IN THE INTEREST OF A.S., J.S., A.S., AND D.S., CHILDREN
the County Court at Law Bosque County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY Chief Justice.
and Daniel S. appeal separately from a judgment that
terminated their parental rights to their children, A.S.,
J.S., A.S., and D.S. Tex. Fam. Code Ann. § 161.001(b)(1)
(West 2014). Candice complains that the evidence was
factually insufficient for the jury to have found that
termination was in the best interest of the children. Daniel
complains that the evidence was legally and factually
insufficient for the jury to have found the predicate grounds
for termination and that termination was in the
children's best interest. Because we find that Candice
did not preserve her complaint by filing a motion for new
trial, we overrule her sole issue and affirm the judgment as
it relates to Candice. Because we find that the evidence was
legally and factually sufficient for the jury to have found
that Daniel failed to complete his service plan and that
termination was in the best interest of the children, we
affirm the judgment relating to Daniel.
sole issue, Candice complains that the evidence was factually
insufficient for the jury to have found that termination of
the parent-child relationship was in the children's best
interest. However, Candice did not file a motion for new
trial. In order to complain on appeal, a party must file a
motion for new trial to preserve a factual sufficiency
challenge. Tex.R.Civ.P. 324(b)(2); In re A.M., 385
S.W.3d 74, 79 (Tex. App.- Waco 2012, pet. denied). We
conclude that Candice failed to preserve the factual
sufficiency complaint made in her sole issue. In re
A.M., 385 S.W.3d at 79. Accordingly, we overrule
Candice's sole issue.
first issue, Daniel complains that the evidence was legally
and factually insufficient for the jury to have found that he
(1) voluntarily left the children in the possession of
another without providing adequate support of the children
and remained away for a period of at least six months; (2)
engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangers the physical
or emotional well-being of the children; (3) had been
convicted or placed on community supervision for being
criminally responsible for the death or serious injury of a
child; (4) constructively abandoned the children; and (5)
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 children. See Tex. Fam.
Code Ann. § 161.001(b)(1)(C), (E), (L), (N), & (O).
Only one statutory predicate ground is necessary to support
termination of parental rights when there is a finding of
best interest. See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003) ("Only one predicate finding under section
161.001(b)(1) is necessary to support a judgment of
termination when there is also a finding that termination is
in the child's best interest.").
decisions must be supported by clear and convincing evidence.
Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a).
Evidence is clear and convincing if it "will produce in
the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be
established." Tex. Fam. Code Ann. § 101.007.
evaluating the evidence for legal sufficiency in
parental-termination cases, we determine whether the evidence
is such that a factfinder could reasonably form a firm belief
or conviction that the grounds for termination were proven.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the
finding and judgment, and resolve any disputed facts in favor
of the finding if a reasonable factfinder could have done so.
Id. We disregard all contrary evidence that a
reasonable factfinder could have disbelieved. Id. We
consider undisputed evidence even if it is contrary to the
finding. Id. In other words, we consider evidence
favorable to termination if a reasonable factfinder could,
and we disregard contrary evidence unless a reasonable
factfinder could not. Id. We do not weigh
credibility issues that depend on the appearance and demeanor
of the witnesses, for that is solely the province of the
factfinder. Id. at 573-74. Even when credibility
issues appear in the record, we defer to the factfinder's
determinations as long as they are reasonable. Id.
reviewing the factual sufficiency of the evidence, we give
due deference to the factfinder's findings and do not
supplant the factfinder's judgment with our own. In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine
whether, on the entire record, a factfinder could reasonably
form a firm conviction or belief that the parent committed
the predicate ground alleged and that the termination of the
parent-child relationship would be in the best interest of
the child. Tex. Fam. Code Ann. § 161.001(b)(1); see
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light
of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is
so significant that a factfinder could not reasonably have
formed a firm belief in the truth of its finding, then the
evidence is factually insufficient. In re H.R.M.,
209 S.W.3d at 108.
161.001(b)(2)(O) of the Family Code provides that parental
rights may be terminated if a parent "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." Tex.
Fam. Code Ann. § 161.001(b)(1)(O). Daniel argues that he
substantially complied with the service plan and because of
this, the evidence was insufficient to terminate his parental
rights on this basis.
Court has long held that we do not consider "substantial
compliance" to be the same as completion for purposes of
subsection (O) of the Family Code, nor does that subsection
provide for excuses for failure to complete court ordered
services. See In re T.N.F., 205 S.W.3d 625, 630-31
(Tex. App.-Waco 2006, pet. denied) (emphasizing that parents
must comply with every requirement of the court order and
that subsection (O) does not allow for consideration of
excuses for noncompliance).
evidence is undisputed that Daniel did not complete every
requirement of the service plan. He was ordered to complete a
psychological evaluation, which he did later in the
proceedings, and was to follow its recommendations which
included a requirement to attend a behavioral intervention
program, which he did not do. Daniel was ordered to
participate in therapy and follow all recommendations, but
his attendance was extremely sporadic, with him missing
scheduled sessions. Daniel was required to maintain housing
and employment during the case, but failed to do both.
However, he and Candice were living in a residence at the
time of trial and he had been working at a job for a few
months. Daniel had only provided one paystub to the
Department during the entire case showing that he made $300.
He had four jobs and he and Candice had multiple residences
throughout the proceedings. Daniel and Candice were even
homeless at one point after having to leave his family's
residence. After reviewing the evidence ...