*1 Rick and Jessica WALKER
Rappa, Appellants, FAMILY AND
DEPARTMENT OF SERVICES,
PROTECTIVE
Appellee.
No. 01-06-00253-CV. Texas, Appeals
Court of (1st Dist.).
Houston
Dec. Zbranek, Baker, Baker & Guy
Riсhard Beecher, TX, Ann P.C., Liberty, Tracey Houston, TX, appellants. for Houston, TX, Shadwiek, appel- Lana lee. NUCHIA, consists of Justices
Panel JENNINGS, and HIGLEY.
OPINION duced at trial to establish when Walker prior possession committed his offenses for NUCHIA, SAM Justice. of a controlled substance. Walker testified Appellant Rick Walker’s user, at trial that he not a drug was but to his two minor children were terminated drugs. admitted that he had sold issues, after a bench trial. In five contends that the trial court erred in re- Appellee Department and fusing make of fact and conclu- (DFPS) peti- Protective Services filed its (issuе 1) sions of law and that the evidence Rap- tion to terminate both and Walker’s factually prove is and insufficient to pa’s parental rights to minor chil- the two (1) knowingly placed that he knowingly trial, a dren. After bench the trial court allowed children to remain condi- parents’ rights. terminatеd both or surroundings endanger tions which Rappa appeal, Rap- and filed notices of but physical well-being or emotional of the pa moved to her appeal. dismiss This (2) engaged children and in conduct or granted Rappa’s August motion on knowingly placed per- the children with interlocutory 2006 in an order. engaged sons who conduct which endan- gers the physical or emotional trial, Following the bench (issues 2 through children an signed (E) 161.001(1)(D), Tex. Fam.Code Ann. to the two children on the (Vernon Supp.2006). We reverse. following grounds: by 7.1 The Court finds clear and con-
Facts vincing evidence that termination of County Chambers Child Protective Ser- parent-child relationship between (CPS) investigated anonymous tip vices an child, RICK and the WALKER Rappa, that Jessica the mother of the two the child’s best interest. children, leaving the super- by vised men in numerous different a Further, the Court finds clear drug neighborhood. known CPS ar- When convincing and evidence that RICK residence, at Rappa’s Rappa rived an- has: WALKER door, swered the said she was not “the knowingly placed 7.2.1. house,” door, lady of the closed the and allowed the children to remain left the back doоr. CPS found the two surroundings conditions or in a children alone room with a four-to-five endanger or emotional inch knife on the floor near them. The children; well-being of the younger eating child was from a box of brownie mix. CPS also found on a table- engaged 7.2.2. in conduct or know- top a razоr blade and an unknown white ingly placed per- the children with residue, analyzed which was never to de- engaged sons who conduct which termine if it was contraband. CPS took attempting place the children after them children; well-being of the family with other members. Rappa’s paren- Because both and At investigated Rappa, the time CPS terminated, tal were jail charges pending Walker was on appointed conservator sexual assault of an unrelated minor. children, required by Family Rappa Both Walker and have convictions section 161.207. Tex. Fam.Code Ann. cocaine, Code possession Rappa of crack (Vernon 2002). parole. was on No evidence was intro- in the best that termination is 161.001and Standard Review child. The evidence in of termi support Both ele- Supp.2006). convincing clear nation must be before establishеd, termi- ments must be may par a involuntarily terminate solely the best may not be based *3 Kramer, Santosky 455 ent’s v. by child of the as determined 1391, 745, 747, 1388, 71 102 S.Ct. U.S. Tex. Human Servs. Dep’t trier of fact. (1982); L.Ed.2d 599 Ann. Tex. Fam.Code (Tex.1987). 531, Boyd, v. 727 S.W.2d 533 Supp.2006). Clear sufficiency the evi- review willWe is or convincing evidence “the measure under statuto- presented specific dence that in the degree proof produce will by in its found ry grounds or of the trier of a firm belief mind fact order. Cervantes-Peterson termination allegations as to truth of the conviction Servs., Family & Protective Dep’t to be sought established.” 244, 252 (TexApp.-Houstоn 221 2002); S.W.3d In re 2006, J.F.C., 256, (Tex.2002). pet.). no Be [1st Dist.] 96 S.W.3d 264 must be based cause termination Sufficiency of Evidence evidence, upon convincing clear and evidence, simply preponderance the evi- argues In Walker that Supreme held that the Texas Court has support legally is insufficient dence lеgal traditional and factual standards of his trial court’s termination J.F.C., inadequate. 