in the Interest of J.D.S., a Child
2015 Tex. App. LEXIS 10879
| Tex. App. | 2015Background
- Tiffany L. appealed the trial court’s order terminating her parental rights to her son, J.D.S., after DFPS removed him following a home visit where Tiffany was found incoherent on the floor and J.D.S. was inside and unable to admit emergency personnel.
- Tiffany previously had parental rights to another child terminated on grounds that satisfied Family Code § 161.001(1)(M).
- The trial court terminated Tiffany’s rights to J.D.S. based on subsection (M) (prior termination to another child) and findings that termination was in the child’s best interest.
- Tiffany argued on appeal that (1) evidence was insufficient to support termination under ground (M) and (2) the Court should re-evaluate the initial emergency removal of J.D.S. under the clear-and-convincing standard as if termination were based on abuse/neglect grounds (D)/(E).
- Tiffany also contested the sufficiency of evidence supporting DFPS’s continued custody after the 14-day adversary hearing for emergency removal.
- The appellate court affirmed, rejecting Tiffany’s requested re-evaluation of the removal and finding her challenges to the temporary removal unpreserved or moot given the final termination order.
Issues
| Issue | Tiffany's Argument | State/DFPS Argument | Held |
|---|---|---|---|
| Validity of predicate ground (M) for termination | Tiffany contended evidence was insufficient to support termination under (M) | Prior termination of Tiffany’s rights to another child was uncontroverted; predicate proven | Court held predicate under (M) established by clear and convincing evidence |
| Whether appellate court must re-evaluate initial removal under clear-and-convincing standard (treat like (D)/(E)) | Tiffany urged the court to review the evidence of the child’s removal for sufficiency under the heightened clear-and-convincing standard as if (D)/(E) applied | The case rested solely on (M); K.N.D. is distinguishable and its contrary appellate holding was reversed by the Texas Supreme Court | Court declined to re-evaluate removal under that standard and overruled the argument |
| Sufficiency of evidence to permit DFPS to maintain custody after 14-day adversary hearing | Tiffany argued emergency removal and continued custody lacked legal and factual support | No mandamus was filed; record lacks challenge at the 14-day hearing; final termination renders temporary-order complaints moot | Issue overruled: challenge unpreserved and/or moot given final termination |
Key Cases Cited
- In the Interest of J.F.C., 96 S.W.3d 256 (Tex. 2002) (two-part predicate for termination: parental conduct and best interest)
- In the Interest of E.C.R., 402 S.W.3d 239 (Tex. 2013) (standards for adversary hearing and continued removal under § 262.201)
- In the Interest of K.N.D., 403 S.W.3d 277 (Tex. App.—Houston [1st Dist.] 2012) (addressed standards for review of removal; appellate ruling later reviewed by Texas Supreme Court)
- K.N.D. review at the Texas Supreme Court, 424 S.W.3d 8 (Tex. 2014) (reversal/remand of aspects of K.N.D.)