Understanding the Law when it comes to the Welfare of a Child

When it comes to the decision of proceeding with a divorce, disputing parties with children can lead to a plethora of complications.  However, even after an original agreement and judgment of joint custody parental rights can still be terminated by the Court if child welfare is in question.

Recently, Justice Smith of the Court of Appeals modified the district court’s judgment and affirmed the decision as modified in the case of JO v. Texas Department of Family.  The background of the case described the parents of four children between the ages of one and seven at the time of the trial.  In September of 2017, the Texas Department of Family and Protective Services opened an investigation into the mother of the children after a report claiming she had tested positive for methamphetamine when she gave birth to the youngest child.  The department removed the children a month later and an affidavit filed in support of the Department’s request for conservatorship without mentioning the father due to not being able to locate him.  In August 2018, the district court appointed both the mother and her sister as joint managing conservators and the father as a possessory conservator.  The order stated that the father had not made an appearance in the case.

In October 2018, the mother tested positive for methamphetamine again and the Department caseworkers learned that her sister had moved out of their residence following an argument.  The district court appointed the Department temporary managing conservatory of the children and petitioned to terminate the rights of both parents.  There was no indication that the father was served with the department’s petition, but the court-appointed him counsel in January 2019.

After the father was talked with by a caseworker in February 2019, the father denied knowledge of the mother’s drug use and said that he wanted the children to live with him in Mexico.  He stated he could not return to the United States and asked if his parents could bring the children to him if they could obtain a visa.  That same day the department issued him a service plan and the steps he needed to take to prove his fitness as a parent.  Even after being granted an extension to complete the service plan, the father failed to complete his service plan in the nine months after he first made contact with the department after his parental rights were terminated.

When the final hearing convened, father's attorney announced ready and cross-examined the department's witnesses. The district court found three grounds for termination against father and that termination was in the best interest of the children. Father appealed. The court first held that the district court did have personal jurisdiction over father because while there was no proof in the record that he was ever served with notice, he waived that defect by filing an answer to the department's petition. Regarding father's sufficiency of evidence claims, the court held that there was insufficient evidence to find that father's absence in the later stages of the case was voluntary and termination under subsection (E) was error. However, the court held evidence was sufficient to terminate under subsection (O) because the record showed that father failed to complete his service plan in the nine months after he first made contact with the department and when his parental rights were terminated. Modified in part, and affirmed as modified.

Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.