in the Interest of v. G., Children

ACCEPTED
04-14-00802-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/28/2015 6:59:36 PM
KEITH HOTTLE
CLERK

EXHIBIT A
Page 367 grades, and engaged in athletic activities.

544 S.W.2d 367 (Tex. 1976) Shortly after the divorce Nanci Holley was arrested
andjailed for a She was also committed to
traffic offense.
Nanci Adams HOLLEY, Petitioner, the Austin State Hospital by her mother during June and
July of 1969 for treatment of mental illness which Nanci
v.
described as a depressive condition caused by the
divorce. In August 1969 she left Austin, Texas where her
David E. ADAMS, Respondent. husband and child resided. She traveled in the company
of three men and made what the court of civil appeals
No. B--5880.
termed a 'rootless trek to the western states.‘ By the end
Supreme Court of Texas. of that month she had settled in Seattle, Washington
where she has remained.
December 1, 1976
Nanci Holley remarried in 1970 and one child, a
Orr & Davis, Stephen M. Orr, Austin, for petitioner. daughter, was born ofthis second union. This marriage
ended in divorce in 1973 and Nanci Holley has retained
Rogan B. Giles, Austin, for respondent. custody of her daughter. During 1973 Nanci declared
bankruptcy and in March 1974 she married her present
SAM D. JOHNSON, Justice. husband, Ricky Holley, who was a student at the
University of Washington,
David Adams instituted this suit for termination of
the pareiit-eliild relationship between his former wife, After leaving Austin 1969 Nanci Holley returned
in
Nanci Adams Holley, and their son. The trial court there to visit her son, David Christopher, on three
ordered termination under Section 15.02 of the Texas
occasions between 1971 and 1974. With respect to her
Family Code Annotated [1] on the grounds relationship with and support of her son, Nanci Holley
testified to the following: she often contacted him
Page 368
through her mother by numerous letters and telephone
calls; there exists a loving parent-child relationship
that Nanci Holley had failed to support her child (Section
between them; the termination of that relationship would
15.02(l)(E)), that her conduct endangered the emotional
not be in the best interest of the child; her three offers to
well-being of the child (Section l5.0Z(l)(D)), and that the
termination of the parent-child relationship was in the pay her son's air fare to and from Seattle were refused;
between 1970 and 1975 she sent a total of approximately
best interest of the child (Section 1502(2)). The court of
$100 in cash to her son or to David and Sharon Adams
civil appeals aftinned. 532 SW2d 694. We reverse and
for his use and benefit; she maintained a health insurance
rcnderjudgment denying termination ofthe parent-child
policy covering him; and she sent various gifts and toys
relationship.
to her son. The trial court found that at least one ofher

David and Nanci Holley were married in 1965. The gift packages was returned to her unopened. As to Nanci's

only child of their marriage, David Christopher, was born financial situation between 1970 and 1975, the trial court

the following year. The couple separated in 1968 and found that: (1) for two years following her remarriage in
subsequently Nanci 1-lolley filed a suit for divorce which 1970 she was a housewife without outside employment;
was granted in 1969. During the pendency of the divorce (2) in 1972 she obtained employment as a program

action Nanci Holley voluntarily delivered the child to his adviser at the University ofwashington, which position
father in Austin, Texas where he has remained at all she has continued
times pertinent to this action.
Page 369
Nanci Holley did not object to or contest the divorce
to hold; (3) she earned a gross incomein excess of $500
decree awarding custody of the child to David Adams.
per month from employment; (4) she declared
this
The court decree did not require Nanci to pay child
voluntary bankruptcy in 1973; (5) her marriage to Ricky
support. The court order did, however, designate David
1-lolley has not resulted in any children; (6) Ricky Holley
Adams as managing conservator and he has continuously
received Veterans Administration education benefits in
retained custody and control of his son since Nanci
excess of$300 per month and worked part-time; (7) his
Holley voluntarily delivered the child to him.
tuition averaged $125 per month; and (8) $117 per month

David married his present wife, Sharon, in 1970. The was deducted from Narici's salary to repay loans. Nanci

trial court found that David Christopher enjoyed a happy testified had not received the child support
that she

relationship with his father and stepmother. His health payments her second husband was ordered to make.
was good, he attended school regularly, made good
 David Adams instituted the instant suit for 1. '.
. ,(Nanci Adams Holley) has failed to support the
tennination of the parent-child relationship between his child in accordance with her ability during aperiod of
former wife, Nanci Adams Holley, and their son, one year ending within six months of the date of filing of
asserting as the only grounds therefor that Nanci I-Iolley the petition, within the meaning of Article l5.02(l)(E) of
had ‘failed to support the child in accordance with her the Texas Family Code‘;
ability during a period of one year ending within six
months of the date offiling of the petition, and she (had) 2. ‘By her conduct and virtual abandonment of the minor
emotionally and actually abandoned the child,‘ and that child, David Christopher Adams, for a period of six

termination ‘would be in the best interest of (the) child.‘ years, commencing some months prior to
three to four
her divorce from David Adams, Nanci
E. Adams Holley
The court appointed a guardian Ad litcm to represent has engaged in conduct which endangers the emotional
the child, David Christopher, and ordered the guardian well-being of the child within the meaning of Article
Ad litem to investigate the circumstances and submit a 15.02(l)(E) of the Texas Family Code’; and
written report to the court. Such report was submitted and
is part of the record before this court. 3. ‘Tennination of the parent-child relationship between
the mother, Nanci Adams Holley, and the child, David
David he brought this suit for
testified that Christopher Adams, is in the best interest of the minor
tennination because ifhe should die it would be better for child, David Christopher Adams . .
..‘

his son to he raisedby Sharon Adams rather than by
Nanci Holley. In describing the relationship between The trial court decree ordered termination of the
Nanci and David Christopher, David Adams testified as parent-child relationship. Additionally, it appointed
follows: David Adams managing conservator of his son. The court
of civil appeals affirmed, holding that there was sufficient
‘Q . . . do you feel that it's in the best interest of evidence to sustain the trial
Christopher that he not ever see his natural mother again‘?
Page 370
‘A No, no, sir, not--
court's finding that Nanci Holley failed to support her son
‘Q All right, sir. You feel that a--What is he now, nine in keeping with her ability during aperiod of one year
years old, I believe-- prior to the filing of this suit for tennination (Section
l5.02(l)(E)), and that termination of the parent-child
‘A Yes, sir. relationshipwas in the best interest of the child. Having
found evidence to support one of the provisions of
‘Q--last February?
Section l5.02(l) ofthe Family Code, namely, failure to

‘A Yes,
support (Section l5.02(l)(E)), the coun ofcivil appeals
sir.
declined to consider the trial court's alternative finding

‘Q So--All right. So don't you agree with me, that Nanci Holley had engaged in conduct which
sir, that a
endangered the emotional well-being of her son (Section
young man of this age should--who--who has known his
mother and who has visited with her in--and who has l5.02(l)(D)). The only issue before this court is the
correctness of the termination order. There is no
formed some affection for his mother should be allowed
to continue seeing his mother?
challenge of the appointment of David Adams as
managing conservator.
‘A Yes, but I--I believe the way--the child is happy the
As this caseinvolvcs the right of the child to the
way he is and--
benefit of the home and environment which will probably
‘Q I‘m sotTy. I didn't—~ best promote its interest and the right of the parent to
surround the child with properinfluences, Herrera v.
‘A I do believe the child is happy the way he is. As far Herrera,409 SW2d 395 (Tex. 1966), Legals v. Legate,
as--Yes. He enjoys going over to see Nanci whenever she 87 Tex. 248, 28 S.W. 281 (1894), and as Wiley v.
comes to town because he gets gifts and, you know, lots Spmrla/1, 543 S.W.2d 349(Tex.l‘)76), recognized the
of love and care which, you know, he gets in the home constitutional dimensions of these rights, this case tnust
too, but he gets it every day when he only gets it be strictly scrutinized.
one--once a year or whenever she comes to town.
TERMINATION MAY NOT BE BASED SOLELY ON
‘Q But you think he ought to continue to see Nanci, do DETERMINATION OF BEST
you not?
INTEREST UNDER SECTION 15.02
‘A Whenever she comes to town, yes.‘
Under Section 15.02 termination of aparent-child
In its ‘Conclusions of Law‘ the trial court found that: relationship may not be based solely upon what the trial
court determines to be the best interest of the child. In
 Wiley v. Spratlan, supra, this court wrote: her mother for less than two months; her conduct while
and her voluntary
traveling to Seattle; her second divorce;
’lnvoluntary termination of parental rights rests upon was no
declaration of bankruptcy. Again, however, there
Section 15.02. Subdivision (1) of that Section lists several evidence of any nature that David Christopher's
acts or omissions, one or more of which must be proved emotional well-being was endangered by this conduct in
in a termination case. The list may not be an exclusive any way.
one, but so far as this case is concemed. the Welfare Unit
relied only upon Section 15.02(1)(E). Subdivision (2) of The foregoing is not to be understood as speaking to
the same Section requires proof ofa second element, that the quality ofthe testimony which might be required to
the termination is in the best interest ofthe child. Both establish that the emotional well-being of a child has
elements must be established and the requirements of been endangered. The instant record is merely devoid of
Subdivision (1) are not excused because a court may be any testimony or evidence of any nature which bears
of the opinion that Subdivision (2) has been proved.‘ 543 upon the bringing into danger or peril the emotional
S.W.2d 349 at 351. (Emphasis added.) well-being of the child.

