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In re A.S.

Court of Appeals of Texas, Tenth District

April 19, 2017

IN THE INTEREST OF A.S., J.S., A.S., AND D.S., CHILDREN

         From the County Court at Law Bosque County, Texas Trial Court No. CV15247

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          TOM GRAY Chief Justice.

         Candice 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.

         Candice

         In her 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.

         Daniel Predicate Grounds

         In his 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.").

         Termination 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.

         In 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. at 573.

         In 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.

         Section 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.

         This 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).

         The 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 ...


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