in the Interest of I.R.K.-N., a Child ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00455-CV
IN THE INTEREST OF I.R.K.-N., A CHILD
From the 335th District Court
Burleson County, Texas
Trial Court No. 27,007
MEMORANDUM OPINION
Raising two issues, Appellant A.B. (alias Amy)1 challenges the trial court’s order
of termination of her parental rights to I.R.K.-N. (alias Ike).2 Raising five issues,
Appellant N.N. (alias Nate) also challenges the trial court’s order of termination of his
parental rights to Ike. We will affirm.
In a proceeding to terminate the parent-child relationship brought under section
161.001, the Department must establish by clear and convincing evidence two elements:
(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,
termed a predicate violation; and (2) that termination is in the best interest of the child.
1
See TEX. R. APP. P. 9.8.
2
L.K. (alias Lisa), another of Amy’s children but of a different father, was originally a subject of this
proceeding, but before trial Lisa was returned to Amy.
TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2013); Swate v. Swate, 72 S.W.3d 763,
766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements
are established by clear and convincing evidence, and proof of one element does not
relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d
367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under
section 161.001(1) were found in the trial court, we will affirm based on any one ground
because only one predicate violation under section 161.001(1) is necessary to a
termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet.
denied), overruled in part on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.—
Waco 2012, pet. denied).
After a jury trial and based on the jury’s findings, the trial court found the
following predicate violations as grounds for termination of Amy’s and Nate’s parental
rights: (1) that they knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endangered the physical or emotional well-being of the
child (TEX. FAM. CODE ANN. § 161.001(1)(D)); and (2) that they engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered the
child’s physical or emotional well-being (id. § 161.001(1)(E)).
Termination of Nate’s parental rights was also based on the jury’s findings that:
(3) Nate failed to comply with provisions of a court order specifically establishing the
actions necessary for the parent to obtain return of the child (id. § 161.001(1)(O)); and (4)
Nate knowingly engaged in criminal conduct that has resulted in his conviction of an
offense and confinement or imprisonment and inability to care for the child for not less
In the Interest of I.R.K.-N. Page 2
than two years from the date of the filing of the petition (id. § 161.001(1)(Q)). Based on
the jury’s findings, the trial court also found that termination of Amy’s and Nate’s
parental rights was in the child’s best interest.
Mistrial: We begin with Nate’s first issue, which asserts that the trial court
abused its discretion by denying Nate’s motion for mistrial, which was made after
Amy’s testimony that Nate’s parental rights should be terminated and that if they were,
she would voluntarily relinquish her parental rights to Ike so that he could be adopted.3
The basis for Nate’s mistrial motion was that the Department and Amy were not
antagonistic and were aligned to have Nate’s parental rights terminated, and therefore
the peremptory challenges given to each party resulted in a materially unfair trial to
Nate.
We review the trial court’s denial of [a] motion for mistrial under
an abuse of discretion standard. In re J.A., 109 S.W.3d 869, 874 (Tex.
App.—Dallas 2003, pet. denied); City of Jersey Village v. Campbell, 920
S.W.2d 694, 698 (Tex. App.—Houston [1st Dist.] 1996, writ denied). To
determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
principles, in other words, whether the act was arbitrary or unreasonable.
See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.
2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985)[ ]. Merely because a trial court may decide a matter within its
discretion in a different manner than an appellate court would in a similar
circumstance does not demonstrate that an abuse of discretion has
occurred. Downer, 701 S.W.2d at 241-42.
An abuse of discretion does not occur where the trial court bases its
decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.
1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
Furthermore, an abuse of discretion does not occur as long as some
3
Amy preferred having her rights terminated by voluntary relinquishment because of the potential effect
that involuntary termination could have on her in the future. Also, if Nathan’s rights were not
terminated, Amy did not want her rights terminated.
