579 S.W.3d 744
Tex. App.2019Background
- Three children (Michael b.2006, Tamara b.2009, Jennifer b.2016) were removed from Mother after a December 2017 car crash; Mother was arrested and alleged to use drugs and to be physically abusive. Maternal grandmother Dierdre cared for all three children during the proceedings and sought to adopt them.
- Mother voluntarily relinquished parental rights; two fathers appealed termination orders: T.D.H. (Truman) — father of Tamara — was incarcerated with prior family-violence and child-injury convictions; J.K. Sr. (Jeffrey) — father of Jennifer — was intermittently involved and had limited contact and support.
- DFPS filed petitions to terminate parental rights; an initial pleadings error misidentified Jennifer’s father as J.K. Jr. (son), later corrected; Jeffrey attended early hearings, signed temporary orders and a service plan, but was not personally served with the supplemental petition correcting his identification.
- At trial DFPS presented testimony that Mother used drugs around the children, physically abused them or others in the household, and exposed children to an unstable, dangerous environment; Tamara reported abuse and drug exposure.
- The trial court terminated Truman’s rights under Family Code §161.001(b)(1)(D),(E),(N),(Q) and Jeffrey’s rights under (D),(E),(O), and found termination was in the children’s best interests. Both fathers appealed.
Issues
| Issue | Plaintiff's Argument (DFPS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| 1. Personal jurisdiction/service on Jeffrey | Service (or general appearance) established jurisdiction because Jeffrey participated in proceedings and signed orders and service plan | Jeffrey argued due process violated because DFPS never properly served him with the supplemental petition correcting his identification | Court held Jeffrey waived service objection by general appearance through ad litem counsel’s active participation; issue overruled |
| 2. Predicate grounds — endangerment under §161.001(b)(1)(D) (allowed child to remain in endangering surroundings) | DFPS: evidence Mother’s drug use, violence, and unstable home—fathers knew and failed to act—supports (D) for both fathers | Fathers: argued no direct harm to their child, Tamara already with grandmother (Truman), or insufficient proof of living conditions (Jeffrey) | Court held legally and factually sufficient evidence supported (D) for Truman and Jeffrey; affirmed |
| 3. Predicate grounds — course of conduct under §161.001(b)(1)(E) (placed/allowed child with persons who engaged in endangering conduct) | DFPS: parents’ awareness of Mother’s conduct (reports from grandmother/Tamara), Truman’s criminal violence history, fathers’ sporadic contact and lack of assistance supports (E) | Fathers: argued isolated acts or lack of direct conduct toward their child insufficient; Truman argued Tamara lived with grandmother prior to removal | Court held evidence of a voluntary, knowing course of conduct (or allowance) that endangered children sufficient for (E); affirmed |
| 4. Best interest of the child | DFPS: stability, care, and services provided by grandmother; children’s wishes and therapeutic needs; fathers’ minimal contact/support weigh against them | Fathers: argued they were non-offending and not dangerous; proposed continued contact/visitation | Court held clear-and-convincing evidence supported that termination was in each child’s best interest given stability with grandmother and parents’ failures; affirmed |
Key Cases Cited
- In re E.N.C., 384 S.W.3d 796 (Tex. 2012) (clear-and-convincing standard in parental-termination cases)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (service and personal-jurisdiction principles; judgments void for lack of service)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (standards for legal sufficiency review in termination cases)
- Jordan v. Dossey, 325 S.W.3d 700 (Tex. App.—Houston [1st Dist.] 2010) (environmental/endangerment analysis under §161.001(D) and (E))
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (factual sufficiency standard for termination appeals)
- In re D.M.B., 467 S.W.3d 100 (Tex. App.—San Antonio 2015) (general-appearance waiver of service objections through attorney conduct)
- In re R.A.G., 545 S.W.3d 645 (Tex. App.—El Paso 2017) (inference of emotional endangerment from lack of contact)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (evidence for best-interest finding; predicate evidence may also support best-interest)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (non-exhaustive best-interest factors)