*1 (b) (Vernon 1999). (c) provides Subsection COLBERT, Appellant, Ericka Shanette peace officer
[a] commissioned under v. (b), except Subsection provided by (e), Subsection all rights, privi- has DEPARTMENT FAMILY OF & leges, obligations, any SERVICES, and duties of oth- PROTECTIVE peace er Appellee. officer this state while on the property under the control of the au- 01-04-01232-CV, 01-04-01233-CV, Nos. thority or in the actual scope course and 01-05-00124-CV, 01-05-00126-CV, employment. officer’s 01-05-00127-CV. TRAnsp. 452.110(c) (em- Tex. Code Ann. added).15
phasis Texas, Appeals Court (1st Dist.). Houston statutory provisions Based on the Texas above, set out regional certified transit Dec. 2006. peace officer the actual course and scope of the employment officer’s has all Opinion Dissenting from Denial En the rights, privileges, obligations, and Banc duties of peace other officer Texas. July Reconsideration 2007. This includes the authority to detain and arrest an offender without a warrant for
any offense presence committed in his within his view. Because the evidence es- officer,
tablished that Bonner was such an he only was not authorized to stop appel- lant after witnessing repeatedly him vio-
late state, the traffic laws of this he had a
duty to do so. After stopping appellant, Bonner, Elliott, like the officer in could act
on the gained information from his investi- gation of appellant’s condition and arrest Elliott,
him for See DWI. 879 S.W.2d at Because authority Bonner had stop appellant, and arrest the trial court did not in denying err suppress. the motion to We resolve three against issues
him.
We affirm the trial judgment. court’s (e) provides municipality 15. Subsection that a law power attempt- enforce- in which the is (e) power granted ment under Section is ed 452.110 to be exercised. Subsection is not at power appeal. subordinate to the law enforcement issue in this *2 Hulsey, Atty.,
Lisa Rice Asst. Co. San- Hachem, Atty., dra D. Sr. Asst. Co. Hous- ton, TX, Appellee. *3 NUCHIA,
Panel consists of Justices JENNINGS, and HIGLEY.
OPINION NUCHIA,
SAM Justice. Colbert, Appellant, ap- Ericka Shanette peals terminating parental five orders rights to her seven T.J.C. and (the twins), D.N.C., T.L.J., T.D.C. and (the T.B.J., E.D.C., and J.D.M five older children).1 issues, In three appellant chal- (1) lenges legal sufficiency the and factual of support the evidence to the trial court’s finding knowingly placed that she or al- lowed the twins to remain conditions or surroundings endangered their physi- (2) cal or emotional well-being, legal sufficiency support of the evidence to finding that the termination of parental rights twins, was in the best interest of the (3) sufficiency and the factual of the evi- dence to the findings that parental rights termination of was in the best interest of all the children. We re- relating verse the order to the twins and judgment appellant’s render favor. We relating reverse the orders to the five old- er children and remand those cases to the trial court.
Background Facts 2003, In April living Jr., TX, Reo Spring, Harris B. William three-bedroom house with her five chil- Connolly, dren, B. Connolly ten-year-old D.N.C., William & Associ- eight-year-old ates, Houston, TX, Appellant. J.D.M.,2 E.D.C., for six-year-old five-year-old CV, 2003-04414J; subject appeal 1. D.N.C. is the of number 01- trial cause number and 04-01232-CV, subject appeal trial cause number 1996- J.D.M. is the of number 01-05- 43960; 00127-CV, subjects T.L.J. and T.B.J. are the trial cause number 2003-14864. 01-04-01233-CV, appeal number trial cause 2002-25084; actually paternal number T.J.C. and T.D.C. are 2. J.D.M. lived more with his subjects appeal grandfather number 01-05-00124- than with CV, 2004-03601J; trial cause number E.D.C. he was with at the time of this subject appeal is the number 01-05-00126- occurrence. child, T.L.J., protection chil- of a for con- three-year-old petition T.B.J. The grandmother, Col- appel- dren’s maternal JoAnn servatorship, for termination (the grandmother), grand- and the bert rights respect to each parental lant’s Newman, boyfriend, mother’s Kenneth petition of her five children.3 The early April, also lived home. sought termination Jackson, father of T.L.J. and Trenton fathers.4 As of each children’s T.B.J., moved into household. On or grounds for termination T.J., April brought his about Jackson petition recited subsections rights, daughter by another wom- three-year-old (2) (1)(A)-(G) (J)-(S) section an, April home into the to visit. On *4 DFPS did Family 161.001 of the Code.5 “spanked” “whipped” or T.J. with Jackson from the home at not remove the children wetting pants. a leather belt for her On that time.6 5, T.J., again April “whipped” Jackson this while jail on bond he Jackson was out of defecating In pants.