96 review are In re any present DFPS did not rights because Instead, conducting at 264-66. S.W.3d (1) knowingly placed that evidence Walker a legal-sufficiency in a termination- review allowed children to re- knowingly or case, of-parental-rights must determine we surroundings or which main in conditions evidence, light whether the viewed in the physical well- endanger the or emotional to the that finding, most favorable is such (2) engaged children being of the could have reasonably the fact finder children or placеd conduct formed a firm belief or conviction about who in conduct persons engaged the truth of the matter on the State which emotional physical or proof. bore the burden of id. at 266. well-being of the children. viewing light In the evidence in the most that The evidence at trial was judgmеnt, to the we “must as favorable investi jail at the time CPS disputed sume that factfinder resolved Rap- from gated and removed the children finding facts in favor of its if a reasonable facts argues that the pa’s house. Walker so,” factfinder could do and we “should at trial do not constitute аdduced all evidence that a reasonable disregard children were sufficient evidence that the have or found factfinder could disbelieved surroundings or which endan in conditions J.P.B., incredible.” 180 have been In re physical their or emotional well-be gered (Tex.2005) 570, 573 In re (quoting S.W.3d event, no еvidence any there is ing, but J.F.C., at 96 S.W.3d anything did that he did or not do Grounds Termination well- physical endanger jail he was being of the because terminate the proceedings In The that a time. fact at under brought relationship alone, incarcerated, standing not con does 161.001, DFPS must Family Code that endan engaging conduct stitute establish, evi convincing clear and well- emotional dence, gered a child’s more of or omissions one or the acts (1) at 533-34. being. Boyd, of section S.W.2d enumerated under subsection brief, In appellate its pointed managing DFPS does not DFPS conservatоr of respond children under Code section legal-sufficiency argu- necessary consequence aas by citing any ment facts in the record Rappa’s termination of both and Walker’s termination support based any ac- parental rights, and made no findings to tion or inaction Walker that endan- support DFPS as gered the managing conservator without the termi- of the children. Our review of the record of Walker’s (1) jail indicates that was in at the Code section we also re- time of Rappa’s actions that led to the verse the order that (2) termination of her pointed conservator. Rappa was the children’s mother at the *4 § See 263.404 Tex. Fam.Code Ann. intervened, time CPS therefore establish- 2002) (allowing trial court appoint ing she custody had the children. conservator without Accordingly, we hold that the evi parental rights termination of trial when dence was insufficient for a reason court specific findings). makes able fact form a “firm finder to belief or reversing judg- When the court’s (1) conviction” that either know order, ment or appealable usually we ren- ingly placed or allowed the chil judgment der the or order thаt the trial dren to remain in conditions or surround Tex.R.App. court should rendered. have P. ings endangered the However, 43.3. in a case involving the well-being of the children and involuntary termination of (2) engaged in or knowingly conduct in which court the trial does not order placed persons the сhildren with parent-child who en termination of the relation- gaged ship, Family requires in conduct which Code section 161.205 the (1) that either the trial court render an (2) petition order denying the render children. further hold that We any order in interest of the best the child. in paren erred See Fam.Code rights tal that ground the he violated 2002). An in appellate posi- is not (E). 161.001(1)(D), section simply tion to deny determine whether Having We sustain 2. held that the termination, petition the for or to render trial court’s terminate Walker’s some the other order in best interest of parental rights under section the child. concerning Circumstances the (E) 161.001(1)(D), not supported were may parent changed child or have since evidence, legally sufficient we need not the trial court rendered its order of termi- 1, 3, and address issues nation, a requires matter that a factfinder. judg- We are therefore unable render a Disposition ment that of all disposes remaining issues We reverse the of the order in the case must remand the in case related to the termination of Walker’s part proceed- the trial court further Tex.R.App. 43.3(a).1 P. rights. ings. Because First, briefly proceed respond 1. We to the dissent. the trial court must on remand. While returning raising Court is this case to the trial court may controlling the be well partial with a on the rendition issue of termi- sponte, any law sua are not aware we parental nation of Code sec- authority prevents applying us from that 161.205, although par- tion not cited ties, controlling authority is the for how the relating to consistent part petition render in Accordingly, judgment we 161.205.” rights not ter- Code section parental that Walker’s are minated, part case in and we remand the parent-child terminate the In a suit to purpоse to the trial court for limited that provides section 161.205 relationship, disposing por- order rendering an does order termination the court “[i]f relating tion of con- petition to Walker relationship, the court Family Code 161.205. sistent with any petition or- deny the or render shall” of the child. Id. der in the best interest JENNINGS, concurring part Justice added). regard In (emphasis dissenting part. of children placement the review JENNINGS, Justice,
