in the Interest of J.S., a Child, 12-15-00053-CV

Background

J.S., born March 12, 2014; the Department of Family and Protective Services filed for protection, conservatorship, and termination of parental rights on April 2, 2014.
Child’s half-brother B.A., born 2013, suffered multiple severe fractures and injuries; investigators concluded the injuries were inflicted and led to emergency removal and indictments of household members.
Parents C.S. and S.A. lived with persons who had criminal/DFPS histories; C.S. remained in a relationship with S.A. despite repeated warnings and offers of shelter and services.
S.A. was indicted for injury to a child in connection with B.A.’s injuries and repeatedly invoked the Fifth Amendment at trial; evidence showed ongoing drug use.
At trial a jury found by clear and convincing evidence that termination was warranted under Tex. Fam. Code § 161.001(1)(E) (endangerment) (and also under (D) and (O) per the court), and that termination was in the child’s best interest; the trial court terminated both parents’ rights.
On appeal, parents challenged denial of a continuance, alleged procedural error in juror seating, and challenged legal and factual sufficiency as to endangerment (§161.001(1)(E)) and best interest.

Issues

Issue	Plaintiff's Argument (Parents)	Defendant's Argument (Department/State)	Held
Denial of continuance under Tex. Fam. Code §161.2011(a) (S.A.)	S.A. argued pending criminal charges related to termination grounds justified continuance until resolution and that a continuance served the child’s best interest.	S.A. offered no affidavit or evidence showing when criminal case would be resolved; Rule 251 affidavit required; continuance not shown to be in child’s best interest.	Denial was not an abuse of discretion; continuance denied properly.
Juror impanelment (Rule 234)	C.S. and S.A. argued the court erred by not seating the first twelve eligible panelists and violated Rule 234; claimed fundamental error.	No objection or preservation at trial; juror-selection procedural complaints are waivable and not fundamental here.	Complaint waived for failure to preserve; no reversal.
Legal/factual sufficiency to terminate under §161.001(1)(E) (endangerment)	Parents argued evidence was insufficient to show conduct that endangered J.S.; C.S. denied causing or believing S.A. caused B.A.’s injuries; S.A. disputed being perpetrator.	Department relied on B.A.’s severe injuries, parents’ conduct/omissions (failure to protect, continued association with S.A.), S.A.’s Fifth Amendment refusals and drug use — permitting adverse inferences.	Evidence (including inferences from S.A.’s silence, C.S.’s failure to protect, S.A.’s drug use and indictment) was legally and factually sufficient to support endangerment findings.
Legal/factual sufficiency that termination was in child’s best interest	Parents argued termination was not in J.S.’s best interest given lack of proof S.A. was perpetrator and C.S.’s assertions of innocence; offered relatives as potential placements.	Department pointed to service-plan noncompliance, unstable housing with persons with criminal/DFPS histories, limited participation in counseling, strong bonding to foster/adoptive family, and safety concerns.	Evidence was legally and factually sufficient for jury to conclude termination served child’s best interest.

Key Cases Cited

Garner v. Fidelity Bank, N.A., 244 S.W.3d 855 (Tex. App.—Dallas 2008) (standard of review for denial of continuance)
Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986) (need for affidavit to support continuance under Rule 251)
BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (abuse of discretion standard)
Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) (permitting adverse inferences from assertion of Fifth Amendment in civil cases)
In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (parental drug use can support endangerment finding)
In re I.G., 383 S.W.3d 763 (Tex. App.—Amarillo 2012) (failure to remove child from violent relationship supports endangerment)
In re C.J.F., 134 S.W.3d 343 (Tex. App.—Amarillo 2003) (drawing inferences from Fifth Amendment assertions)
In re C.H., 89 S.W.3d 17 (Tex. 2002) (standard for factual sufficiency in termination cases)
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (legal sufficiency standard and appellate deference to factfinder)
Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976) (termination actions require strict scrutiny)