time for in her the trial, had told ap- awaited his and DFPS 5, early evening April of T.J. was found to be around not to Jackson pellant allow unconscious, and called 9-1-1. someone did not appellant the children. to ambu- hospital T.J. was taken the had caused lance, actions believe Jackson’s and Jackson was arrested and death, injury and let Jackson move charged with to a child. T.J. died T.J.’s she 9, an April autopsy on and showed DFPS later learned back into the house. inju- a head cause of death was blunt-force house in the and living that Jackson was 2004, was ry. April In Jackson found removed the from children injury of and was sen- guilty a child paternal his J.D.M with placed DFPS prison. to life in tenced children with and the other grandfather who, with along New- grandmother, 2003, May In of Protec- Department man, Ap- house. in appellant’s still lived Services, prede- Regulatory tive and house, stayed pellant moved out of Department Family cessor of the cousin, her children (“DFPS”), visited with a posses- Services took Protective day. and filed during five children a sion rent, Regulato- non-payment appellant, her cous- Department of Protective and for 3. in, staying a ry Department in motel Services was renamed the and their children were Feb- only Appellant, and Protective Services effective two- room with one bed. 1, (2004) infant, ruary Reg. 29 3659 couple 2004. Tex. older a chil- week-old (notice agency change); Act of June name night. one sleeping were in the bed dren 1.23, 2, 2003, 198, 1.18, 1.26, 1.01(c), §§ ch. was up, the infant When woke 635, 611, 611, 623, 640, Laws 2003 Tex. Gen. coming breathing from his and blood was 641, (name spec- change on date 642 effective a Appellant the infant fire mouth. took plan required by transition section ified in nearby, could not be resuscitat- station but he act). 1.23 of autopsy report the cause of ed. The showed asphyxia, of death the manner death but investigated, fathers of D.N.C. and J.D.M. 4. The was undetermined. DFPS fa- prison, and the of E.D.C.’s whereabouts appellant was at found indication incident, ther were unknown. provided DFPS ser- After this fault. including parenting appellant, vices 161.001(1)(A)-(G), classes, In four other completed. which 5. See she Tex. Fam.Code Ann. (2) (Vernon DFPS, (J)-(S), Supp.2006). & abuse allegations referrals or, neglect were “Ruled out” resolved as instance, as one "Unable Appellant history DFPS. Determine/Fac- 1998, being apartment tors controlled.” after evicted from her only After took custody April DFPS of the chil- one time—with a belt on 5.7 dren, The Children’s Crisis Care Center Appellant further testified that she bathed (the CCCC) evaluation, family during did a spanking T.J. after the and told Jackson which grand- revealed ways discipline that there were better history mother had a drug that included Appellant bathing child. said after convictions, that she currently pa- was on T.J., she left the house and returned one role, and that longer drugs she no used and one-half to later. Appellant two hours and had made a better life for herself. home, testified that when returned DFPS learned that grandmother gone ambulance had and Jackson sit- had convictions for prostitution and bur- ting police in a car. glary, and that Newman had convictions aggravated robbery, breaking and en- Therapist 2. The tering, possession of cocaine. In De- Hornaday, cember took Brenda possession therapist who put four children and them substitute treated four of the five older children be- care. J.D.M. remained grandfa- with his ginning August about *5 trial, ther. At the boys time of the two that she appel- visited with the children in in were the same foster home and the two weekly lant’s home that primary and her girls were each in different foster homes. focus with the children was behavior modi- fication. She said that the house was or-
DFPS offered various appel- services to derly, but that there was chaos. She testi- lant family and her a part of DFPS’s fied that there a lot people were permanency planning. Appellant partici- house and that children always pres- were pated in therapy, classes, parenting and ent. She said that grandmother al- anger management classes and was al- lowed her to conduct the therapy supervised lowed visits with the children grandmother’s Hornaday bedroom. every one hour testi- Appellant two weeks. that, visits, fied attended all the based on her family visits she could not allowed DFPS and made all assess whether the appearances. her court home environment was conducive to the children’s return. She 30, 2004, January On appellant gave said that opinion regarding she had no T.J.C., birth to T.D.C. and whose father appellant’s parental rights. termination of 2004, In April Jackson. DFPS re- thought She the children would be moved the two-and-one-half-month-old able to deal with never going back to their appellant’s twins from home. DFPS filed mother. She said that the children needed petition for protection, conservatorship, structure, consistency, stability, pa- and and termination of parental rights with tience getting and were some of those cases, respect to the twins. The five which home, things they but that need all of children, included all seven were tried to- things. those gether in November 2004. Hornaday testified that all the children The Evidence very were much bonded their mother Appellant
1. they and that loved Jackson. She said 2004, At her trial in appellant they November that two of the children told her testified spank whom, that she saw Jackson T.J. got “whippings,” say by did not 2004, trial, 7. April appellant appellant At Jackson’s trial in 2003. At the termination said spank April spanking testified that she saw Jackson TJ. two that she knew about the April April times: once on 4 and once on because told Jackson her. all appellant and she did not ask. She was not able treated the children the severity whippings, address the be- same.
cause the children did not talk about that. Ad
She testified that the children would need 4. Guardian Litem that, continuing therapy, Cooney, guardian David the children’s mother, Hornaday returned their would Advocates, through ad litem Child had continue treat them. She also stated August in the been involved case since consistency, if stability, patience, He he visited the prevail structure could the chaos in home before the children were removed home, appellant’s it would be in the best had about presence concerns interest the children to return them to Newman, grandmother’s Kenneth boy- not, returning their mother. If them friend, in home of his because criminal not be in would their best interest. She Cooney record. also testified that he had in- stated she did have sufficient grandmother’s exten- concerns about on formation assess whether history. He sive criminal further testified develop the attrib- could needed that, in December he recommended family utes. She knew that visitations to the court that the children be removed weeks, every were scheduled two but she his from home because of concerns response had never one. In to a observed appellant’s minimizing role about Jackson’s hypothetical situation which a mother in the death failure of T.J. one hour with all to visit her own acknowledge responsibility responded possible it was one severity T.J. or to admit the *6 protect might neglected. child feel However, that, T.J.’s bruises. he testified appellant recognized if had that Jackson Grandfather death, T.J.’s he responsible was would Williamson, Kenneth paternal J.D.M.’s have his mind about termi- changed not grandfather, that had been testified J.D.M. nation. living year with him for about a and had Cooney months of ser- felt that ages him previously with from the lived death appellant vices received after the He eight years. five months to or nine her infant son in 1998 had been ineffective him testified that J.D.M. lived with be- after those because she had another child atmo- cause did not like the Williamson However, completed. services been had home, its sphere appellant’s “[i]n denied the birth of that child holding he traffic,” and out which he was suspected her, that he saw a against explained but drug trafficking, although he could not be in men pattern choosing her life of who He that appellant sure. said visited up in He testified that the prison. wound “two, three, the most” J.D.M. four times at case, in this goal initial of Child Advocates spent and that J.D.M. some weekends with DFPS, family like that of was reunifica- saw appellant. He testified that J.D.M. tion, in Decem- changed but goal that was figure that the appellant a mother reunification/adoption when ber 2003 to opined had a bond. He that two close was still they Newman discovered appellant loved all her but made However, Cooney in living house. he bad choices. He said would not have telling appellant not New- could recall appellant’s concerns J.D.M. went back to out, home, and the record does if the man should move would have concerns home not reveal or when was told appellant had the same environment as before. He how in the home. family thought had attended the visits and that Newman could live that, Cooney during family appellant spring ments made of 2003 visits, which customarily one hour contradictory to DFPS were to statements long, appellant gave most of her time to criminal during she made trial in Jackson’s twins; the other five get equal did not April 2004. Aiken stated that she had not other, time and play would with each sit great seen a progress appellant’s deal of themselves, play games. He stated that recognizing happened her role in what thought he could ask for T.J. Aiken stated she believed that more time and that she did ask for and there “overwhelming evidence” to receive an extra hour to visit T.L.J. when appellant’s show that T.J. was abused in hospital. he was in the thought He said he presence and that failed to be that the appellant, children love but that protective. appellant’s She said that belief they don’t show affection as he thinks chil- responsible Jackson was not for T.J.’s dren would. He also stated that he did death appellant’s parenting affected skills not know whether it is normal for moth- ability because it affected her protec- be spend er to more time with babies than tive of her children. Aiken also with older children. if, just testified that before the twins were removed, appellant had conceded that that,