CONDUCT WHICH ENDANGERS EMOTIONAL FAILURE TO SUPPORT
WELL-BEING
Both the trial court and the court of civil appeals
ln affinning the trial court's decree tcnninating the found that Nanci failed to support her son within the
parent-child relationship the court of civil appeals did not meaning of Section 15.02(1)(E). There is an adequate
rely upon the trial court's finding that Nanci Hollcy's basis in the record to sustain the finding of the courts
conduct endangered the emotional well-being ofher child below Naci Holley failed to support her child in
that
(Section 15.02(1)(D)). Although it is not clear that accordance with her ability during a period of one year
Section l5.02(l)(D) was properly by the pleaded ending within six months of the date of the filing of this
Nanci Holley ‘emotionally
recitation in the petition that petition.
and actually abandoned the child,‘ it does not appear to be
an issue between the parties before the court and this THE FACTOR OF EXCUSE
court will, for the purposes of this case, treat it as
properly pleaded. Nanci Holley contends, however. that Section
l5.02(1)(E) is rendered inapplicable where a parent's
Nanci Holley contends no evidence to
that there is duty of support has been excused. and that her duty of
support the trial finding that her conduct
court's support was excused in the instant case.

endangered the emotional well-being of her child
(Section l5.02(|)(D)). With respect to this contention, An analogous contention was before this court in the
this couit in reviewing the record can only consider the context ofdetermining whether the consent of a parent

evidence and the inferences tending to support the finding was a necessary prerequisite to the adoption of his child

of the trial court and must disregard all evidence and under Article 46a(6)(a), Texas Revised Civil Statutes
inferences to the contrary. Garza v. A/vim‘, 395 S.W.2d Annotated, [2] Heart! v. Bmmmn, 443 S.W.2d 715
821 (Tex.l965). (Tcx.l969). That statute provided that the consent of a
parent to adoption ofhis child was not necessary where
We hold that there was No evidence to support the ‘such parent or parents shall not have contributed
finding Nanci Holley, by her conduct, endangered
that substantially to the support of such child during such
the emotional well-being of her child. The trial court's period of two (2) years commensurate with his financial
finding was apparently based in part upon the fact that ability.‘

she visited the child only three times during the five and
one-halfyear period prior to the trial ofthis case. There However the statutory scheme which was before this

was no evidence of any nature that the infrequency of the court in Heard v. Bauman, supra, is significantly different

contacts endangered the child's emotional well-being in from Section 15.02 ofthe Texas Family Code and thus
the case is not necessarily controlling. As noted in Wiley
any way. Similarly, there was no evidence that Nanci's
v. Spratlan, supra, the focus of the current termination
visits with her son endangered his emotional well-being
in any way. proceeding is twofold; first, on the acts or omissions of
the parent And, second, upon the best interest of the
The trial court also may have based its conclusion child. The emphasis of Article 46a(6)(a) was on whether

that Nanci Holley endangered the conduct of the parentjustifies the waiver of the
requirement that the parent consent to an adoption. This
Page 371 change demonstrates the intent of the Legislature to move
from the concept that the parent cannot block the
the emotional well-being of her child upon the conduct severance of the parent-child relationship through
previously recited that appeared to cast doubt on her adoption when the parent has engaged in unexcused
competency as aparent: her arrest in 1969 for a traffic blameworthy conduct, to the idea that the parent cannot
offense; her commitment to the Austin State Hospital by prevent tcnnination (1) when there exist acts or omissions
by the parent which may indicate that the existing fanancial support for the child from Nanci l-Iolley.
parent-child relationship is not a proper one, And (2) Therefore, Nanci Holley's duty to support her child was
when termination is indeed in the best interest of the excused and the fact that the failure to support is excused
child. The interpretation of Section 15,02 which will best is one of the factors to be considered in ascertaining the

fulfill the intent of the Legislature is that any ‘excuse’ for best interest of the child.
the acts or omissions of the parent can be considered by
the trial court only as one ofthe factors in detennining EMOTIONAL NEEDS OF THE CHILD:
the best interest of the child.
With respect to the emotional needs of the child, the
BEST INTEREST OF THE CHILD previously noted testimony of both Nanci Holley and
David Adams indicates that there does exist an emotional
Nanci Holley next argues that there is no evidence relationship between the child and his mother, and also an
that termination of the parentchild relationship was in the emotional relationship between the child and his maternal
best interest of David Christopher. An extended number grandmother, and that these relationships should
of factors have been considered by the courts in continue. Furthennore, the evidence demonstrates that
ascertaining the best interest of the child. Included among there an emotional relationship between the child and
is

these are the his father and stepmother.

Page 372 Only two reasons were given by David Adams for
tennination; first, that it was his desire to adopt his wife's
following: (A) the desires of the child; [3] (B) the child at the same time his wife adopted his child and,
emotional and physical needs of the child now and in the second, that he was fearful ofwhat would happen if he
future; [4] (C) the emotional and physical danger to the should die and the child's mother should take him.
child now and in the future; [5]
(D) the parental abilities
of the individuals seeking custody; [6] (E) the programs Particularly compelling is the direct testimony on the
available to assist these individuals to promote the best best interest ofthe child.
interest of the child; [7] (F) the plans for the child by
these individuals or by the agency seeking custody; [8] Page 373
(G) the stability of the home or proposed placement; [9]
There is No testimony that the child's best interest would
(H) the acts or omissions of the parent which may
indicate that the existing parent-child relationship is not a
be served by termination ofthe child's relationship with
proper one; and (1) any excuse for the acts or omissions his mother. The investigator's report gives nojustifrcation

of the parent. [10] This listing is by no means exhaustive, for termination and makes no suggestion that it would be
but does indicate anumber of considerations which either in the child's best interest. On the other hand, the

have been or would appear to be pcr'tincnt. Only a limited testimony of David Adams, the individual seeking
termination here, clearly states that it would not be in the
number of factors listed above appear from the record to
have been presented here. best interest of the child that he never see his mother
again; that the best interest of the child would be served
ACTS OR OMISSIONS OF THE PARENT: by continuing to see his mother.

As stated earlier, the record does support the finding A review of the factors presented in the record
of the trial court and the court of civil appeals that Nanci reveals only evidence that indicates that termination is

failed to support her child in accordance with her ability not in the best interest of the child. There is no evidence
and this failure to support is one of the factors that is to that termination ofthe parent»child relationship is in the

be considered in ascertaining the best interest of the child. best interest of the child, David Christopher.

EXCUSE OF ACTS OR OMISSIONS: Thejudgments of the trial court and the court of civil
appeals are reversed and judgment is hereby rendered

However, as previously noted, any excuse for this denying termination of said parent-child relationship.
failure to support is to be considered under best interest,
A comparison of the facts of this case to the
circumstances of Heard v. Bauman, supra, leads to the
conclusion that the failure to support was excused. In the Notes:

instant case David Adams testified that Nanci Holley
[1] Section 15.02, Texas FamilyCode Annotated,
voluntarily agreed to give him custody of the child during
originally enacted in 1973, was amended effective
the course of the divorce proceedings in order to assure
September 1, 1975. The references herein to Section
that the child would be provided adequate financial
l5.02 pertain to the statute enacted in 1973. Section l5.02
support. Nanci Holley was never ordered to make support
provided in part:
payments. It was undisputed that the child had been
properly cared for while
in his fathcr‘s custody and that
‘A petition requesting termination of the parent~child
David Adams and his wife never sought or wanted any
rclationship with respect to a parent who is not the
petitioner my be granted if the court finds that:
‘( l) the parent has:

'(D)cngaged conduct or knowingly placed the child
in
with persons who engaged
in conduct which endangers
the physical or emotional well-being of the child; or

'(E) failed to support the child in accordance with his
ability during a period of one year ending within six
months of the date of the filing of the petition;

'.
. . and

'(2) termination is in the best interest of the child.‘

[2] Section I5.02(l)(E) was derived from Article
46a(6)(a) which was repealed effective January 1, 1974
upon the enactment ofthe new Family Code.

