568 S.W.3d 734
Tex. App.2019Background
- Dept. filed suit Feb 2016 seeking termination of Mother and Father’s rights to three-year-old Ray; Dept. was appointed temporary managing conservator Feb 11, 2016.
- Family-service plans required drug testing, psychological assessment, visitation, housing, and cooperation; parents repeatedly tested positive for drugs early in the case, had sparse visitation (10 of 55 visits), and failed to complete required assessments.
- Parents’ rights to another child, Jane, were terminated in Harris County based on endangerment findings (D and E), and that decree was affirmed on appeal to this Court.
- Trial was called Jan 17, 2017: witnesses sworn, parties announced ready, Dept. called a witness and then recessed; final hearing occurred June 18, 2018 with termination entered and Dept. named permanent managing conservator.
- Trial evidence showed parental substance use, Father’s mental-health history and suicide attempt, recent domestic violence (April 2018) leading to an open FBSS case for a younger child, and that Ray was thriving and bonded with foster parents who sought to adopt him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial commenced within 1-year deadline (Former Tex. Fam. Code §263.401(a)) | Mother/Father: trial did not commence until June 18, 2018; dismissal required | Dept.: trial commenced Jan 17, 2017 when witnesses sworn, parties announced ready, and Dept. called a witness | Court held trial commenced Jan 17, 2017; no dismissal under §263.401(a) |
| Sufficiency of predicate ground under Tex. Fam. Code §161.001(b)(1)(M) (prior termination of another child) | Father: prior Harris County decree was not final while PDR was pending; decree shouldn’t establish (M) predicate | Dept.: prior termination decree and appellate affirmance are admissible and establish prior termination for (M) | Court held prior decree (and appellate affirmance) were admissible and sufficient to support (M) predicate |
| Sufficiency of evidence that termination was in child’s best interest | Mother/Father: they improved, employed, have housing and plan to parent Ray | Dept.: evidence of drug use, domestic violence, sparse visitation, Father’s mental-health issues, and Ray’s bond with foster family support termination | Court held evidence was legally and factually sufficient to find termination in Ray’s best interest |
| Appointment of Dept. as permanent managing conservator | Father: appointment was error | Dept.: appointment is proper after termination of parental rights | Court held Father lacked standing to challenge conservatorship after termination; appointment affirmed |
Key Cases Cited
- In re E.N.C., 384 S.W.3d 796 (Tex. 2012) (heightened constitutional standard for termination requires clear and convincing evidence)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (standard for reviewing legal and factual sufficiency in termination cases)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (consideration of all evidence in sufficiency review)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors for determining child’s best interest)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (effect of clear-and-convincing standard on appellate review)
- In re A.C., 394 S.W.3d 633 (Tex. App.—Houston [1st Dist.] 2012) (prior termination decree may be used as evidence for §161.001(b)(1)(M))