For=20
The
NO.=20
01-04-01233-CV NO.=20
01-05-00124-CV NO.=20
01-05-00126-CV NO.=20
01-05-00127-CV
ERICKA =
SHANETTE=20
COLBERT, Appellant DEPARTMENT OF FAMILY=20
AND PROTECTIVE SERVICES, Appellee
On =
Appeal from the=20
314th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
Nos. 1996-43960, 2002-25084, 2004-03601J, 2003-04414J, &=20
2003-14864
OPINION =
CONCURRING=20
IN PART AND DISSENTING IN PART In appellate cause numbers=20
01-04-01232-CV, 01-04-01233-CV, 01-05-00126-CV, and =
01-05-00127-CV, I=20
concur in this Court's judgments that reverse the trial court's =
orders=20
terminating the parental rights of appellant, Ericka Shanette =
Colbert, to=20
her five older children. In appellate cause number =
01-05-00124-CV,=20
I concur in this Court's judgment insofar as it reverses the trial =
court's=20
order terminating the parental rights of Colbert to her twins and =
renders=20
judgment that Colbert's parental rights to her twins are not =
terminated.=20
However, the majority, citing sections 161.205 and 263.404 of the =
Texas=20
Family Code, errs in reversing the portion of the trial court's =
order=20
appointing the Department of Family & Protective Services =
("DFPS") as=20
the "sole managing conservator" of the twins. See Tex. =
Fam. Code=20
Ann. =A7=A7 161.205, 263.404 (Vernon 2002). Accordingly, I =
respectfully=20
dissent from this portion of this Court's judgment and its =
remanding of=20
the case to the trial court "for the limited purpose of rendering =
an order=20
disposing of the portion of the petition relating to appellant =
consistent=20
with Family Code section 161.205." In a suit to terminate =
the=20
parent-child relationship, section 161.205 provides that "[i]f the =
court=20
does not order termination of the parent-child =
relationship, the=20
court shall" deny the petition or render any order in the best =
interest of=20
the child. Id. =A7 161.205 (emphasis added). In regard to =
the=20
review of the placement of children under the care of DFPS, =
section=20
263.404 provides that a court "may render a final order appointing =
the=20
department as managing conservator of the child without =
terminating=20
the rights of the parent" if the court finds that appointment =
of a=20
parent as managing conservator would not be in the child's best =
interest=20
because the appointment would significantly impair the child's =
physical=20
health or emotional development and it would not be in the child's =
best=20
interest to appoint a relative or another person. Id. =A7 =
263.404(a) (emphasis added). Here, however, the trial court =
actually=20
ordered the termination of Colbert's parental rights to her twins. =
Sections 161.205 and 263.404 are simply inapplicable to this =
appeal, and=20
the majority errs in utilizing them in this case sua=20
sponte. Importantly, in =
addition to=20
seeking the termination of Colbert's parental rights to her twins =
in its=20
original petition, DFPS requested that the trial court appoint =
DFPS as=20
sole managing conservator of the twins "[p]ursuant to =A7=A7 =
153.005 and=20
263.404, Texas Family Code." See id. =A7=A7 =
153.005, 263.404=20
(Vernon 2002). As noted above, section 263.404 is not applicable =
here.=20
Section 153.005 provides that in a suit affecting the parent-child =
relationship, a court "may appoint a sole managing conservator or =
may=20
appoint joint managing conservators." Id. =A7 153.005. A =
finding by=20
the court that appointment of a parent as managing conservator =
would not=20
be in the child's best interest because the appointment would=20
significantly impair the child's physical health or emotional =
development=20
defeats the presumption that a parent should be appointed as =
managing=20
conservator. Id. =A7 153.131 (Vernon 2002). Here, the =
trial court=20
ordered the termination of Colbert's parental rights to her twins. =
It also=20
appointed DFPS as the sole managing conservator of the twins, =
finding=20
"this appointment to be in the best interest of the children," and =
granting DFPS specific rights and duties, including those rights =
and=20
duties afforded to a nonparent appointed as a sole managing =
conservator=20
under section 153.371 of the Texas Family Code. Id. =A7 =
153.371=20
(Vernon Supp. 2006). Although Colbert, in her issues for our =
review,=20
specifically challenges the trial court's order terminating her =
parental=20
rights to her twins, she in no way challenges the portion of the =
trial=20
court's order appointing DFPS as sole managing conservator of the =
twins or=20
its finding that the appointment was in the best interest of the =
children.=20
Thus, the majority errs in reversing the trial court's appointment =
on=20
unassigned error. Walling v. Metcalfe, =
863=20
S.W.2d 56, 58 (Tex. 1993); U.S.A. Precision Machining Co. v.=20
Marshall, 95 S.W.3d 407, 412 n.3 (Tex. App.--Houston [1st =
Dist.]=20
2002, pet. denied). Moreover, although we have =
rendered=20
judgment that Colbert's parental rights to her twins are not =
terminated,=20
the trial court still has continuing, exclusive jurisdiction in =
regard to=20
the twins in the underlying suit affecting the parent-child =
relationship,=20
in which it appointed DFPS as sole managing conservator of the =
twins.=20
See Tex. Fam. Code Ann. =A7=A7 155.001, 155.002 (Vernon =
2002). As a=20
court with continuing, exclusive jurisdiction, it may exercise its =
jurisdiction to modify its order regarding managing =
conservatorship.=20
Id. =A7 155.003 (Vernon 2002). Thus, there is no need of =
a remand=20
"for the limited purpose of rendering an order disposing of the =
portion of=20
the petition relating to appellant consistent with Family Code =
section=20
161.205." Terry Jennings Justice Panel consists of Justices =
Nuchia,=20
Jennings, and Higley. Justice Jennings, concurring in =
part and=20
dissenting in =
part.