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A. W. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

July 14, 2017

A. W. and R. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT NO. 14-1433, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Scott K. Field, Justice

         A.W. and R.R. appeal from the trial court's order terminating their parent-child relationship with their daughter, K.R.[1] In two issues, A.W. contends that the evidence is legally and factually insufficient to support the termination of her parental rights. In four issues, R.R. contends that the evidence is factually insufficient to support the termination of his parental rights. We will affirm the trial court's order terminating A.W.'s and R.R.'s parental rights.

         DISCUSSION

         To terminate the parent-child relationship, a court must find by clear and convincing evidence that: (1) the parent has committed one of the enumerated statutory grounds for termination and (2) it is in the child's best interest to terminate the parent's rights. Tex. Fam. Code § 161.001(b). A.W. contends that the evidence is legally and factually insufficient to support the termination of her parental rights, while R.R. contends that the evidence is factually insufficient to support the termination of his parental rights. "The distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one in some cases, but there is a distinction in how the evidence is reviewed." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing the legal sufficiency of the evidence in a parental-rights-termination case, we consider all the evidence in the light most favorable to the jury's finding and determine whether a reasonable fact-finder could have formed a firm belief or conviction that its finding was true. See id.; see also In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether a reasonable fact-finder could form a firm belief or conviction that a given finding was true. In re C.H., 89 S.W.3d 17, 18-19 (Tex. 2002). We assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable person could do so, and we disregard evidence that a reasonable fact-finder could have disbelieved or found incredible. In re J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable fact-finder could not have resolved the disputed evidence in favor of its finding and if that disputed evidence is so significant that the fact-finder could not reasonably have formed a firm belief or conviction that its finding was true. Id.

         A.W.

         The jury found by clear and convincing evidence that A.W. committed actions corresponding to at least one of the statutory grounds for termination found in subsections (D), (E), (M), and (O). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (M), (O). The jury further found by clear and convincing evidence that termination of A.W.'s rights was in K.R.'s best interest. See id. § 161.001(b)(2). In her first issue, A.W. challenges the legal and factual sufficiency of the evidence supporting the jury's finding that A.W. had satisfied a ground for termination. In her second issue, A.W. challenges the legal and factual sufficiency of the jury's best-interest finding.

         To preserve a challenge to the legal sufficiency of evidence in a jury trial, a party must either (1) file a motion for instructed verdict, (2) file a motion for judgment notwithstanding the verdict, (3) object to the submission of the issue to the jury, (4) file a motion to disregard the jury's answer to a vital fact issue, or (5) file a motion for new trial; to preserve a challenge to the factual sufficiency of the evidence in a jury trial, a party must file a motion for new trial. See Mason v. Texas Dep't of Family & Protective Servs., No. 03-11-00205-CV, 2012 WL 1810620, at *7 (Tex. App.-Austin May 17, 2012, no pet.) (mem. op.); see also Tex. R. Civ. P. 324(b)(2), (3) ("A point in a motion for new trial is a prerequisite to the following complaints on appeal . . . (2) A complaint of factual insufficiency of the evidence to support a jury finding . . . (3) A complaint that a jury finding is against the overwhelming weight of the evidence . . . ."); Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991) ("A point in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to support a jury finding and that a jury finding is against the overwhelming weight of the evidence. 'No evidence' points may be raised by either (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact issue or (5) a motion for new trial.") (citations and footnote omitted); In re J.B., No. 09-16-00442-CV, 2017 WL 2180682, at *7 (Tex. App.-Beaumont May 18, 2017, no pet. h.) (mem. op.); In re A.L., 486 S.W.3d 129, 130 (Tex. App.-Texarkana 2016, no pet.); Key v. Richards, No. 03-14-00116-CV, 2016 WL 240773, at *5 (Tex. App.-Austin Jan. 13, 2016, no pet.) (mem. op.); In re G.H., No. 02-14-00261-CV, 2015 WL 3827703, at *5 (Tex. App.-Fort Worth June 18, 2015, no pet.) (mem. op., en banc); In re H.D.B.-M., No. 10-12-00423-CV, 2013 WL 765699, at *8 (Tex. App.-Waco Feb. 28, 2013, pet. denied) (mem. op.).

         Nothing in the record before us indicates that A.W. filed a motion for new trial. Therefore, A.W. has not preserved her factual-sufficiency challenges. Arguably, A.W. has preserved her legal-sufficiency challenges concerning subsections (D), (E), and (O), because she objected to the submission of those grounds to the jury at the charge conference. However, nothing in the record before us indicates that A.W. objected to the submission of subsection (M) or the best-interest question to the jury or that she ever filed a motion for instructed verdict, a motion for judgment notwithstanding the verdict, or a motion to disregard the jury's answer to a vital fact issue. Therefore, we conclude that A.W. has not preserved her legal-sufficiency challenges to the jury's findings concerning subsection (M) or the best-interest finding. Only one ground under section 161.001(b)(1) is necessary to support a judgment in a parental-rights-termination case. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); Spurck v. Texas Dep't of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.-Austin 2013, no pet.). Because A.W. has not preserved any challenge to the jury's findings under subsection (M) or the best-interest finding, we overrule A.W.'s issues.[2]

         R.R.

         In four issues, R.R. contends that the evidence was factually insufficient to support the jury's finding that R.R. committed actions corresponding to at least one of the statutory grounds for termination found in subsections (D), (E), (N), and (O). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O).[3] Because only one ground under section 161.001(b)(1) is necessary to support the trial court's judgment, we will limit our discussion to subsection (E). See Spurck, 396 S.W.3d at 221.

         Subsection (E) states that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(E). This subsection requires proof of child endangerment, i.e., exposing a child to loss or injury or jeopardizing a child's emotional or physical well-being. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment does not need to be established as an independent proposition but may be inferred from parental misconduct alone. Id. To constitute endangerment under subsection (E), the parent's conduct need not be directed at the child. In re E. N.C. , 384 S.W.3d 796, 803 (Tex. 2012). Conduct may endanger a child even if it does not cause the child to suffer actual injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Boyd, 727 S.W.2d at 533).

         Although a parent's incarceration, standing alone, will not support a finding of endangerment, the fact-finder may consider it as a factor in determining whether the parent has engaged in a course of conduct that endangers the child. See In re M.C., 482 S.W.3d 675, 685 (Tex. App.-Texarkana 2016, pet. denied) ("[W]hile we recognize that imprisonment, standing alone, is not conduct which endangers the physical or emotional well-being of the child, intentional criminal activity which expose[s] the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child.") (internal quotation marks omitted); In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.-El Paso 2015, no pet.) ("Evidence of criminal conduct, convictions, and imprisonment and its effect on a parent's life and ability to parent may establish an endangering course of conduct."); In re M.D.S., 1 S.W.3d 190, 199 (Tex. ...


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