                                    NUMBER 13-15-00236-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG

             IN THE INTEREST OF R.M., A.M., N.G., D.Q., AND V.Q.,
                            MINOR CHILDREN


                         On appeal from the 377th District Court
                               of Victoria County, Texas.


                                MEMORANDUM OPINION
                 Before Justices Garza, Benavides, and Longoria
                  Memorandum Opinion by Justice Benavides

        In this parental rights termination case, appellant K.C. (“Mother”) challenges the

trial court’s order terminating her parental rights to R.M. (“Child R”), A.M. (“Child A”), N.G.

(“Child N”), D.Q. (“Child D”), and V.Q. (“Child V”).1 By five issues, which we treat as three,

Mother asserts that (1) the trial court did not acquire jurisdiction over Child N to terminate



        1We will utilize aliases throughout this opinion in order to protect the identities of the minor children.
TEX. R. APP. P. 9.8.
Mother’s rights to her; (2) the trial court’s findings supporting termination were not

supported by the evidence; and (3) the Texas Department of Family and Protective

Services (“the Department”) did not comply with the family code when it removed Child

N, Child D, and Child V from her custody. With regard to Mother’s appeal, we affirm.

        In a separate notice of appeal brought by Child R and Child A through their attorney

ad litem, the minor children assert that the trial court unconstitutionally applied section

153.004(b) to their biological father, T.M. (Father T), when it appointed him possessory

conservator of Child R and Child A with no rights or access. See TEX. FAM. CODE ANN. §

153.004(b) (West, Westlaw through 2015 R.S.). Because the Department agrees with

and adopts Child R and Child A’s argument on appeal, we reverse and remand with

respect to this portion of the appeal.

                                          I.      BACKGROUND

        Before delving into the facts of this case, we first identify all of the parties involved.

Mother is the biological mother of Child R, Child A, Child N, Child D, and Child V.2 Father

T is the biological father of Child R and Child A, and is not a direct party to this appeal,

but his interests are affected in this appeal by virtue of a brief filed on behalf of Child R

and Child A’s attorney ad litem.3 Father M is Child N’s biological father, and is not a party

to this appeal. Father J is Child D and Child V’s biological father and is not a party to this

appeal. At the time the Department initiated these proceedings, Father J was Mother’s

boyfriend.




        2 The children are listed in order of age, from oldest to youngest. Two other children were born to

Mother following the initiation of these proceedings but are not subject to this appeal.
        3  The attorney ad litem represented all five children in the proceedings below, but only Child R and
Child A’s interests are represented on appeal to this Court.

                                                     2
       On June 9, 2013, the Department opened a case related to the interests of the five

children that are the subject of this appeal, after the Department was alerted to allegations

of sexual abuse committed against Child R and Child A, who were ages 10 and 8,

respectively, at the time of trial. Both sisters made an outcry to Father T’s wife, B.M.

(“Stepmother”) about sexual abuse committed against them by Father J. Upon learning

of these allegations, Stepmother alerted the police. The Department subsequently filed

a petition to terminate Mother, Father M, Father T, and Father J’s respective parental

rights over the five children. Additionally, the Department sought and obtained temporary

sole managing conservatorship over all of the children involved in this case. All of the

parents, including Father T and Stepmother, entered into various service plans with the

Department that mandated various goals, tasks, and services that needed to be

completed to the Department’s satisfaction.

       While the Department’s petition was pending, Father T filed a counter petition to

the Department’s petition with respect to Child R and Child A’s interests. In his counter

petition, Father T noted that since the Department’s intervention, Child R and Child A

have been in his care, custody, and control. Further, Father T requested that he be

named sole managing conservator of Child R and Child A.

       Beginning December 9, 2014, the trial court commenced a bench trial on the

Department’s petition, as well as Father T’s counter petition. The trial was reset to

February 18, 2015 and included testimony from various witnesses, including: (1) the

Department’s caseworker; (2) two sexual assault nurse examiners (SANE) who evaluated

Child R and Child A; (3) a psychologist who evaluated Child R, Child A, and Child N; (4)




                                              3
a forensic interviewer who interviewed Child R following her outcry; and (4) a qualified

professional counselor who counseled Child R and Child A.

