in the Interest of I.R.K.-N., a Child

• Court: Court of Appeals of Texas
• Decided: May 15, 2014
• Docket: 10-13-00455-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00455-CV

IN THE INTEREST OF I.R.K.-N., A CHILD

From the 335th District Court Burleson County, Texas Trial Court No. 27,007

MEMORANDUM OPINION

Raising two issues, Appellant A.B. (alias Amy)1 challenges the trial court’s order

of termination of her parental rights to I.R.K.-N. (alias Ike).2 Raising five issues,

Appellant N.N. (alias Nate) also challenges the trial court’s order of termination of his

parental rights to Ike. We will affirm.

In a proceeding to terminate the parent-child relationship brought under section

161.001, the Department must establish by clear and convincing evidence two elements:

(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,

termed a predicate violation; and (2) that termination is in the best interest of the child.

1 See TEX. R. APP. P. 9.8. 2 L.K. (alias Lisa), another of Amy’s children but of a different father, was originally a subject of this proceeding, but before trial Lisa was returned to Amy. TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2013); Swate v. Swate, 72 S.W.3d 763,

766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements

are established by clear and convincing evidence, and proof of one element does not

relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d

367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under

section 161.001(1) were found in the trial court, we will affirm based on any one ground

because only one predicate violation under section 161.001(1) is necessary to a

termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet.

denied), overruled in part on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.—

Waco 2012, pet. denied).

After a jury trial and based on the jury’s findings, the trial court found the

following predicate violations as grounds for termination of Amy’s and Nate’s parental

rights: (1) that they knowingly placed or knowingly allowed the child to remain in

conditions or surroundings that endangered the physical or emotional well-being of the

child (TEX. FAM. CODE ANN. § 161.001(1)(D)); and (2) that they engaged in conduct or

knowingly placed the child with persons who engaged in conduct that endangered the

child’s physical or emotional well-being (id. § 161.001(1)(E)).

Termination of Nate’s parental rights was also based on the jury’s findings that:

(3) Nate failed to comply with provisions of a court order specifically establishing the

actions necessary for the parent to obtain return of the child (id. § 161.001(1)(O)); and (4)

Nate knowingly engaged in criminal conduct that has resulted in his conviction of an

offense and confinement or imprisonment and inability to care for the child for not less

In the Interest of I.R.K.-N. Page 2 than two years from the date of the filing of the petition (id. § 161.001(1)(Q)). Based on

the jury’s findings, the trial court also found that termination of Amy’s and Nate’s

parental rights was in the child’s best interest.

Mistrial: We begin with Nate’s first issue, which asserts that the trial court

abused its discretion by denying Nate’s motion for mistrial, which was made after

Amy’s testimony that Nate’s parental rights should be terminated and that if they were,

she would voluntarily relinquish her parental rights to Ike so that he could be adopted.3

The basis for Nate’s mistrial motion was that the Department and Amy were not

antagonistic and were aligned to have Nate’s parental rights terminated, and therefore

the peremptory challenges given to each party resulted in a materially unfair trial to

Nate.

We review the trial court’s denial of [a] motion for mistrial under an abuse of discretion standard. In re J.A., 109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied); City of Jersey Village v. Campbell, 920 S.W.2d 694, 698 (Tex. App.—Houston [1st Dist.] 1996, writ denied). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles, in other words, whether the act was arbitrary or unreasonable. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)[ ]. Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 241-42.

An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Furthermore, an abuse of discretion does not occur as long as some 3 Amy preferred having her rights terminated by voluntary relinquishment because of the potential effect that involuntary termination could have on her in the future. Also, if Nathan’s rights were not terminated, Amy did not want her rights terminated.

In the Interest of I.R.K.-N. Page 3 evidence of substantive and probative character exists to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). However, a misinterpretation or misapplication of the law also is an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

....

The duty of the trial judge to alter the normal allocation of peremptory challenges in multiple party cases is set forth in Texas Rule of Civil Procedure 233. In multiple party litigation, upon the motion of a party made prior to the exercise of any peremptory challenges, the court has the duty to equalize the number of peremptory strikes among the sides. TEX. R. CIV. P. 233. In allocating peremptory challenges when multiple litigants are involved on one side of a lawsuit, the trial court must determine whether any of those litigants on the same side are antagonistic with respect to an issue of fact that the jury will decide. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex. 1986) (op. on reh’g.); Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex. 1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979); see also TEX. R. CIV. P. 233. If no antagonism exists, each side must receive the same number of strikes. Garcia, 704 S.W.2d at 736; Patterson, 592 S.W.2d at 918.

