in the Interest of M.S., Jr., a Child
02-17-00241-CV
| Tex. App. | Jan 4, 2018Background
- Child (Mark) born March 2015; Department of Family and Protective Services (Department) appointed permanent managing conservator in April 2015 after positive methamphetamine tests for mother and child.
- DNA testing later established Appellant as Mark’s biological father; Appellant signed a paternity waiver and visited once in July 2016; was arrested shortly thereafter and later incarcerated on burglary (serving four years).
- At the mother’s termination hearing (Aug. 30, 2016) the court entered court-ordered services for Appellant (housing, employment, drug testing, counseling, parenting classes); Appellant failed to complete most services or maintain contact with the Department.
- Mark has lived with the same foster family for over two years, is bonded with them, and has shown improved medical and developmental status under their care; the Department sought termination to permit adoption by foster parents.
- Trial court found grounds for termination under Tex. Fam. Code § 161.001(b)(1) (constructive abandonment / failure to complete services / likely prolonged incarceration) and that termination was in the child’s best interest; Appellant appealed.
Issues
| Issue | Plaintiff's Argument (Appellant) | Defendant's Argument (Department) | Held |
|---|---|---|---|
| Notice of consequences of failing court-ordered services (due process) | Appellant contended he lacked adequate notice that failing services could lead to termination | Department pointed to Appellant’s presence at mother’s termination hearing when services were ordered, its pleading alleging noncompliance, and that Appellant had counsel and made no complaint at trial | Waived: Appellant did not raise the due-process claim at trial; appellate court refuses review |
| Sufficiency of evidence for constructive abandonment | Appellant challenged legal sufficiency (argued evidence did not support finding) | Department relied on Appellant’s lack of visits, failure to complete services, and criminal history | Not addressed on merits because waiver of notice issue meant court relied on at least one preserved ground |
| Sufficiency of evidence for prolonged incarceration ground | Appellant challenged sufficiency of evidence that he would be incarcerated two years or more | Department introduced certified burglary conviction showing current 4-year sentence | Not addressed on merits (court relied on preserved ground) |
| Best interest of the child | Appellant argued termination was not in Mark’s best interest | Department argued Mark is bonded to foster parents, is thriving in foster care, Appellant lacks stability, employment, completion of services, and is incarcerated | Affirmed: Evidence (Holley factors) legally and factually sufficient to support best-interest finding |
Key Cases Cited
- Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) (termination statutes strictly construed in favor of the parent)
- Santosky v. Kramer, 455 U.S. 745 (1982) (heightened due-process protections and burden when state seeks to terminate parental rights)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (procedural fairness and strict scrutiny in termination proceedings)
- In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (legal-sufficiency standard for termination — firm belief or conviction)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (nonexclusive best-interest factors)
- In re A.B., 437 S.W.3d 498 (Tex. 2014) (exacting factual-sufficiency review in termination cases)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (Holley factors and sufficiency analysis)
- In re R.R., 209 S.W.3d 112 (Tex. 2006) (presumption that keeping a child with parent is in child’s best interest)
- In re H.R.M., 209 S.W.3d 105 (Tex. 2006) (deference in factual-sufficiency review)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (definition of clear-and-convincing standard in termination cases)