         Jennifer Mumphord and Leslie Kallus are both SANE nurses who testified at trial.

Kallus examined Child R and concluded that injuries to Child R’s hymen were consistent

with sexual abuse. The trial court also admitted Kallus’s notes from the SANE exam,

which graphically detailed Child R’s recounting of abuse that she, Child A, and Child N

suffered by Father J. Mumphord’s examination of Child A also indicated “deviations” in

Child A’s hymen. Testimony from psychologist Michelle Moran, forensic interviewer Maria

Flores, and professional counselor Kimberly Stanfield all indicated that Father J sexually

abused Child R and Child A. The trial court admitted evidence that Father J had been

convicted prior to these proceedings of three counts of aggravated sexual assault related

to these allegations, a first-degree felony, and was sentenced to three life sentences to

run concurrently. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2015

R.S.).

         Department caseworker Elizabeth Lopez outlined all of the successes that Mother

accomplished in her service plan, including completing drug and alcohol counseling,

maintaining contact with the Department, and providing safe and hazard-free housing for

herself and her children. Despite this progress, however, Lopez expressed concerns that

Mother had not sufficiently demonstrated that she is protective of her children, that Mother

was aware that Father J abused Child R and Child A and failed to act, and that she

maintained contact with Father J following his arrest for aggravated sexual assault of a

child stemming from the allegations in this case. Lopez further opined that terminating

Mother’s rights to all five children was in each child’s best interest.



                                              4
          Mother testified in her defense and stated that despite assertions by the

Department, she did not “see any signs” that Father J was sexually abusing Child R and

Child A. Mother admitted to initially lying to the Department about her subsequent

pregnancy, but testified that she did not tell the truth because she was worried that it

would have adversely affected her rights to the five children at issue. Mother also admitted

to visiting Father J while he was incarcerated on the pending aggravated sexual assault

charges and that she also received various calls from him while he was confined. Shirley

Richie, a licensed counselor, testified on Mother’s behalf and noted progress in Mother’s

counseling sessions. Richie opined that she believed Mother had the necessary tools to

protect her children and that she had no concern over Mother’s ability to provide for the

mental health and stability of her children.

          The attorney ad litem for the children called two court-appointed special advocates

(CASA) to offer their opinions regarding Mother’s parental rights over her children.

Melissa Machacek, the CASA volunteer who oversaw Child N, Child D, and Child V,

stated that she had concerns regarding Mother’s credibility and recommended

termination of her rights. Carolyn Nelson, the CASA volunteer who oversaw Child R and

Child A, echoed Machacek’s testimony and also recommended termination of Mother’s

rights.

          At the conclusion of the bench trial, the trial court found by clear and convincing

evidence that termination of Mother’s parental rights to all five children was in each child’s

best interest, and further found by clear and convincing evidence that Mother committed

statutory violations under sections 161.001(D), (E), and (O) of the family code.4 See TEX.


          The trial court also terminated Father M’s and Father J’s parental rights to their respective
          4

children. These orders are not before us on appeal.

                                                  5
FAM. CODE ANN. § 161.001(D), (E), and (O) (West, Westlaw through 2015 R.S.). The trial

court denied Father T’s counter petition, appointed Father T possessory conservator to

Child R and Child A, and ordered that he have no rights or access to the children.5 The

Department was appointed sole managing conservator to all five children. This appeal

followed.

                                          II.     MOTHER’S APPEAL

A.      Jurisdiction over Child N

        By her first issue, Mother asserts that the trial court never acquired jurisdiction over

Child N to make the orders terminating Mother’s rights to Child N valid.

