Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re D.T.

Court of Appeals of Texas, Sixth District, Texarkana

December 13, 2019

IN THE INTEREST OF D.T., A CHILD

          Date Submitted: December 4, 2019

          On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 85628

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

          OPINION

          RALPH K. BURGESS JUSTICE.

         The Texas Department of Family and Protective Services (Department) filed a petition to terminate Sally's parental rights to her child, D.T., [1] 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.[2]

         On 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 ineffectiveness.

          I. Sally Failed to Preserve Her First Issue

         In 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.

         "Further, '[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.))).

         Because she failed to preserve it, Sally's first point of error regarding legal and factual sufficiency is overruled.[3]

         II. Sally May Not Complain About Retained Counsel's Alleged Ineffectiveness

         In her 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.