in the Interest of D.N. and D.N., Children

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00508-CV

IN THE INTEREST OF D.N. AND D.N., CHILDREN

On Appeal from the 84th District Court Hansford County, Texas Trial Court No. CV05034, Honorable William D. Smith, Presiding

May 9, 2013

DISSENTING OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, the mother of two girls, appeals the trial court’s judgment terminating

her parental rights. She challenges the sufficiency of the evidence supporting the

court’s findings on the predicate grounds under Family Code § 161.001(1) and its best

interest finding under § 161.001(2).

The Court concludes that the trial court’s judgment cannot be affirmed by

reference to evidence appellant committed an act listed under § 161.001(1) before the

August 2011 date of the previous order denying termination of her parental rights,

because the trial court’s judgment does not state there was a material and substantial change in the circumstances of a party since the date of that previous order. See Tex.

Fam. Code Ann. § 161.004(a)(2) (West 2008). To reach that conclusion, the Court

relies on In re J.R.S., 232 S.W.3d 278 (Tex.App.—Fort Worth 2007, no pet.);

Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244

(Tex.App.—Houston [1st Dist.] 2006, no pet.); and Vasquez v. Tex. Dep’t of Protective

& Regulatory Servs., 190 S.W.3d 189 (Tex.App.—Houston [1st Dist.] 2005, pet.

denied). I do not quarrel with the cited holdings of those cases, but they each deal with

trial court findings concerning the predicate grounds § 161.001(1). See In re J.R.S.,

232 S.W.3d at 284-85; Cervantes-Peterson, 221 S.W.3d at 250-52; Vasquez, 190

S.W.3d at 194. That is not our circumstance here. The trial court’s judgment contains

affirmative findings on all the predicate grounds under § 161.001(1) on which the

Department relies on appeal. The absent finding concerns the applicability of §

161.004, which does not contain the explicit requirement of a “finding” that courts have

found applicable to the predicate grounds under § 161.001(1). See Cervantes-

Peterson, 221 S.W.3d at 251 (citing §§ 161.001(1), 161.206).

A panel of this court recently addressed a circumstance in which the trial court

relied for termination on evidence of predicate grounds that predated a previous order

denying termination. In re N.R.T., 338 S.W.3d 667 (Tex.App.—Amarillo 2011, no pet.)

We affirmed the judgment despite the absence of findings on the requirements of §

161.004(a). Id. at 678. The judgment in N.R.T. followed a bench trial, while the case

here was submitted to a jury. The charge instructed the jury it must find one of the

predicate grounds under § 161.001(1), but did not contain an instruction with regard to

the requirements of § 161.004(a). The ultimate issue on termination was submitted in

2 broad form. See Texas Dep’t of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.

1990) (op. on reh’g). I would apply an approach to the applicability of § 161.004(a) here

similar to that we applied in N.R.T.

The Department argues the judgment of termination in this case should be

affirmed on the basis of predicate grounds existing prior to the date of the August 2011

agreed order that denied termination of parental rights, via § 161.004. I agree with the

Department that the trial court’s judgment should be affirmed. Because the Court

instead reverses the trial court’s judgment, I respectfully dissent.

James T. Campbell Justice