        1.         Applicable Law and Standard of Review

        If a court of this state has acquired continuing, exclusive jurisdiction over a child,

no other court of this state has jurisdiction of a suit with regard to that child except as

provided by chapters 155 or 262, or section 103.001(b) of the family code. See id. §

155.001(c) (West, Westlaw through 2015 R.S.) (“Acquiring Continuing, Exclusive

Jurisdiction in Suits Affecting Parent-Child Relationships”).6 If a transfer order has been

signed by a court exercising jurisdiction under chapter 262, a party may file the transfer

order with the clerk of the court of continuing, exclusive jurisdiction. Id. § 155.204(i)

(West, Westlaw through 2015 R.S.). On receipt and without a hearing, the clerk of the

court of continuing, exclusive jurisdiction shall transfer the files as provided by the statute.

Id.




        5   We discuss this ruling in more detail later in the opinion.

        6 A suit filed by a governmental entity under chapter 262 is one that affects the parent-child
relationship in which the governmental entity requests an order to take possession of a child without a court
order. See id. § 262.001(a) (West, Westlaw through 2015 R.S.).

                                                         6
       Subject-matter jurisdiction is essential to a court’s power to decide a case. City of

Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (internal quotations omitted). Such

a question of jurisdiction may be reviewed for the first time on appeal. Id. Regardless of

whether the parties question it, courts have an affirmative obligation to ascertain that

subject matter jurisdiction exists. Id. (internal citations omitted). The determination of

whether a court has subject matter jurisdiction over a case is a question of law we review

de novo. Id.

       2.      Discussion

       Our review of the record reveals clear facts concerning the trial court’s jurisdiction

over Child N in this matter.       In the Department’s original petition for protection,

conservatorship, and termination in suit regarding all five children in this appeal, the

Department’s pleading states that it has jurisdiction over the suit pursuant to chapter 262

of the family code, and that it believed that “no other Court has continuing, exclusive

jurisdiction over the children.” In the trial court’s final order of termination of parental

rights, the trial court—without objection from the parties—expressly found that it had

jurisdiction over all of the parties to this case and that no other court had continuing,

exclusive jurisdiction over the case. Additionally, the trial court found that Father M was

Child N’s father.

       However, Mother’s and the Department’s respective briefing on this issue muddy

what we believe to be clear jurisdictional waters. Mother asserts in her brief that the

Texas Attorney General’s Office had filed a prior paternity action against Father M.

Although Mother cites in her brief the trial court’s cause number for this purported prior

action concerning Child N, she does not provide this Court with any other reference or



                                             7
evidence of such prior legal action. Further, Mother states that the trial court was “made

aware of the fact that [it] did not have jurisdiction [over termination of parental rights as to

Child N] because there had been previous proceedings in another court” and cites an

exchange between the trial court and Mother’s counsel where argument took place

regarding a prior action from another court. While we agree that such an exchange took

place, the substance of the exchange was not related in any way to a prior proceeding

concerning Child N, but rather to a previous child support proceeding concerning Child R

and Child A. The record in this case shows that a prior proceeding existed in the 267th

District Court of Victoria County under trial court cause number 08-5-67297-C relating to

Child R and Child A, but Father T’s counsel moved to consolidate the previous action with

the present termination action, and the trial court granted that motion. Additionally, the

Department appears to agree with Mother’s position and likewise cites to the exchange

as proof of the prior proceeding concerning Child N, even though the exchange related

to Child R and Child A and not to Child N. The Department also does not present any

other evidence or references to the record concerning the trial court’s jurisdiction over

Child N.

       As a result, our de novo review of the record shows the trial court had subject

matter jurisdiction over Child N, and nothing in the record or briefing leads us to conclude

otherwise. See Rhule, 417 S.W.3d at 442. Mother’s first issue is overruled.

B.     Sufficiency Challenge

       By her second, third, and fourth issues, which we treat as one, Mother challenges

the sufficiency of the evidence regarding the trial court’s findings by clear and convincing




                                               8
evidence that she violated subsections (D), (E), and (O) of section 161.001(1) of the family

code; and that termination of Mother’s parental rights was in her children’s best interests.

