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In re K.L.M.

Court of Appeals of Texas, Sixth District, Texarkana

February 21, 2018

IN THE INTEREST OF K.L.M. AND L.M.C., CHILDREN

          Date Submitted: February 13, 2018

         On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 85989

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Bailey C. Moseley Justice

         Tammy's admitted drug use, refusal to submit to a drug test, and lack of stable housing led to the removal of her young children, K.L.M. and L.M.C., [1] by the Texas Department of Family and Protective Services (TDFPS). After a trial, a Lamar County jury found that Tammy's parental rights to K.L.M. and L.M.C. should be terminated and that Casey's[2] parental rights to L.M.C. should be terminated. Based on the jury's verdict, the trial court terminated Tammy's and Casey's parental rights, finding (1) that Tammy had engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsections (D), (E), (N), (O), (P), and (Q) of Section 161.001(b)(1) of the Texas Family Code; (2) that Casey had engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), (N), (O), and (P) of Section 161.001(b)(1); and (3) that termination of their parental rights was in the best interests of the children.[3] See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (P), (Q), (2) (West Supp. 2017). In this appeal, Casey contends that the evidence is legally and factually insufficient to support termination of his parental rights. Tammy contends (1) that the evidence is legally and factually insufficient to support termination of her parental rights, (2) that the TDFPS misinformed the jury regarding possible contact with the children by Tammy if her rights were terminated, and (3) that the trial court erred in allowing the testimony of the TDFPS's expert witness. We affirm the trial court's judgment because we find (1) that any complaint regarding the sufficiency of the evidence supporting the jury's findings regarding the grounds for termination was not preserved, (2) that sufficient evidence supports the jury's findings that termination of Casey's and Tammy's parental rights is in the best interests of the children, (3) that Tammy's complaint that the TDFPS misinformed the jury was not preserved, and (4) that Tammy's complaints regarding the testimony of the TDFPS's expert witness were not preserved.

         I. Sufficiency of Evidence Issues Regarding the Grounds for Termination Were Not Preserved

         In Casey's sole issue and Tammy's first issue, they challenge the legal and factual sufficiency of the evidence to support the jury's verdict terminating their parental rights. In order to terminate a person's parental rights to his or her child, the fact-finder must find, by clear and convincing evidence, (1) that the person has committed at least one of the grounds for termination under Section 161.001(b)(1) of the Family Code, and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1)-(2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Although not specifically addressed in either of their briefs, to the extent that their issues challenge the legal and factual sufficiency of the evidence supporting the jury finding of one or more grounds for termination under Section 161.001(b)(1), this challenge has not been preserved. We have previously held,

As a prerequisite to bringing a legal sufficiency challenge in a parental-rights termination appeal following a jury trial, a parent must raise the legal sufficiency challenge with the trial court in either: "(1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial."

In re A.L., 486 S.W.3d 129, 130 (Tex. App.-Texarkana 2016, no pet.) (quoting In re C.Y., No. 02-15-00152-CV, 2015 WL 6394559, at *2 (Tex. App.-Fort Worth Oct. 22, 2015, no pet.) (mem. op.) (citing In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.-Fort Worth 2005, no pet.))). In this case, neither Casey nor Tammy challenged the legal sufficiency of the evidence supporting the jury's finding that they committed one or more grounds under Section 161.001(b)(1) in any of the manners set forth above. Therefore, we find that, to the extent Casey and Tammy challenge the legal sufficiency of the evidence supporting the jury's finding of one or more grounds under Section 161.001(b)(1), they have failed to preserve their legal sufficiency challenges for appeal.

