- In re J.L., 163 S.W.3d 79 (Tex. 2005) (ground for termination and best interests standard)
- In re J.P.H., 196 S.W.3d 289 (Tex. App.—Eastland 2006) (sufficiency review and endangerment analysis guidance)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (factors for factual sufficiency and endangerment)