       1.     Standard of Review

       A court may order the termination of a parent-child relationship if it is shown by

clear and convincing evidence that a parent has met at least one of the statutory factors

listed in the family code, coupled with an additional finding by clear and convincing

evidence that termination is in the child's best interest. See TEX. FAM. CODE ANN. §

161.001 (West, Westlaw through 2015 R.S.); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002)

(noting the two-prong test in deciding parental termination and that one act or omission

of conduct satisfies the first prong).

       In reviewing the legal-sufficiency of a parental rights termination order, we examine

all of the evidence to determine whether the evidence viewed in the light most favorable

to the finding is such that the factfinder reasonably could have formed a firm belief or

conviction about the truth of the matters as to which the Department bore the burden of

proof. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We “must consider all of the

evidence, not just that which favors the verdict.” Id. We “must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so,” and

we “should disregard all evidence that a reasonable factfinder could have disbelieved or

found to have been incredible.” Id. (internal quotations omitted). “If [an appellate court]

determines that no reasonable factfinder could form a firm belief or conviction that the

matter that must be proven is true, then that court must conclude that the evidence is

legally insufficient.” J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, “[i]f, in light

of the entire record, the disputed evidence that a reasonable factfinder could not have



                                               9
credited in favor of the finding is so significant that a fact[ ]finder could not have

reasonably formed a firm belief or conviction in the truth of its finding, then the evidence

is factually insufficient.” In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.—Fort Worth 2008,

no pet.) (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam)).

       2.     Discussion

       a. Statutory Violations

       The trial court made an explicit finding that Mother “knew of the sexual assault of

Child R and Child A or should have known of the sexual assault but took no action to

protect Child R, Child A, or Child N.” In support of this finding, the record shows that Child

R told forensic interviewer Maria Flores in detail about the sexual abuse she experienced

by Father J, as well as the abuse Father J committed against Child A and Child N. Flores

testified that Child R told Mother twice about the sexual abuse, but Mother “didn’t do

anything about it.” Kimberly Stanfield, who professionally counseled Child R and Child A,

also testified that Child R told Mother about the abuse, but Mother did not believe her,

and on another occasion, Child R and Mother spoke about the abuse, but Mother never

spoke to Father J or did anything to stop the repeated abuse. Stanfield further testified

that Child A never told Mother directly about the abuse, but Child A knew that Child R had

made an initial outcry to Mother about the abuse committed upon them by Father J.

Although Mother denied that she knew of any abuse taking place against Child R or Child

A by Father J, she nevertheless admitted to experiencing domestic abuse by Father J

while they still lived together with the children. Finally, the trial court expressly found that

Mother was “not a credible person.”




                                              10
       In reviewing this evidence in a light most favorable to the trial court’s order, we

hold that the trial court could have reasonably formed a firm belief or conviction that

Mother knowingly placed or knowingly allowed her children to remain in conditions or

surroundings which endangered their physical or emotional well-being, in violation of

section 161.001(1)(D) of the family code. See J.P.B., 180 S.W.3d at 573. Furthermore,

in light of the entire record, we conclude that the evidence is factually sufficient to

establish that Mother violated section 161.001(1)(D) of the family code. Because we

conclude that the evidence is factually and legally sufficient to support the trial court’s

subsection (D) finding, we need not analyze the remaining findings related to this prong

of the analysis. See J.F.C., 96 S.W.3d at 261 (noting the two-prong test in deciding

parental termination and that one act or omission of conduct satisfies the first prong).

       b. Best Interests of the Children

       The trial court also found by clear and convincing evidence that terminating

Mother’s parental rights was in all five children’s best interests. See id. § 161.001(2). In

reviewing a best interest finding, we consider, among other evidence, the non-exclusive

Holley factors. See In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). These factors include: (1) the child's

desires; (2) the child's emotional and physical needs now and in the future; (3) any

emotional and physical danger to the child now and in the future; (4) the parental abilities

of the individuals seeking custody; (5) the programs available to assist the individuals

seeking custody to promote the best interest of the child; (6) the plans for the child by the

individuals or agency seeking custody; (7) the stability of the home or proposed




                                             11
placement; (8) the parent's acts or omissions which may indicate that the existing parent-

child relationship is improper; and (9) any excuse for the parent's acts or omissions. Id.

