Ericka Shannette Colbert v. Department of Family and Protective Services--Appeal from 314th District Court of Harris County

Opinion issued December 21, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01232-CV

NO. 01-04-01233-CV

NO. 01-05-00124-CV

NO. 01-05-00126-CV

NO. 01-05-00127-CV

ERICKA SHANETTE COLBERT, Appellant

V.

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause Nos. 1996-43960, 2002-25084, 2004-03601J, 2003-04414J, & 2003-14864

OPINION CONCURRING IN PART AND DISSENTING IN PART

In appellate cause numbers 01-04-01232-CV, 01-04-01233-CV, 01-05-00126-CV, and 01-05-00127-CV, I concur in this Court's judgments that reverse the trial court's orders terminating the parental rights of appellant, Ericka Shanette Colbert, to her five older children.

In appellate cause number 01-05-00124-CV, I concur in this Court's judgment insofar as it reverses the trial court's order terminating the parental rights of Colbert to her twins and renders judgment that Colbert's parental rights to her twins are not terminated. However, the majority, citing sections 161.205 and 263.404 of the Texas Family Code, errs in reversing the portion of the trial court's order appointing the Department of Family & Protective Services ("DFPS") as the "sole managing conservator" of the twins. See Tex. Fam. Code Ann. 161.205, 263.404 (Vernon 2002). Accordingly, I respectfully dissent from this portion of this Court's judgment and its remanding of the case to the trial court "for the limited purpose of rendering an order disposing of the portion of the petition relating to appellant consistent with Family Code section 161.205."

In a suit to terminate the parent-child relationship, section 161.205 provides that "[i]f the court does not order termination of the parent-child relationship, the court shall" deny the petition or render any order in the best interest of the child. Id. 161.205 (emphasis added). In regard to the review of the placement of children under the care of DFPS, section 263.404 provides that a court "may render a final order appointing the department as managing conservator of the child without terminating the rights of the parent" if the court finds that appointment of a parent as managing conservator would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development and it would not be in the child's best interest to appoint a relative or another person. Id. 263.404(a) (emphasis added). Here, however, the trial court actually ordered the termination of Colbert's parental rights to her twins. Sections 161.205 and 263.404 are simply inapplicable to this appeal, and the majority errs in utilizing them in this case sua sponte.

Importantly, in addition to seeking the termination of Colbert's parental rights to her twins in its original petition, DFPS requested that the trial court appoint DFPS as sole managing conservator of the twins "[p]ursuant to 153.005 and 263.404, Texas Family Code." See id. 153.005, 263.404 (Vernon 2002). As noted above, section 263.404 is not applicable here. Section 153.005 provides that in a suit affecting the parent-child relationship, a court "may appoint a sole managing conservator or may appoint joint managing conservators." Id. 153.005. A finding by the court that appointment of a parent as managing conservator would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development defeats the presumption that a parent should be appointed as managing conservator. Id. 153.131 (Vernon 2002). Here, the trial court ordered the termination of Colbert's parental rights to her twins. It also appointed DFPS as the sole managing conservator of the twins, finding "this appointment to be in the best interest of the children," and granting DFPS specific rights and duties, including those rights and duties afforded to a nonparent appointed as a sole managing conservator under section 153.371 of the Texas Family Code. Id. 153.371 (Vernon Supp. 2006). Although Colbert, in her issues for our review, specifically challenges the trial court's order terminating her parental rights to her twins, she in no way challenges the portion of the trial court's order appointing DFPS as sole managing conservator of the twins or its finding that the appointment was in the best interest of the children. Thus, the majority errs in reversing the trial court's appointment on unassigned error. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 412 n.3 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

Moreover, although we have rendered judgment that Colbert's parental rights to her twins are not terminated, the trial court still has continuing, exclusive jurisdiction in regard to the twins in the underlying suit affecting the parent-child relationship, in which it appointed DFPS as sole managing conservator of the twins. See Tex. Fam. Code Ann. 155.001, 155.002 (Vernon 2002). As a court with continuing, exclusive jurisdiction, it may exercise its jurisdiction to modify its order regarding managing conservatorship. Id. 155.003 (Vernon 2002). Thus, there is no need of a remand "for the limited purpose of rendering an order disposing of the portion of the petition relating to appellant consistent with Family Code section 161.205."

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Justice Jennings, concurring in part and dissenting in part.