In the Interest of I.R.K.-N. Page 3
evidence of substantive and probative character exists to support the trial
court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002);
Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993,
writ denied). However, a misinterpretation or misapplication of the law
also is an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992).
....
The duty of the trial judge to alter the normal allocation of
peremptory challenges in multiple party cases is set forth in Texas Rule of
Civil Procedure 233. In multiple party litigation, upon the motion of a
party made prior to the exercise of any peremptory challenges, the court
has the duty to equalize the number of peremptory strikes among the
sides. TEX. R. CIV. P. 233. In allocating peremptory challenges when
multiple litigants are involved on one side of a lawsuit, the trial court
must determine whether any of those litigants on the same side are
antagonistic with respect to an issue of fact that the jury will decide.
Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex. 1986) (op. on reh’g.);
Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex. 1986);
Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979); see also TEX.
R. CIV. P. 233. If no antagonism exists, each side must receive the same
number of strikes. Garcia, 704 S.W.2d at 736; Patterson, 592 S.W.2d at 918.
The existence of antagonism is a question of law that is determined
after voir dire and prior to the exercise of the parties’ strikes and is based
upon information gleaned from pleadings, pretrial discovery, information
and representations made during voir dire, and any other information
brought to the trial court’s attention. Scurlock, 724 S.W.2d at 5; Garcia, 704
S.W.2d at 736-37; Patterson, 592 S.W.2d at 919. However, any error in the
trial court’s allocation of jury strikes among the parties must be preserved
by a timely objection. See In re T.E.T., 603 S.W.2d 793, 798 (Tex. 1980);
Patterson, 592 S.W.2d at 921; Tex. Commerce Bank Nat’l Ass’n v. Lebco
Constructors, Inc., 865 S.W.2d 68, 77 (Tex. App—Corpus Christi 1993, writ
denied), overruled on other grounds by Johnson & Higgins of Tex., Inc. v.
Kenneco Energy, Inc., 962 S.W.2d 507, 530 (Tex. 1998). Generally, the
proper time to object to the trial court’s allocation of strikes would be at
the same time that the determination of antagonism by the trial court
should be made—after voir dire and prior to the exercise of the strikes as
so allocated by the court. Lebco Constructors, Inc., 865 S.W.2d at 77.
In re M.N.G., 147 S.W.3d 521, 530-32 (Tex. App.—Fort Worth 2004, pet. denied).
In the Interest of I.R.K.-N. Page 4
The Department asserts that Nate’s complaint about the allocation of peremptory
challenges was untimely because in voir dire Amy’s attorney intimated that Amy might
voluntarily relinquish her parental rights. Nate contends that it was not until Amy’s
testimony that Nate’s rights should be terminated that it became apparent that Amy
and the Department were aligned, and he argues that his complaint was thus timely.
See, e.g., id. at 532-33; Van Allen v. Blackledge, 35 S.W.3d 61, 66-67 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied).
We assume without deciding that Nate’s complaint was timely, but we agree
with the Department that the trial court could have determined that the Department
and Amy were antagonistic with respect to an issue of fact that the jury was to decide—
whether Amy’s rights should be involuntarily terminated. The jury decided that issue
adversely to Amy, and the trial court denied her motions for JNOV and for a new trial;
she now is appealing that verdict. Moreover, the trial court, in denying Nate’s motion
for mistrial, reiterated that the Department and Amy were not allowed to coordinate
their peremptory challenges. In fact, they each struck three of the same venirepersons.
We cannot say that the trial court abused its discretion in denying Nate’s motion for
mistrial, and we overrule his first issue.
Sufficiency of the Evidence: In issues two, three, and four, Nate challenges the
legal and factual sufficiency of the evidence to support the jury’s findings on the
statutory predicate grounds for termination.4 The Department asserts that Nate has not
preserved his sufficiency complaints for appellate review. To preserve a factual-
4
Nate does not challenge the jury’s best-interest finding.
