D.M.K. and S.M. v. Department of Family and Protective Services and J.S. and B.S. ( 2024 )

Reversed and Rendered in Part, Affirmed in Part and Memorandum Opinion
filed October 10, 2024.
In The
Fourteenth Court of Appeals
NO. 14-24-00276-CV
D.M.K. AND S.M., Appellants
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES AND J.S.
AND B.S., Appellees
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-01130J
MEMORANDUM OPINION
This accelerated appeal arises from a final order in which, after a final
hearing tried to the bench, the trial court terminated the parental rights of appellant
D.M.K. (Mother) with respect to her son, Sam, 1 and appointed intervenors J.S. and
B.S. (Foster Parents) to be Sam’s sole managing conservators. See Tex. Fam. Code
1
To protect the minor’s identity, we do not use the actual names of the child, parents, or
other family members. See Tex. R. App. P. 9.8.
Ann. § 109.002(a-1) (accelerated appeals in parental-termination cases); Tex. R.
App. P. 28.4 (same). 2
In three issues, Mother argues: (1) the trial court “abused its discretion by
remaining in trial for 2 years, 8 months, and 13 days”; (2) the evidence was legally
and factually insufficient to support termination under Family Code
section 161.001(b)(1)(E); and (3) the trial court erred by naming Foster Parents as
the sole managing conservators instead of S.M.—Sam’s maternal grandmother
(Grandmother). Mother does not challenge termination of her parental rights
pursuant to subsection (N) and (O),
In two issues, Grandmother—who filed a separate notice of appeal from
Mother—argues that (1) the trial court erred by naming Foster Parents as the sole
managing conservators instead of Grandmother; and (2) Foster Parents failed to
provide disclosures in the proceedings below.
The State agrees with Mother that the evidence does not support terminating
her parental rights under subsection (E), therefore we reverse the order of the trial
court in part, and render the judgment the trial court should have rendered, striking
the conclusion that the evidence was sufficient to support termination under
subsection (E). We affirm the remainder of the order as challenged on appeal.
I. BACKGROUND
In July 2020, appellee Department of Family and Protective Services (the
Department) filed its first amended petition, requesting the termination of Mother’s
and Father’s parental rights as to Sam, who was approximately two years old at the
time.
2
The trial court also terminated the parental rights of Sam’s father, J.T.M (Father). He
filed an acknowledgment of paternity, but he has not appealed the termination of his parental
rights.
2
A bench trial commenced on July 14, 2021. In August 2021, Grandmother
filed a motion to intervene, requesting sole managing conservatorship or,
alternatively, possessory conservatorship or grandparent access to Sam. The trial
court granted Grandmother’s motion to intervene. Over the next two years, Sam
was placed with an initial foster family, then Foster Parents, and then a third foster
family. On April 12, 2023, the trial court ordered that Sam be placed with
Grandmother and that Grandmother not permit Mother to contact Sam. Several
days later, Foster Parents filed a motion to intervene, seeking to adopt Sam; the
trial court granted their motion to intervene.
On March 27, 2024, the trial court signed its final order of termination,
making the predicate findings to terminate Mother’s parental rights to Sam
pursuant to subsections (E), (N), and (O), and finding that termination of Mother’s
parental rights was in Sam’s best interest. See Tex. Fam. Code Ann.
§§161.001(b)(1)(E), (N), and (O). The trial court appointed Foster Parents as
Sam’s sole managing conservators and ordered that Grandmother have
“Grandparent Access” with Sam. Mother and Grandmother filed timely notices of
appeal.
II. ANALYSIS
A. Length of the trial
In her first issue, Mother argues that the trial court “lost subject matter
jurisdiction by remaining in trial for two years, eight months, and 13 days contrary
to the intent of Texas Family Code Section 263.401.” In termination cases, a trial
must commence by the first Monday following the one-year anniversary of the
court first awarding the Department conservatorship of the child:
Unless the court has commenced the trial on the merits or granted an
extension under Subsection (b) or (b-1), on the first Monday after the
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first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, the
court’s jurisdiction over the suit affecting the parent-child relationship
filed by the department that requests termination of the parent-child
relationship or requests that the department be named conservator of
the child is terminated and the suit is automatically dismissed without
a court order. Not later than the 60th day before the day the suit is
automatically dismissed, the court shall notify all parties to the suit of
the automatic dismissal date.