TERRY DFPS, care of section 263.404 part. concurring part dissenting render a final provides “may that a court as man- appointing department I Court’s insofar judgment concur of the child without ter- aging conservator it termi- as reverses the court’s order if parent” minating nating appellant, of a court finds Walker, ren- Rick to his two children and not be managing conservator would ders *5 appoint- interest the child’s best because terminated. are not the significantly impair child’s ment would However, majority, citing the sections development physical health Family 161.205 and 263.404 of Texas the not in the child’s it would be best Code, reversing portion errs in of appoint to a relative or another appointing Depart- court’s order 263.404(a) (emрhasis § add- Id. person. ment & Protective Services of ed). Here, however, trial court actual- (“DFPS”) managing as the “sole conserva- of ly ordered the termination Walker’s tor” the children. See rights to children. Sections his 2002). 161.205, §§ 263.404 simply inapplica- and 263.404 are 161.205 I from Accordingly, respectfully dissent majority appeal, to this and the errs ble portion this of this Court’s sponte. them case sua utilizing this remanding part its of the case in to the seeking ren- addition to purpose Importantly, trial court “for the limited rights in dering disposing parental of Walker’s an order termination brought parties аlready cite to this Court—whether merely law because the did not before it. trial court erred in Second, reversing parental unas- the Court is on which, true, error, signed if Finally, would be serious the dissent contends because discussed, previously the circum- error. As continuing jurisdiction has over required this case stances of children, unnecessary it is to remand be- managing appoint once both conservator Walker could ask the trial court cause parents’ rights error were terminated. The managing conservatorship remove was of Walker's the termination We to shift the children. see no reason of his consequence rights; legal that error challenge DFPS's burden managing as DFPS conservator, managing pointment as when poli- legal public conservator. There is no Family Code section 161.205 it object sepa- cy requiring reason for Walker tо challenge on DFPS’s burden rately separate trial court and raise a in the children are to his issue. point presented appeal or issue of error only constitutionally protected and can be appointment. point concerning That DFPS’s away by approрriate process due taken necessarily presented of error or issue would course of law. due legal Walker has be the same based on original petition, its requested DFPS in regard diction to the appoint DFPS as sole man- underlying suit affecting parent-child aging conservator of the children “[pjursu- relationship, appointed which it DFPS 263.404, §§ ant to 153.005 and Texas Fam- as managing sole conservator of the Walk- ily 153.005, §§ Code.” See id. 263.404 er children. See Fam.Code Ann. (Vernon 2002). above, As noted §§ 155.002 As a applicable is not here. Section court continuing, jurisdic- exclusive 153.005 provides that in a affecting suit tion, may jurisdiction it exercise its relationship, a court “may modify its regarding managing con- appoint a sole managing conservator or (Vernon 2002). servatorship. Id. may appoint joint managing conservators.” Thus, there is no need of a remand “for Id. 153.005. A finding by the court that the limited purpose rendering an order appointment of a parent managing con- disposing of the portion petition servator would not be in the child’s best relating to Walker consistent with interest because the appointment would Code section 161.205.” significantly impаir the child’s health or emotional development defeats presumption that a should be
appointed as managing conservator. Id. (Vernon 2002).
Here, the trial court ordered the termi of Walker’s rights to his
children. It appointed also DFPS as the Anthony CARACCIOLO, Appellant,
sole conservator of Walker’s *6 “with the speci and duties v. Code; fied in Texas CARACCIOLO, Appellee. Joanne finding аppointment inbe best interest of the Although child[ren].” No. 04-06-00208-CV. Walker, review, in his specif issues for our Appeals Texas, Court of ically challenges court’s order ter San Antonio. minating his chil his dren, he in way challenges no 9, May of the trial court’s order appointing DFPS as sole conservator of the chil
dren or its finding appointment
inwas the best interest of the children.
Thus, majority errs in reversing the court’s unassigned er 56,
ror. Walling Metcalfe, 863 S.W.2d (Tex.1993);
58 U.S.A. Precision Machin Marshall,
ing 407, Co. v. 412 S.W.3d n. (TexApp.-Houston pet. [1st Dist.]
denied).
Moreover, although we have rendered terminated,
his children are not
court still has continuing, juris- exclusive