Cooney testified when he visited T.J., Jackson had killed Aiken would still appellant’s home, the children in they were recommend appellant’s pa- termination of exuberant and hard to settle down. In his rights. rental opinion, appellant give could not the struc- needed, ture that and he had not seen Aiken testified that that she had the change. will to fur- He should be terminated because Aiken be- ther testified placement since their lieved all the children had been care, substitute the children’s school work abused and neglected-physically abused improved and that he believed termi- neglected emotionally neglected. nation of appellant’s parental rights inwas She stated that she could see the results of the best interest of the children. neglect abuse the children’s *7 behavior, way such as the they socialize 5. The Caseworker respond people and to language and the Aiken, Adrienne caseworker, the DFPS use, they telling my teachers to “Kiss testified that goal for changed services using butt” and graphic language.” “more from reunification adoption to first with example, As a further she said that T.L.J. the twins in the spring shortly of 2004 hospitalized threatening was for kill a to after were appellant’s removed from at child school. But she also that testified home on April 15. The decision for- was when someone talked to T.L.J. about the mally meeting made at a of the Permanen- threat, he did not “killing” know that (PPT) cy Planning May. Team in She T.J., and, happened meant what had to further goal testified that the all for Aiken, according to he was “horrified” that changed adoption children in June he had said that to someone. based on incidents over period of Jack- appellant’s son’s trial and minimization of Aiken also testified that she had been at appellant’s both Jackson’s and in appellant’s family roles all of visits with the death of T.J.8 Aiken testified that com- children and that observed there was not a death, Appellant’s 8. according "role” in T.J.’s Jackson. Aiken, protect was her failure to T.J. from adopted to be in the homes that
“big going bond” with the children and not “lot by appellant. Aiken stated in nurturing” they’re particularly.” that, give appellant when she asked E.D.C., special appellant did attention The Grandmother got do so. all the
not The twins almost grandmother chil- testified that the attention. testified She that she believed food, well-clothed, plenty dren had appellant’s rights that termination of was away disciplined taking privi- and were the best interest of children because leges. spank She said that she did not she believed that the children deserved an stability, opportunity permanency, disciplined them the same consistency in their lives. She stated way She said that she would adopta- that she believed the children were willing if it be to move out the house disputing ble. She said that she was not help keep appellant would the children. appellant completed that had the services
offered her. 7. Kenneth Newman that, although appellant Aiken testified Newman, the grandmother’s Kenneth family had made all the and court visits boyfriend, had lived testified he appearances, everything had not she done two had years house one or Aiken, According she was asked to do. 2004.9 January moved out in He testified not appellant appropriate had obtained appellant was not the house when housing, proof Aiken had not seen an called for T.J. and ambulance was job making appellant had was had about or three gone she been two wages she Aiken claimed. said that, He when hours. further cur- problem with the house was house, right. all appellant left the T.J. was rently death living was T.J.’s left, that, He said after he saw occurred there and the children should not was, go into the room where T.J. Jackson living in that house. be When asked T.J., beating spanking heard Jackson told appellant whether Aiken had he crying. and heard said T.J. Newman appellant got housing, other it would had said did interfere because Jackson termination, change opinion Aiken’s about he discipline way he would his child responded, giv- Aiken plan “When the to. wanted signed, en to it Miss Colbert was—that’s what said.” saw Newman also testified that he never *8 disci- the children. She whip attorney The ad litem for the children room sending them them to their plined by guarantee asked Aiken how he could or television restricting or their access to get the children each other if would see that he bicycles. their Newman admitted terminat- appellant’s parental were aggra- for the offenses convictions ed. Aiken testified the children could drug para- robbery, possession vated while care and visit foster He also phernalia, trespass. and criminal said, [say] somebody “And is to who drugs, illegal he had used further admitted that adopt will not all them?” She they’re not do in the house. testified that “we don’t know that but said that he did so ed, April 2004. out which was in 9. Newman also testified that he moved appellant’s when trial start- house Jackson’s
807 8. Other Evidence by convincing The finds clear and Court parent- evidence that termination of the signed Family The Service Plan relationship child between ERICKA shows, record as one goals, of four COLBERT and the [child SHANETTE “Ericka will housing Colbert maintain children], subject or of this suit is in is safe and free of environmental hazards.” or [child best interest. children’s] section, In another it elaborates: “Ericka Further, by the Court finds clear and Colbert will locate and appropri- maintain convincing evidence that ERICKA ate housing.” plan does indicate SHANETTE COLBERT has: three-bedroom home was knowingly placed knowingly or al- inappropriate, unsafe or nor does it indi- lowed the or [child remain finding children] cate that housing other awas con- surroundings in conditions or which dition of retaining rights. endanger Moreover, emotional a February 2004 “Permanency children], well-being of the [child or Plan and Permanency Progress Report,” 161.001(1)(D) pursuant court, which stated, was filed with the trial Texas Code[J “Erika Colbert has located and maintained employment and has appropriate hous- Appellant challenges legal and factual ing. ... Ms. Colbert has employment and sufficiency support of the evidence to these provided has CPS with a statement of findings. earnings.” Standard of Review
Aiken’s testimony that appellant did not “The right natural that exists be give additional attention to as re- E.D.C. parents tween and their children is one of quested was contradicted Aiken’s “CPS J.W.T., constitutional dimensions.” In re Monthly Summary/Assessment” Sep- for 189, (Tex.1994) 872 S.W.2d 194-95 (quot tember 2004. Her notes September ing 349, Wiley Spratlan, v. 543 352 S.W.2d state, 2004 Hornaday “Ms. asked (Tex.1976)). parent’s right A to “the com speak [caseworker] could with mother care, panionship, custody manage giving about attention to Ai- [E.D.C.].” ment” of her children is a constitutional state, ken’s notes for September 2004 precious interest “far more than prop gave more “[Mother] attention to E.D.C. Kramer, erty right.” Santosky v. 455 U.S. and held him on her lap for a few min- 745, 758-59, 1388, 1397, 102 S.Ct. 71 utes.” (1982) Ill., L.Ed.2d (quoting Stanley 599 v. 645, 651, 1208, 1212, 405 U.S. 92 S.Ct. 31 The Orders (1972)). process L.Ed.2d 551 “Due re cases, In all five the trial court entered a quires allega the State its order terminating appellant’s parental by at convincing tions least clear and evi rights to her children. Each order also dence” to reduce the risk of erroneous terminated the parental rights, father’s Id., 747-48, termination. U.S. those challenged terminations are not *9 1391-92; B.L.D., S.Ct. at In re 113 S.W.3d appeals. these Because both the mother’s (Tex.2003). 340, Therefore, 353-54 in a parental rights and father’s were terminat- terminating parental rights, ease we strict ed, the trial court appointed DFPS as the ly proceedings strictly scrutinize the managing sole conservator of the children. in parent. construe the law favor of the (Tex. respect Smith, 18,
With to appellant, each order Holick v. 685 S.W.2d 20 1985). provided as follows:
808 a strong opinion why
There is a reason- presumption it has concluded in that it is the best of the dis- interest child not have credited able factfinder could custody keep parent. in the natural In re Id. puted finding. in favor the evidence K.C.M., 892, 4 (Tex.App.-Hous S.W.3d 395 at 267. 1999, denied), pet.
