IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 07-0511

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In the Interest of = J.A.J., a=20 Child

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On Petition for Review from = the

Court of Appeals for the Fourteenth = District of=20 Texas

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=20 Justice = O=92Neill delivered the opinion of the = Court.

=20 In this case, the trial court terminated a mother=92s parental = rights to=20 her child and appointed the Department of Family and Protective = Services[1] the child=92s sole managing = conservator,=20 finding that appointment of a parent as the child=92s conservator would=20 significantly impair his physical health or emotional development. = The=20 mother claimed on appeal that the evidence was insufficient to support = the=20 termination decision, but she did not assign error to the conservatorship appointment. The court of = appeals=20 determined the evidence to be insufficient to support termination under = section=20 161.001(1)(D) and (E) of the Texas Family = Code and=20 reversed the trial court=92s judgment, including that portion appointing = the=20 Department as the child=92s conservator. 225 = S.W.3d 621,=20 631-32. We must decide the effect of a termination = judgment=92s=20 reversal on an unchallenged conservatorship=20 appointment when the trial court finds that appointing a parent as = conservator=20 would significantly impair the child=92s physical health or emotional = development,=20 and that appointment of the Department is in the child=92s best = interest, an issue=20 on which our courts of appeals are divided. We conclude that = reversal of a=20 termination judgment in these circumstances does not affect the trial = court=92s=20 conservatorship appointment absent assigned=20 error. Accordingly, we reverse that portion of the court of = appeals=92=20 judgment that reverses the trial court=92s appointment of the Department = as the=20 child=92s sole managing conservator.

=20 In 2003, the Department filed a =93Petition for Protection of a = Child,=20 Conservatorship, and for Termination in Suit = Affecting=20 Parent-Child Relationship=94 based on allegations that J.A.J. had been=20 abused. In Section 13 of the form complaint, the Department = requested that=20 it be appointed J.A.J.=92s sole managing = conservator=20 =93[p]ursuant to [Texas Family Code] =A7=A7 = 153.005 and=20 263.404." Citing section 151.131 of the Family Code, the = Department=20 contended that appointment of a parent would not be in J.A.J.=92s best interest because it =93would = significantly=20 impair the [child=92s] physical health or emotional = development.=94 The=20 Department requested termination of Angeline = Jackson=92s=20 and an unknown father=92s parental rights.

=20 After a bench trial, the trial court found by clear and = convincing=20 evidence that Jackson had knowingly placed or = allowed J.A.J.=20 to remain in conditions that endangered his well-being, and engaged in = conduct=20 or knowingly placed the child with persons who engaged in conduct that=20 endangered him. It also found by clear and convincing evidence = that=20 termination of the parent-child relationship was in J.A.J.=92s best interest. The court further = found that=20 appointment of a parent as J.A.J.=92s = managing=20 conservator would not be in his best interest

because the appointment would significantly impair = the=20 child=92s physical health or emotional development; and (2) it would not = be in the=20 best interest of the child to appoint a relative of the child or another = person=20 as managing conservator.

The court,=20 determining that it would be in the child=92s best interest, appointed = the=20 Department as J.A.J.=92s sole managing = conservator.

=20 Jackson=20 appealed the judgment terminating her parental rights, contending the = evidence=20 was legally and factually insufficient to support termination under = section=20 161.001(1) of the Family Code.[2] The court of appeals = agreed, and=20 reversed the trial court=92s judgment terminating Jackson=92s parental rights. = 225 S.W.3d at 631. Although Jackson did = not separately=20 challenge the trial court=92s findings supporting designation of the = Department as=20 J.A.J.=92s conservator, the court of appeals = also=20 reversed that portion of the trial court=92s decree. Id. at=20 631-32.[3] On appeal to this Court, = the=20 Department challenges only the portion of the court of appeals=92 = judgment that=20 reverses its appointment as J.A.J.=92s = managing=20 conservator, arguing that the reversal was improper because error was = not=20 assigned. We grant the Department=92s petition for review to = resolve a=20 conflict among the courts of appeals concerning whether it is necessary = to=20 specifically assign error to the Department=92s appointment as = conservator when a=20 judgment terminating parental rights is reversed.[4]