       Here, none of the children testified at trial, but the Department’s caseworker,

Elizabeth Lopez, testified that Child R and Child A told her that they would like to stay

with Father T and not visit with Mother. Nancy Tryon, who has served as Child N, Child

D, and Child V’s foster mother, testified that none of the three children have “longings” to

return to Mother and that they were in a comfortable and stable environment. Tryon

testified that she was willing to adopt all three children, or foster them for as long as

needed. Michelle Moran, a psychologist who evaluated Child R and Child A testified that

Child R was “disappointed” and “hurt” that Mother failed to protect her and her sister from

Father J’s abuse. Additionally, Moran testified that Child A suffered from post-traumatic

stress disorder due to the past sexual abuse. Based on her evaluation, Moran testified

that it was in the best interest of the children to terminate Mother’s rights. Furthermore,

Stanfield, a qualified professional counselor, stated that Child R and Child A had

demonstrated positive behaviors since attending counseling, and although she did not

offer a recommendation regarding the children’s best interests moving forward, Stanfield

expressed concerns about whether Mother could protect her children.                 Melissa

Machacek, the CASA volunteer who worked with Child N, Child D, and Child V, testified

that based on her evaluation, she believed that Mother has chosen not to, or is unable to

protect her children. Furthermore, Machacek testified that she does not believe Mother

would change and questioned her honesty. Carolyn Nelson, the CASA volunteer who

worked with Child R and Child A, recommended terminating Mother’s rights and leaving

the two children in the custody of Father T and Stepmother.



                                            12
       Mother’s testimony was expressly found not credible by the trial court. However,

the evidence showed that Mother substantially complied with the Department’s service

plan, including drug and alcohol assessment, psychological evaluation, maintaining

contact with the Department, and individual counseling. Despite this progress, the

Department’s caseworker expressed concerns that Mother did not recognize symptoms

of child abuse and continued to deny that the abuse took place, despite later admitting

that she believed the girls. Mother testified that she lives with her mother and works at

Church’s Chicken restaurant making $8.25 per hour. Mother also testified that she was

working on obtaining her general equivalency diploma. Mother admitted to concealing

her subsequent pregnancy from the Department because she was worried about how it

would affect her pending case. Additionally, the record shows that Mother visited Father

J in jail sixteen times following his arrest for the aggravated sexual abuse charges and

that she received telephone calls from Father J while he was imprisoned from May 2014

to July 2014. Mother’s counselor, Shirley Richie, testified that she believed that Mother

possessed the tools necessary to protect her children from abuse or neglect, but the trial

court expressly stated that it did not find Richie’s testimony credible.

       In reviewing this evidence in a light most favorable to the trial court’s order and

with the Holley factors in mind, we hold that the trial court reasonably could have formed

a firm belief or conviction that terminating Mother’s parental rights was in all five children’s

best interests. Likewise, in light of the entire record weighed against the Holley factors,

we conclude that the evidence is factually sufficient to establish that terminating Mother’s

parental rights was in the children’s best interest.




                                              13
       c. Summary

       We conclude that the evidence is legally and factually sufficient to support the trial

court’s finding by clear and convincing evidence that Mother committed acts or omissions

to satisfy 161.001(1)(D) of the family code and that terminating Mother’s parental rights

to Child R, Child A, Child N, Child D, and Child V are in each child’s best interests.

Mother’s second, third, and fourth issues are overruled.

C.     Department Compliance with the Texas Family Code

       By her fifth and final issue, Mother asserts that the Department failed to comply

with the provisions of the family code when it removed Child N, Child D, and Child V from

Mother’s care, and that had the Department conducted a proper investigation to ascertain

the true facts, “the whole tenor of the trial would have been different.”

       As a prerequisite to presenting a complaint for appellate review, the record must

show that the complaint was made to the trial court by a timely request, objection, or

motion that stated the grounds for the ruling sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, and that the trial court ruled on

or refused to rule on the request, objection, or motion expressly or implicitly. TEX. R. APP.