ton
disap
[1st Dist.]
proved,
C.H.,
grounds,
on other
In re
89
Grounds for Termination
17,
(Tex.2002).
26
S.W.3d
DFPS has the
To
parent-child
terminate the
re
by
presumption
burden
rebut this
clear
lationship,
a
must find
clear and
court
and convincing evidence. Id. To be clear
has
convincing
parent
the
evidence
proof
produce
the
in
convincing,
must
in
committed
the
section
one of
acts listed
the mind of the trier of fact a firm belief or
161.001(1)
Family
of the
Code and
truth
allegations
conviction as to the
the
the
interest of the
termination is in
best
sought to be established. Tex. Fam.Code
child.
See
Ann.
Tex.
Fam.Code
(Vernon 2002);
§
101.007
In re
Ann.
(2) (Vernon
161.001(1),
The
Supp.2006).
(Tex.2002).
J.F.C.,
256,
96 S.W.3d
264
of these elements
prove
failure to
either
distinction,
fine,
legal-suf
a
often
between
parent’s
aof
prevent
will
termination
ficiency
factual-sufficiency
and a
review
222,
U.P.,
re
105 S.W.3d
rights. See In
in how
lies
the evidence is viewed.
In re
2003,
(Tex.App.-Houston
Dist.]
229
[14th
J.F.C.,
reviewing
809 eight months before the may may appel- twins born who or not have lived with legal cannot be the basis for the twins’ grandmother lant and the for the two and custody. removal from her one-half birth months between twins’ and their removal from the home. New- agree. We There is no evidence grandmother man had with the lived record establish that the environment in and, years, for one to two al- posed home a danger to the use, though drug he admitted to he testi- A.B., 769, twins. See In re 125 S.W.3d 775 drugs fied that he did not use at the home. (Tex.App.-Texarkana, 2003, pet.denied) testimony. No evidence contradicts this (“Under section, this we if look to see poses danger environment itself a to the following Aiken testified to the reasons child’s or emotional well-being.”). (1) taking custody: ap- for the twins into Appellant testified that DFPS did not visit (2) DFPS; pellant’s previous history with the home taking before the twins. That the fact that the five older children were testimony Therefore, is uncontested. (3) custody; appellant’s testimony in the DFPS had no basis on which to claim that which, Aiken, according Jackson trial the home posed danger environment a showed that misstated to DFPS the twins. T.J.; happened the truth of what Although the grandmother a part (4) fragility of the babies. These rea- environment, and both Aiken and sons are not related to the environment Cooney made it clear that did not the home when the twins were removed think she should be with the their support and therefore cannot termination opinions were not based on evidence of (1)(D). under subsection harm danger Rather, posed. does not respond appel DFPS they were based on grand- the fact of the arguments lant’s under her first issue. In past mother’s criminal record and did not stead, urges because the trial take into account that there was no evi- court findings did not file of fact separate dence of current illegal activity and that ly, required in rule 299a of the Texas she was a source of financial and moral Procedure, Rules of Civil this Court must for Cooney’s child-ad- affirm the judgment any legal theory vocate reports February 24, 2004, dated pleaded by supported by DFPS is 22, 2004, July 16, and November 2004 stat- evidence.10 ed “There are present no indications that
Joann Colbert is currently involved with rejected We argument by this same drugs.” Furthermore, appellant’s state- DFPS in Cervantes-Peterson v. Texas De- ment to the interviewer for the CCCC’s Services, partment Family & Protective family evaluation “that since her mother 244, 221 (Tex.App.-Houston S.W.3d has been prison, released from she earned 2006, pet.). no [1st Dist.] Cervantes- GED, Church, a goes to has obtained em- Peterson, pointed we out that a trial ployment and longer drugs” uses judgment court’s recitation of its “that her mother has changed and made a ground parental rights for termination of better life for herself’ is uncontested. is not a fact-finding prohibited that is un- Cooney objected
Aiken and to the der rule 299a of the Texas Rules of Civil grandmother’s Newman, A.I.G., relationship with (citing Procedure. Id. at 251 In re Comm’n, party appeal A need not file a notice Helton v. R.R. 126 S.W.3d bring presents cross-point (Tex.App.-Houston pet. alternate or [1st de- Dist.] grounds nied). affirming judgment. additional *11 future; (Tex.App.-San
135 S.W.3d
693-94
An- needs
the child now and
the
(3)
pet.)).
physical
tonio
The trial court in the
the emotional and
danger
no
(4)
cases,
future;
instant
as in
child now
in the
the
Cervantes-Peterson
the
and
A.I.G.,
simply stating
grounds
parental
seeking
and
was
the
abilities of the individuals
(5)
custody;
rights,
programs
re-
the
to as
termination
available
quired by
promote
section 161.206 of the
sist these individuals to
the best
(6)
Accordingly,
child;
plans
Code.11
we overrule DFPS’s
interest of the
the
for the
by
by
agency
issue.
child
these individuals or
the
(7)
seeking custody;
stability
the
the
Here, there is no evidence favorable to
(8)
proposed placement;
home or
the acts
trial
finding
the
court’s
under subsection
parent,
may
or omissions of the
which
(1)(D).
fact,
undisputed
there are
facts
existing parent-child
indicate that the
rela
against
finding-the
that are
failure of
the
(9)
tionship
one;
a proper
is not
deciding
DFPS to
the
before
visit
home
the
or
the
excuse for
acts
omissions of
twins;
stating,
remove
the report
the
parent.