=20 We begin our analysis by examining the relevant statutory=20 provisions. Sections 153.002, 153.005, and 153.131 of the Texas = Family=20 Code outline the general standards for determining conservatorship. Tex. Fam. Code = =A7=A7 153.002, 153.005,=20 153.131. Section 153.002 provides that the = primary=20 consideration in determining issues of conservatorship=20 and possession of and access to the child is always the child=92s best=20 interest. Id. =A7 153.002. = Section=20 153.005 authorizes the appointment of a managing conservator, and = provides that=20 the managing conservator must be =93a parent, a competent adult, an = authorized=20 agency, or a licensed child-placement agency.=94 Id. =A7=20 153.005. The Code creates a rebuttable=20 presumption that a parent will be named a child=92s managing = conservator, unless=20 the court finds that such appointment would not be in the child=92s best = interest=20 =93because the appointment would significantly impair the child=92s = physical health=20 or emotional development=94 or finds that there is a history of family = violence=20 involving the parents. Id. =A7=20 153.131. If the court terminates the parents=92 rights, the = court=20 must appoint a suitable, competent adult, the Department, a licensed=20 child-placing agency, or an authorized agency, as the child=92s managing = conservator. Id. =A7=20 161.207.

=20 Section 263.404 of the Family Code allows the court to render a = final=20 order appointing the Department as the child=92s conservator without = terminating=20 parental rights if the court finds that (1) a parent=92s appointment = would not be=20 in the child=92s best interest because the appointment would = significantly impair=20 the child=92s physical health or emotional development, and (2) = appointment of a=20 relative of the child or another person would not be in the child=92s = best=20 interest. Id. =A7=20 263.404(a). In deciding whether to appoint the Department = without=20 terminating the parents=92 rights, the court must take the following = factors into=20 consideration:

(1) that the child will reach 18 years of age in not = less than=20 three years;

(2) that the child is 12 years of age or older and has = expressed=20 a strong desire against termination or being adopted;

(3) that the child has special medical or behavioral = needs that=20 make adoption of the child unlikely; and

(4) the needs and desires of the child.

Id. =A7 263.404(b).

=20 Jackson contends that section 263.404 applies only when the = Department=20 does not seek to terminate parental rights in the trial court = proceedings and is=20 thus inapplicable when, as here, termination is sought and obtained but = is later=20 reversed on appeal. In such an instance, Jackson argues, the trial court=92s = appointment=20 of the Department is necessarily a consequence of the termination = proceedings=20 and is not independently supportable. We agree that section = 263.404 does=20 not apply when the trial court=92s order terminates parental rights, but = disagree=20 that the Department was appointed in this case solely as a consequence = of the=20 termination proceedings.

=20 The Family Code contains a number of provisions that govern conservatorship, the proper application of which = turns on=20 whether or not the trial court orders termination. Sections = 161.205 and=20 263.404 apply, by their terms, to instances in which the trial court = denies=20 termination. Section 161.205, entitled =93Order Denying = Termination,=94=20 provides that, =93[i]f the court does not = order=20 termination of the parent-child relationship, the court shall: (1) = deny the=20 petition; or (2) render any order in the best interest of the = child.=94 =20 Id. =A7=20 161.205 (emphasis added). Section 263.404, which is entitled = =93Final Order=20 Appointing Department as Managing Conservator Without=20 Terminating Parental Rights,=94 allows the court to appoint the = Department as the=20 child=92s conservator =93without terminating the rights of the = parent of the=20 child=94 if the court makes the findings the statute requires. = Id. = =A7 263.404=20 (emphasis added). By their plain language, these sections apply = only when=20 the trial court does not order termination of the parent-child=20 relationship, and for that reason they have no application here. =