Tex. Fam. Code Ann. § 263.401(a). A trial court’s failure to timely commence the
suit results in the trial court losing subject-matter jurisdiction, unless the court
grants a timely extension. Id. § 263.401(b). Thus, section 263.401 only requires
that trial on the merits begin by a certain date; it imposes no specific deadline by
which a final order must be rendered.3
Mother admits that the trial court timely commenced trial in accordance with
§ 263.401, but she complains that the length of the trial below violated the intent of
the statute. However, the plain language of the statute places no limit on the length
of trial, just as long as it commences in a timely fashion. Id. Additionally, we note
that Mother never complained below about the length of the trial or otherwise
request that the proceedings be expedited. See Tex. R. App. P. 33.1(a)
(preservation of appellate complaints).
We overrule Mother’s first issue.
3
In 2021, the legislature enacted section 263.4011, which provides that “the court shall
render a final order not later than the 90th day after the date the trial commences.” Tex. Fam.
Code Ann. § 263.4011. However, its effective date was September 1, 2021, and it only applies to
suits filed by the Department “on or after the effective date.” Act of Apr. 28, 2021, 87th Leg.,
R.S., ch. 8, §§ 10, 15, 16, 2021 Tex. Gen. Laws 10, 15, 18. Because the Department filed its suit
in the present case in 2020, section 263.4011 is not applicable to the present case, and thus there
was no applicable requirement at the time to render a final order within 90 days of commencing
trial.
4
B. Predicate termination grounds
In her second issue, Mother argues that the evidence was legally- and
factually-insufficient to support termination under subsection (E) of section
161.001(b)(1). Tex. Fam. Code Ann. § 161.001(b)(1)(E). Mother does not,
however, challenge her termination under (N) and (O), but the Department agrees
with Mother that termination under subsection (E) was improper. Tex. Fam. Code
Ann. § 161.001(b)(1)(N), (O), (E).
Accordingly, we sustain Mother’s second issue.
C. Conservatorship determination
In her third issue, Mother challenges the trial court’s conservatorship
determination. However, as noted above, Mother did not challenge every ground
supporting the trial court’s order terminating her parental rights. “[A]n order
terminating the parent-child relationship divests the parent and the child of all legal
rights and duties with respect to each other, except that the child retains the right to
inherit from and through the parent unless the court otherwise provides.” Tex.
Fam. Code Ann. § 161.206(b). Therefore, Mother has no legal interest in Sam and
lacks standing to challenge the conservatorship determination. See In re H.M.M.,
230 S.W.3d 204, 205 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding
that parent lacked standing on appeal to challenge the trial court’s conservatorship
determination of child because parent did not contest termination of her parental
rights).
We overrule Mother’s third issue.
D. Participation of foster parents in the termination proceedings
In Grandmother’s first issue on appeal, she argues the trial court abused its
discretion by allowing Foster Parents to participate in the termination proceedings
5
because: (1) no petition for intervention was filed following the granting of the
approval of the motion for leave to file petition; (2) counsel for Foster Parents
waived participation in the termination portion of the trial; (3) Foster Parents failed
to file timely disclosures; and (4) Foster Parents had no request for affirmative
relief on file.
Regarding Grandmother’s first contention, the record clearly demonstrates
that Foster Parents filed a petition for intervention, followed by a motion for leave
to file petition several days later. Nevertheless, Grandmother implies that Foster
Parents were required to re-file their petition for intervention after the trial court
granted their motion for leave to file a petition. 4 Grandmother cites no law to
support this proposition. See Tex. R. App. P. 38.1(i) (appellant’s brief must contain
appropriate citations to authorities). Therefore, we find Grandmother’s argument to
be without merit.
Concerning her second contention, it is true that counsel for Foster Parents
stated in their original appearance that “we’re not going to participate in the
termination part because we’re here for the adoption proceedings; so I would just
waive our participation for the termination portion.” However, once Foster Parents
began asking questions and participating at trial, no objections were made by any
party. Because this issue was never brought to the trial court’s attention, it has not
been preserved for appellate review. Tex. R. App. P. 33.1(a).
In her third challenge to the Foster Parents’ participation at trial,
Grandmother asserts that the Foster Parents failed to file timely disclosures.