In the Interest of I.R.K.-N. Page 5
sufficiency complaint in a termination case for appellate review, a party must make that
complaint in the trial court in a motion for new trial. In re A.M., 385 S.W.3d 74, 78-79
(Tex. App.—Waco 2012, pet. denied).
We have held that, to preserve for appellate review a legal-sufficiency complaint
in a termination case tried to a jury, a party must make that complaint in the trial court
by: (1) a motion for new trial; (2) a motion for an instructed verdict; (3) an objection to
the submission of a question in the jury charge; (4) a motion for a judgment
notwithstanding the verdict; or (5) a motion to disregard the jury’s answer to a question
in the verdict. In re H.D.B.-M., No. 10-12-00423-CV, 2013 WL 765699, at *8-9 (Tex.
App.—Waco Feb. 28, 2013, pet. denied) (mem. op.); see also In re S.J.T.B., No. 09-12-
00098-CV, 2012 WL 5519208, at *6 (Tex. App.—Beaumont Nov. 15, 2012, no pet.) (mem.
op.); In re D.D.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet.); In re
J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
The record reflects that Nate did not file a motion for new trial to complain of the
factual insufficiency of the evidence and that he did not preserve his legal-sufficiency
complaints in any of the above-described ways. Accordingly, Nate’s issues two, three,
and four are overruled.
Amy did file motions for JNOV and new trial complaining of the legal and
factual sufficiency of the evidence. In her two issues, she challenges the legal and
factual sufficiency of the evidence to support the two endangerment grounds and the
best-interest finding.
The standards of review for legal and factual sufficiency in termination cases are
In the Interest of I.R.K.-N. Page 6
well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal
sufficiency, we view all the evidence in the light most favorable to the finding to
determine whether a trier of fact could reasonably have formed a firm belief or
conviction about the truth of the Department’s allegations. In re J.L., 163 S.W.3d 79, 84-
85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed
evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the
factual sufficiency of the evidence, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. Id. We must
consider the disputed evidence and determine whether a reasonable factfinder could
have resolved that evidence in favor of the finding. Id. If the disputed evidence is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction, the evidence is factually insufficient. Id.
The jury found, and the trial court ordered termination on, the grounds that Amy
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings that endangered the physical or emotional well-being of the child (TEX.
FAM. CODE ANN. § 161.001(1)(D), and that she engaged in conduct or knowingly placed
the child with persons who engaged in conduct that endangered the child’s physical or
emotional well-being (id. § 161.001(1)(E)).
To endanger means to expose to loss or injury, to jeopardize. Texas Dep’t Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269
(Tex. 1996). The specific danger to a child’s physical or emotional well-being need not
In the Interest of I.R.K.-N. Page 7
be established as an independent proposition, but it may be inferred from parental
misconduct. See Boyd, 727 S.W.2d at 533.
When termination of parental rights is based on section D, the
endangerment analysis focuses on the evidence of the child’s physical
environment, although the environment produced by the conduct of the
parents bears on the determination of whether the child’s surroundings
threaten his well-being. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). Section D permits termination if the
petitioner proves parental conduct caused a child to be placed or remain
in an endangering environment. In re R.D., 955 S.W.2d 364, 367 (Tex.
App.—San Antonio 1997, pet. denied).
It is not necessary that the parent’s conduct be directed towards the
child or that the child actually be injured; rather, a child is endangered
when the environment creates a potential for danger which the parent is
aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that
demonstrates awareness of an endangering environment is sufficient to
show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex.
App.—Texarkana 2000, no pet.) (“[I]t is not necessary for [the mother] to
have had certain knowledge that one of the [sexual molestation] offenses
actually occurred; it is sufficient that she was aware of the potential for
danger to the children and disregarded that risk by ... leaving the children
in that environment.”)). In considering whether to terminate parental
rights, the court may look at parental conduct both before and after the
birth of the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston
[1st Dist.] 1997, no pet.). Section D permits termination based upon only a
single act or omission. In re R.D., 955 S.W.2d at 367.
Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied);
see also In re C.W., Jr., No. 14-09-00306, 2009 WL 4694946, at *6 (Tex. App.—Houston
[14th Dist.] 2010, no pet.) (mem. op.).
Under subsection 161.001(1)(E), the relevant inquiry is whether evidence exists
that the endangerment of the child’s physical well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d
215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep't Prot. & Reg.
In the Interest of I.R.K.-N. Page 8
Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ).
Additionally, termination under subsection (E) must be based on more
than a single act or omission; the statute requires a voluntary, deliberate,
and conscious course of conduct by the parent. J.T.G., 121 S.W.3d at 125;
see TEX. FAM. CODE ANN. § 161.001(1)(E). It is not necessary, however, that
the parent’s conduct be directed at the child or that the child actually
suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The
specific danger to the child’s well-being may be inferred from parental
misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129
S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.).
Domestic violence, want of self-control, and propensity for violence may be
considered as evidence of endangerment. See In re B.J.B., 546 S.W.2d 674, 677 (Tex. Civ.
App.—Texarkana 1977, writ ref’d n.r.e.); see also Sylvia M. v. Dallas County Welfare Unit,
771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ) (considering “volatile and
chaotic” marriage, altercation during pregnancy, and mother’s repeated reconciliation
with abusive spouse). Abusive or violent conduct by a parent or other resident of a
child’s home may produce an environment that endangers the physical or emotional
well-being of a child. Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678
(Tex. App.—Fort Worth 1984, writ ref’d n.r.e.); see also In re K.A.S., 131 S.W.3d at 222
(violent or abusive conduct by someone within household is environment that
endangers children).
Amy and Nate met for what Nate said was a “one-night stand” through a mutual
friend; Nate did not know Amy was married at the time. Nate said that he “fell” for
Amy and that when Amy’s husband found out about Nate and that Amy was possibly
pregnant with Nate’s child (Ike), Amy attempted suicide and was hospitalized. Amy’s
In the Interest of I.R.K.-N. Page 9
parents disapproved of Nate and got her an apartment in Katy to get her away from
Nate, but he continued to see her secretly. Amy lived with her five-year-old daughter
Lisa in the apartment. Nate and Amy eventually married in April of 2011, but Amy
testified that she would be filing for divorce once Nate’s parental rights were
terminated.
It is undisputed that domestic violence occurred between Nate and Amy.5 Nate
even admitted that the Department’s intervention was warranted because of their
domestic turmoil. Amy testified to these instances of domestic violence, which
occurred both before and after Ike’s birth:
 Nate choked her and kneed her while she was pregnant with Ike.6 Nate pled
guilty to that offense, but Amy took him back.
 He would not let her out of her bedroom, with Lisa on the other side screaming
for Amy.
 He pushed her to the ground and kicked her a few times, with Lisa watching.
 He held her against her will with a knife to her throat while she was pregnant
with Ike.
 He pushed her up against a wall and caused her to fall.
 He grabbed her by the hair.
 He hit her twice with a closed fist on her forehead while she was holding newly
born Ike.
 He hit her while they were in the car and she was holding Ike.
5
At the time of trial, Nate was in prison serving an eight-year sentence for, among other things, his
offenses against Amy and for evading arrest, assault against a public servant, and attempted aggravated
assault against a public servant.
6
Despite his guilty pleas, Nate denied all of the alleged assaults against Amy, but he did admit to
“shoving and arguing.”
In the Interest of I.R.K.-N. Page 10
 Nate broke into Amy’s apartment by breaking a window; he was cut and got
blood everywhere. He denied breaking in, saying that Amy had given him a key
and that he got cut when he fell into a window because Amy had pushed him.
Amy said that, while pregnant with Ike, she went to the hospital twice to make
sure that he was all right because of all the stress that was occurring with Nate; she also
thought that Ike was born prematurely because of the stress. She also testified that Lisa
has post-traumatic stress disorder from witnessing the domestic violence.