=20 In this case, though, the Department sought appointment as J.A.J.=92s conservator on alternate grounds, = presumably=20 because it could not know for certain what the trial court=92s final = order would=20 be. The Department also requested conservatorship pursuant to sections 153.005 and=20 151.131. Section 153.005 provides generally that in a suit = affecting the=20 parent-child relationship, =93the court may appoint a sole managing = conservator or=20 may appoint joint managing conservators.=94 Id. =A7 153.005. = The Family=20 Code presumes that a parent should be appointed the child=92s managing = conservator=20 =93unless the court finds that appointment of the parent or parents = would not be=20 in the best interest of the child because the appointment would = significantly=20 impair the child=92s physical health or emotional development.=94 = Id. =A7=20 153.131(1). Here, the trial court terminated Jackson=92s = parental=20 rights with respect to J.A.J. and found that appointment of a parent as = J.A.J.=92s managing conservator would not be in = his best=20 interest because it would significantly impair his physical health or = emotional=20 development. It also found that appointment of the Department as = managing=20 conservator was in J.A.J.=92s best = interest. These=20 findings satisfy not only the fundamental requirement that the court = consider=20 the best interest of the child, see id. =A7 153.002, but also the = more=20 specific findings necessary to justify the Department=92s appointment = under=20 section 153.131. That the court also found it would not be in = J.A.J.=92s best interest to appoint a relative or = another=20 person as a managing conservator, tracking the language of section=20 263.404(a)(2), does not nullify its other = best interest=20 findings, and the findings certainly do not conflict. Jackson did = not=20 specifically appeal these findings or the conservatorship order and, for several reasons, we = conclude=20 that a challenge was not subsumed in her challenge of the termination=20 decision.

=20 First, the elements necessary to terminate parental rights may = differ=20 from the factors that must be taken into account when deciding who = should be=20 appointed a child=92s managing conservator. In order to terminate = the=20 parent-child relationship, section 161.001(1) of the Family Code = requires a=20 court to find that one or more of the nineteen criteria listed in that = section=20 are satisfied. Section 161.001(1) defines with some precision = parental=20 conduct amounting to abandonment, neglect, or endangerment that may = justify=20 termination. For example, termination may be justified if a parent = voluntarily leaves the child in a nonparent=92s=20 possession with an expressed intent not to return, id. =A7 = 161.001(1)(A), if the parent has failed to support the child = in=20 accordance with the parent=92s ability for a specified period, = id. =A7=20 161.001(1)(F), or has engaged in conduct that = endangers=20 the child=92s physical or emotional well-being, id. =A7 = 161.001(1)(E). Section 153.131(a), in contrast, = imposes a more=20 general standard that does not enumerate specific acts or omissions by = the=20 parent, but instead requires the court to find that appointing a parent = would=20 not be in the child=92s best interest because it would =20 =93significantly impair the child=92s physical health or = emotional=20 well-being.=94 Id. =A7=20 153.131(a). Undoubtedly, the fundamental concern underlying = both=20 section 161.001(1) and 153.131(a) is the same: the child=92s ultimate=20 well-being. But the evidence supporting termination under the = specific=20 criteria in section 161.001(1) could be insufficient, and at the same = time still=20 support the determination that appointment of a parent as conservator = would=20 impair the child=92s physical health or emotional development for = reasons=20 unrelated to the section 161.001(1) criteria.