[3] See Herrera v. Herrera, supra; Tex. Family Code Ann.
§ l4.()7(a).

[4] See Herrera v. Hcrrcra, supra; Mumma v. Aguirre,
364 S.W.2d 220, 222 (Tex.1963); Porter v. Porter, 371
S.W.2d 607 (Tex.Civ.App.--Eastland 1963, writ ret‘d
n.r.e.).

[5] See Henera v. Herrera, supra; Porter v. Potter, supra.

[6] See Mumma v. Aguirrc, supra; Potter v. Porter, supra;
Tex. Family Code Ann. § l4.07(b).

[7] See Tcx. Family Code Ann. § l4.07(b).

[8] See Mumma v.Aguin‘e, supra; Tex. Family Code
Ann. § 14.07(b).

[9] See Mumma v. Aguirre, supra; Tcx. Family Code
Ann. § 14.07(b).

[10] See Heard v. Bauman, supra.
EXHIBIT B
Page 18 children, and appear to want to adopt them.

685 S.W.2d 18 (Tex. 1985) The issue presented on appeal is whether the Texas
Family Code authorizes tennination under these
Mable Jo David HOLICK, Petitioner, circumstances. We are
Page 20

Danny Eugene SMITH Et ux., Respondents. calledupon to construe section 15.02 of the Family Code,
which provides in part:
Nos. C-3261, C-3262 [*].

A petition requesting tennination of the parent-child
Supreme Court of Texas.
relationship with respect to a parent who is not the
petitioner may be granted if the court finds that:
February 6, 1985
(1) the parent has:
Rehearing Denied March 13, I985.

(A) voluntarily left the child alone or in the
Page 19
possession ofanother not the parent and expressed an
intent not to return; or
Thomas T. Tatum, Whitehouse, for petitioner.

Bain, Files, Allen & Caldwell, Jerry Bain, Tyler, for
(B) voluntarily left the child alone or in the
possession of another not the parent without expressing
respondents.
an intent to return, without providing for the adequate
SPEARS, Justice. support of the child, and remained away for a period of at
least three months; or
This case involves the involuntary termination of the
parent-child relationship between Mable Jo Holiek and (C) voluntarily left the child alone or in the
two ofher children, Mr. and Mrs. Danny Eugene Smith possession of another without providing adequate support
brought suit for tennination and for adoption ofthe two of the child and remained away for a period of at least six

Holiek children. After a non-jury trial, the court ordered months; or
termination of the parent-child relationship and granted
the adoption. The court ofappeals, in an unpublished (D) knowingly placed or knowingly allowed the
We reverse thejudgmcnts of the courts child to remain in conditions or surroundings which
opinion, affinned.
endanger the physical or emotional well-being of the
below.
child; or

In early March 1982, Ms. Holiek left the children
with the Smith family. Ms. Holiek had been unable to (E) engaged in conduct or knowingly placed the
child with persons who engaged in conduct which
financially support herself or the children. Although she
endangers the physical or emotional well-being of the
was able to keep them clothed and fed, they sometimes
child; or
had no place to sleep but the car. The children were
behind on their immunizations and had head lice when
(F) failed to support the child in accordance with his
Ms. Holick’s niece, Mrs. Smith, offered to take care of
abilityduring a period of one year ending within six
them until Mrs. Holiek could get on her feet.
months of the date of the tiling of the petition;
After leaving the children with the Smiths, Ms. >r=>r<*
Holiek went to Dallas with her youngest child to live with
her boyfriend. There, she obtained employment as a
waitress. She sent no money to the Smiths, nor did they
expect her send money for the children's support. She
to and in addition, the court further finds that
did not visit or write the children for over‘ six months, temiination is in the best interest of the child.
although she did call and talk to them once during that
period. Tex.Fam.Code Ann. § 15.02 (Vemon Supp.l984).

The Smiths have two children of their own, are very The trial court terminated the parent-child
active in the church, and are able to financially support relationship based on subsection (l)(C). There are five
the children, The social worker's report concludes that the requirements for termination under subsection (l)(C):
Smiths are excellent role models, express love for the
(l) Voluntarily left the child, In Bro/tenleg V. Butts, 559 S.W.2d 853 (Tex.Civ.App.--E1
Paso 1977, writ ret‘d n.r.e.) cert. denied 442 U.S. 946, 99
(2) alone or in the possession of another, S.Ct. 2894, 61 L.Ed.2d 318 (1979) the court construed
subsection (1)(B), the three-month provision. The court
(3) without providing adequate support of the child, held that subsection (1)(B) requires the parent to make
arrangements for the adequate support of the child rather
(4) remained away for at least six months, and
than personally send support.

(5) tennination is in the best interest of the child.
We believe that subsection (l)(C) is capable oftwo
interpretations. "Provide" is defined to mean "to furnish;
It is undisputed that Ms. Holick voluntarily placed
supply" or "to fit out with means to an end." Webster's
the children in the possession of the Smiths and that she
remained away for at least six months, even though she
New lntemational Dictionary (2nd ed. 1960). Thus,
subsection (1)(C) is susceptible to an interpretation which
had expressed an intent to retum for the children. It is
would merely require that the parent make arrangements
undisputed that Ms. 1-lolick made no support payments
for adequate support rather than personally support the
but was not expected to by the Smiths, and she did not
child.
contest the trial court's finding that the tennination and
adoption would be in thc best interest of the children. She
The Smiths would have us adopt an intcrpretation
contends, however, that she was not required to actually
which would allow the tennination based on whether the
support the children, but only make arrangements for
parent is acutely indigent, not whether the parent
their adequate support.
intended to abandon the child nor whether the parent's
conduct endangers the physical or emotional wellbeing of
The natural right existing between parents and their
the child. Under such an interpretation aparent's rights
children is ofconstitutional dimensions. In re G.M., 596
could be terminated if he placed his child with another
S.W.2d 846, 846 (Tcx.1980); Wiley v.SpraI/an, 543
S.W.2d 349, 352 (Tex.1976). Indeed, "involuntary
who promised to provide support, even though he
expressed an intent to return as soon as he could get back
termination of parental rights involves fundamental
on his feet. His rights could be tcnninated even ifhe sent
constitutional rights." In re G.M., 596 S.W.2d at 846.
every dime he could spare for that child's support, ifwhat
This natural parental right has been characterized as
he sent were not enough to be tenncd "adequatc.” With
"essential," "a basic civil right ofman," and "far more
the view that termination is such a drastic and grave
precious than property rights." See Stanley v. Illinois, 405
measure that involuntary termination statutes are strictly
US. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551
construed in favor of the parent, we decline to adopt such
(1976). A tennination dcercc is complete, final,
an interpretation.
irrevocable and divcsts for all time that natural right as
well as legal rights, privileges, duties and powers with
all
We hold that under § 15.02(1)(C) Ms.Ho1ick was
respect to each other except for the child's right to inherit.
required to make arrangements for the adequate support
Wiley, 543 S.W.2d at 352; Tcx.Fam.Code Ann. § 1507
rather than personally support the children. Termination
(Vernon 1975). Moreover, the evidence in support of
was not authorized under these facts. Accordingly, we
ter1nination must be clear and convincing before a court
reverse thejudgrnents of the courts below and render
may involuntarily tcnninatc a parent's rights. Smrmsky v.
judgment that the temrination is denied and the adoption
Kramer, 455 US. 745, 747, 102 S.Ct. 1388, 1391, 71
is set aside.
L.Ed.2d 599 (1980); Riclmrdxon v. Green, 677 S.W.2d
497, 500 (Tex.1984). Consequently, termination Dissenting opinion by WALLACE, .l., in which
proceedings should be strictly scrutinized, and MCGEE and KILGARLIN, .l.l.,joln.
involuntary termination statutes are strictly construed in
favor of the parent. See Cawley WALLACE, Justice, dissenting.
Page 21 lrespeetfully dissent. The majority opinion clearly
misconstrues both the obvious intent and the plain
v. Allums, 518 SW2d 790, 792 (Tex.1975); Heard v.
meaning of Tcx.Farn,Code Ann. § 15.02 (Vernon
Batrman, 443 S.W.2d 715, 719 (Tex.l969). Supp.1984). It is a rule of statutory construction that
every word of a statute is presumed to have aspecific
The Smiths seek a construction of subsection (1)(C)
purpose. Likewise, every word excluded from a statute
that would require Ms. 1-lolick to have personally sent
must be presumed to have been excluded for a particular
them "adequate support" for the children; however, they
reason. Cameron v. Terrell & Garrett, Inc, 618 SW2d
never expected such support. The Smiths took the
535 (Tex.l98l).
children because Ms. Holick could not adequately
support them. The Smiths, neverthclcss, argue that the We must presume the Legislature intended that
legislature intended to require parents to personally tennination of the parcnt~child relationship may be
"provide adequate support" under (1)(C) because (1)(B) granted when: (1) the parent leaves the child with one not
contains the language "provide for the adequate support." a parent without expressing an intent to return without
providing for the adequate support of the child and [*] These are direct companion cases.
remains away three months; or, (2) the parent leaves the
child with a parent, or another without providing
adequate support of the child and remains away for at
least six months. Tex.Fam.Code Ann. § l5.02(l)(B) and

