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



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

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

[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).



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)