In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-12-00508-CV 

IN THE INTEREST OF D.N. AND D.N., CHILDREN 

 

On Appeal from the 84th District Court 

Hansford County, Texas 

Trial Court No. CV05034, Honorable William D. Smith, Presiding 

 

May 9, 2013 

 

DISSENTING OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

Appellant, the mother of two girls, appeals the trial court’s judgment terminating 

her parental rights. She challenges the sufficiency of the evidence supporting the 

court’s findings on the predicate grounds under Family Code § 161.001(1) and its best 

interest finding under § 161.001(2). 

The Court concludes that the trial court’s judgment cannot be affirmed by 

reference to evidence appellant committed an act listed under § 161.001(1) before the 

August 2011 date of the previous order denying termination of her parental rights, 

because the trial court’s judgment does not state there was a material and substantial 
2

change in the circumstances of a party since the date of that previous order. See Tex. 

Fam. Code Ann. § 161.004(a)(2) (West 2008). To reach that conclusion, the Court 

relies on In re J.R.S., 232 S.W.3d 278 (Tex.App.—Fort Worth 2007, no pet.);

Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244 

(Tex.App.—Houston [1st Dist.] 2006, no pet.); and Vasquez v. Tex. Dep’t of Protective 

& Regulatory Servs., 190 S.W.3d 189 (Tex.App.—Houston [1st Dist.] 2005, pet. 

denied). I do not quarrel with the cited holdings of those cases, but they each deal with 

trial court findings concerning the predicate grounds § 161.001(1). See In re J.R.S., 

232 S.W.3d at 284-85; Cervantes-Peterson, 221 S.W.3d at 250-52; Vasquez, 190 

S.W.3d at 194. That is not our circumstance here. The trial court’s judgment contains 

affirmative findings on all the predicate grounds under § 161.001(1) on which the 

Department relies on appeal. The absent finding concerns the applicability of § 

161.004, which does not contain the explicit requirement of a “finding” that courts have 

found applicable to the predicate grounds under § 161.001(1). See CervantesPeterson, 221 S.W.3d at 251 (citing §§ 161.001(1), 161.206).

A panel of this court recently addressed a circumstance in which the trial court 

relied for termination on evidence of predicate grounds that predated a previous order 

denying termination. In re N.R.T., 338 S.W.3d 667 (Tex.App.—Amarillo 2011, no pet.) 

We affirmed the judgment despite the absence of findings on the requirements of § 

161.004(a). Id. at 678. The judgment in N.R.T. followed a bench trial, while the case 

here was submitted to a jury. The charge instructed the jury it must find one of the 

predicate grounds under § 161.001(1), but did not contain an instruction with regard to 

the requirements of § 161.004(a). The ultimate issue on termination was submitted in 
3

broad form. See Texas Dep’t of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 

1990) (op. on reh’g). I would apply an approach to the applicability of § 161.004(a) here 

similar to that we applied in N.R.T.

The Department argues the judgment of termination in this case should be 

affirmed on the basis of predicate grounds existing prior to the date of the August 2011 

agreed order that denied termination of parental rights, via § 161.004. I agree with the 

Department that the trial court’s judgment should be affirmed. Because the Court 

instead reverses the trial court’s judgment, I respectfully dissent. 

James T. Campbell

 Justice