In re J.A.J.

• Citation: 243 S.W.3d 611
• Decision Date: 02 November 2007
• Docket Number: No. 07-0511.,07-0511.
• Parties: In the Interest of. J.A.J., A Child,
• Court: Supreme Court of Texas

243 S.W.3d 611

In the Interest of. J.A.J., A Child,

No. 07-0511.

Supreme Court of Texas.

November 2, 2007.

Rehearing Denied February 8, 2008.

Michael A. Stafford, Harris County Atty., Sandra D. Hachem, Harris County Sr. Asst. Atty., and Francesca Anna Aguirre-Saldana, Houston, for Petitioner.

Evan B. Glick, William B. Connolly and William Leslie Shireman, William B. Connolly & Associates, Houston, for Respondent.

Thomas D. Montgomery, Houston, for Party In Interest.

William M. Thursland, Law Office of William M. Thursland, Houston, for Party In Interest.

Justice O'NEILL delivered the opinion of the Court.

In this case, the trial court terminated a mother's parental rights to her child and appointed the Department of Family and Protective Services¹ the child's sole managing conservator, finding that appointment of a parent as the child's conservator would significantly impair his physical health or emotional development. The mother claimed on appeal that the evidence was insufficient to support the termination decision, but she did not assign error to the conservatorship appointment. The court of appeals determined the evidence to be insufficient to support termination under section 161.001(1)(D) and (E) of the Texas Family Code and reversed the trial court's judgment, including that portion appointing the Department as the child's conservator. 225 S.W.3d 621, 631-32. We must decide the effect of a termination judgment's reversal on an unchallenged conservatorship appointment when the trial court finds that appointing a parent as conservator would significantly impair the child's physical health or emotional development, and that appointment of the Department is in the child's best interest, an issue on which our courts of appeals are divided. We conclude that reversal of a termination judgment in these circumstances does not affect the trial court's conservatorship appointment absent assigned error. Accordingly, we reverse that portion of the court of appeals' judgment that reverses the trial court's appointment of the Department as the child's sole managing conservator.

I

In 2003, the Department filed a "Petition for Protection of a Child, Conservatorship, and for Termination in Suit Affecting Parent-Child Relationship" based on allegations that J.A.J. had been abused. In Section 13 of the form complaint, the Department requested that it be appointed J.A.J.'s sole managing conservator "[p]ursuant to [Texas Family Code] §§ 153.005 and 263.404." Citing section 151.131 of the Family Code, the Department contended that appointment of a parent would not be in J.A.J.'s best interest because it "would significantly impair the [child's] physical health or emotional development.". The Department requested termination of Angeline Jackson's and an unknown father's parental rights.

After a bench trial, the trial court found by clear and convincing evidence that Jackson had knowingly placed or allowed J.A.J. to remain in conditions that endangered his well-being, and engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered him. It also found by clear and convincing evidence that termination of the parent-child relationship was in J.A.J.'s best interest. The court further found that appointment of a parent as J.A.J.'s managing conservator would not be in his best interest

because the appointment would significantly impair the child's physical health or emotional development; and (2) it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator.

The court, determining that it would be in the child's best interest, appointed the Department as J.A.J.'s sole managing conservator.

Jackson appealed the judgment terminating her parental rights, contending the evidence was legally and factually insufficient to support termination under section 161.001(1) of the Family Code.² The court of appeals agreed, and reversed the trial court's judgment terminating Jackson's parental rights. 225 S.W.3d at 631. Although Jackson did not separately challenge the trial court's findings supporting designation of the Department as J.A.J.'s conservator, the court of appeals also reversed that portion of the trial court's decree. Id. at 631-32.³ On appeal to this Court, the Department challenges only the portion of the court of appeals' judgment that reverses its appointment as J.A.J.'s managing conservator, arguing that the reversal was improper because error was not assigned. We grant the Department's petition for review to resolve a conflict among the courts of appeals concerning whether it is necessary to specifically assign error to the Department's appointment as conservator when a judgment terminating parental rights is reversed.⁴

II

We begin our analysis by examining the relevant statutory provisions. Sections 153.002, 153.005, and 153.131 of the Texas Family Code outline the general standards for determining conservatorship. TEX. FAM.CODE §§ 153.002, 153.005, 153.131. Section 153.002 provides that the primary consideration in determining issues of conservatorship and possession of and access to the child is always the child's best interest. Id. § 153.002. Section 153.005 authorizes the appointment of a managing conservator, and provides that the managing conservator must be "a parent, a competent adult, an authorized agency, or a licensed child-placement agency." Id. § 153.005. The Code creates a rebuttable presumption that a parent will be named a child's managing conservator, unless the court finds that such appointment would not be in the child's best interest "because the appointment would significantly impair the child's physical health or emotional development" or finds that there is a history of family violence involving the parents. Id. § 153.131. If the court terminates the parents' rights, the court must appoint a suitable, competent adult, the Department, a licensed child-placing agency, or an authorized agency, as the child's managing conservator. Id. § 161.207.

Section 263.404 of the Family Code allows the court to render a final order appointing the Department as the Child's conservator without terminating parental rights if the court finds that (1) a parent's appointment would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development, and (2) appointment of a relative of the child or another person would not be in the child's best interest. Id. § 263.404(a). In deciding whether to appoint the Department without terminating the parents' rights, the court must take the following factors into consideration:

(1) that the child will reach 18 years of age in not less than three years;

(2) that the child is 12 years of age or older and has expressed a strong desire against termination or being adopted;

(3) that the child has special medical or behavioral needs that make adoption of the child unlikely; and

(4) the needs and desires of the child.

Id. § 263.404(b).

Jackson contends that section 263.404 applies only when the Department does not seek to terminate parental rights in the trial court proceedings and is thus inapplicable when, as here, termination is sought and obtained but is later reversed on appeal. In such an instance, Jackson argues, the trial court's appointment of the Department is necessarily a consequence of the termination proceedings and is not independently supportable. We agree that section 263.404 does not apply when the trial court's order terminates parental rights, but disagree that the Department was appointed in this case solely as a consequence of the termination proceedings.

The Family Code contains a number of provisions that govern conservatorship, the proper application of which turns on whether or not the trial court orders termination. Sections 161.205 and 263.404 apply, by their terms, to instances in which the trial court denies termination. Section 161.205, entitled "Order Denying Termination," provides that, "[i]f the court does not order termination of the parent-child relationship, the court shall: (1) deny the petition; or (2) render any order in the best interest of the child." Id. § 161.205 (emphasis added). Section 263.404, which is entitled "Final Order Appointing Department as Managing Conservator Without Terminating Parental Rights," allows the court to appoint the Department as the child's conservator "without terminating the rights of the parent of the child" if the court makes the findings the statute requires. Id. § 263.404 (emphasis added). By their plain language, these sections apply only when the trial court does not order termination of the parent-child relationship, and for that reason they have no application here.

In this case, though, the Department sought appointment as J.A.J.'s conservator on alternate grounds, presumably because it could not know for certain what the trial court's final order would be. The Department also requested conservatorship pursuant to sections 153.005 and 153.131. Section 153.005 provides generally that in a suit affecting the parent-child relationship, "the court may appoint a sole managing conservator or may appoint joint managing conservators." Id. § 153.005. The Family Code presumes that a parent should be appointed the child's managing conservator "unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(1). Here, the trial court terminated Jackson's parental rights with respect to J.A.J. and found 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. It also found that appointment of the Department as managing conservator was in...