Id.
372. We
consider
will
are
present
“There
indications that
evidence as
relates
these factors.
currently
Joann Colbert is
involved with
1.
desires
the children. Horna-
drugs”; appellant’s uncontested statement
day agreed
ap-
that all the children loved
grandmother
that the
had turned her life
pellant. Hornaday further testified
around;
grandmother’s
and the
financial
very
the children were
much bonded with
support
and moral
and her
hand,
their
On the other
Aiken
mother.
considering all the evi-
children. Even
twice-monthly
one-
regarding
light
dence
most favorable to the
visits,
family
“My
hour
is that
observation
finding
trial
court’s
under
subsection
biga
there’s not
bond with
children.
(1)(D), we hold that a
not
factfinder could
is that
is not
My observation
there
a lot
reasonably
a firm
have
formed
belief
nurturing that happens.” When asked
finding
true
conviction that
was
mother,
their
whether
children loved
Accordingly,
to the twins.
sus-
respect
we
responded,
Aiken
“I believe
do.”
tain
first issue.
Hornaday testified
D.N.C. wanted
2. Best Interest of the ñve older chil-
initial
to come home. The CCCC’s
evalua-
dren
report
tion
stated that D.N.C. wanted
issue, appellant
In her third
live with her mother. DFPS asserts
sufficiency
challenges
family
the factual
of the D.N.C.’s
visits—
following
behavior
trial
find
being “ugly
everyone”
evidence
court’s
yelling
ing
appellant’s parental
screaming
midnight
that termination of
until
otherwise
—while
D.N.C.,
doing
was in the
well in foster care is inconsistent
best interest
T.L.J.,
E.D.C., J.D.M.,
and T.B.J. Texas with her stated desire to live with her
have
considered nine non mother.
D.N.C.’s foster mother
generally
courts
exclusive,
got angry
set out in
reported
nonexhaustive factors
to DFPS
D.N.C.
in determining
yelled
helping
v.
that “no one”
Holley Adams
best
(Tex.
interest of the child.
Williamson testified naday further testified that the children structure, time, consistency, stability, J.D.M. lived with him most of the needed appellant figure J.D.M. saw patience. they as mother She said that were they home, had a things close bond. of those getting Williamson some gone testified J.D.M. had back live these children needed all of those Hornaday with appellant September things. 2002 because said that did not she he wanted to be with appellant appellant develop his know could whether and sisters. further necessary give brothers Williamson attributes the children that, trial, they testified at the J.D.M. need. Hornaday time of the structure opinion to live with wanted ter- regarding wanted Williamson but said she had no contact and his appellant rights. maintain with mination of opinion brothers some- expressed sisters and and that he She the chil- spent adjust weekends and thrive if times dren would Hornaday appel- testified that the home. But Williamson he felt that removed from that, relation- lant and J.D.M. had mother-son also testified the children were home, all the see ship and treated returned would continue to the same. them. children nothing gave is to indi- Cooney
There the record testified family during cate the desires of T.L.J. and T.B.J. most of her time the twins get not takes and his involvement in the death and that the other did visits five Cooney Aiken and both Although he that he T.J. equal time. But admitted did May appel- late as know if it normal for a mother to *13 testi- lant did not that Jackson was re- time with babies. Aiken believe spend more death, sponsible they the fami- for T.J.’s did not fied from her observation of visits, testify that continued to believe so. ly appellant she did not think was she trial, nurturing appellant At the termination testified with the children or to bonded no had longer that she contact them. a said that lot of “stuff’ Jackson. She appellant The that has evidence shows trial that not know came out his she did care been able to take of the children’s get and that to the information she had needs, likely she need will allowed “secondhand” because she was not emo- caring assistance in for their some in the to sit courtroom. tional needs. Thus, the chil- there is no that evidence physical danger and 3. Emotional emotionally be en- physically dren will now and the children in future. by dangered being appellant. returned to Department person- DFPS contends testimony safety appel- for the 4. Parental abilities. The nel were concerned However, Hornaday, Cooney, regarding and Aiken lant’s children. those concerns in they to rec- the five older children when appellant’s centered failure around atmo- indicated that the ognize responsible appellant’s was for home that Jackson hectic, chaotic, was unstruc- presence sphere in and T.J.’s death and Newman’s However, us to a tured. Newman testified appellant’s home. directs appellant good ex- mother and that 2003 evaluation the CCCC was June Ap- and “con- children were well-fed clothed. pressing the concern may parenting had classes pellant completed feelings regarding flicted Mr. Jackson the chil- longer she disciplined environ- and said prevent providing her from a safe by spanking. dren ment for her children.” That evaluation made than months after was less two older Hornaday the five year DFPS became involved. Almost one things some of the getting children were later, 28, 2004, May appellant’s therapist specify they needed at home. She did not report Aiken which showed that sent being by appellant. met needs were what “good” progress made in appellant had that she Hornaday testified Significantly, in T.J.’s death recognizing Jackson’s role opinion regarding the termination had no respon- progress taking in and “moderate” rights. According appellant’s parental sibility lack of protectiveness. for her Plan/Permanency Prog- “Permanency to a DFPS characterizes these statements as the court on Febru- Report” ress filed with However, they are not “self-serving.” 24, 2004, actively partici- was ary they are the by appellant; statements therapy, group individual pating therapist whom DFPS opinions of a classes, and was completed parenting had referred alleviating making toward progress of the children. causes for the removal longer a threat Jackson is no addition, therapist’s according her' no evidence safety, children’s and there is appel- reports April May, monthly for May was. The that Newman ever for goals set progress in- lant had made monthly by appellant’s therapist report report only area which good made her. dicates that progress made no mis- showed progress understanding Jackson’s family’s ability effectively her, to communicate the children are returned to demonstrating appropriate parenting grandmother satisfy would move out to skills. entirely this was not requirement.12 DFPS’s skills within her control. Those were to be plans place DFPS’s are to the children family and, worked on in therapy, although adoption. Although Aiken testified appellant’s therapist’s report May dated adoptable, the children were she also recommendation, 2004 shows the “Be- said that she did not know that would gin Family Therapy,” there is no evidence homes, adopted be into their foster family therapy provided was ever *14 she provide any did not information re- trial, appellant. At Aiken testified that garding potential adoptive homes. In ad- she disputing was not that appellant had dition, she could not chil- assure completed the services that she of- was dren would be able to visit each other after fered, although she later appel- stated that adoption. lant had not obtained appropriate hous- 7. ing Stability claim proposed that is the home or by contradicted —a placement. Appellant records. has demonstrated her stability by living in the same resi- 5. Programs pro- available to assist in years, dence for several obtaining her moting the best interest the children. job training, GED and securing em- Appellant already had advantage taken ployment. In spite objections of DFPS’s programs all offered to her to increase her grandmother, to the presence her in the ability to meet the needs of the children. appears home to stability enhance the programs These included parenting the home grandmother pro- because the classes, anger classes, management family support vides for appellant. DFPS individual and group therapy. Aiken ad- produced no regarding evidence the stabil- appellant mitted that completed had all the ity any proposed placement for the chil- services she was Appellant’s offered. dren. therapist reported that appellant was mak-