§ 15.02(l)(C). The crucial words expressly adopted in the
first instance are, "without expressing an intention to
return" and "without providing for" the adequate support
of the child; whereas, in the latter situation the language
is "without providing adequate support."

Page 22

In comparing
§ l5.02(l)(A), (B) and (C), it will be
noted that there no time delay before suit is required if
is

a parent leaves and expresses an intent not to return.
Three months absence is required before termination
where the child is left with someone other than a parent
and no provision for support is made. The time period
expands to six months even if the child is left with the
other parent and no support is provided. The
Tex.Fam.Code coordinates a progression of conduct with
lengthened delays. The omission of "for" from §
l5.02(l)(C) was logically intended.

These provisions do not authorize tennination only in

the case of the acutely indigent. Termination of the
parent-child relationship is authorized in any situation
where the parents meet the legislative requirements for
tennination through poverty, neglect. abuse or any other
condition falling within these sections.

Denying termination in this instance ignores those
situations where the best interest of the child is served by
te11nination ofthe parent~child relationship. In this case,
the trial court found that the best interest of the child
would be served by the stable, loving environment of the
Smiths. This finding was not contested by Ms. Holick.
While it is true that the parent-child bond is very strong,
it is not true that all parents provide for the best interest
of their children.

A common thread running through the
Tex.Fam.Code is protection of the "best interest of the
child." The express language of the provisions regarding
tennination of the parent-child relationship should be
followed when the trial court finds that to do so would be
in the best interest ofthc child.

Accordingly, would affirm thejudgments of the
I

courts below and render judgment that the tennination
and adoption be granted.

MCGEE and KILGARLIN, J.l., join in this dissenting
opinion.
EXHIBIT C
Page 531 Page 533

727 S.W.2d 531 (Tex. 1987) never married. On April 4, 1982, Boyd was arrested and
jailed for burglary. Two days later Arriola gave birth to a
TEXAS DEPARTMENT OF HUMAN SERVICES et daughter. Boyd saw the child for the first time eight
al., Petitioner, months later when he was paroled from his burglary
conviction on December 23, 1982. After his parole, Boyd
v.
lived with Arriola until early June 1983. approximately
five months. They thenseparated. In October 1983, Boyd
William S. BOYD, Respondent.
was again arrcsted and jailed for burglary and he is
currently serving a five-year sentence in the Texas
No. C-5877.
Department ofCorrections. During the short period of
Supreme Court of Texas. time that Boyd was out on parole, he intermittently held
three different jobs. The evidence is vague, at best, as to
April 8, 1987 the nature and amount ofsupport he provided the child.

Page 532 Barbara Arriola first contacted the Department of
Human Resources in June 1983 concerning problems she
Richard L. Crozier and Ann S. Taylor, Heamc, was having caring for the child. No action was taken by
Knolle, Lewallen, Livingston & Holcomb, J. Patrick the Department at that time. Barbara contacted the
Wisernan, Attorney General's Office, Don Kay, Texas Depamnent for the second time in January 1984 and
Dept. ofHuman Services, from Austin, for petitioner. indicated that she wished to place the child for adoption
because she could no longer afford to take care of the
R. Stephen Tompkins, Legal Aid Society ofCentr-al child. At the time the child was taken into custody by the
Texas, Austin, for respondent. Department, she was experiencing emotional problems
including sleep disorders, dietary and bed-wetting
ROBERTSON, Justice.
problems, and temper tantrums.

This an action to tenninate the parent-child
is
Under section 15.02, TEX. FAM. CODE ANN.
relationship between the biological father, William
(Vernon's 1986), termination of a parent-child
Swanson Boyd, and his minor child. Suit was instituted
relationship may not be based solely upon what the trial
by the Texas Department of Human Resources after the
court determines be the best interest of the child.
to
child's natural mother, Barbara Arriola, signed an
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). In Wiley v.
inevocable afiidavit of relinquishment of her parental
Spmt/in, 543 S.W.2d 349, 351 (Tcx.l976), this court
rights. Boyd was served with process and entered an
wrote:
appearance in the case and cross-petitioned for
legitirnation. Prior to trial of this cause but after execution Subdivision (1) of [section 15.02] lists several acts or
of the affidavit ofrelinquishrncnt, Barbara Arriola omissions, one or more of which must be proved in a
consented to legitimation of the child as to Boyd. The termination case... Subdivision (2) of the same Section
trial court rendered its order Iegitirnating the child, requires proof of a second element, that the termination is
tenninating the mother's parental rights based upon her in the best interest of the child. Both elements rriust be
execution of the irrevocable aftidavit ofrelinquishment established and the requirements of Subdivision (1) are
[1],and tcnninating the father's parental rights based not excused because a court may be ofthc opinion that
upon afinding under section l5.02(l)(E), TEX. FAM. Subdivision (2) has been proved.
CODE ANN. (Vernon's 1986), that Boyd had engaged in
conduct or knowingly placed the child with persons who Based upon its interpretation ofseetion 15.02(1)(E),
engaged conduct that endangered
in the physical or the court of appeals held that there was no evidence, or
emotional well-being of the child. [2] The court of alternatively that the evidence was less than clear and
appeals reversed the trial court and rendered judgment convincing, that Boyd had endangered the emotional or
that the Texas Department of Human Resources take physical well-being of the child. That section provides for
nothing by its suit seeking to terminate Boyd's parental tennination of the parent-child relationship if the court
rights. 715 S.W.2d 711. We
reverse the judgment ofthe finds that the parent has:
court ofappeals and remand this cause to that court for
further consideration. (E) engaged in conduct orknowingly placed the child
with persons who engaged in conduct which endangers
Boyd and Arriola began living together in the physical or emotional well-being of the child.
approximately February 1981 but were
The court of appeals stated that the word "endanger"
as used in the statute actually meant "danger" and defined 15.02 alleged against Boyd by the Department of Human
"danger" as an "actual and concrete threat of injury to the Resources.
child's emotional or physical well-being." 715 S.W.2d at
715. The court of appeals further held that the "
‘danger’
must be established as an independent proposition and is

not inferrable alone from parental misconduct." 715
S.W.2d 715. We decline to adopt the interpretation
placed on section l5.02(1)(E) by the court of appeals and
expressly disapprove both its definition of "danger" and
its holding that danger cannot be inferred from parental
misconduct. While we agree that "endanger" means more
than athreat ofmetaphysical injury or the possible ill

effects of a less-than-ideal family environment, it is not
necessary that the conduct be directed at the child or that
the child actually suffers injury. Allred v. Harris County
Child Welfare Um'I, 615 S.W.2d 803, 806
(Tex.Civ.App.--Houston [lst Dist.] 1980, writ refd
n.r.e.). Rather, "endanger" means to expose to loss or

injury; tojeopardize. Webster's New Twentieth Century
Dictionary of the English Language 599 (1976), and
imprisonment is certainly a factor to be considered by the
court on the issue ofendangerment.
trial

Texas cases have considered the involuntary
termination of the rights of an imprisoned parent, and
have held that mere imprisonment will not, standing
alone, constitute engaging in conduct which endangers
the emotional or physical well-being ofa child. See, eg.,
Wmy v. Lemierman,

Page 534

640 S.W.2d 68 (Tex.App.--Tyler 1982, writ reftl n.r.e.);
In the Interest of Guillory, 618 S.W.2d 948
(Tex.Civ.App.--Houston [lst Dist.] 1981, no writ);
Crawford v. Crawford, 569 S.W.2d 505, 507
(Tex.Civ.App.»-San Antonio 1978, no writ). it is at this
point, however, that the counts of appeals part company
on the effect of a parent's imprisonment. We hold that if
the evidence, including the imprisonment, shows a course
of conduct which has the effect ofendangcring the
physical or emotional well-being ofthe child, a finding
under section 15.02(1)(E) is supportable. Wray at 71.