P. 33.1(a). Here, nothing in the record indicates that Mother’s complaint on appeal was

made to the trial court and ruled upon. As a result, this issue is unpreserved for our

review. See id. Mother’s fifth issue is overruled.

                          III.    CHILD R AND CHILD A’S APPEAL

       At the conclusion of the proceedings below, the trial court made the following

relevant finding in denying Father T’s petition for sole managing conservatorship:




                                             14
The thing that is troubling to me in this case is as follows: [Mother’s] date of
birth is April 21st, 1989. [Father T’s] date of birth is March 24th, 1986.
[Father T] was more than three years older than [Mother].

....

Penal Code Section 22.011, subparagraph (a) (2), says that: ‘A person
commits an offense if the person intentionally or knowingly causes the
penetration of the anus or sexual organ of a child by any means.’

Subsection (B) (11) -- I'm sorry -- (A)(11) -- correction -- (C) (1) defines a
child as ‘a person younger than 17 years of age.’ [Mother] at the time that
she engaged in intercourse with [Father T] . . . was a child by definition.

[Father T], by definition, was more than three years older than [Mother],
which means that [Father T] has committed sexual assault upon [Mother].

I'm advising the District Attorney of Victoria County, Texas, that it appears
that [Father T] has committed a felony offense of sexual assault under the
provisions of the Code. There is no period of limitations for this offense.
Again, I will leave that issue to the sound judgment of the District Attorney
of Victoria County, Texas.

I am troubled by the fact that the Department of Family and Protective
Services has chosen to place children with a person who has committed
sexual assault on a child.

I'm particularly disturbed by the Department's decision, particularly in light
of Section 153.004 of the Texas Family Code, subparagraph(B), which says
as follows: ‘The Court may not appoint joint managing conservators if
credible evidence is presented of a history or pattern of past or present child
neglect, or physical or sexual abuse by one parent directed against the
other parent, a spouse, or a child, including sexual assault, in violation of
Section 22.011 or Section 22.021 of the Penal Code, that results in the other
parent becoming pregnant with the child.[’]

That is exactly what happened in this case.

A history of sexual abuse includes a sexual assault that results in the other
parent becoming pregnant with the child, regardless of the prior relationship
with between the parents. So here we have the State of Texas, through the
Department of Family and Protective Services, who is in the position of
managing conservator of this -- these children, placing these children with
a parent who, at least apparently, has committed sexual assault upon the
other spouse resulting in the pregnant of the other person -- resulting in the
pregnancy of that person in which the Family Code, at least on the initial

                                      15
       inquiry, would prohibit me; and therefore, I believe them from appointing a
       managing conservator.

       Now, it goes on to say: ‘the Court may not allow a parent to have access to
       a child for whom it is shown by a preponderance of the evidence that,’
       Subparagraph (2), ‘the parent engaged in conduct that constitutes an
       offense under Section 21.02, 22.011" which I have just read, "or Section
       22.021 or 25.02 of the Penal Code and that as a direct result of the conduct,
       the victim of the conduct became pregnant with the parent's child."

       The—there is escape language in here that says that notwithstanding the
       prohibition that says that I cannot allow [Father T] to have access—
       remember, it just says ‘access’ to the child. It says that I can't allow him to
       have access . . . .

       I can allow him to have access if I render a possession order that's designed
       to protect the safety and well-being of the child and any other person who
       has been a victim of family violence committed by the parent and that may
       include a requirement with that, and then it sets out some things that I can
       do. But it doesn't say—it doesn't say that I can or should appoint him a
       managing conservator and, in fact, it seems to me that Subparagraph B
       says that I may not appoint a joint managing conservator if credible
       evidence is presented, et cetera. There's credible evidence here that this
       child -- the oldest child, [Child R], was conceived as a result of a sexual
       assault by [Father T] upon [Mother].

As a result of this finding, the trial court denied Father T’s petition for sole conservatorship

over Child R and Child A and named him possessory conservator of Child R and Child A

with no rights or access.

