Opinion filed September 10, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-15-00055-CV
                                   __________

                  IN THE INTEREST OF S.F., A CHILD

                     On Appeal from the 326th District Court
                                Taylor County, Texas
                          Trial Court Cause No. 7697-CX


                      MEMORANDUM O PI NI O N
      This is an appeal from an order terminating the parental rights of S.F.’s mother
and father. Both parents appeal. We reverse and remand.
                                   Issues Presented
      In their first issue, the parents challenge the legal and factual sufficiency of
the evidence to support the trial court’s finding that the circumstances of the child or
parent had materially and substantially changed since the rendition of a prior order
denying a request for termination. In their second issue, the parents argue that the
trial court erred in rendering the termination order without allowing the parents to
present any evidence.
                                           Background Facts
        The Department of Family and Protective Services sought to terminate the
parents’ rights to S.F. and J.F. in a previous proceeding. After trial, the trial court
entered an order in which it terminated the parents’ rights to J.F. but denied the
Department’s request to terminate the parents’ rights to S.F. because S.F. had not
been in the conservatorship of the Department for a sufficient period of time under
the applicable statute. See TEX. FAM. CODE ANN. § 161.001(1)(O) (West 2014)1 (at
least nine months).2
        After the passage of the requisite time, the Department filed a supplemental
petition to terminate the parents’ rights to S.F. In the supplemental petition, the
Department pleaded Section 161.004, which provides as follows:
               (a) The court may terminate the parent-child relationship after
        rendition of an order that previously denied termination of the parent-
        child relationship if:
                        (1) the petition under this section is filed after the
                 date the order denying termination was rendered;
                       (2) the circumstances of the child, parent, sole
                 managing conservator, possessory conservator, or other
                 party affected by the order denying termination have


        1
          We note that the legislature has recently amended Section 161.001 such that the text of
Section 161.001 is now contained in Section 161.001(b). See Act of Mar. 30, 2015, 84th Leg., R.S., S.B.
219, art. 1, § 1.078 (West) (to be codified as an amendment to TEX. FAM. CODE ANN. § 161.001) (effective
Apr. 2, 2015). In this opinion, we refer to the section as it was numbered at the time of trial and as reflected
in the trial court’s order of termination.
        2
          Section 161.001(1)(O) provides the following ground for termination: “[T]hat the parent has . . .
failed to comply with the provisions of a court order that specifically established the actions necessary for
the parent to obtain the return of the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.”


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             materially and substantially changed since the date that the
             order was rendered;
                   (3) the parent committed an act listed under Section
             161.001 before the date the order denying termination was
             rendered; and
                    (4) termination is in the best interest of the child.
            (b) At a hearing under this section, the court may consider
      evidence presented at a previous hearing in a suit for termination of the
      parent-child relationship of the parent with respect to the same child.
Id. § 161.004.
      A second trial regarding the parents’ rights to S.F. began on December 11,
2014. The Department called its investigation supervisor as the first witness. Before
the supervisor had answered any question of substance relating to this case, the
parents objected to the supervisor’s testimony on the basis that the Department had
not laid a proper predicate under Section 161.004 “[i]f she is talking about the
investigation relating to the initial removal, that is evidence from prior to the
previous trial and the Court’s order -- earlier order denying termination.” The
Department attempted to lay the predicate by asking the supervisor what had
changed since the previous order denying termination. However, the supervisor
answered that she did not know. The Department then called another witness,
Christopher Willis, to lay the predicate.
      Willis testified that he was a conservatorship worker for the Department and
that he had been S.F.’s caseworker during the entire time since her removal from the
parents. The Department asked Willis what had changed since the previous order
denying termination, and Willis answered that S.F. had now been in the Department’s
care for over one year. On cross-examination, Willis was asked if there had been
any significant change in the circumstances of the child or the parents since the prior



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order. Willis answered, “Just the cessation of visitations” of the father pursuant to a
court order. The father’s visitation rights had been suspended by the trial court after
he was involved in an altercation with the foster parent. On redirect, Willis also
indicated that S.F.’s circumstances had changed because she was six months old at
the time of the first trial and was just over one year old at the time of the hearing at
issue in this appeal.
         After the parties questioned Willis regarding whether circumstances had
materially changed such that Section 161.004 applied, the attorneys presented
arguments to the trial court on that issue, and the parents renewed their objection to
any evidence relating to prior actions. The trial court then took “the matter under
advisement.”      The entire proceeding took less than thirty minutes, and its
transcription consists of only fifteen pages in the reporter’s record. No evidence was
presented regarding any actions of the parents or the best interest of the child. Nor
was the trial court asked to take judicial notice of the evidence presented at the prior
trial.
         Without holding another hearing, the trial court entered an order terminating
the parental rights of S.F.’s parents.      In the order, the trial court found that
Section 161.004 applied, that termination was appropriate pursuant to
Section 161.001(1)(O), and that termination was in the best interest of S.F. The
parents filed an objection to the entry of the order in which they asserted that no
evidence was presented at the trial that would support termination and complained
that they had no opportunity to present evidence in rebuttal. The parents requested
that the termination hearing be rescheduled and concluded at an appropriate time.
The parents also filed a motion for new trial in which they made similar contentions.




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                                      Analysis
      The termination of parental rights must be supported by clear and convincing
evidence. FAM. § 161.001. Section 161.004 has been regarded as a mechanism
through which the Department may, upon proving a material change in the
circumstances of an affected party, defeat a parent’s claim of res judicata when the
Department seeks termination after a prior petition seeking termination was denied.
In re L.O., No. 12-12-00196-CV, 2012 WL 5878241, at *4 (Tex. App.—Tyler Nov.
21, 2012, pet. denied); In re J.R., No. 07-12-00003-CV, 2012 WL 1605738, at *3
(Tex. App.—Amarillo May 8, 2012, no pet.) (mem. op.); In re K.G., 350 S.W.3d
338, 349 (Tex. App.—Fort Worth 2011, pet. denied). Even if Section 161.004
applied, the Department was required to present evidence at the subsequent trial to
support its grounds for termination. “Parental rights are ‘far more precious than any
property right,’ and when the State initiates a termination proceeding, ‘it seeks not
merely to infringe that fundamental liberty interest, but to end it.’” In re E.R., 385
S.W.3d 552, 563 (Tex. 2012) (quoting Santosky v. Kramer, 455 U.S. 745, 758–59
(1982)). We carefully scrutinize termination proceedings, and we strictly construe
involuntary termination statutes in the parent’s favor. Id. There is no question that
the parents should have been permitted to present evidence on their behalf in
response to the State’s efforts to terminate their parental rights. Accordingly, the
trial court erred when it rendered judgment without conducting a trial on the merits
after it took the Section 161.004 matter under advisement. We sustain the parents’
second issue on appeal. We do not address the parents’ first issue as it is not
dispositive of this appeal since other circumstances may well have changed if this
case again proceeds to trial. See TEX. R. APP. P. 47.1.




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                                   This Court’s Ruling
       We reverse the trial court’s order insofar as it terminated the parental rights
 of the parents to S.F., and we remand this cause to the trial court for further
 proceedings. Any proceeding on remand must be commenced within 180 days of
 this court’s mandate. TEX. R. APP. P. 28.4.




                                                     JOHN M. BAILEY
                                                     JUSTICE


September 10, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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