Justice George C. Hanks Jr. reverses termination of parental rights

In Interest of A.A.A. - Alexander v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Hanks) Opinion by Justice Hanks (Before Justices Taft, Hanks and Higley)

Paul Alexander and Shde Hurst v. Department of Family and Protective Services--Appeal from 314th District Court of Harris County
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT: Opinion by Justice HanksBefore Justices Taft, Hanks and Higley01-07-00160-CV Paul Alexander and Shde Hurst v. Department of Family and Protective ServicesAppeal from 314th District Court of Harris County (Hon. John Phillips)

In this accelerated appeal, Shde Aza Hurst challenges the trial court’s judgment terminating her parental rights to her minor child, A.A.A., and naming the Texas Department of Family and Protective Services (“DFPS”) as A.A.A.’s sole managing conservator. In five issues, Hurst argues that the evidence is legally and factually insufficient to support the trial court’s findings under Section 161.001. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006). In her sixth issue, Hurst asserts that, if we reverse the trial court’s termination of her parental rights, we should also reverse the trial court’s appointment of DFPS as sole managing conservator. We reverse the trial court’s termination of her parental rights and render judgment denying DFPS’s petition to terminate Hurst’s parental rights. We affirm the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator.
* * *
Because we hold that the evidence is legally insufficient to support the trial court’s findings under 161.001(1), we need not review the sufficiency of the trial court’s finding that termination is in A.A.A.’s best interest under 161.001(2). Therefore, we reverse the trial court’s termination of the parent-child relationship between Hurst and A.A.A. and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. See Tex. R. App. P. 43.2(c).

Sole Managing Conservator

Having reversed the termination of Hurst’s parental rights, we now turn to Hurst’s sixth issue, which asks whether the appointment of DFPS as sole managing conservator should also be reversed. Hurst first contends that, because the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator resulted from the trial court’s termination of Hurst and Alexander’s parental rights, the appointment must also be reversed.
We addressed this issue in Earvin v. Department of Family and Protective Services. 229 S.W.3d 345 (Tex.—Houston [1st Dist.] 2007, no pet.). In Earvin, we concluded that, because the trial court appointed DFPS as conservator after finding, independent of its termination of parental rights finding, that appointment of the parent would not be in the child’s best interest because it would significantly impair the child’s physical health or emotional development, appointment of DFPS was a separate issue that required independent analysis. Id. at 350–51. The Texas Supreme Court recently reaffirmed that a parent must bring an independent challenge on the issue of conservatorship in similar situations. See In re J.A.J., __ S.W.3d __, 2007 WL 3230169, at *1 (Tex. Nov. 2, 2007) (concluding that, where the trial court finds that appointment of the parent would significantly impair the child’s physical health or emotional development, and appointment of DFPS is in the child’s best interest, “reversal of a termination judgment . . . does not affect the trial court’s conservatorship appointment absent assigned error”).
Here, the trial court found that appointment of Hurst or Alexander would not be in A.A.A.’s best interest because such appointment would significantly impair A.A.A.’s physical health or emotional development. The trial court also found that appointment of DFPS as conservator was in A.A.A.’s best interest. Therefore, DFPS’s appointment as conservator is independent of the trial court’s termination of Hurst’s parental rights and requires independent analysis.
We begin by addressing whether we are precluded from reviewing Hurst’s sixth issue because she failed to follow the procedures for appellate review of a final order under Section 263.405 of the Family Code. Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2006). Subsection 263.405(b) requires an appellant to file, not later than the 15th day after the date a final termination order is signed, “a statement of the point or points on which the party intends to appeal.” Id. § 263.405(b). This statement of points may also be combined with a motion for new trial. Id. Under Subsection 263.405(i), “[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this Subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.” Id. § 263.405(i).
The record includes Hurst’s timely filed motion for new trial and statement of points, which indicates her intention to challenge the legal and factual sufficiency of the evidence in support of the trial court’s findings of 161.001(1)(E), (F), (N), (O), and (2). However, Hurst urged no point concerning the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator. Therefore, because Hurst failed to specifically present this issue in her statement of points, we are precluded from considering it. See Pool v. Texas Dept. of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Accordingly, Hurst’s sixth issue is overruled.
Conclusion
We reverse and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. We affirm the portion of the decree assigning DFPS as the sole managing conservator of A.A.A.

George C. Hanks, Jr.
Justice

Panel consists of Justices Taft, Hanks, and Higley.