In the Interest of D.N.C. (Tex. Feb 8, 2008)(per curiam)(termination of parent's rights)
(award to conservatorship to child protection agency properly reversed along with termination of parental rights in
the absence of independent basis for rebutting parental presumption)
07-0621 IN THE INTEREST OF D.N.C., A CHILD; from Harris County; 1st district (01-04-01232-CV,
227 S.W.3d 799, 12/21/06)
Opinion below: Colbert v. DFPS, 227 S.W.3d 799 (Tex.App.- Houston [1st Dist.] 2006, pet filed.)
Terms: child protection, CPS, DFPS suit, termination of parental rights, natural parent presumption, best interest
Links: Other Texas Supreme Court Opinions in family law cases | 2008 Texas Supreme court opinions
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PER CURIAM
In these five cases, the Department of Family and Protective Services sought termination of Ericka Shanette Colbert’
s parental rights to her seven children, T.J.C., T.D.C., D.N.C., T.L.J., T.B.J., E.D.C., and J.D.M. The trial court found
that Colbert had endangered her children and terminated Colbert’s parental rights under section 161.001(1)(D) of
the Family Code. Making no additional findings, the trial court appointed the Department of Family and Protective
Services as the children’s managing conservator.
On appeal, Colbert challenged the sufficiency of the evidence to support the termination order, but she did not
separately challenge appointment of the Department as the children’s managing conservator. The court of appeals
reversed the termination order on factual insufficiency grounds, and also reversed the trial court’s conservatorship
appointment. 227 S.W.3d 799, 816. The court reasoned that no findings had been made under Family Code
section 153.131[1] that would independently support the conservatorship order, and thus the Department’s
appointment was solely the consequence of the trial court’s termination decision under Family Code section 161.207
[2] and had to be reversed as well. Id.
The Department here contends reversal of the conservatorship order was erroneous under our recent decision in
In the Interest of J.A.J., ___ S.W.3d ___ (Tex. 2007). In J.A.J., however, the Department requested conservatorship
pursuant to Family Code section 153.131 and the trial court made the specific findings that the statute requires:
that appointment of a parent as J.A.J.’s managing conservator would not be in his best interest because it would
significantly impair his physical health or emotional development, and that appointment of the Department was in J.A.
J.’s best interest. Id. at ___. In light of these findings, we emphasized that the differing elements and standards of
review applied to conservatorship and termination orders required separate challenges on appeal. Id. at ___. In this
case, by comparison, the only available statutory mechanism for the Department’s appointment was as a
consequence of the termination pursuant to section 161.207. See Tex. Fam. Code § 161.207. Accordingly, J.A.J.
does not apply, and Colbert’s challenge to the conservatorship appointment was subsumed in her appeal of the
parental-rights termination order.
The Department’s petition for reviews are denied.
Opinion Delivered: February 8, 2008
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[1] Section 153.131 creates a presumption of managing conservatorship in favor of a parent or parents unless the
court finds that such appointment “would not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development.” Tex. Fam. Code § 153.131(a). A finding of
a history of family violence involving a child’s parents removes the presumption that appointment of the child’s
parents is in the child’s best interest. Id. § 153.131(b).
[2] Section 161.207, entitled “Appointment of Managing Conservator on Termination,” provides that the court shall
appoint a suitable managing conservator “[i]f the court terminates the parent-child relationship with respect to both
parents or to the only living parent.” Tex. Fam. Code § 161.207(a).
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THE OTHER CONSOLIDATED CASES
07-0622 IN THE INTEREST OF T.L.J. AND T.B.J., CHILDREN; from Harris County; 1st district (01-04-01233-CV, 227
S.W.3d 799, 12/21/06)
— consolidated with —
07-0623 IN THE INTEREST OF T.J.C. AND T.D.C., CHILDREN; from Harris County; 1st district (01-05-00124-CV,
227 S.W.3d 799, 12/21/06)
— consolidated with —
07-0624 IN THE INTEREST OF E.D.C., A CHILD; from Harris County; 1st district (01-05-00126-CV, 227 S.W.3d 799,
12/21/06)
— consolidated with —
07-0625 IN THE INTEREST OF J.D.M., A CHILD; from Harris County; 1st district (01-05-00127-CV, 227 S.W.3d 799,
12/21/06)