Elizabeth Grissom, a Department investigator, testified that the Department
investigated the family in April of 2012 based on allegations of neglectful supervision of
Lisa and Ike by Amy and Nate; Grissom also said that there were concerns of domestic
violence and that Amy was not being protective of the children. Amy and Nate then
left the area, and Nate was hiding from law enforcement. Nate said that they were in
the process of going to California so that he could make money to fight his criminal
charges and that Amy wanted to go with him and with the children to California so that
CPS could not catch her. Amy testified that she did not want to go to California.
Grissom said that after receiving additional reports that Amy and the children
had not been seen for a while, and given the past domestic violence, law enforcement
made contact with Amy and was able to schedule a meeting with the Department. The
children were removed because the children were “at risk of harm;” the Department
did not think that Amy could adequately protect the children because she kept
returning to Nate after domestic-violence incidents.
In conclusion, considering all the evidence in the light most favorable to the
In the Interest of I.R.K.-N. Page 11
jury’s findings, we hold that a reasonable factfinder could have formed a firm belief or
conviction that Amy’s parental rights should be terminated under subsections
161.001(1)(D) and 161.001(1)(E). And on her factual-sufficiency complaint, after
considering all of the evidence, we hold that a reasonable factfinder could have formed
a firm belief or conviction that her rights should be terminated. The evidence is legally
and factually sufficient to support the jury’s findings that Amy’s parental rights should
be terminated under subsections 161.001(1)(D) and 161.001(1)(E).
In determining the best interest of a child, a number of factors have been
considered, including (1) the desires of the child; (2) the emotional and physical needs
of the child now and in the future; (3) the emotional and physical danger to the child
now and in the future; (4) the parental abilities of the individuals seeking custody; (5)
the programs available to assist these individuals; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not
exhaustive, but simply indicates factors that have been or could be pertinent. Id.
The Holley factors focus on the best interest of the child, not the best interest of
the parent. Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.—Dallas
1995, no writ). The goal of establishing a stable permanent home for a child is a
compelling state interest. Id. at 87. The need for permanence is a paramount
consideration for a child’s present and future physical and emotional needs. In re
S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc).
In the Interest of I.R.K.-N. Page 12
Evidence of past misconduct or neglect can be used to measure a parent’s future
conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet.
denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is
often prologue.”); see also A.M., 385 S.W.3d at 82-83 (concluding that evidence of
mother’s history of neglecting and endangering children by exposing them to domestic
violence supported trial court’s finding that termination was in child’s best interest).
Evidence of a recent improvement does not absolve a parent of a history of
irresponsible choices. In re T.C., No. 10-10-00207-CV, 2010 WL 4983512, at *8 (Tex.
App.—Waco Dec. 1, 2010, pet. denied) (mem. op.); Smith v. Tex. Dep’t Prot. & Reg. Servs.,
160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.)
Ike was four-and-a-half months old when he was removed and was soon placed
with foster parents Ian and Kendra. Christi Palmer, the Department caseworker,
testified that: Ike is bonded to Ian and Kendra; he calls them “Momma” and “Dad;” the
foster parents are very attentive to Ike’s needs; and it is in Ike’s best interest to remain
with the foster parents and for them to adopt him. Kendra testified that Ike has been
with them for the past seventeen of his twenty-one months of life and that they are
willing to adopt him if termination occurred.
Amy testified many times that she thought that it was in Ike’s best interest for
her and Nate’s parental rights to be terminated, though she preferred that her rights be
terminated by voluntary relinquishment. Amy said that it was in Ike’s best interest “to
be right where he is at, because he has a loving family, he has two parents that are—
they’re willing to be there for him, to support him, to make sure he gets the educational
In the Interest of I.R.K.-N. Page 13
needs he needs.” She explained that Ike should stay with Ian and Kendra for his
“safety” and “for him to actually have a chance at having a good life and being able to
nourish and thrive in life.” Amy testified that she wanted Ike to be adopted by Ian and
Kendra so that he does not have to go through what Lisa went through; he is “loved
where he’s at, he has a stable environment and he has a normal routine.”