=20 Moreover, the quantum of proof required to support a termination = decision=20 differs from the level necessary to support a conservatorship appointment. Termination = decisions=20 must be supported by clear and convincing evidence. Id. =A7=20 161.001. Due process compels this heightened standard = because=20 terminating the parent-child relationship imposes permanent, irrevocable = consequences. Santosky v. = Kramer,=20 455 U.S. 745, 759, = 769-70=20 (1982); see also In re J.F.C., 96 S.W.3d 256 (Tex. = 2002). On the=20 other hand, a finding that appointment of a parent as managing = conservator would=20 significantly impair the child=92s physical health or emotional = development is=20 governed by a preponderance-of-the-evidence standard. Tex. Fam. Code =A7 105.005; = see Lewelling v. Lewelling,=20 796 S.W.2d 164, 167 (Tex. 1990). These differing = proof=20 standards, in turn, affect the method of appellate review, which is more = stringent for termination decisions than for those regarding conservatorship. See In re J.F.C., 96 = S.W.3d at=20 266; In re C.H., 89 S.W.3d 17, 25 = (Tex. = 2002). In=20 evaluating the factual sufficiency of evidence supporting termination, = an=20 appellate court must consider =93whether the evidence is such that a = factfinder could reasonably form a firm belief or = conviction=20 about the truth of the State=92s allegations.=94 In=20 re C.H., 89 S.W.3d at=20 25. Legal-sufficiency review is similarly = heightened=20 when parental rights have been terminated. In re=20 J.F.C., 96 S.W.3d at 266. Conservatorship determinations, in contrast, are = subject to=20 review only for abuse of discretion, and may be reversed only if the = decision is=20 arbitrary and unreasonable. Gillespie v.=20 Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).[5] Because different = standards apply,=20 evidentiary review that results in reversal of a termination order may = not yield=20 the same result for a conservatorship=20 appointment. As we have said, a =93finding that must be based on = clear and=20 convincing evidence cannot be viewed on appeal the same as one that may = be=20 sustained on a mere preponderance.=94 In re = C.H., 89 S.W.3d at 25. = In light=20 of the differences in the factors that weigh in termination and conservatorship decisions and the differing = burdens of proof=20 and standards of appellate review, we conclude that a challenge to the=20 Department=92s appointment as J.A.J.=92s = managing=20 conservator was not subsumed in Jackson=92s challenge to the = termination order.=20

=20 Consistent with this view are a number of cases from courts of = appeals=20 that have treated challenges to termination of parental rights and conservatorship as distinct issues. See,=20 e.g., Earvin v. Tex. = Dep=92t of=20 Family & Prot. Servs., 229 S.W.3d = 345, 349-51=20 (Tex. App.=97Houston [1st Dist.] 2007, no pet. hist.);=20 In re J.R., 222 S.W.3d 817, 819 (Tex. App.=97Houston [14th Dist.] = 2007, no=20 pet. hist.); In re M.C., 932 S.W.2d = 35, 36=20 (Tex. App.=97Eastland 1995, writ granted), rev=92d on other grounds, 917 S.W.2d = 268 (Tex.=20 1996); Brokenleg v. Butts, 559 = S.W.2d=20 853, 854 (Tex. Civ. App.=97El Paso 1977, no = writ)=20 (reversing termination of parental rights but affirming appointment of=20 grandparent as conservator). Unlike the court of appeals in this = case,=20 several courts of appeals have required parents whose rights are = terminated to=20 challenge both the termination and the appointment of the = Department as=20 conservator. See Earvin, = 229=20 S.W.3d 345; In re J.R., 222 S.W.3d at 819. These courts do = not=20 reverse conservatorship orders when they = reverse=20 orders terminating parental rights, absent an independent challenge. =