However, none of the exhibits offered—nor the witnesses called—by Foster
4
Additionally, we note that Grandmother did the same thing as the Foster Parents: she
filed her original petition for intervention before the trial court had actually granted her motion
for leave to file a petition.
6
Parents were objected to on the basis of lack of disclosure. Because Grandmother
never brought this complaint to the trial court’s attention, this issue has not been
preserved for appellate review. Tex. R. App. P. 33.1(a).
In Grandmother’s fourth contention, she claims that Foster Parents did not
file for affirmative relief. However, Foster Parents’ petition for intervention
specifically requested that they be appointed as sole managing conservators. The
record does not support Grandmother’s argument.
Accordingly, we conclude the trial court did not abuse its discretion in
allowing Foster Parents to participate in the proceedings below. We overrule
Grandmother’s first issue.
E. The trial court’s conservatorship determination
In Grandmother’s second issue, she argues that the trial court abused its
discretion in naming Foster Parents as the sole managing conservators of Sam
More specifically, Grandmother contends that it was in Sam’s best interest to be
placed with her, a preferential relative, over a nonrelative foster family.
1. Standard of review and applicable law
“The best interest of the child shall always be the primary consideration of
the court in determining the issues of conservatorship[.]” Tex. Fam. Code Ann.
§ 153.002. However, termination of parental rights and appointment of a nonparent
as sole managing conservator are two distinct issues, differing in elements,
standards of proof, and standards of review. Compare Tex. Fam. Code. Ann.
§ 161.001 with Tex. Fam. Code Ann. § 153.131(a); see also In re J.A.J., 243
S.W.3d 611, 615–17 (Tex. 2007).
Unlike the clear-and-convincing standard necessary to support termination
of parental rights, the facts necessary to appoint a nonparent as sole managing
7
conservator need only be established by a mere preponderance of the evidence. See
Tex. Fam. Code Ann. § 105.005; J.A.J., 243 S.W.3d at 616. Likewise, the standard
of review for the appointment of a nonparent as sole managing conservator is only
for an abuse of discretion, which is less stringent than the standard of review for
termination of parental rights. J.A.J., 243 S.W.3d at 616. Therefore, the trial
court’s appointment of a nonparent as sole managing conservator is reversed only
if we determine the appointment is arbitrary or unreasonable. Id.
In determining whether the trial court abused its discretion,
we apply a hybrid abuse-of-discretion analysis to determine whether
the trial court (1) had sufficient information on which to exercise its
discretion, and (2) erred in its application of discretion. Thus, legal
and factual insufficiency are not independent grounds for reversal, but
instead are factors to be considered in determining whether the trial
court abused its discretion.
In re C.A.M.M., 243 S.W.3d 211, 220 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied) (internal citations omitted).
To determine if the evidence is legally sufficient, we review the entire
record, considering evidence favorable to the finding if a reasonable fact-finder
could, and disregarding evidence contrary to the finding unless a reasonable
fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex. 2005).
The evidence is factually insufficient if the finding is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 773 (Tex. 2003).
Finally, after assessing the sufficiency of the evidence, we determine
whether, based on the elicited evidence, the trial court made a reasonable decision.
C.A.M.M., 243 S.W.3d at 221.
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2. Application
Grandmother asserts that the trial court erred by placing Sam with Foster
Parents because it was in Sam’s best interest to be placed with her, “an available
preferential relative.” It is true that relatives are generally preferred over
nonrelatives as potential placement options, but that preference is not absolute:
[i]f the court does not order possession of a child by a parent,
managing conservator, possessory conservator, guardian, caretaker, or
custodian . . . the court shall place the child with a relative of the child
unless the court finds that the placement with a relative is not in the
best interest of the child.
Tex. Fam. Code Ann. § 262.201 (emphasis added). In this case, the trial court
specifically determined that it was in the best interests of Sam to appoint Foster
Parents, not Grandmother, as the sole managing conservators.
In determining the best interest of a child, a court may consider, among other
things: (1) the child’s desires; (2) the child’s emotional and physical needs now
and in the future; (3) any emotional and physical danger to the child now and in the
future; (4) the parental abilities of the individuals seeking primary possession; (5)
the programs available to assist these individuals to promote the child’s best
interest; (6) the plans for the child by those seeking primary possession; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the parent
which may indicate that the existing parent-child relationship is not a proper one;
and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976).