Since we hold that the couit ofappeals incorrectly
interpreted section l5.02(1)(E), we reverse the judgment
of the court of appeals and remand this cause to that court
for their determination of whether the State met its
burden of proving by clear and convincing evidence that
Boyd engaged in conduct which endangered the physical
or emotional well-being of the child.

Notes:

[1] The trial court's order terminating the mother's
parental rights has not been appealed and that part of the
order has become final.

[2] Section l5.02(l)(E) was the only provision of section
EXHIBIT D
Page 256 supply the omitted finding in support of thejudgment
because there is either an express or deemed finding by
96 S.W.3d 256 (Tex. 2002) the trial court that tennination is in the children's best
interest;
46 Tex. S.Ct. J. 328
2) the concept of "fundamental error" cannot be
In the Interest ofJ.F.C., A.B.C., and M.B.C., Minor used to circumvent the application of Rule 279 of our
Children.
rules of procedure;

No. 01-0571.
3) applying Rule 279 does not violate the due
process clause of the United States Constitution or due
Supreme Court of Texas
course oflaw provision of the Texas Constitution;

December 31, 2002
4) because parental conduct on which termination
Argued could be based was conclusively established, we do not
Sept. 4, 2002.
reach whether the trial court erred in failing to instruct the
Rehearing Denied March 6, 2003. jury that the same ten jurors must agree that at least one
statutorily described course of parental conduct occurred
Page 257 and that temiination is in the best interest of the children;
and
[Copyrighted Material Omitted]
5) assuming, without deciding, that a judgment
Page 258 could be set aside in a parental

[Copyrighted Material Omitted] Page 260

Page 259 tcnnination case based on ineffective assistance of a
parent's counsel, assistance ofcounsel in this case was
Idolina Garcia, Office of the Attorney General of
not ineffective.
Texas, Julie Caruthers Parsley, Office of the Solicitor
General of Texas, Jeffrey S. Boyd, Ofiice of the Attorney The factual sufficiency issues raisedby the parents
General, John Comyn, Attorney General ofthe State of in the court of appeals pertain to a ground of termination
Texas, Howard G. Baldwin, First Assistant Attorney that is unnecessary to the trial court'sjudgment. The
General, Austin, James Wiley, Assistant Criminal district remaining issues raised by the parents do not require
Attorney, Amy Innmon Forrester and Thomas C. West, reversal of the trial court's judgment terminating the
Waco, for Petitioners. parents‘ rights. Accordingly, we reverse the court of
appeals’ judgment and render judgment that the
Nita C. Fanning, Kathryn Waco, L. T."
J. Gilliam, parent-child relationships are terminated.
Butch" Bradt, Houston, and Joseph M. Layman, Waco,
for Respondent.

Justice OWEN delivered the opinion of the Court in Because we consider the record in this case in some
which Chief Justice PHILLIPS, Justice HECHT, Justice detail later in this opinion, we include here only minimal
JEFFERSON, and Justice SMlTHjoined. facts and the procedural history. The three children who
are the subject of this proceeding were removed from
After ajury the court in this case rendered
trial, trial
their parents‘ home by Texas Department of
the
ajudgment terminating the rights of both the mother and
Protective and Regulatory Services (DPRS) in October
father to three of their children. A divided court of 1997. At that time, the children's respective ages were
appeals reversed and remanded, holding that omission of
four years, two years, and seven months.
an instruction that termination must be in the children's
best interest from material parts of the jury charge was The children were initially removed without a court
fundamental error that could be raised for the first time order. [2] The next day, the trial court held an emergency
on appeal, and that the error probably caused rendition of removal hearing and appointed the DPRS temporary
an improperjudgment. [1] We hold that: managing conservator of the children. [3] Five days later,
the court held an adversary hearing, continued the
l)although the trial court's charge was en'oneous
removal, and issued temporary orders appointing the
because it omitted the children's best interest as a
DPRS temporary managing conservator. [4]
prerequisite for termination in material parts of the
charge, Texas Rule of Civil Procedure 279 requires us to The trial courtthcreafter entered various orders
directing the parents perform specific acts to avoid
to termination issues was as follows:
of their parental rights. After
restriction or termination
working with the family for six months following the With regards to [THE MOTHER], for the parent-child
children's removal, the DPRS amended its petition in the relationship to be terminated in this case, it must be
trial court to seek tennination ofboth parents‘ rights. A proved by clear and convincing evidence that she has

jury was held in February 1999, and the trial court
trial done at least one of the following:
rendered judgment in March 1999 tenninating the
parent-child relationship between each parent and the 1) Engaged conduct or knowingly placed the child
in

three children who had been removed from the home with persons who engaged
in conduct which endangers

seventeen months earlier, in October 1997. A fourth child the physical or emotional well-being of the child;

had been born in January 1999 shortly before trial. That
child was removed from the parents at birth but was not
OR
the subject of any of the proceedings in this case.
2) Failed to comply with the provisions of a court order
that specifically established the actions necessary for the
The parents appealed, and the court of appeals, with
parent to obtain the return ofthe child who has been in
onejustice dissenting, reversed the trial court's judgment
the pennanent or temporary managing conservatorship of
and remanded the case for a new trial. The court of
the Department of Protective and Regulatory Services for
appeals concluded that the charge permitted the jury to
not less than nine months as a result of the child's
find that the parents‘ respective rights should be
removal from the parent under Chapter 262 for abuse or
tenninated without finding that tenrrination would be in
neglect of the child.
the children's best interest. Although the parents had not
objected to the charge on this basis, the court of appeals
With regards to [THE FATHER], for the parent-child
held that the omission went to a "core issue" in a
relationship to be tenninated in this case, it must be
termination and that failing to review the
case,
proved by clear and convincing evidence that he has done
unpreserved error on appeal would violate "Fourteenth
at least one of the following:
Amendment procedural due process" requirements under
the United States Constitution. [5] The parents had also Knowingly placed or knowingly allowed the
complained for the first time on appeal that it was error in children to remain in conditions or surroundings which
a parental tennination case to use broad-fonn submission endanger the physical or emotional well-being of the
because could rely on one basis for
less than ten jurors children;
termination while other jurors could rely on another
basis. [6] The parents contended that there must be a OR
separate finding with regard to each
-
Failed to comply with the provisions of a court
Page 261 order that specitically established the actions necessary
ofthe child who has
for the parent to obtain the return
element necessary for tennination. [7] The coun of been inpermanent or temporary managing
the
appeals rejected these arguments, concluding that conservatorship of the Department of Protective and
broad-form submission was permissible. [8] The dissent Regulatory Services for not less than nine tnonths as a
would have affinned the trial court'sjudgment on the result of the child's removal from the parent under
basis that there was either an express or implied finding Chapter 262 for abuse or neglect of the child. For the
that termination ofparental rights was in the children's parent-child relationship to be terminated in this case, it
best interest. [9] must also be proved by clear and convincing evidence
that temtination of the parent-child relationship would be
II
in the best interest of the children.