The existence of antagonism is a question of law that is determined after voir dire and prior to the exercise of the parties’ strikes and is based upon information gleaned from pleadings, pretrial discovery, information and representations made during voir dire, and any other information brought to the trial court’s attention. Scurlock, 724 S.W.2d at 5; Garcia, 704 S.W.2d at 736-37; Patterson, 592 S.W.2d at 919. However, any error in the trial court’s allocation of jury strikes among the parties must be preserved by a timely objection. See In re T.E.T., 603 S.W.2d 793, 798 (Tex. 1980); Patterson, 592 S.W.2d at 921; Tex. Commerce Bank Nat’l Ass’n v. Lebco Constructors, Inc., 865 S.W.2d 68, 77 (Tex. App—Corpus Christi 1993, writ denied), overruled on other grounds by Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 530 (Tex. 1998). Generally, the proper time to object to the trial court’s allocation of strikes would be at the same time that the determination of antagonism by the trial court should be made—after voir dire and prior to the exercise of the strikes as so allocated by the court. Lebco Constructors, Inc., 865 S.W.2d at 77.

In re M.N.G., 147 S.W.3d 521, 530-32 (Tex. App.—Fort Worth 2004, pet. denied).

In the Interest of I.R.K.-N. Page 4 The Department asserts that Nate’s complaint about the allocation of peremptory

challenges was untimely because in voir dire Amy’s attorney intimated that Amy might

voluntarily relinquish her parental rights. Nate contends that it was not until Amy’s

testimony that Nate’s rights should be terminated that it became apparent that Amy

and the Department were aligned, and he argues that his complaint was thus timely.

See, e.g., id. at 532-33; Van Allen v. Blackledge, 35 S.W.3d 61, 66-67 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied).

We assume without deciding that Nate’s complaint was timely, but we agree

with the Department that the trial court could have determined that the Department

and Amy were antagonistic with respect to an issue of fact that the jury was to decide—

whether Amy’s rights should be involuntarily terminated. The jury decided that issue

adversely to Amy, and the trial court denied her motions for JNOV and for a new trial;

she now is appealing that verdict. Moreover, the trial court, in denying Nate’s motion

for mistrial, reiterated that the Department and Amy were not allowed to coordinate

their peremptory challenges. In fact, they each struck three of the same venirepersons.

We cannot say that the trial court abused its discretion in denying Nate’s motion for

mistrial, and we overrule his first issue.

Sufficiency of the Evidence: In issues two, three, and four, Nate challenges the

legal and factual sufficiency of the evidence to support the jury’s findings on the

statutory predicate grounds for termination.4 The Department asserts that Nate has not

preserved his sufficiency complaints for appellate review. To preserve a factual-

4 Nate does not challenge the jury’s best-interest finding.

In the Interest of I.R.K.-N. Page 5 sufficiency complaint in a termination case for appellate review, a party must make that

complaint in the trial court in a motion for new trial. In re A.M., 385 S.W.3d 74, 78-79

(Tex. App.—Waco 2012, pet. denied).

We have held that, to preserve for appellate review a legal-sufficiency complaint

in a termination case tried to a jury, a party must make that complaint in the trial court

by: (1) a motion for new trial; (2) a motion for an instructed verdict; (3) an objection to

the submission of a question in the jury charge; (4) a motion for a judgment

notwithstanding the verdict; or (5) a motion to disregard the jury’s answer to a question

in the verdict. In re H.D.B.-M., No. 10-12-00423-CV, 2013 WL 765699, at *8-9 (Tex.

App.—Waco Feb. 28, 2013, pet. denied) (mem. op.); see also In re S.J.T.B., No. 09-12-

00098-CV, 2012 WL 5519208, at *6 (Tex. App.—Beaumont Nov. 15, 2012, no pet.) (mem.

op.); In re D.D.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet.); In re

J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

The record reflects that Nate did not file a motion for new trial to complain of the

factual insufficiency of the evidence and that he did not preserve his legal-sufficiency

complaints in any of the above-described ways. Accordingly, Nate’s issues two, three,

and four are overruled.

Amy did file motions for JNOV and new trial complaining of the legal and

factual sufficiency of the evidence. In her two issues, she challenges the legal and

factual sufficiency of the evidence to support the two endangerment grounds and the

best-interest finding.