       By their sole issue on appeal, Child R and Child A assert that the trial court

unconstitutionally applied section 153.004(b) to Father T, depriving him of due course of

law regarding his constitutionally-protected fundamental right to be Child R and Child A’s

father. See TEX. FAM. CODE ANN. § 153.004(b). Section 153.004 states the following in

relevant part:

       (a) In determining whether to appoint a party as a sole or joint managing
           conservator, the court shall consider evidence of the intentional use of
           abusive physical force, or evidence of sexual abuse, by a party directed
           against the party's spouse, a parent of the child, or any person younger

                                              16
    than 18 years of age committed within a two-year period preceding the
    filing of the suit or during the pendency of the suit.

(b) . . . .

    It is a rebuttable presumption that the appointment of a parent as the
    sole managing conservator of a child or as the conservator who has the
    exclusive right to determine the primary residence of a child is not in the
    best interest of the child if credible evidence is presented of a history or
    pattern of past or present child neglect, or physical or sexual abuse by
    that parent directed against the other parent, a spouse, or a child.

....

(d) The court may not allow a parent to have access to a child for whom it
    is shown by a preponderance of the evidence that:

    (1) there is a history or pattern of committing family violence during the
        two years preceding the date of the filing of the suit or during the
        pendency of the suit; or

    (2) the parent engaged in conduct that constitutes an offense under
        Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a
        direct result of the conduct, the victim of the conduct became
        pregnant with the parent's child.

(d-1) Notwithstanding Subsection (d), the court may allow a parent to have
access to a child if the court:

(1) finds that awarding the parent access to the child would not endanger
the child's physical health or emotional welfare and would be in the best
interest of the child; and

(2) renders a possession order that is designed to protect the safety and
well-being of the child and any other person who has been a victim of family
violence committed by the parent and that may include a requirement that:

(A) the periods of access be continuously supervised by an entity or person
chosen by the court;

(B) the exchange of possession of the child occur in a protective setting;

(C) the parent abstain from the consumption of alcohol or a controlled
substance, as defined by Chapter 481, Health and Safety Code, within 12
hours prior to or during the period of access to the child; or



                                      17
       (D) the parent attend and complete a battering intervention and prevention
       program as provided by Article 42.141, Code of Criminal Procedure, or, if
       such a program is not available, complete a course of treatment under
       Section 153.010.

Id.

       Here, the trial court appeared to make a finding that credible evidence existed that

Father T committed physical or sexual abuse against Mother in violation of section 22.011

of the penal code, and as a result, the court found that Father T did not rebut the

presumption that his appointment as sole managing conservator of Child R and Child A

was not the children’s best interests.

       On appeal, Child R and Child A assert that the trial court unconstitutionally applied

section 153.004(b) to Father T because he was not given proper due process in allowing

him an opportunity to rebut the presumption that naming him sole managing conservator

of Child R and Child A was not in their best interests, and in so doing, the trial court

deprived Father T of his fundamental rights as a father to Child R and Child A. In its

response brief, the Department agrees with and adopts Child R and Child A’s arguments.

Because the Department agrees with and adopts Child R and Child A’s arguments on this

issue, we sustain Child R and Child A’s issue without addressing its merits.

                                   IV.     CONCLUSION

       We affirm the trial court’s judgment terminating Mother’s parental rights to Child R,

Child A, Child N, Child D, and Child V. We reverse the portion of the trial court’s judgment

denying Father T’s petition for sole managing conservatorship and granting the

Department sole managing conservatorship to Child R and Child A.

       We remand this case for the trial court to conduct a new hearing related to Father

T’s petition seeking sole managing conservatorship of Child R and Child A. At this

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hearing, the trial court shall give all parties an opportunity to fully develop a record related

to whether—and if so, how—section 153.004 of the family code affects Father T’s petition

seeking sole managing conservatorship of Child R and Child A. Finally, our holding does

not affect the Department’s status as temporary managing conservator of Child R and

Child A that was in effect prior to the termination proceedings below.




                                                                  GINA BENAVIDES,
                                                                  Justice


Delivered and filed the
15th day of October, 2015.




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