In In re J.A.J., S.W.3d , No. 07-0511, 2007 WL 3230169 (Tex. Nov. 2, 2007), the Court resolved a split among appellate courts regarding whether it is necessary to specifically assign error to the Department's appointment as conservator when a judgment terminating parental rights is reversed.
In that case, the Department sought termination of the mother's parental rights to her child and requested conservatorship pursuant to Tex. Fam. Code sections 153.005 and 153.131.
The trial court terminated the mother's parental rights and appointed the Department the child's sole managing conservator. Id.
On appeal, the mother claimed that the evidence was insufficient to support the termination decision, but she did not assign error to the conservatorship appointment. Id.
The court of appeals determined that the evidence was insufficient to support termination under Texas Family Code section 161.001(1)(D) and (E) and reversed the trial court's judgment, including that portion appointing the Department as the child's conservator. Id.
In its petition for review, the Department challenged only the portion of the court of appeals' judgment that reversed its appointment as the child's managing conservator.
In its analysis, the Court noted that the trial court found that (1) appointment of the parent as conservator would not be in the child's best interest because it would significantly impair his physical health or emotional development, and (2) appointment of the Department as managing conservator was in the child's best interest.
The Court concluded that "these findings satisfy not only the fundamental requirement that the court consider the best interest of the child, ... but also the more specific findings necessary to justify the Department's appointment under section 153.131." Id.
In light of the differing elements and standards of review applied to conservatorship and termination orders, the Court concluded that a challenge to the Department's appointment as the child's conservator was not subsumed in the appellant's challenge to the termination order. Id.
In the absence of assigned error, the Court reversed the portion of the court of appeals' judgment that reversed appointment of the Department as the child's sole managing conservator.