The standards of review for legal and factual sufficiency in termination cases are

In the Interest of I.R.K.-N. Page 6 well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal

sufficiency, we view all the evidence in the light most favorable to the finding to

determine whether a trier of fact could reasonably have formed a firm belief or

conviction about the truth of the Department’s allegations. In re J.L., 163 S.W.3d 79, 84-

85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed

evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the

factual sufficiency of the evidence, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. Id. We must

consider the disputed evidence and determine whether a reasonable factfinder could

have resolved that evidence in favor of the finding. Id. If the disputed evidence is so

significant that a factfinder could not reasonably have formed a firm belief or

conviction, the evidence is factually insufficient. Id.

The jury found, and the trial court ordered termination on, the grounds that Amy

knowingly placed or knowingly allowed the child to remain in conditions or

surroundings that endangered the physical or emotional well-being of the child (TEX.

FAM. CODE ANN. § 161.001(1)(D), and that she engaged in conduct or knowingly placed

the child with persons who engaged in conduct that endangered the child’s physical or

emotional well-being (id. § 161.001(1)(E)).

To endanger means to expose to loss or injury, to jeopardize. Texas Dep’t Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269

(Tex. 1996). The specific danger to a child’s physical or emotional well-being need not

In the Interest of I.R.K.-N. Page 7 be established as an independent proposition, but it may be inferred from parental

misconduct. See Boyd, 727 S.W.2d at 533.

When termination of parental rights is based on section D, the endangerment analysis focuses on the evidence of the child’s physical environment, although the environment produced by the conduct of the parents bears on the determination of whether the child’s surroundings threaten his well-being. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.— Houston [14th Dist.] 2005, no pet.). Section D permits termination if the petitioner proves parental conduct caused a child to be placed or remain in an endangering environment. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).

It is not necessary that the parent’s conduct be directed towards the child or that the child actually be injured; rather, a child is endangered when the environment creates a potential for danger which the parent is aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.—Texarkana 2000, no pet.) (“[I]t is not necessary for [the mother] to have had certain knowledge that one of the [sexual molestation] offenses actually occurred; it is sufficient that she was aware of the potential for danger to the children and disregarded that risk by ... leaving the children in that environment.”)). In considering whether to terminate parental rights, the court may look at parental conduct both before and after the birth of the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Section D permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d at 367.

Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied);

see also In re C.W., Jr., No. 14-09-00306, 2009 WL 4694946, at *6 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (mem. op.).

Under subsection 161.001(1)(E), the relevant inquiry is whether evidence exists

that the endangerment of the child’s physical well-being was the direct result of the

parent’s conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d

215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep't Prot. & Reg.

In the Interest of I.R.K.-N. Page 8 Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ).

Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. J.T.G., 121 S.W.3d at 125; see TEX. FAM. CODE ANN. § 161.001(1)(E). It is not necessary, however, that the parent’s conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).

In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.).

Domestic violence, want of self-control, and propensity for violence may be

considered as evidence of endangerment. See In re B.J.B., 546 S.W.2d 674, 677 (Tex. Civ.

App.—Texarkana 1977, writ ref’d n.r.e.); see also Sylvia M. v. Dallas County Welfare Unit,

771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ) (considering “volatile and

chaotic” marriage, altercation during pregnancy, and mother’s repeated reconciliation

with abusive spouse). Abusive or violent conduct by a parent or other resident of a

child’s home may produce an environment that endangers the physical or emotional

well-being of a child. Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678

(Tex. App.—Fort Worth 1984, writ ref’d n.r.e.); see also In re K.A.S., 131 S.W.3d at 222

(violent or abusive conduct by someone within household is environment that

endangers children).

Amy and Nate met for what Nate said was a “one-night stand” through a mutual

friend; Nate did not know Amy was married at the time. Nate said that he “fell” for

Amy and that when Amy’s husband found out about Nate and that Amy was possibly

pregnant with Nate’s child (Ike), Amy attempted suicide and was hospitalized. Amy’s

In the Interest of I.R.K.-N. Page 9 parents disapproved of Nate and got her an apartment in Katy to get her away from

Nate, but he continued to see her secretly. Amy lived with her five-year-old daughter

Lisa in the apartment. Nate and Amy eventually married in April of 2011, but Amy

testified that she would be filing for divorce once Nate’s parental rights were

terminated.

It is undisputed that domestic violence occurred between Nate and Amy.5 Nate

even admitted that the Department’s intervention was warranted because of their

domestic turmoil. Amy testified to these instances of domestic violence, which

occurred both before and after Ike’s birth:

 Nate choked her and kneed her while she was pregnant with Ike.6 Nate pled guilty to that offense, but Amy took him back.

