Court of Appeals of Texas, Sixth District, Texarkana
Submitted: December 4, 2019
Appeal from the 354th District Court Hunt County, Texas Trial
Court No. 85628
Morriss, C.J., Burgess and Stevens, JJ.
K. BURGESS JUSTICE.
Texas Department of Family and Protective Services
(Department) filed a petition to terminate Sally's
parental rights to her child, D.T.,  on the grounds that she had
(1) knowingly placed or knowingly allowed the child to remain
in conditions or surroundings that endangered his physical or
emotional well-being, (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct that
endangered his physical or emotional well-being, and (3)
failed to comply with the provisions of a court order that
specifically established the actions necessary for her to
obtain D.T.'s return after he had been in the permanent
or temporary managing conservatorship of the Department for
not less than nine months as a result of his removal for
abuse or neglect. See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (O) (Supp.). A Hunt County jury found
that grounds for terminating Sally's parental rights
existed and that termination of Sally's parental rights
was in D.T.'s best interest.
appeal from the termination of her parental rights, Sally
argues (1) that the evidence is legally and factually
insufficient to support the jury's verdict and (2) that
her retained counsel rendered ineffective assistance. We
affirm the trial court's judgment because we find that
Sally failed to preserve her first issue for appeal and that
she may not complain about retained counsel's alleged
I. Sally Failed to Preserve Her
first point of error, Sally argues that the evidence is
legally and factually insufficient to support the jury's
verdict. Sally admits that these issues were not preserved.
This Court has previously stated,
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, Sally failed to challenge the
legal sufficiency of the evidence in any of the manners
specified above, or otherwise. As a result, we find that she
has failed to preserve her legal sufficiency challenge for
appeal. See id.
'[t]he Texas Rules of Civil Procedure specify that the
filing of a motion for new trial is a prerequisite to present
"[a] complaint of factual sufficiency of the evidence to
support a jury finding."'" Id.
(quoting 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.) (quoting Tex.R.Civ.P. 324(b)(2)) (citing 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); C.Y.,
2015 WL 6394559, at *2; In re J.V., No.
02-15-00036-CV, 2015 WL 4148500, at *1-2 (Tex. App.-Fort
Worth July 9, 2015, no pet.) (mem. op.); In re E.K.,
No. 13-14-00720-CV, 2015 WL 2353292, at *7-8 (Tex.
App.-Corpus Christi May 14, 2015, no pet.) (mem. op.); In
re C.D.K., 64 S.W.3d 679, 681-82 (Tex. App.-Amarillo
2002, no pet.))).
she failed to preserve it, Sally's first point of error
regarding legal and factual sufficiency is
Sally May Not Complain About Retained Counsel's Alleged
last issue on appeal, Sally argues that her retained counsel
has rendered ineffective assistance. "In Texas, there is
a statutory right to counsel for indigent persons in
parental-rights termination cases." In re Z.C.,
No. 12-15-00279-CV, 2016 WL 1730740, at *2 (Tex. App.-Tyler
Apr. 29, 2016, no pet.) (mem. op. & order) (quoting
In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (citing
Tex. Fam. Code Ann. § 107.013(a)(1))). "The Supreme
Court of Texas has held this statutory right to appointed
counsel necessarily 'embodies the right to effective
counsel.'" Id. (quoting In re
B.G., 317 S.W.3d 250, 253-54 (Tex. 2010)). "Thus, a
parent may challenge an order of termination on the ground