ing progress in all Appellant areas. 8. Acts or parent omissions in- earned a GED and a license as a nurse’s dicating parent-child relationship is not aid and employed was in health care. proper. Knowing that Jackson was
6. trial, Plans the children. At- charged injury T.J., with having to for when asked about plans for chil- agreed with DFPS that she would not dren, stated, appellant “I every- children, would do allow to Jackson be around her thing my power keep all appellant their fathers let Jackson move into her home away that, from them.” She testified if while he awaited trial.13 DFPS also com- addition, that, grandmother 12. In by grandmother’s June 2003 about the Cooney thought because Aiken and through that she criminal record Evaluation should not live with the she would by approximately conducted the CCCC two move out if the children were returned. Ai- custody weeks after DFPS took of the chil- Cooney's objections grand- ken's and placed dren. Yet DFPS four of the children past mother were based on her criminal rec- grandmother’s possession in the and left them Newman, who, ord and her association with there until December 2003. trial, longer living at the time of was no with brief, spite her. We note generally of her criminal 13. In its DFPS refers us record, there is no evidence in the record that Section I of its brief for other acts and omis- grandmother posed danger any comprises sions of Section I pages children or that she argument authority relating continued to be involved any activity. (1)(E) endangerment criminal DFPS knew at least its section 161.001 issue. presented undisputed, to admit to that this issue is plains about failure did evidence of the children severity of T.J.’s bruises. Aiken their not want return to mother. Any excuse acts or omissions of their love admitted that all the children parent. testified that she let Appellant weigh the children mother. The desires of Jackson live her and be around the in favor of appellant. agreed children after she that she would not she did not think that Jackson because com- had undisputed appellant It is responsible Appel- by was for T.J.’s death. to her all offered pleted programs lant said could by that she not believe offered only evidence DFPS. severely T.J. and that every- Jackson had beaten had not done DFPS that appellant she was not allowed into the courtroom Aiken’s to do thing asked was was during did the evi- his trial and not see had testimony not obtained hear- presented. dence At termination housing. That appropriate evidence she, ing, appellant testified that at that credible it was contradicted because time, believed Jackson was cause stating DFPS’s records *15 Moreover, to Ai- contrary of T.J.’s death. Appellant admitted appropriate housing. statements, ken’s there is no evidence in any agencies that she not contacted any the that record Jackson abused for the that could offer services appellant’s children. the were children but said she would diligence Appellant’s to returned her. Appellant contends that T.J. did not weighs asked her doing all DFPS that bruising appellant have time severe the in her favor. day left the the beaten. house on T.J. was appellant Newman left when on nor DFPS dwelt Neither appellant day, right” “all the on that was house T.J. Appellant plans the children. future knowledge appellant and that had no keep children’s try to the said she would appellant what to T.J. after left happened mother away fathers would have her and testimony the was no estab- house. There satisfy to DFPS’s move out of the house any on lishing bruising the extent of T.J. to requirements, planned place DFPS and the spanking, after first but before the it did adoption, although the children for beating appellant on 2003. If did April the for all yet adoptive not have homes bruises, not in a not see she was T.J.’s Thus, weigh not children. this factor does severity to position to “admit” the on either side.
bruising comply to with DFPS’s demands. provided appellant It undisputed is Summary by children physical for the needs the factors, food, clothing, and shelter. Holley providing we will weighing However, significant im- children have necessarily consider some to be more others, needs, appellant of which portant depending than on the emotional some Here, fulfill. Three of clear has not been to facts of a case. seems able ADHD, as having enough diagnosed three who children were children were old variety child had they to live with and a fourth express preference wanted mother, children problems. their at least continue their of behavior her, grades at school generally making case with better relationship with is the Horna- According agree DFPS not foster care. Although may while J.D.M. However, any specific argument pages, nor does it make DFPS does not direct us acts or specific within with reference to such omissions. or omissions stated those acts day, chaotic, sphere gave most of the problems appellant children’s exist- was needed, ed they before DFPS became with children what but not involved some of all, suggests children. But the and that did not know whether evidence she appellant capable developing some of the children’s was negative behavior parent was attributes needed to the children. separation exacerbated their from Hornaday needs Appellant’s specify their did ability mother. to take appellant not meeting, care and her de- of the children’s needs and scription of the chaos—that there were some weighs of their emotional needs always merely stating children there —was her difficulty favor. her in pro- (now having a family obvious about five viding for all their weighs emotional needs seven) Most important, children. Horna- in favor of DFPS. day no opinion regarding said she had trial, At the time there was no evi- termination parental rights dence that the children would have been in and that she work would continue to any danger by being returned the children if were returned to their because appellant and her mother were Considering mother. the love attach- the only living ones in appellant’s house. ment between children testimony Aiken’s that she believed that all and her in complying success with DFPS’s the children neglected, were abused and requirements, appellant’s parental abilities both physically emotionally, is without weigh in her favor. in