We first consider the jury charge's submission of
Some factors to consider in determining the best
the best interest of the children. There is no indication in
interest of the child are:
the record that the trial court or any counsel in the case
was under any misapprehension that there are two 1. the desires of the child,
prerequisites for termination of parental rights under
section 161.001 of the Texas Family Code. Section Page 262
161.001 sets forth nineteen different courses ofparental
conduct, any one of which may satisfy the first 2. the emotional and physical needs of the child
prerequisite for termination. The second prerequisite now and in the future,
under section 161.001 is that termination must be in the
child's best interest. However, the written charge to the 3. any emotional and physical danger to the child

jury in this case omitted the children's best interest as an now and in the future,

element in three material parts of the charge, perhaps
4. the parenting ability of the individuals seeking
because of a typographical error. The submission of the
custody, thatendangered the children or failed to comply with a
court order establishing the actions necessary for the
5. the programs available to assist those individuals retum of her children.
to promote the best interest of the child,
Accordingly, the charge in this case omitted a
6. the plans for the child by those individuals or by statutorily prescribed element forparental termination.
the agency seeking custody, There was no objection to this omission.

7. the stability of the home or proposed placement, A
8. the acts or omissions of the parent that may Rule 279 of the Texas Rules of Civil Procedure
indicate that the existing parent—child relationship is not a prescribes the consequences for failing to object to the
proper one, and omission of an element of a ground of recovery. The
current version of Rule 279, like its predecessor,
9. any excuse for the acts or omissions of the embodies long-standing case law that when some but not
parent.
all elements of a claim or cause of action are submitted to
and found by ajury, and there is no request or objection
QUESTION 1:
with regard to the missing element, a trial court may
expressly make
finding on the omitted element or, if it
a
Should the parent-child relationship between [THE
does not, the omitted element is deemed found by the
MOTHER] and [J.F.C.] be terminated?
court in a manner supporting thejudgment ifthe deemed

Answer "Yes" or "No."
Page 263
Answer:
finding supported by some evidence. [10] Rule 279
is

[similar questions as to the other two children] how to proceed when an element of a
thus directs courts
"ground ofrecovery or defense" is omitted from a jury
QUESTION 4: charge. [1 1]

Should theparent—child relationship between [THE In this case, the trial court's judgment contains an
FATHER] and [.I.F.C.] be terminated? express finding that tennination is in the best interest of
the children. it recites that
Answer "Yes" or "No."
the Court having reviewed the said verdict of the Jury and
Answer: the pleadings and the evidence herein is of the opinion
that the Petitioners are entitled to the judgment of
[similar questions as to the other two children] termination with regard to the children whose interest
in

this suit is brought, and that such judgment is in the best
The charge would have accurately instructed the
interest of the children in whose interest this suit is
jury regarding the children's best interest ifa hard return
brought.
had been inserted in the instruction regarding the father
just before the words "For the parent«child relationship to There is no indication in the record that this finding
be terminated....'' But as can be seen, the written was made at the request ofeither party, or after notice
instruction regarding the father's parental rights and hearing before rendition ofjudgment, as Rule 279
mentioned the best interest of the children only in contemplates. [l2] However, there was no objection to
connection with one of the two alternative descriptions of the inclusion of this finding in thejudgment.
parental conduct. Thejury was free to conclude that if the
father had endangered the children, his rights could be But irrespective of whether that written finding
terminated without any Consideration of the children‘s satisfies Rule 279 regarding an express finding, the
best interest. Because of the way the written charge was "omitted element or elements shall be deemed found by
structured, the factors the jury was to consider in the court in such manner as to support thejudgment" [13]
determining the best of the children were
interest if there is evidence to support such a finding. [14]
referable only to whether the father had failed to comply Because thejudgment terminated parental rights, we must
with a court order establishing the actions necessary for determine whether there is evidence to support a deemed
return of the children. finding that termination is in the children's best interest.

The written instruction to the jury regarding the Due process requires the application of the clear
mother's parental rights omitted any reference to the best and convincing evidence standard of proof in parental
interestof the children. The jury was instructed that her tennination cases. [15] This Court has looked to the
rights could be tenninated if there was clear and United States Supreme Court in articulating what the
convincing evidence that she either engaged in conduct "clear and convincing evidence" standard means. [16]
And, following We find support for this conclusion, by analogy, in
the United States Supreme Court's decision in Jackson v.
Page 264 Virginia. [26] In the criminal, habeas corpus context, the
Supreme Court held in Jackson that the "no evidence" test
this Court's decision in In G.M, 596 S.W.2d 846
re
ithad previously articulated in Thompson v. Louisville
(1980) the Legislature amended the Texas Family Code
[27] was "simply inadequate to protect against
to change the burden of proof in termination cases from a
misapplications of the constitutional standard of
preponderance of the evidence to clear and convincing
reasonable doubt" because " '[a] mere modicum of
evidence. [17] The Family Code defines clear and
evidence may satisfy a ‘no evidence‘ standard.‘ " [28] The
convincing evidence in the same manner that this Court
Court defined a "mere modicum" of evidence to include
has defined that burden of proof: " ‘Clear and convincing
"[a]ny evidence that is relevant--that has any tendency to
evidence‘ means the measure or degree of proof that will
make the existence of an element of a crime slightly more
produce in the mind ofthe trier of fact a firm belief or
probable than it would be without the evidence." [29] The
conviction as to the truth of the allegations sought to be
Court concluded that "it could not seriously be argued
established." [18]
that such a ’modicum' of evidence could by itself
rationally support a conviction beyond a reasonable
B
doubt." [30] The Court explained further:

We have never considered how to apply the overlay
Application of the Thompson [no evidence] standard to
of the clear and convincing evidence burden of proof
assess the validity ofa criminal conviction after Winship
onto our legal sufficiency, also known as our "no
could lead to absurdly unjust results. Our cases have
evidence," standard of review in cases other than
indicated that failure to instruct ajury on the necessity of
defamation cases. [19] However, just recently, in a
proof ofguilt beyond a reasonable doubt can never be
parental termination case, this Court was called upon to
harmless error. Thus, a defendant whose guilt was
detennine how the clear and convincing evidence
actually proved by overwhelming evidence would be
standard must be applied in a factual sufficicncy review.
denied due process ifthejury was instructed that he could
[20] We held in In re CH.,
89 S.W.3d [7 (2002) "that the
be found guilty on a mere preponderance of the evidence.
appellate standard for reviewing termination findings is
Yet a defendant against whom there was but one slender
whether the evidence is such that a factfinder could
bit of evidence would not be denied due process so long
reasonably fonn a firm belief or conviction about the
as the jury has been properly instructed on the
truth of the State's allegations." [21] We expressly
prosecution's burden of proof beyond a reasonable doubt.
"reject[ed] standards that retain the traditional factual
Such results would be wholly faithless to the
sufficiency standard while attempting to accommodate
constitutional rationale of Winship. [31]
theclear-and-convincing burden of proof." [22] We
concluded that "the burden of proof at trial necessarily
The availability ofhabeas review has since been
affects appellate review of the evidence." [23] We
limited by the United States Supreme Court, but a
explained:
majority of the Court has not modified the Jackson
standard ofreview when the merits of a habeas petition
Under traditional factual sufficiency standards, a court
are reached. [32]
determines ifa finding is so against the great weight and
preponderance of the evidence that it is manifestly unjust,
The reasoning in Jackson reinforces our conclusion
shocks the conscience, or clearly demonstrates bias. But
that to apply our traditional no evidence standard of
that standard is inadequate when evidence is more than a
review in a parental te11nination case would not afford the
preponderance (more likely than not) but is not clear and
protections inherent in the clear and convincing standard
convincing. As a matter oflogic, a finding that must be
of proof. As the example in Jackson highlights, a parent‘s
based on clear and convincing evidence cannot be viewed
rights could be terminated based on "but one slender bit
on appeal the same as one that may be sustained on a ofevidence" as long as the jury was properly instructed
mere preponderance. [24] on the clear and convincing evidence burden of proof.
Our legal sufficiency review, therefore, must
The same logic dictates the conclusion that our
traditional legal suffieiency standard,
Page 266