         In addition, the Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a claim of factual insufficiency of the evidence supporting a jury finding complaint on appeal. Id. (citing In re O.M.H., No. 06-12-00013-CV, 2012 WL 2783502, at *2 (Tex. App.-Texarkana July 10, 2012, no pet.) (mem. op.)); see Tex. R. Civ. P. 324(b)(2). Since neither Casey nor Tammy filed a motion for new trial challenging the factual sufficiency of the evidence supporting the jury's finding of one or more grounds under Section 161.001(b)(1), [4]to the extent their factual sufficiency complaints challenge that jury finding, they are not preserved for appeal. Id. (citing O.M.H., 2012 WL 2783502, at *2; In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)).

         II. Sufficient Evidence Supports the Jury Finding that Termination is in the Best Interests of the Children

         Casey's sole issue (and Tammy's first issue) also challenges the legal and factual sufficiency of the evidence supporting the jury's findings that termination of their parental rights is in the best interest of K.L.M and/or L.M.C. "The natural right existing between parents and their children is of constitutional dimensions." In re L.E.S., 471 S.W.3d 915, 919 (Tex. App.- Texarkana 2015, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). It is a fundamental right of parents to make decisions regarding "the care, custody, and control of their children." Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof-clear and convincing evidence-is required at trial." Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). We, therefore, "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 919-20 (quoting A.B., 437 S.W.3d. at 500). "[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. at 920; In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.-Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20).

         Termination of parental rights requires the trial court to find, by clear and convincing evidence, that the parent has committed at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012). "'Clear and convincing evidence' is that 'degree of proof that 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.'" L.E.S., 471 S.W.3d at 920 (quoting Tex. Fam. Code Ann. § 101.007 (West 2014)); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

         The clear and convincing evidence standard requires us, in our legal sufficiency review, to "consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction" that termination was in the best interests of the children. Id. (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet.)). We assume that the fact-finder "resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing J.P.B., 180 S.W.3d at 573).

         Our review of factual sufficiency under this standard requires us to "give due deference to [the] jury's fact[-]findings, " and we may not "supplant the jury's judgment with [our] own." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)). Therefore, we "give due consideration to evidence the trial court could have reasonably found to be clear and convincing." L.E.S., 471 S.W.3d. at 920 (citing H.R.M., 209 S.W.3d at 109). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine 'whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations.'" Id. (alteration in original) (quoting H.R.M., 209 S.W.3d at 109 (quoting C.H., 89 S.W.3d at 25). "If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). To make this determination, we engage in "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26)).

         Nevertheless, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). We will not sacrifice a child's emotional and physical interests simply to preserve parental rights. In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.-Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).

         A. The Evidence at Trial

         At the time of trial, K.L.M. and L.M.C. were three and one-half years old and twenty-three months old, respectively. Casey initiated the involvement of the TDFPS because he was in jail and was worried about the children. During the TDFPS's investigation, Tammy admitted the current use of marihuana and her past use of methamphetamine, but refused to submit to a hair-follicle drug test. The TDFPS also found that there was ongoing methamphetamine use in the home, that needles were found in the home, that both children tested positive for methamphetamine, that the children were living in an unstable, dirty home environment with little food, and that Tammy would leave the children with inappropriate caregivers, prompting removal of the children.

         Tammy began smoking marihuana when she was thirteen, and she continued to smoke it even when she was pregnant with K.L.M. She began using methamphetamine when she worked as a dancer. During the course of this case, her drug use continued, and she began using methamphetamine intravenously when her visitation rights with the children were suspended because of a drug test that was positive for marihuana. She admitted that she had not had a clean drug test during the year before trial. Although she completed her parenting classes and psychological assessment, Tammy did not comply with the recommendations of the assessment, which included a psychiatric consult for medical management of depression and inpatient drug rehabilitation. In addition, Tammy failed to take five random drug tests, did not complete inpatient and outpatient drug treatment, and did not maintain stable housing or stable employment, all of which were required by the trial court's order and family service plan.

         At the time of trial, she had been in jail for seventy-three days and had been convicted of possessing four to 200 grams of methamphetamine, for which she received a seven-year prison sentence. Tammy also admitted that during the course of the case, she had assaulted a police officer with a razor knife and had ...


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