=20 Jackson argues that requiring separate challenges to conservatorship decisions and termination orders = will have=20 =93nightmarish=94 results for those who neglect to do so, resulting in = the de=20 facto termination of parental rights for parents who may not regain = custody=20 of their children despite successfully appealing termination. The = Family=20 Code, however, guards against that possibility. The trial court = retains=20 jurisdiction to modify a conservatorship = order if it=20 is in the child=92s best interest, and the parent=92s or child=92s = circumstances have=20 materially and substantially changed since the order was rendered. = Tex. Fam. Code =A7=A7 156.001, 156.101. Moreover, the Family = Code=20 recognizes a parent=92s standing to file a suit to modify a conservatorship order. Id. =A7=A7 156.001, = 102.003(a)(1). When the Department has been named a = child=92s=20 managing conservator, the court =93shall hold a hearing to review the = conservatorship appointment=94 at least once every = six months=20 until the child becomes an adult. Id. =A7=A7 263.002, 263.501. At each = hearing, the=20 Department must file a placement-review report in which it addresses = =93whether=20 the child=92s parents are willing and able to provide the child with a = safe=20 environment=94 and =93the extent of progress made towards alleviating or = mitigating=94=20 the causes for which the child was removed from his home. See = Tex. Dep=92t of Family & = Protective Servs,=20 Child Protection Services Handbook (=93DFPS Handbook=94) =A7 = 5353;see also Tex. Fam. Code = =A7 = 263.307(b). =20 These hearings are mandated by both the Texas Family Code and Title IV = of the=20 Social Security Act, sections 422(b)(8)(A)(ii), 471(a)(16), and = 475(5)(B), and=20 guarantee that courts will continuously review the propriety of the = Department=92s=20 conservatorship, until a point when the = child=92s family=20 appears capable of providing for the child=92s best interests. = Tex. Fam. = Code =A7=A7 263.002, = 263.501. =20 The Department will then ask to be dismissed as the child=92s managing=20 conservator. See DFPS=20 Handbook =A7 6231.

=20 Accordingly, we grant the Department=92s petition for review and, = without=20 hearing oral argument pursuant to Rule 59.1 of the Texas Rules of = Appellate=20 Procedure, reverse the portion of the court of appeals=92 judgment that = reverses=20 appointment of the Department as J.A.J.=92s = sole=20 managing conservator.

&nbs= p; = ; = &= nbsp; &n= bsp; =20 ___________________________________

&nbs= p; = ; = &= nbsp; &n= bsp; =20 Harriet O=92Neill

&nbs= p; = ; = &= nbsp; &n= bsp; =20 Justice

OPINION DELIVERED: November 2, 2007

^[1]=20 When the abuse alleged in this case occurred, the agency was known as = the Texas=20 Department of Protective and Regulatory Services. The agency=92s = name has=20 since changed to the Department of Family and Protective Services. = We=20 refer to both as =93the Department=94 in this opinion.

^[2]=20 Jackson also=20 challenged the trial court=92s finding that termination was in J.A.J.=92s best interest. Because it = determined that the=20 evidence to support findings under section 161.001(1) was legally = insufficient,=20 the court of appeals did not consider whether the evidence that = termination was=20 in J.A.J.=92s best interest was legally or = factually=20 insufficient. 225 S.W.3d at = 631.

^[3]=20 The Department=92s Motion for Rehearing En Banc was denied by a closely = divided=20 court, with the dissenting justices emphasizing a division on the issue = among=20 the courts of appeals and even among panels of their own court. ___S.W.3d ___ (Frost, J., dissenting).

^[4]=20 See, e.g., Colbert v. Dep=92t of Family & Prot. Servs., 227 S.W.3d 799 (Tex. App.=96Houston = [1st Dist.]=20 2007, pet. filed); Walker v. Dep=92t of Family & Prot. Servs., ___ S.W.3d ___ (Tex. App.=97Houston = [1st Dist.]=20 2007, no pethist.); Earvin v. Dep't of Family & Prot. = Servs., 229 S.W.3d 345 (Tex. App.=97Houston = [1st Dist.]=20 2007, no pet. hist.); In re J.R., 222 = S.W.3d=20 817, 819 (Tex. App.=97Houston [14th Dist. 2007, no pet. hist).

^[5]=20 In a jury trial, a trial court may not render an order in contravention = of the=20 jury=92s findings. Tex. = Fam. Code=20 =A7 105.002(c)(1)(A). Jury = findings=20 underlying a conservatorship appointment are = subject=20 to ordinary legal and factual sufficiency review. See, = e.g., Corrales., 155 S.W.3d at 488. =20