Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF E.J.Z. AND G.E.Z., CHILDREN
Submitted: April 2, 2018
Appeal from the 336th District Court Fannin County, Texas
Trial Court No. FA-16-42635
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice
Department of Family and Protective Services (the Department)
filed a petition to terminate Mother's and Father's
parental rights to their children, Emily and
Greg. The trial court entered orders terminating
Mother's and Father's parental rights after a Fannin
County jury determined: (1) that they had engaged in conduct
or knowingly placed the children with persons who engaged in
conduct which endangered their physical or emotional
well-being; (2) that they had failed to comply with the
provisions of a court order that specifically established the
actions necessary for them to obtain the return of the
children, who had been in the permanent or temporary managing
conservatorship of the Department for not less than nine
months as a result of their removal for abuse or neglect; and
(3) that termination of their parental rights was in the best
interests of the children. See Tex. Fam. Code Ann. §
161.001(b)(1)(E), (O), (2) (West Supp. 2017).
sole issue on appeal, Mother argues that the evidence is
factually insufficient to support the jury's verdict.
Father also argues that the evidence was factually
insufficient to support the verdict and that the trial court
erred in refusing his request for an instruction that
"[f]ailure to complete the service plan can be excused
if it was unreasonable for the parent to be required to
complete that plan."
conclude that Mother did not preserve her sole point of error
on appeal. We further find that the evidence was sufficient
to support a finding (1) that Father engaged in conduct or
knowingly placed the children with persons who engaged in
conduct which endangered their physical or emotional
well-being and (2) that termination of Father's parental
rights was in the best interests of the
children. Accordingly, we affirm the trial
Mother Did Not Preserve Her Sole Point of Error on
challenges the factual sufficiency of the evidence supporting
the jury's verdict. The State argues that Mother has
waived her sole point of error on appeal because she did not
file a motion for new trial. We agree.
Texas Rules of Civil Procedure require the filing of a motion
for new trial as a prerequisite to asserting a complaint on
appeal regarding the factual sufficiency of the evidence
supporting a jury finding. In re A.L., 486 S.W.3d
129, 130 (Tex. App.-Texarkana 2016, no pet.) (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); Cecil v.
Smith, 804 S.W.2d 509, 512 (Tex. 1991)). "Where, as
here, there is no motion for new trial raising factual
sufficiency challenges to the jury's verdict,
'[f]actual sufficiency is not preserved for
appeal.'" Id. (quoting O.M.H.,
2012 WL 2783502, at *2) (footnote omitted) (citing In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003)); see In re
L.G.D., No. 06-17-00061-CV, 2017 WL 4507673, at *1 (Tex.
App.- Texarkana Oct. 10, 2017, pet. denied) (mem. op.).
Because Mother has not preserved a factual sufficiency
challenge to the jury's verdict, we overrule her sole
point of error on appeal.
Factually Sufficient Evidence Supports the Jury's
Verdict Terminating Father's Parental Rights
Standard of Review
natural right existing between parents and their children is
of constitutional dimensions." Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a
fundamental right to make decisions concerning "the
care, custody, and control of their children."
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." In re
A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is
therefore required to "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 500. "[I]nvoluntary
termination statutes are strictly construed in favor of the
parent." 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).
order to terminate parental rights, the trial court must
find, by clear and convincing evidence, that the parent has
engaged in at least one statutory ground for termination and
that termination is in the child's best interest. Tex.
Fam. Code Ann. § 161.001 (West Supp. 2017); 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.'" Tex. Fam. Code Ann.
§ 101.007 (West 2014); see In re
J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard
of proof necessarily affects our review of the evidence.
review of factual sufficiency, we give due consideration to
evidence that the jury could have reasonably found to be
clear and convincing. In re H.R.M., 209 S.W.3d 105,
109 (Tex. 2006) (per curiam). We consider only the evidence
that 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. (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266
(Tex. 2002). "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." J.F.C., 96 S.W.3d at 266.
"[I]n making this determination, " we must
undertake "an exacting review of the entire record with
a healthy regard for the constitutional interests at
stake." A.B., 437 S.W.3d at 503 (quoting
C.H., 89 S.W.3d at 26).
the profound constitutional interests at stake in a
proceeding to terminate parental rights, "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)); see In re M.S., 115 S.W.3d 534,
547 (Tex. 2003). "A child's emotional and physical
interests must not be sacrificed merely 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).
B. The Evidence at Trial
heart of this case concerns extensive injuries sustained by
Greg on April 10, 2016, when he was approximately ten weeks
old. At trial, the main issue was whether Greg sustained
these injuries as a result of abuse or a medical condition.
Consequently, we review Greg's medical history in detail.
was diabetic during her pregnancy with Greg, who was born by
scheduled cesarean section January 20, 2016, weighing eleven
pounds and seven ounces. Greg experienced respiratory
complications at birth, required additional days in the
hospital, was diagnosed with jaundice, and was discharged
January 24, 2016, weighing ten pounds. Timothy Brumitt,
Greg's pediatrician who had also treated Mother as a
child, saw Greg at a follow-up visit on January 27 and
testified that his weight loss was within normal limits
considering that Greg's birth ...