 He would not let her out of her bedroom, with Lisa on the other side screaming for Amy.

 He pushed her to the ground and kicked her a few times, with Lisa watching.

 He held her against her will with a knife to her throat while she was pregnant with Ike.

 He pushed her up against a wall and caused her to fall.

 He grabbed her by the hair.

 He hit her twice with a closed fist on her forehead while she was holding newly born Ike.

 He hit her while they were in the car and she was holding Ike.

5 At the time of trial, Nate was in prison serving an eight-year sentence for, among other things, his offenses against Amy and for evading arrest, assault against a public servant, and attempted aggravated assault against a public servant. 6 Despite his guilty pleas, Nate denied all of the alleged assaults against Amy, but he did admit to “shoving and arguing.”

In the Interest of I.R.K.-N. Page 10  Nate broke into Amy’s apartment by breaking a window; he was cut and got blood everywhere. He denied breaking in, saying that Amy had given him a key and that he got cut when he fell into a window because Amy had pushed him.

Amy said that, while pregnant with Ike, she went to the hospital twice to make

sure that he was all right because of all the stress that was occurring with Nate; she also

thought that Ike was born prematurely because of the stress. She also testified that Lisa

has post-traumatic stress disorder from witnessing the domestic violence.

Elizabeth Grissom, a Department investigator, testified that the Department

investigated the family in April of 2012 based on allegations of neglectful supervision of

Lisa and Ike by Amy and Nate; Grissom also said that there were concerns of domestic

violence and that Amy was not being protective of the children. Amy and Nate then

left the area, and Nate was hiding from law enforcement. Nate said that they were in

the process of going to California so that he could make money to fight his criminal

charges and that Amy wanted to go with him and with the children to California so that

CPS could not catch her. Amy testified that she did not want to go to California.

Grissom said that after receiving additional reports that Amy and the children

had not been seen for a while, and given the past domestic violence, law enforcement

made contact with Amy and was able to schedule a meeting with the Department. The

children were removed because the children were “at risk of harm;” the Department

did not think that Amy could adequately protect the children because she kept

returning to Nate after domestic-violence incidents.

In conclusion, considering all the evidence in the light most favorable to the

In the Interest of I.R.K.-N. Page 11 jury’s findings, we hold that a reasonable factfinder could have formed a firm belief or

conviction that Amy’s parental rights should be terminated under subsections

161.001(1)(D) and 161.001(1)(E). And on her factual-sufficiency complaint, after

considering all of the evidence, we hold that a reasonable factfinder could have formed

a firm belief or conviction that her rights should be terminated. The evidence is legally

and factually sufficient to support the jury’s findings that Amy’s parental rights should

be terminated under subsections 161.001(1)(D) and 161.001(1)(E).

In determining the best interest of a child, a number of factors have been

considered, including (1) the desires of the child; (2) the emotional and physical needs

of the child now and in the future; (3) the emotional and physical danger to the child

now and in the future; (4) the parental abilities of the individuals seeking custody; (5)

the programs available to assist these individuals; (6) the plans for the child by these

individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may

indicate the existing parent-child relationship is not a proper one; and (9) any excuse for

the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not

exhaustive, but simply indicates factors that have been or could be pertinent. Id.

The Holley factors focus on the best interest of the child, not the best interest of

the parent. Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.—Dallas

1995, no writ). The goal of establishing a stable permanent home for a child is a

compelling state interest. Id. at 87. The need for permanence is a paramount

consideration for a child’s present and future physical and emotional needs. In re

S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc).

In the Interest of I.R.K.-N. Page 12 Evidence of past misconduct or neglect can be used to measure a parent’s future

conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet.

denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is

often prologue.”); see also A.M., 385 S.W.3d at 82-83 (concluding that evidence of

mother’s history of neglecting and endangering children by exposing them to domestic

violence supported trial court’s finding that termination was in child’s best interest).

Evidence of a recent improvement does not absolve a parent of a history of

irresponsible choices. In re T.C., No. 10-10-00207-CV, 2010 WL 4983512, at *8 (Tex.

App.—Waco Dec. 1, 2010, pet. denied) (mem. op.); Smith v. Tex. Dep’t Prot. & Reg. Servs.,

160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.)

