concurring.
I concur in the judgment of this Court and join the majority in its opinion to the extent that it sustains the first issue of appellant, Malcolm Troy Earvin, and overrules his fourth issue. I agree that we should affirm the portion of the trial court’s decree assigning the Texas Department of Family and Protective Services (“DFPS”) as the sole managing conservator of Earvin’s child and that we should render judgment that Earvin’s parental rights are not terminated. However, the majority erroneously reasons that a rendition, instead of a remand, is proper “[b]e-cause the trial court has already effectively satisfied the requirements of sections 161.205 and 263.404 of the Family Code.” See Tex. Fam.Code ANN. §§ 161.205, 263.404 (Vernon 2002).
In fact, this case serves to illustrate how this Court has previously erred in remanding parental rights termination cases, after sustaining the parents’ challenge of the legal sufficiency of the evidence supporting termination, in order to address the separate issue of conservatorship on unassigned error. See Colbert v. Dep’t of Family & Protective Servs., 227 S.W.3d 799 (Tex.App.-Houston [1st Dist] 2006, no pet. h.); Walker v. Dep’t of Family & Protective Servs., No. 01-06-00253-CV, — S.W.3d-, 2006 WL 3751456 (Tex.App.Houston [1st Dist.] Dec. 21, 2006, no pet. h.).
In a suit to terminate the parent-child relationship, section 161.205 provides that “[i]f the [trial] court does not order termination of the parent-child relationship, the court shall” deny the petition or render any order in the best interest of the child. Tex. Fam.Code Ann. § 161.205 (emphasis added). In regard to the review of the placement of children under the care of DFPS, section 263.404 provides that a trial court “may render a final order appointing the department as managing conservator of the child without terminating the rights of the parent” if the court finds that appointment of a parent as managing conservator would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development and it would not be in the child’s best interest to appoint a relative or another person. Id. § 263.404(a) (emphasis added). Here, however, the trial court actually ordered the termination of Earvin’s parental rights to his child. Sections 161.205 and 263.404 are simply inapplicable to this appeal.
In addition to seeking the termination of Earvin’s parental rights to his child in its petition, DFPS requested that the trial court appoint DFPS as sole managing conservator pursuant to sections 153.005 and 263.404 of the Texas Family Code. See id. §§ 153.005, 263.404 (Vernon 2002). As noted above, section 263.404 is not applicable here. Section 153.005 provides that in a suit affecting the parent-child relationship, a court “may appoint a sole managing conservator or may appoint joint managing conservators.” Id. § 153.005(a). A finding by the court that appointment of a parent as managing conservator would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development defeats the presumption that a parent should be appointed as managing conservator. Id. § 153.131 (Vernon 2002). Here, the trial court ordered the termination of Earvin’s parental rights to his child. It also appointed DFPS as the sole managing conservator of the child, finding *353“this appointment to be in the best interest of the child” and granting DFPS specific rights and duties, including those rights and duties afforded to a nonparent appointed as a sole managing conservator under section 153.371 of the Texas Family Code. Id. § 153.371 (Vernon Supp.2006). As acknowledged by the majority, the trial court appointed DFPS as conservator “independent of the termination of Earvin’s parental rights.” This independent determination was not made under either section 161.205 or 263.404.
Earvin, in his issues for our review, has separately challenged the trial court’s order terminating his parental rights to his child and the trial court’s order appointing DFPS as sole managing conservator of the child. We have sustained his challenge to the legal sufficiency of the evidence supporting the termination of his parental rights, and we have overruled his challenge of the trial court’s order appointing DFPS as sole managing conservator of the child.
Rendition is not proper in this case “[bjecause the trial court has already effectively satisfied the requirements of sections 161.205 and 263.404 of the Family Code.” Sections 161.205 and 263.404 are not at all applicable to this case. Rather, we should render judgment that Earvin’s parental rights to his child are not terminated because that is the judgment that the trial court should have rendered. See Tex.R.App. P. 43.2(a), (c) (A court of appeals may “affirm the trial court’s judgment in whole or in part” or “reverse the trial court’s judgment in whole or in part and render the judgment that the trial court should have rendered.”).