Opinion filed September 10, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-15-00055-CV

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IN THE INTEREST OF S.F., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 7697-CX

M E M O R A N D U M O P I N I 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 
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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 parentchild 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 

 

1We 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.

2Section 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.