Ike was four-and-a-half months old when he was removed and was soon placed

with foster parents Ian and Kendra. Christi Palmer, the Department caseworker,

testified that: Ike is bonded to Ian and Kendra; he calls them “Momma” and “Dad;” the

foster parents are very attentive to Ike’s needs; and it is in Ike’s best interest to remain

with the foster parents and for them to adopt him. Kendra testified that Ike has been

with them for the past seventeen of his twenty-one months of life and that they are

willing to adopt him if termination occurred.

Amy testified many times that she thought that it was in Ike’s best interest for

her and Nate’s parental rights to be terminated, though she preferred that her rights be

terminated by voluntary relinquishment. Amy said that it was in Ike’s best interest “to

be right where he is at, because he has a loving family, he has two parents that are—

they’re willing to be there for him, to support him, to make sure he gets the educational

In the Interest of I.R.K.-N. Page 13 needs he needs.” She explained that Ike should stay with Ian and Kendra for his

“safety” and “for him to actually have a chance at having a good life and being able to

nourish and thrive in life.” Amy testified that she wanted Ike to be adopted by Ian and

Kendra so that he does not have to go through what Lisa went through; he is “loved

where he’s at, he has a stable environment and he has a normal routine.”

Amy said that it was her own decision to want Ike to remain with Ian and

Kendra and it was one that “felt like it was in the best interest of [Ike], in my heart.”

She admitted that it would be hard but “it would be what is best for [Ike], even if it

means cutting me out of his life so he can live a happy, healthy life.” Amy also said that

“it would not be the right thing for” Ike to go through being removed from Ian and

Kendra. Amy would like it to be an open adoption and had discussed it with Ian and

Kendra, but she understood that an open adoption could not be assured.

Considering all the evidence in relation to the Holley factors in the light most

favorable to the jury’s finding, we hold that a reasonable factfinder could have formed a

firm belief or conviction that termination was in the child’s best interest. For Amy’s

factual-sufficiency complaint on best interest, after considering all of the evidence, we

hold that a reasonable factfinder could have formed a firm belief or conviction that

termination was in the child’s best interest. The evidence is legally and factually

sufficient to support the jury’s best-interest finding. We overrule Amy’s two issues.

Conservatorship: Based on a jury finding that the Department should be

appointed managing conservator of Ike, the trial court appointed the Department as his

permanent managing conservator. In his fifth and final issue, Nate asserts that the trial

In the Interest of I.R.K.-N. Page 14 court abused its discretion in appointing the Department as Ike’s permanent managing

conservator because there was legally insufficient evidence that returning Ike to Nate

would significantly impair his physical health or emotional development.

In cases where a trial court’s termination of the parent-child relationship is reversed, a parent is required to independently challenge a trial court’s finding under section 153.131(a) to obtain reversal of the conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 616-17 (Tex. 2007); In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). In this case, however, we have overruled appellant’s challenge to the termination, and the trial court’s appointment of the Department as sole managing conservator may be considered a “consequence of the termination pursuant to Family Code section 161.207.” In re A.S., 261 S.W.3d at 92. Section 161.207, entitled “Appointment of Managing Conservator on Termination,” provides: “If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a licensed child-placing agency, or an authorized agency as a managing conservator of the child.” TEX. FAMILY CODE ANN. § 161.207(a) (West 2008). Appellant provides no authority for the proposition that she is a “suitable, competent adult” as contemplated by section 161.207(a) or that the presumption in section 153.131(a) applies to a parent whose parental rights have been terminated under Chapter 161. See In re A.W.B., No. 14- 11-00926-CV, 2012 WL 1048640, at *7 ((Tex. App.—Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem.op.). Rather, when a trial court terminates the parent-child relationship, the court also “divests the parent and the child of all legal rights and duties with respect to each other.” TEX. FAM. CODE ANN. § 161.206 (West 2008); A.W.B., 2012 WL 1048640, at *7. Accordingly, appellant’s challenge to the trial court’s appointment of the Department as sole managing conservator, rather than appellant, is without merit.

In re C.L.B., No. 10-13-00203-CV, 2014 WL 702798, at *13 (Tex. App.—Waco Feb. 20,

2014, no pet. h.) (mem op.) (quoting In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325,

at *12 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem op.)).

In the Interest of I.R.K.-N. Page 15 For the same reason, we hold that Nate’s complaint that the trial court abused its

discretion in appointing the Department as permanent managing conservator, rather

than Nate, is without merit. See id. Issue five is overruled.

Having overruled all issues, we affirm the trial court’s order of termination.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 15, 2014 [CV06]

In the Interest of I.R.K.-N. Page 16