in the Interest of D.J.H., a Child
2012 Tex. App. LEXIS 6292
| Tex. App. | 2012Background
- In June 2010, D.J.H. was living with his maternal grandfather before removal due to mother and baby brother testing positive for heroin; Jose M. was incarcerated at the time.
- D.J.H. and his baby brother were placed in foster care and later with their maternal grandmother, Martha H.
- Original petition filed July 8, 2010 sought termination under Family Code §161.001(1)(D); amended April 21, 2011 added §161.001(1)(Q).
- At a July 5, 2011 bench trial, Jose M. testified by phone about his felony convictions, heroin use, incarceration, lack of parental support, and lack of stable employment.
- Martha H. testified D.J.H. had lived with her for most of his life, that Jose M. provided no financial support or stability, and that D.J.H. would not be safe with his father.
- Therapist Kristin Barto recommended terminating Jose M.’s rights so D.J.H. could be adopted by his grandmother, citing the child’s need for permanency and safety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination under subsection (Q) is proper when petition amended to add (Q) | State argues original petition controls; amendment does not affect (Q) timing. | Jose M. argues amended petition controls termination under (Q). | Termination proper under (Q) based on original petition timing. |
| Sufficiency of evidence under subsection (D) to support endangerment finding | Evidence shows pattern of criminal activity and harm to child; endangerment proven. | No evidence of abuse or neglect during pendency; lack of direct endangerment evidence. | Clear and convincing evidence supported endangerment under (D). |
| Whether parental presumption Troxel applies given absence of pleadings or request for custody | Troxel presumption should favor Jose M. as parent; presumption not rebutted. | No pleading or request for conservatorship; record shows rebuttal of presumption. | Parental presumption rebutted; no error in not appointing J.M. as conservator. |
Key Cases Cited
- In re A.V., 113 S.W.3d 355 (Tex. 2003) (prospective application of (Q) to protect children; remedial purpose dominates)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (standard for reviewing termination findings; substantial evidence approach)
- In re D.C., 128 S.W.3d 707 (Tex. App.—Fort Worth 2004) (endangerment analysis under (D) focuses on environment and parent’s conduct)
- In re S.M.L., 171 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2005) (parental conduct can endanger child’s living environment; absence can be endangering)
- In re V.V., 349 S.W.3d 548 (Tex. App.—Houston [1st Dist.] 2010) (pattern of conduct and incarceration can support endangerment finding)
- Boyd v. Tex. Dep’t of Hum. Res., 727 S.W.2d 531 (Tex. 1987) (incarceration alone does not justify termination)
- In re A.V. v. Tex. Dep’t of Family & Protective Servs., No. 03-03-00690-CV (2005) (utilized to discuss prospective application and child protection goals)