Amy said that it was her own decision to want Ike to remain with Ian and
Kendra and it was one that “felt like it was in the best interest of [Ike], in my heart.”
She admitted that it would be hard but “it would be what is best for [Ike], even if it
means cutting me out of his life so he can live a happy, healthy life.” Amy also said that
“it would not be the right thing for” Ike to go through being removed from Ian and
Kendra. Amy would like it to be an open adoption and had discussed it with Ian and
Kendra, but she understood that an open adoption could not be assured.
Considering all the evidence in relation to the Holley factors in the light most
favorable to the jury’s finding, we hold that a reasonable factfinder could have formed a
firm belief or conviction that termination was in the child’s best interest. For Amy’s
factual-sufficiency complaint on best interest, after considering all of the evidence, we
hold that a reasonable factfinder could have formed a firm belief or conviction that
termination was in the child’s best interest. The evidence is legally and factually
sufficient to support the jury’s best-interest finding. We overrule Amy’s two issues.
Conservatorship: Based on a jury finding that the Department should be
appointed managing conservator of Ike, the trial court appointed the Department as his
permanent managing conservator. In his fifth and final issue, Nate asserts that the trial
In the Interest of I.R.K.-N. Page 14
court abused its discretion in appointing the Department as Ike’s permanent managing
conservator because there was legally insufficient evidence that returning Ike to Nate
would significantly impair his physical health or emotional development.
In cases where a trial court’s termination of the parent-child
relationship is reversed, a parent is required to independently challenge a
trial court’s finding under section 153.131(a) to obtain reversal of the
conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 616-17 (Tex.
2007); In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied). In this case, however, we have overruled appellant’s
challenge to the termination, and the trial court’s appointment of the
Department as sole managing conservator may be considered a
“consequence of the termination pursuant to Family Code section
161.207.” In re A.S., 261 S.W.3d at 92. Section 161.207, entitled
“Appointment of Managing Conservator on Termination,” provides: “If
the court terminates the parent-child relationship with respect to both
parents or to the only living parent, the court shall appoint a suitable,
competent adult, the Department of Protective and Regulatory Services, a
licensed child-placing agency, or an authorized agency as a managing
conservator of the child.” TEX. FAMILY CODE ANN. § 161.207(a) (West
2008). Appellant provides no authority for the proposition that she is a
“suitable, competent adult” as contemplated by section 161.207(a) or that
the presumption in section 153.131(a) applies to a parent whose parental
rights have been terminated under Chapter 161. See In re A.W.B., No. 14-
11-00926-CV, 2012 WL 1048640, at *7 ((Tex. App.—Houston [14th Dist.]
Mar. 27, 2012, no pet.) (mem.op.). Rather, when a trial court terminates
the parent-child relationship, the court also “divests the parent and the
child of all legal rights and duties with respect to each other.” TEX. FAM.
CODE ANN. § 161.206 (West 2008); A.W.B., 2012 WL 1048640, at *7.
Accordingly, appellant’s challenge to the trial court’s appointment of the
Department as sole managing conservator, rather than appellant, is
without merit.
In re C.L.B., No. 10-13-00203-CV, 2014 WL 702798, at *13 (Tex. App.—Waco Feb. 20,
2014, no pet. h.) (mem op.) (quoting In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325,
at *12 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem op.)).
In the Interest of I.R.K.-N. Page 15
For the same reason, we hold that Nate’s complaint that the trial court abused its
discretion in appointing the Department as permanent managing conservator, rather
than Nate, is without merit. See id. Issue five is overruled.
Having overruled all issues, we affirm the trial court’s order of termination.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 15, 2014
[CV06]
In the Interest of I.R.K.-N. Page 16