Page 265 take into consideration whether the evidence is such that
a factfinder could reasonably form a firm belief or
which upholds a finding supported by "[a]nything more
conviction about the truth of the matter on which the
than a scintilla of evidence," [25] is inadequate when the
State bears the burden of proof.
United States Constitution requires proof by clear and
convincing evidence. Requiring only "[a]nything more
The distinction between legal and factual
than" a mere scintilla of evidence does not equate to clear
sufficiency when the burden of proof is clear and
and convincing evidence.
convincing evidence may be a fine one in some cases, but
there is a distinction in how the evidence is reviewed. In a standard of review applies when the burden of proof is
legalsufficiency review, a court should look at all the clear and convincing evidence, [40] but the standards
evidence in the light most favorable to the finding to they articulated differ in varying degrees from our
determine whether a reasonable trier of fact could have holdings in In re C.H. [41] and in this case today.
formed a firm belief or conviction that its finding was
true. To give appropriate deference to the fz1ctfinder's We note that the parents have not argued that the
conclusions and the role of a court conducting a legal United States Constitution requires appellate courts to
sufficiency review, looking at the evidence in the light conduct a de novo review in parental tennination cases
most favorable to the judgment means that areviewing like the de novo review that the United States Supreme

court must assume that the factfinder resolved disputed Court has held is required in defamation cases [42] and
facts in favor of finding
arcasonable factfindcr
its if for punitive damage awards. [43] The parents‘ only
could do so. A corollary to this requirement is that a court constitutional

should disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been incredible. Page 268
This does not mean that a court must disregard all
challenge regarding the best interest of the children is that
evidence that does not support the finding. Disregarding
violations of due process under the federal Constitution
undisputed facts that do not support the finding could
and of the due course of law provision in our state
skew the analysis of whether there is clear and
Constitution have occurred because there is no specific
convincing evidence.
finding answered by the jury that termination is in the
children's best interest. We consider this argument is
If, after conducting its legal sufficiency review of
section Il.D. below. In the absence of any contention that
the record evidence, a court detennines that no
reasonable form a firm belief or
factfinder could the federal constitution requires a de novo review of the
conviction that the matter that must be provcn is true,
evidence, we leave open, as we did in In re C.H., whether
the United States Constitution requires the type of review
then that court must conclude that the evidence is legally
set forth by the United States Supreme Court in
insufficient. [33] Rendition ofjudgment in favor of the
Harte-Hanks [44] and Bose, [45] and if so, whether the
parent would generally be required if there is legally
insufficient evidence. [34]
standards we have set forth above would comport with
the de novo review required by those decisions.
In a factual sufficiency review, as we explained in
In re C.H., a court of appeals must give due consideration Finally, we note that our decision in Garza v.

to evidence that the facttinder could reasonably have
Maverick Market, Inc. [46] is distinguishable. Garza
found to be clear and convincing. [35] We also explained concerned a wrongful death claim by anillegitirnate
child. This Court reaffirmed its prior holding in Brown v.
in that opinion that the inquiry must be "whether the

evidence is such that a factfindcr could reasonably form a
Edwards Transfer Co. [47] that "[i]f paternity is
firm belief or conviction about the truth of the State's
questioned in a wrongful death action, the alleged child

allegations." [36] A court of appeals should consider
would have to prove by clear and convincing evidence
that he is a filial descendant ofthe deceased." [48] Our
whether disputed evidence is such that a reasonable
Court had adopted the clear and convincing evidence
facttinder could not have resolved that disputed evidence
standard in such cases to maintain consistency with the
in favor of its finding. If, in light of the entire record, the

disputed evidence that a reasonable factfinder could not
Legislature's choice of the clear and convincing evidence
have credited in favor of the finding is so significant that standard in connection with other legitimacy issues under

a factfinder could not reasonably have formed a firm
the ProbateCode and the Family Code. [49] The United
belief or conviction, then the evidence is factually
States Supreme Court had not mandated a clear and
convincing evidence burden ofproof Accordingly, this
insufficient. [37] A court of appeals should
Court, not the federal constitution, imposed aclear and
Page 267 convincing burden of proof in Garza. The Court's
statements in Garza that ifthere is "some evidence," the
detail in its opinion why it has concluded that a case must go to the jury, that "we ‘consider all of the
reasonable faetfincler could not have credited disputed evidence in the light most favorable to the plaintiff,
evidence in favor of the finding. disregarding all contrary evidence and inferences,‘ "and
that "[t]he question of whether the evidence clearly and
A number of our courts of appeals held, prior to our convincingly prove[s paternity is] a question for thejury
decision in In re C.H., [38] that a legal sufficiency review to determine," [50] do not control when, as here, we are
in a case in which the burden of proof is clear and considering a constitutionally mandated clear and
convincing evidence is the same as in a case in which the convincing evidence burden of proof.
burden of proof is a preponderance of the evidence. [39]
We disapprove of those decisions’ articulation of the We turn to evidence in this case of whether
standard of review on appeal. At least five courts of termination is in the children's best interest.
appeals‘ decisions have concluded that a heightened
 C their care. The mother further admitted to using cocaine
within two weeks after giving birth to M.B.C., but she
In applying the standards set forth above, we then testified that her children were safe inher care when
consider the evidence that supports a deemed finding she was using cocaine because the drug made her "more
regarding best interest and the undisputed evidence. We aware of [her] surroundings" and that they weren't
do not consider evidence that afactfinder reasonably endangered "even a little bit" when both parents were
could have disbelieved. "high on drugs." The father in tum testified that God
made cocaine available to him in times of grief and pain
Child Protective Services (CPS) began monitoring and that he was always able to supervise the children in a
the parents and offering services on a continuing basis in
very caring manner even when he was under the
March 1997. At that time, there were three children.
influence of narcotics.
J.F.C.was four years old, A.B.C. was two and one-half
years old, and M.B.C. had just been born. The family Although CPS knew of the drug use and some of
lived on the campus of the Texas State Technical the family violence as early as April l997, it concluded

College. that removal of the children was notjustified because
they were not in immediate danger. CPS instead
The incident that gave rise to CPS's continual
implemented a Child Safety Evaluation and Plan in April
monitoring of this family was areport that the parents 1997. The mother submitted to apsychological exam in
"had serious drug problems" and that they were
compliance with this plan, and based on the results, CPS
physically abusive to one another. An investigator went concluded that she was not "an immediate threat of hann
to the home to meet with the parents to the children.” Because the father refused to submit to a
psychological exam, CPS referred the case to what it
Page 269
called "family preservation" in July 1997. The next
month, the father did submit to apsychological exam,
and examine the children. After initially refusing to
and based on the results of his and the mother's exam,
permit the investigator to see the three children, the
family preservation recommended counseling.
parents ultimately allowed the investigator to examine the
oldest child and the infant. The investigator did not see
A FamilyService Plan was established in August
any indication of abuse or neglect of these two children
1997, five months after the initial instance of child abuse
and noted that J.F.C. seemed happy. However, the
in March of that year. The plan established tasks for each
parents told the investigator that two-and
parent, including drug assessments, individual
one-half-year-old A.B.C. was with a babysitter and was
counseling, and matriage counseling. The mother
therefore unavailable for examination. The CPS
attended three of four scheduled sessions, but the father
investigator went to the babysitter's home, but she denied
attended only one before the children were removed in
having seen the child that day. CPS then contacted the
October 1997.
Texas State Technical College police, who accompanied
the CPS investigator back to the family's home. It was
Between April and early October of that year, CPS
only then that the parents produced A.B.C,, and the found no further indication of physical abuse of the
investigator learned that the mother had hit A.B.C.,
children during home
leaving dark bruises surrounding the outside of the child's
eye. Page 270

