in the Interest of D.S., N.S., Children
333 S.W.3d 379
Tex. App.2011Background
- Texas DFPS filed a petition in Oct 2009 to terminate parental rights of D.S. and N.S.; prior petition in 2005–2007 resulted in the department becoming permanent managing conservator and parents as possessory conservators.
- Trial court held in Mar 2010 that both parents’ rights were terminated and the department remained permanent managing conservator; father appeals on four aspects.
- Historical context: father incarcerated since 2005 for methamphetamine-related offenses; mother’s rights terminated by separate proceeding; prior termination of father’s rights to another child in 2007.
- Children resided with the current foster family since 2009; they were on ADHD medications; the foster parents sought adoption and had an open adoption agreement with the mother.
- Department proposed adoption by the foster parents; relative placement with paternal relative deemed unlikely due to lack of resources; children expressed desire to be adopted.
- Evidence showed the father had limited contact with the children since 2005 and had no stable housing or work prospects upon release; multiple placements occurred since 2005.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Best interests: sufficiency of evidence to terminate | Father contends lack of sufficient evidence for best interest termination | Department argues evidence shows risk and adoptive plan support termination | Evidence legally and factually sufficient; termination in best interest warranted |
| Ineffective assistance of counsel | Counsel failed to raise res judicata defense and to challenge admissibility of pre-Apr 2007 evidence | Counsel's actions were reasonable under §161.004(b) and_Strickland standards | Counsel not shown to be ineffective; first issue overruled |
| Meaningful participation by telephone | Telephonic appearance was not meaningful due to equipment issues and interruptions | Record shows court accommodated telephone participation and proceedings were adequate | No reversible error; father's second issue overruled |
| Two predicate grounds: D and E sufficiency | Evidence supports predicate grounds under §161.001(1)(D) and (E) | Unsupported or disputed, but other predicates supported termination | At least one predicate ground (M/N/Q) supports termination; D and E challenged but not required to decide |
Key Cases Cited
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors guide best interest analysis)
- In re S.M.L.,, 171 S.W.3d 472 (Tex.App.—Houston [14th Dist.] 2005) (clear and convincing standard; best interest factors)
- In re J.F.C.,, 96 S.W.3d 256 (Tex. 2002) (legal sufficiency review framework)
- In re C.H.,, 89 S.W.3d 17 (Tex. 2002) (Holley factors not exhaustive; totality of evidence considered)
- In re S.A.P.,, 169 S.W.3d 685 (Tex.App.—Waco 2005) (best interests analysis focuses on child's interests)
- In re D.L.N.,, 958 S.W.2d 934 (Tex. App.—Waco 1997) (future conduct may be measured by past conduct)
- In re Z.L.T.,, 124 S.W.3d 163 (Tex. 2003) (bench warrants and telephone appearances considerations)
- In re M.F.,, No. 11-08-0276-CV, 2010 Tex. App. Lexis 3676 (Tex.App.—Eastland 2010) (allowing consideration of evidence from previous termination hearing under §161.004)