Evidence in support of trial court’s determination
When Grandmother was being initially investigated as a potential placement
option for Sam, Grandmother contacted the Department to inform them that she
could not take care of Sam due to health issues. Thus, there were concerns about
9
her ability to provide long-term care for Sam given Grandmother’s deteriorating
health.
The Department was also concerned because Grandmother admitted that if
she were granted custody of Sam, she wanted Mother to help her take care of Sam,
despite Sam being removed from Mother’s care in the first place because Mother
and her boyfriend repeatedly exposed Sam to drug abuse, physical violence, and
domestic abuse. Similarly, Grandmother gave Sam to Mother’s boyfriend during
the investigation phase despite the allegations of domestic violence and substance
abuse by the boyfriend, and thus there were concerns that giving Grandmother sole
managing conservatorship would expose Sam to more domestic violence and
abuse.
There was also evidence that offered points of contrast between
Grandmother’s and Foster Parents’ home environments. Mother alleged that
Grandmother was abusive and overused prescriptions pills and alcohol, although
she later recanted those allegations. Meanwhile, the Department had no concerns
with placing Sam with Foster Parents and noted that Sam bonded with them and
Foster Parents’ own children. Foster Parents took Sam to doctor’s appointments
and therapy, and on a family camping trip. Sam referred to Foster Parents as “Mom
and Dad,” and Sam was always sad when he had to leave Foster Parents’ house.
There was also testimony from caseworkers and therapists concerning the
best interests of Sam. After Sam was initially placed with Foster Parents,
Grandmother received visitation rights with Sam. But after the first visit with
Grandmother, Sam’s demeanor changed, he became more clingy, and he began
having night terrors. Foster Parents took Sam to a play therapist, who ultimately
recommended that Sam remain with Foster Parents for stability.
Caseworker Kyle Sanders recommended placement with Foster Parents:
10
“Based on my interactions with [Sam] and both caregivers and both of their homes,
from what I’ve witnessed and the interactions with [Sam], it appears his emotional
stability was a little more stable at the [Foster Parents’ home.]” 5 Sanders admitted
the Department had no initial concerns placing Sam with Grandmother. However,
by the time of the final determination of conservatorship, the Department had
developed concerns of “instability, [and] the potential of [Mother] coming back
into play.” Sanders elaborated that by instability, the Department was mostly
referring to conflicts that arose between Grandmother and Sam’s therapist because
Grandmother believed the therapist was biased against her.
Sanders testified that the Department was further concerned because of
Sam’s pattern of behavior around Grandmother. In addition to the night terrors,
when Sam was around Grandmother, he exhibited increased defiance, paid less
attention, and on numerous occasions, Sam would “act like a cat . . . literally acting
like an animal, like purring, licking his hands, and batting things like a cat. . . .
[and] crawl[ing] on top of the couch like a cat[.]” Sanders found this troubling
because this behavior “wasn’t able to be stopped[,] and Grandmother did not seem
to be troubled by the behavior when confronted about it.”
Grandmother filed a motion requesting that the trial court conduct an
in-chamber interview with Sam before making its final conservatorship
determination. Sam was approximately five years old at this point. The trial court
granted the motion and interviewed Sam. Sam’s interview with the trial court is not
in the record; however, the trial court was able to consider Sam’s self-expressed
desires in making its determination.
5
Although the Department recommended Sam be permanently placed with Foster
Parents during the proceedings below, we note that in its appellate brief, the Department “takes
no position on the disputed permanent placement [of Sam.]” The Department alleges it has no
position because it already received the primary relief it was seeking: the termination of
Mother’s rights and the naming of a conservator.
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On this record, we cannot conclude that the trial court had
factually-insufficient evidence upon which to exercise its discretion or erred in its
application of this discretion. To the contrary, the record supports the trial court’s
determination that naming Foster Parents as the sole managing conservators was in
Sam’s best interest. Likewise, the evidence is legally sufficient to support the trial
court’s decision. Accordingly, we overrule Grandmother’s second issue.
III. CONCLUSION
We reverse the portion of the final order of the trial court with respect to the
conclusion that the evidence was sufficient to support termination on the predicate
ground of Family Code Section 161.001(b)(1)(E), and we render the judgment the
trial court should have rendered, with the result that we strike the conclusion that
the evidence was sufficient to support termination under subsection (E).
We affirm the remaining portion of the final order as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Spain, Poissant, and Wilson.
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