the record. When asked for argues having eight children specifics, said, “Well, ability their *16 by four different fathers is an indication of socialize how they socialize tells a appellant’s instability. does DFPS not great deal they about what have been ex- appellant’s history. consider recent She this_[A]nd posed previous to to I be- has lived in the same house several they lieve came to us with types those of years GED, and has her obtained license behavior ... such as telling teachers to nurse’s-aid, as job. and a It is evident my ‘Kiss using butt’ and more graphic that she becoming has worked on more language than that.” Aiken also testified stable and of chil- capable caring for her the children nightmares, had stability dren. The factor weighs favor those she discussed were related to the appellant. brief, death of T.J. its DFPS also cites the fact that the children were sometimes Appellant’s allowing reason for Jackson disciplined by spanking various to be around the children while he waited scars and healed old as marks evidence of go to on her trial was belief that he was physical abuse. DFPS not does direct us not the T.J.’s cause of death. Her testimo- to in the anything to show record ny that, conviction, after his she came to these physical marks were the result of death believe Jackson caused T.J.’s abuse, nor does inform us of how it therapist’s was corroborated re- distinguishes permissible physical between This ports weighs DFPS. factor on punishment abuse. Certain- the side ly, a child’s use of crude lan- somewhat Having Holley considered the factors as guage is a basis for terminating not case, apply in this we hold that the
parent-child physical- relationship. The factually evidence in this case is insuffi- danger weighs factor of appellant. favor cient terminating the orders appellant’s abilities, parental appellant’s D.N.C.,
Relevant to parental rights Hornaday E.D.C., T.L.J., J.D.M., because, testified that the home atmo- and T.B.J. 263.404, record, Family code section we also the entire a factfinder under
considering portion ap- firm of the order that reasonably not form a belief reverse the could managing sole con- appellant’s pointed that the termination of DFPS Ann, in the interests of the rights was best servator.14 See Tex. Fam.Code 2002) (Vernon Accordingly, appel- (allowing § children. we sustain trial 263.404 third managing lant’s issue. DFPS as sole appoint court paren- without termination
conservator DISPOSITION specific court makes rights tal when trial findings). 1. The ñve older children issue, reversing judg- the trial court’s Having third appellant’s sustained When order, usually portion appealable of the ment or we ren- we reverse the orders terminating appellant’s parental judgment or order that trial trial court der Tex.R.App. managing have P. awarding sole court should rendered. conservatorship appeal involving numbers 01-04- in a case 43.3. 01-04-0123S-CV, 01232-CV, 01-05-00126- involuntary parental rights, termination of CV, and and remand 01-05-00127-CV not order termi- the trial court does to the court below for further relationship, those cases parent-child nation of the sec- proceedings opinion. consistent with this requires tion 161.205 of Code (1) deny the the trial court either 2. The twins (2) petition for render termination child. order in the best interest See Having first appellant’s issue sustained (Vernon cross-issue, 161.205 we need and overruled DFPS’s ANN. Tex. Fam.Code 2002). posi- is in a appellate An court regard- second issue not reach deny simply tion determine whether ing the best interest the twins. We or to render petition to the for termination portion reverse the order related in the interest of appellant’s parental termination of some other order best *17 concerning the in the child. Circumstances rights appeal number 01-05-00124-CV. changed have since parent may trial court as child or appointed Because the its order of termi- of children un- the trial court rendered managing conservator the nation, a factfinder. Family requires as a a matter that Code section 161.207 nec- der a judg- to the of are therefore unable render essary consequence of termination We remaining all issues rights disposes and ment of parental the of both in fathers, remand the case no in the case and must each of the children’s and made proceed- for further part the of to the trial court findings appointment to See ings with the under section 161.205.15 managing DFPS as conservator Tex. R.App. 43.3(a). P. appellant’s parental rights termination of reversing of consequence the termination reversing unassigned of 14. This Court is not on error, rights. appellant's parental as asserted the dissent. DFPS’s managing a appointment as conservator was Family Code sec- consequence the termination of states that of trial court’s dissent inapplicable are rights. parents’ See Tex. Fam.Code Ann. tions 161.205 263.404 both "actually 2002). (Vernon appeal trial court we this because the § Because have 161.207 parental termination of Colbert’s appellant, of the cir- ordered the reversed the termination rights.” time the trial requiring appointment That true the the of cumstances original of order termi- managing court rendered conservator under section 161.207 exist, becomes 161.205 longer appoint- the nation. section and reversal of we have re- because managing applicable on remand of as conservator is ment DFPS Code, in Accordingly, judgment part Family reversing we render in the Texas errs appeal portion appointing in of the trial court’s order number 01-05-00124-CV parental rights Family termi- Department are not the & Protective (“DFPS”) nated, and trial we remand the case to the “sole managing Services as the purpose rendering court the limited conservator” the twins. See Tex. FaM. order, (Vernon Family an with sec- 161.205, §§ consistent Code 263.404 Code Ann. 161.205, 2002). disposing portion tion of the of the Accordingly, respectfully I dissent petition relating portion judgment Court’s from this this remanding
and its of the case to the trial JENNINGS, part concurring Justice court the limited purpose rendering “for dissenting in part. disposing portion an order of the of the petition relating consistent majority A of the en banc court voted 161.205.” Code section deny the en banc motion for reconsideration. In parent-child a suit terminate the relationship, provides section 161.205 opinion Justice ALCALA filed an court does not order termination “fflf dissenting from the denial of en banc parent-child relationship, of the the court reconsideration which Justice deny petition shall” or render or- joins. JENNINGS der in the best of the child. interest Id. Justice filed an opinion KEYES added). (emphasis regard 161.205 dissenting from denial of en banc placement of the review children reconsideration. DFPS, under the care of section 263.404 provides “may that a court render a final JENNINGS, Justice, TERRY order man- appointing department as concurring in part dissenting part. aging conservator of the child without ter- In appellate cause numbers 01-04- rights parent” minating 01232-CV, 01-04-01233-CV, 01-05-00126- that appointment parent court finds of a CV, 01-05-00127-CV, I concur in this managing conservator would be judgments that Court’s reverse trial appoint- child’s best interest because the terminating court’s orders significantly impair ment would the child’s appellant, Ericka Col- Shanette development health or emotional bert, to her five older children. and it would not be in the child’s best *18 appellate cause number to appoint 01-05-00124- interest a relative or another CV, 263.404(a) § I concur person. (emphasis in this Court’s Id. judgment add- ed). Here, however, insofar as it the trial order reverses court’s the trial court actual- the terminating parental rights ly the termination of Colbert ordered Colbert’s her judgment parental rights twins and renders to her twins. Sections rights parental simply inapplica- Colbert’s to her are and 263.404 twins 161.205 are majority, appeal, majority not terminated. the in ble to this and the errs citing sponte. sections 161.205 and the them in this sua utilizing 263.404 of case -S.W.3d-, versed the trial court order and have ren- 2006 WL No. 01- judgment appellant's parental (Tex.App.