AFFIRMED; Opinion Filed November 17, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00915-CV

                          IN THE INTEREST OF A.M., A CHILD

                      On Appeal from the 302nd Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DF-12-11107-U

                                         OPINION
                            Before Justices Lang, Myers, and Brown
                                   Opinion by Justice Myers
       Father appeals the trial court’s judgment terminating his parental rights to his child, A.M.

Father brings one issue on appeal contending the trial court erred by terminating his parental

rights based on events occurring before the parties’ divorce without a showing of a change of

circumstances since the date of divorce. We affirm the trial court’s judgment.

                                       BACKGROUND

       Father and Mother were married and had one child, A.M. They separated in February

2012 and shared possession of the child by agreement. On April 3, 2012, Father shot Mother

five or ten times. Mother was in a coma for three weeks and hospitalized for a month. It was

almost a year before Mother felt well enough to move around.           Father was charged with

aggravated assault, pleaded guilty, and was sentenced on October 5, 2012 to forty-five years’

imprisonment and a $10,000 fine.
            Mother filed for divorce on June 13, 2012, requesting that she be appointed the child’s

sole managing conservator and that Father be appointed possessory conservator and ordered to

pay child support. The trial court signed the final decree of divorce on March 19, 2013, granting

the relief Mother requested. Mother did not seek termination of Father’s parental rights in the

divorce proceeding, and the trial court neither granted nor denied termination of Father’s parental

rights during the divorce proceeding.

            On October 2, 2013, Mother filed her petition to terminate Father’s parental rights

alleging termination was warranted under paragraphs (C), (E), and (Q) of section 161.001(1) of

the family code. 1 Following a trial before the court, the court found by clear and convincing

evidence that section 161.001(1)(E) and (Q) were met and that termination of the parental

relationship between Father and the child was in the child’s best interest.




     1
         Section 161.001 provides,
     The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
            (1) that the parent has:
                        ....
                        (C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and
                        remained away for a period of at least six months;
                        ....
                        (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical
                        or emotional well-being of the child;
                        ....
                        (Q) knowingly engaged in criminal conduct that has resulted in the parent’s:
                                     (i) conviction of an offense; and
                                     (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of
                                     filing the petition;
            and
            (2) that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001 (West 2014).




                                                                         –2–
                                CHANGED CIRCUMSTANCES

       In his sole issue on appeal, Father contends the trial court erred by terminating Father’s

parental rights because Mother failed to show a material and substantial change in circumstances

since the divorce. Section 156.101(a)(1) of the family code provides that a trial court may

modify a conservatorship order if the modification would be in the best interest of the child and

“the circumstances of the child, a conservator, or other party affected by the order have

materially and substantially changed since the earlier of (A) the date of the rendition of the order;

or (B) the date of the signing of a mediated or collaborative law settlement agreement on which

the order is based.” FAM. § 156.101(a)(1) (West 2014). Section 161.004 of the family code

provides that when the trial court has previously rendered an order denying termination of the

parent-child relationship, the court may terminate the relationship if “the circumstances of the

child, parent, sole managing conservator, possessory conservator, or other party affected by the

order denying termination have materially and substantially changed since the date that the order

[denying termination] was rendered.” FAM. § 161.004(a)(2) (West 2014).

       Father argues that these statutes required Mother to prove there was a material and

substantial change of circumstances since the trial court rendered the divorce decree establishing

the parties’ conservatorship positions. We disagree.

       Section 156.101(a)(1) requires a material and substantial change of circumstances after

rendition of the previous conservatorship order before the court may render an order modifying

that conservatorship order. In In re C.T., No. 12-09-00401-CV, 2010 WL 4880631 (Tex. App.—

Tyler Nov. 30, 2010, no pet.) (mem. op.), the Tyler court of appeals considered whether section

156.101(a)(1)’s requirement of a material and substantial change applied in a termination-of-

parental-rights case and concluded it did not apply. The court observed that the distinction

between sections 156.101(a)(1) and 161.001 was “more than procedural or semantic.” Id. at *4.
                                                –3–
A modification proceeding and a termination proceeding are distinct statutory schemes with

different issues, standards of review, and burdens of proof. Id. In a modification proceeding, the

issues are whether there has been a substantial and material change of circumstances after the

previous order or mediated settlement agreement and whether the modification is in the best of

the child. See FAM. § 156.101(a)(1). In a termination proceeding, the issues are whether the

parent engaged in one of the acts or omissions in section 161.001(1) and whether termination is

in the best interest of the child. See FAM. § 161.001. A modification proceeding is reviewed for

an abuse of discretion. See In re M.M.S., 256 S.W.3d 470, 476 (Tex. App.—Dallas 2008, no

pet.). In a termination case, the findings that a parent engaged in one of the acts or omissions

and that termination is in the best of the child must be supported by clear and convincing

evidence. FAM. § 161.001. The Tyler court also observed that “[a]lthough both chapters [156

and 161] share the overriding concern that a modification or termination be in the best interest of

the child, ‘the consequences of termination are permanent, unlike the consequences of

modification . . . proceedings, which makes an analogy between the two fairly weak.’” In re

C.T., 2010 WL 4880631, at *5 (quoting In re N.A.F., 282 S.W.3d 113, 117 (Tex. App.—Waco

2009, no pet.)).   The Tyler court concluded that section 156.101(a)(1)’s requirement of a

substantial and material change of circumstances did not apply to a termination-of-parental-

rights proceeding. Id. We agree with the Tyler court’s reasoning and likewise conclude that

section 156.101(a)(1)’s requirement of a material and substantial change for modification of an

order establishing conservatorship or possession and access does not apply to a suit for

termination of parental rights. See also In re C.A.C., No. 14-12-00396-CV, 2012 WL 4465234,

*7 (Tex. App.—Houston [14th Dist.] Sept. 27, 2012, no pet.) (mem. op.) (discussing In re C.T.

and concluding section 156.101(a)(1) does not apply to a termination-of-parental-rights

proceeding); In re N.R.T., 338 S.W.3d 667, 673 (Tex. App.—Amarillo 2011, no pet.) (Section
                                               –4–
156.101(a)(1) does not apply to a suit for termination of parental rights); Slatton v. Brazoria

Cnty. Protective Servs. Unit, 804 S.W.2d 550, 554 (Tex. App.—Texarkana 1991, no writ) (suit

for involuntary termination of parental rights is not a suit for modification of conservatorship).

          Section 161.004 provides that when a trial court has previously rendered an order

denying termination of a parent’s parental rights, the trial court may not subsequently order

termination of that parent’s parental rights unless there has been a material and substantial

change of circumstances since the rendering of the order denying termination. In this case, the

record does not show there was a previous order denying termination of parental rights.

Accordingly, section 161.004 does not apply.

          We conclude Mother was not required to prove a material and substantial change since

the divorce for termination of Father’s parental rights. We overrule Father’s sole issue on

appeal.

                                          CONCLUSION

          We affirm the trial court’s judgment.




                                                        /Lana Myers/
                                                        LANA MYERS
                                                        JUSTICE

140915F.P05




                                                  –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

IN THE INTEREST OF A.M., A CHILD                    On Appeal from the 302nd Judicial District
                                                    Court, Dallas County, Texas
No. 05-14-00915-CV                                  Trial Court Cause No. DF-12-11107-U.
                                                    Opinion delivered by Justice Myers. Justices
                                                    Lang and Brown participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Wanda Nadine Malone recover her costs of this appeal
from appellant Paul Malone.

Judgment entered this 17th day of November, 2014.




                                            –6–
