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In re R.W.K

Court of Appeals of Texas, Tenth District

October 23, 2019

IN THE INTEREST OF R.W.K, JR. AND L.E.M.K., CHILDREN

          From the County Court at Law Ellis County, Texas Trial Court No. 91784CCL

          Before Chief Justice Gray, Justice Davis, and Justice Neill.

          MEMORANDUM OPINION

          JOHN E. NEILL Justice.

         In ten issues, appellant, Violet Lindsey, challenges the trial court's order terminating her parental rights to R.W.K. Jr. and L.E.M.K. under Family Code sections 161.001(b)(1)(D), (E), (F), (N), (O), and (P) and 161.003.[1] See Tex. Fam. Code Ann. §§ 161.001(b)(1), 161.003 (West Supp. 2018). Because we overrule all of Lindsey's issues, we affirm.

          I. Sufficiency of the Evidence

         In her first, fourth, sixth, seventh, eighth, ninth, and tenth issues, Lindsey challenges the legal and factual sufficiency of the evidence supporting the predicate grounds for termination of her parental rights under sections 161.001(b)(1) and 161.003 of the Family Code.[2] Additionally, in her fifth issue, Lindsey references the trial court's November 1, 2016 order denying termination as to R.W.K. and L.E.M.K. and asserts that the Department failed to prove by clear and convincing evidence a material and substantial change in circumstances under section 161.004(a)(2) of the Family Code allowing for the termination of her parental rights in this proceeding. See Tex. Fam. Code Ann. § 161.004(a)(2) (West 2014) (providing that the trial court may terminate a parent's parental rights after rendition of an order that previously denied termination if "the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered"). This is also a challenge to the sufficiency of the evidence supporting termination of her parental rights.

          A. Preservation

         In an appeal from a judgment rendered on the basis of a jury verdict, including a judgment terminating parental rights, a party cannot complain about the legal and factual sufficiency of the evidence for the first time on appeal. See Tex. R. App. P. 33.1(d); see also In re S.G., No. 01-18-00728-CV, 2019 Tex.App. LEXIS 2618, at *10 (Tex. App.-Houston [1st Dist.] Apr. 2, 2019, pet. filed) (mem. op.); In re H.D.B.-M., No. 10-12-00423-CV, 2013 Tex.App. LEXIS 2057, at **22-23 (Tex. App.-Waco Feb. 28, 2013, pet. denied) (mem. op.). Therefore, to preserve a challenge to the legal sufficiency of the evidence for appellate review, a party must: (1) move for an instructed verdict; (2) object to the submission of a jury question; (3) move for a judgment notwithstanding the verdict; (4) move to disregard the jury's answer to a vital fact question; or (5) move for a new trial. See In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.-Fort Worth 2005, no pet.); In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.-Houston [1st Dist.] 2001, no pet.); In re C.E.M., 64 S.W.3d 425, 427 (Tex. App.-Houston [1st Dist.] 2000, no pet.). To preserve a challenge to the factual sufficiency of the evidence, a party must move for a new trial. Tex.R.Civ.P. 324b(2), (3); see In re A.C., 394 S.W.3d 633, 639 (Tex. App.-Houston [1st Dist.] 2012, no pet.); see also In re J.M.S., 43 S.W.3d at 62. The party's motion or objection also must be reasonably specific as to the nature of the evidentiary-sufficiency challenge that is being made to preserve error on that point. See Tex. R. App. P. 33.1(a)(1)(A); Tex.R.Civ.P. 268, 274, 301, 321-22; see also In re C.E.M., 64 S.W.3d at 428 (concluding that an instructed-verdict motion "on all grounds" was too general to preserve error and that a new-trial motion challenging an implied best-interest finding did not preserve error as to the findings on statutory predicate acts or omissions).

         B. Discussion

         In the instant case, Lindsey did not file a motion for an instructed verdict, file a judgment notwithstanding the verdict, raise an objection to the submission of a jury question, move to disregard the jury's answer to a vital fact question, or file a motion for new trial.[3] Accordingly, we conclude that she failed to preserve her legal and factual-sufficiency complaints regarding the predicate grounds for termination of her parental rights under sections 161.001(b)(1) and 161.003 of the Family Code, as well as her complaint under section 161.004 of the Family Code. See In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003) (holding that the normal rules of preservation apply to parental rights termination cases and that due process does not mandate appellate review of unpreserved error in such cases); In re D.J.J., 178 S.W.3d at 426-27; In re A.C., 394 S.W.3d at 639; In re J.M.S., 43 S.W.3d at 62; In re C.E.M., 64 S.W.3d at 427; see also In re H.D.B.-M., 2013 Tex.App. LEXIS 2057, at **22-23.

          However, knowing this is a family-law, "death-penalty" case, regardless of the lack of preservation, we will give a brief review of the evidence relevant to the predicate grounds for termination under sections 161.001(b)(1) and 161.003, as well as Lindsey's complaint under section 161.004 of the Family Code. An examination of Lindsey's behavior reflects extensive experience with the Department dating back to 2006, when it was determined that Lindsey used marihuana on a regular basis and placed one of her children with her brother who sexually abused the child. Lindsey's drug abuse has continued, as evidenced by numerous positive tests for cocaine, methamphetamine, amphetamine, and marihuana, as well as forty-two missed drug tests that were all presumed to be positive. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) ("Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001[(b)](1)(E)."); In re Z.C., 280 S.W.3d 470, 474 (Tex. App.-Fort Worth 2009, pet. denied) (stating that a parent's illegal drug use and drug-related criminal activity may support a finding that the child's surroundings endanger his physical or emotional well-being). She also has documented issues with alcohol abuse and a long history of mental-health issues and drug-seeking behaviors.

         The record also includes numerous reports of Lindsey's involvement with men who engage in domestic violence, as well as reports that Lindsey herself physically abused, medically neglected, and engaged in the neglectful supervision of R.W.K. And L.E.M.K. See In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.-Texarkana 2015, no pet.) (noting that abusive or violent conduct by a parent or other person in the children's home may produce an environment that endangers the physical and emotional well-being of the children); see also In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (stating that domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment). Moreover, Lindsey's inability to provide a stable home for the children was also evidenced by the fact that she was incarcerated for parts of this proceeding for criminally trespassing on her mother's property. See In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.-Fort Worth 2009, no pet.) ("Conduct that subjects a child to a life of uncertainty and instability also endangers the child's physical and emotional well-being. While imprisonment alone is not a basis to terminate a parent's rights, it is an appropriate factor to consider because when a parent is incarcerated, he or she is absent from the child's daily life and unable to provide support to the child, negatively impacting the child's living environment and emotional well-being." (internal citations omitted)).

         Thus, based on the foregoing, there was ample evidence in the record to support the termination of Lindsey's parental rights under sections 161.001(b)(1) and 161.003 of the Family Code, as well as a finding of material and substantial change in circumstances under section 161.004 of the Family Code, as alleged by the Department. It was the overwhelming evidence of Lindsey's inappropriate actions and omissions that resulted in the trial court's order terminating her parental rights, not her alleged "economic disadvantage." Nevertheless, Lindsey failed to preserve her legal and factual sufficiency complaints, and we accordingly overrule her first, fourth, fifth, sixth, seventh, eighth, ninth, and tenth issues.

         II. The ...


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