-Houston [1st dered 06-00253-CV Dist.] 21, 2006, h.). rights pet. are not terminated. Section is no Section 161.205 December controlling authority only applicable trial if the how the 263.404 becomes trial proceed findings required by v. court must on remand. See Walker court makes the Services, Family
Department and Protective section. (Tex.App.-Houston 412 n. 3 seeking the S.W.3d Importantly, in addition to denied). 2002, pet. parental rights [1st Dist.] termination of Colbert’s original petition, her in DFPS twins its Moreover, although we have rendered trial court requested appoint judgment parental rights that Colbert’s managing sole of the DFPS as conservator terminated, not trial her twins are “[pjursuant §§ 153.005 and twins juris- exclusive continuing, court still has 263.404, Family Texas Code.” See id. in the regard diction in to the twins under- 2002). (Vernon 153.005, §§ As 263.404 affecting the rela- lying parent-child suit above, is not applica- noted section 263.404 appointed which it as tionship, DFPS provides ble Section 153.005 here. of the twins. managing sole conservator parent-child relation- affecting a suit 155.001, §§ See Tex. Fam.Code Ann. ship, “may appoint managing a sole a court (Vernon 2002). As a court with 155.002 joint managing may appoint conservator jurisdiction, may continuing, exclusive finding § A Id. 153.005. conservators.” jurisdiction modify its its order exercise parent of a by appointment court that conservatorship. Id. regarding managing 2002). managing (Vernon Thus, as conservator would be § there is 155.003 ap- the child’s best interest because the pur- of a “for the limited need remand significantly impair the pointment disposing would an of the pose rendering order relating health or emotional devel- portion petition child’s presumption Family that a consistent with Code section opment defeats 161.205.” parent appointed managing as should be 2002). (Vernon § 153.131 conservator. Id. NUCHIA, Judge, denying SAM order
Here, trial ordered the termi- court motion for en banc reconsideration. parental rights to her nation of Colbert’s as appointed It also DFPS the sole twins. date, ap- this the Court considered On twins, finding managing conservator of the pellee’s for en reconsidera- motion banc appointment to be the best interest “this denied. hereby tion. The motion is children,” granting spe- It so ORDERED. is duties, including those rights cific to a nonparent and duties afforded The en court consists of Chief banc managing conservator appointed a sole TAFT, Justice RADACK Justices of the Texas under section 153.371 JENNINGS, KEYES, NUCHIA, (Vernon Supp.2006). Code. Id. 153.371 ALCALA, HANKS, HIGLEY, and Colbert, in her issues for our Although BLAND. review, challenges trial specifically ALCALA, from the dissenting Justice terminating order her court’s reconsideration, joined en denial of banc twins, way she in no chal- rights to JENNINGS. Justice lenges portion of the trial court’s order *19 managing sole conser- appointing DFPS as KEYES, dissenting from the Justice finding the or its that the vator of twins en reconsideration. denial of banc in the interest of the appointment was best ALCALA, Justice, dissenting ELSA Thus, majority errs in re- children. the en banc reconsideration. from denial of on appointment the trial court’s versing the of Metcalfe, from denial Walling respectfully v. I dissent unassigned error. Family Pro- 56, (Tex.1993); of appellee’s, Department Pre- 863 58 U.S.A. S.W.2d (“DFPS”), en Marshall, motion for 95 tective Services Machining Co. v. cision
819 banc of the deci- trial that termi- panel’s reconsideration tion of the court’s decree Tex.R.App. sion the portion to reverse of the trial rights. P. nates See appointed court’s as the decree DFPS 41.2(c). therefore I vote for en banc recon- managing “sole conservator” the chil- of sideration. dren. prior This decision with conflicts an I would hold absent issue by court place decisions our that left in the challenging on appeal portion the of the portion of trial the court’s decree trial decree that places court’s DFPS as appointed DFPS as the sole con- managing conservator, managing the the sole issue is por- servator of the although the I sponte waived. would not sua remand tion of the decree terminated the court, trial the majority the issue the rights of the on parent reversed based opinion judgment here. Appel- does insufficiency the evidence. Ruiz v. See challenged lant of the portion has Servs.,
Dep’t
Family &
212
Protective
trial
decree
appoints
court’s
(Tex.App.-Houston
S.W.3d 804
Dist.]
[1st
managing
An appel-
the sole
conservator.
2006,
pet.);
no
Yonko v. Dep’t Family &
appeal
lant can raise an issue
on
Servs.,
(Tex.
Protective
or not. See Tex. Fam.Code Ann. BANK, N.A., Appellant, (Vernon 263.401(d)(3) 153.005(b), § FIRST STATE
§ 2002 Supp.2006).3 Regardless, & I would hold v. challenge failure trial court’s decree portion &38th C.D. MORSE d/b/a appointing managing as the sole Q Auto, Appellee. for conservator waives issue our re- No. 07-05-0138-CV. Satterwhite, appeal.
view on See Jacobs v. (Tex.2001) 653, (quoting 65 655-56 S.W.3d Texas, Appeals of Court of Duke, San Auth. v. 783 Jacinto River Amarillo. 209, (Tex.1990), S.W.2d 209-10 “well- grounds rule established error not 8, 2007. May by points argument error asserted or Rehearing June Opinion on waived”). I appeals the court of are there- panel’s fore disagree sponte with the sua trial
reversal and remand court’s manag- decree makes DFPS the sole ing conservator. KEYES, Justice,
EVELYN V. dissenting from denial en banc review. grant I would en banc review recon in this holding sider our case in Cer f Department vantes-Peterson v. Texas o Services, 221 Family & Protective S.W.3d 244 (Tex.App.-Houston [1st Dist.] light pet.), progeny and its other (Tex.2003). J.F.C., re See S.W.3d Tex.R.App. (en P. 41.2 banc reconsideration extraordinary ... cir
disfavored “unless en require cumstances banc consider ation”). (d) a final purposes For this section provides: 3. Section 153.005 is one that: (b) order must a managing A conservator be adult, competent parent, an author- a (3) agency, child-plac- terminating parent- ized licensed without ing agency. appoints de- relationship, child 153.005(b) (Vernon § managing conser- partment as the Tex. Fam.Code Ann. 2002). of the child. vator 263.401(d)(3) acknowledges that Section 263.401(d)(3) (Vernon Tex. Fam.Code Ann. appointed managing the DFPS can be Supp.2006). have conservator even if terminated, stating, been