In an interview shoitly after CPS discovered that However, there was evidence ofcontinued and
visits.
A.B.C. had been abused, the father told a CPS counselor the parents from April of
escalating hostility between
that his wife (the children's mother) was "very physically [997 until October 22, 1997, when the children were
violent" and physically attacked him. He also said he was removed from the home. CPS case workers witnessed
concerned for the safety of his children because their arguments and hostility and met with each parent
mother brought other men home and had sexual relations separately during home visits in order to be able to
with them. There were also other people living in the communicate with them. Because of the continual
home whom the father said he did not trust. Both parents arguing between the parents, CPS recommended day care
admitted that during one ofthcir many arguments, the for the children, to which the parents agreed. Day care
mother had chipped or knocked out one of the father's commenced the first week of October, but a few days
teeth. later, another incident of physical abuse of A.B.C.
occurred. The parents had arrived to pick up A.B.C. at
During April 1997, the parents also admitted to and the child began what the mother described
day care,
being under the influence of illegal drugs while watching
as a "temper tantrum." Aheated argument between the
the children, and CPS learned that the mother had tested parents ensued, and the mother grabbed A.B.C. by the
positive for cocaine and methamphetamines shortly after throat and face and shoved him into a car seat. A.B.C.
M.B.C.'s birth a month earlier in March 1997. When later told a case worker that this hurt his neck, and an
asked about drug use at trial, both parents said that
their
investigator subsequently found a mark on A.B.C.'s
they used cocaine while the children were at home and in
forehead and fingernail scratches on his neck. The therewere relatives who could take the children. The
children's attendance atday care thereafter was sporadic mother gave them the name of one person, who declined
because the parents would not take them, even after CPS to provide care for the children. Neither parent could
offered to provide transportation. offer any other names. The children remained with CPS
that day, and the parents went home. CPS attempted to
There was testimony at from Texas State
trial contact the parents for several days thereafter without
Technical College police officers about domestic success to arrange a visit with the children.
disturbances. Their records indicate that they responded
to fourteen reports of violence at the family's home. The At this point, the DPRS petitioned the trial court to
mother testified that the police came to their home be appointed as temporary managing conservator of the
between ten and fifteen times because she and her children. The trial court ultimately entered aseries of
husband (the father of the children) were "extremely orders setting forth specific actions that each parent was
angry and arguing." Some of the visits by the campus to take. The orders advised the parents that if they did not
police occurred before the DPRS removed the children comply, their children might not be retumed and their
and while the children were in the home. One of the parental rights could be terminated. The parents both
officers testified that he had been to the home to respond testified at trial that they understood what the orders
to domestic disturbances and had seen three children. He required and the consequences ofnoncompliance. The
always checked the children, and there were no signs of parents also testified that they did not comply with many
physical hann. He described the parents as "venomous" provisions of family preservation plans CPS had
towards one another, and testitied that the children implemented prior to removal of the children. As detailed
definitely heard their fighting. The officcr urged the in section III below, the parents consciously failed to
mother many times to seek counseling, identifying comply with material provisions of the trial court's
several on- and off-campus sources, and at least once orders. Each parent was ordered to pay child support in
offered "any
type of assistance [to the father] to the amount of$l00 per month, not for each child, but for
overcome any problems." all three. The mother testified that although she could

financially afford it, she deliberately chose not to pay
On two other occasions, inAugust and October child support because she believed that she should not
1997, just before the children were removed, campus have to. The father gave similar testimony. Both parents
police officers went to the home because of domestic refused to attend any parenting classes or to attend
violence disturbances. On both occasions, the parents individual counseling sessions. The father testified that he
were upset, arguing loudly, and could not communicate continued to use illegal drugs. The mother became
with one another. The children were not at home during pregnant with the couple's fouith child, and although
the latter incident. About a year and a halfearlier, in ordered by the trial court to obtain prenatal care, she did
1996, campus police had given the mother and two of the not do so for the first six months of her pregnancy.
children a ride home because the father had left them "on
foot." (M.B.C. had not yet been born.) After the children were removed from the home,
violence between the parents continued. Seven days after
The day the children were removed from the home the children were removed, a Texas State Technical
(twelve days after the car seat incident), the father called College Police officer was again called to the home after
the CPS case worker. The father was "very irate" and was a fcinale's screams had been heard. When the responding
"shouting that he wasn't going to be responsible for officcr approached the home, the father would not allow
the children" and that he was "getting out of there." him to enter and insisted that the mother was not there.
While the father was on the phone, the case worker heard The father was screaming, yelling, cussing,
"violent,
an argument between the parents that was escalating. belligerent, [and] uncooperative." The officer called the
When the phone abruptly went dead, the case worker father on the phone, and the father continued to insist that
immediately went to the home. When he arrived, the the mother was not at home. It was only after the Waco
father had left. The mother was veiy agitated and highly SWAT team arrived that an agreement was reached by
emotional. She complained about A.B.C., who was phone with the father. He and the mother then appeared
almost three years old at this point, saying that he "yelled at a picture window to show the oftieers that had gathered
and screamed all the time," that he "threw fits,“ that at the scene that the mother was not physically harmed.
"[n]obody could control him or calm him down," and that
she "just didn't know what she was going to do." The case On campus police responded
another occasion,
worker took the children to day care, found the father, when had locked the mother out of the home
the father
and brought both parents to his office. The parents did during an argument even though she was stark naked. She
not calm down. CPS concluded that it would be unsafe broke a window with her hand and aim to gain re—entry
for the children to go and was cut and bleeding.

Page 271 Campus police officers also responded to a call
eight months after the children were removed when the
home to the parents in that state and asked the parents if father struck an eight-year-old neighbor. The police
ultimately tenned it an accidental striking, even though was "a very troubled individual," and the expert was

the father had threatened he
to hit the child right before "most concerned about the potential for violence,
accidentally hit her. The father was, however, arrested on especially since there were so many areas where family
this occasion for evading detention. The record does not conflict was noted." The expert further testified that the
provide details of all fourteen responses by campus police father's responses to items on astandardized test that

to the home, but an officer described the father as "angry related to sexual deviance raised concerns about
and explosive" and the mother as "[a]ngry, belligerent, parenting potential.
nervous, [and] argumentative" in his dealings with them.
There was undisputed evidence that does not
There was considerable expert testimony at trial that support afinding that termination was in the children's
related to the children‘s best interest. About a year after the children were
removed from the home, the parents moved to Austin.
Page 272 The mother found work there. The parents’ landlord in
Austin testified that their home was a "safe environment."
best interest. One expert testified that the physical
The obstetrician who attended the birth oftheir fourth
violence and verbal confrontations in the home had a
child described the parents as "an appropriate, courteous,
negative emotional impact on the children. A.B.C. told and loving couple." There was also evidence that after
this licensed counselor that he had seen his parents hit
this tennination case was set for trial, the parents made
one another and had hit him with a baseball
that his father
attempts to comply with some parts of the trial court's
bat. A.B.C.'s play consisted of male characters hitting
order. But in spite of this evidence, a factfinder could
female and child characters. One CPS worker observed reasonably form a firm belief or conviction that
visits between the parents and the children after their
tennination was in the children's best interest.
removal. She said these visits tended to he "chaotic" and
that the children's behavior deteriorated after each visit. D
And there was testimony that the children displayed no
distress at being separated from their parents. The parents have asserted that the omission of the
children's best interest
Apsychologist with over thirty years experience
also evaluated both parents. In addition to taking the Page 273
history of each parent, a battery of fonnal tests was
conducted. This expert concluded that the mother had from the jury charge violated the due process clause of
"manic tendencies, tendencies toward cycles of explosive the United States Constitution [51] and the due course of
behavior followed by periods ofcalm." He did "not see law provision of the Texas Constitution. [52] That

any real potential for change. I'd have to say her potential argument was not preserved in the trial court. But
is extremely limited." When asked ifthe mother "is a tit assuming, without deciding, that this complaint could be
parent or could she be," this expert said, "[t]herc are too raised for the first time on appeal, the argument has no
many concerns about aggression and violence and merit. Applying Rule 279 to deem a finding in support of
hostility as well as documented things in the history that ajudgment in a parental tennination case does not violate
are giant red flags in regard to parenting, and lwould the due process clause ofthe United States Constitution
have to say, no, she doesn't have that capacity." There or the due course of law provision of the Texas
was extensive, detailed testimony about the mother's Constitution.

responses to various questions and standardized tests that
directly related to violence. She also revealed that at
The United States Supreme Court has held in

Santosky v. Kramer that "[w]hen the State moves to
some time in the recent past, she had hit a 22-month-old
child when she was babysitting.
destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures." [53] In the
This same expert testified that during the termination context, due process "turns on a balancing of
"
psychological testing of the father, the father reported an ‘three distinct factors.‘ [54] Those factors are: "the
"extensive drug history," including the use of LSD, privateinterests affected by the proceeding; the risk of
amphetamines, cocaine, and marijuana. The expert also error created by the State's chosen procedure; and the
testified that psychological testing and medical history countervailing governmental interest supporting use of
indicated that the father suffered from a bipolar disorder the challenged procedure." [55]

and an unmedicated individual with bipolar disorder
that
In a parental termination ease, the private interest
who was using "street drugs" was "extremely dangerous."
affcctcd the right of a parent to raise his or her child,
The doctor testified that he recommended that the father
is

see a psychiatrist who could prescribe medication, but he which is undeniably "an interest far more precious than
testified that he believed the father would not comply in any property right." [56] The Supreme Court has
correctly observed that "[w]hen a State initiates a parental
taking the medication because he, like other individuals
rights termination proceeding, it seeks not merely to
with bipolar disorder, prefers the excitement of the
infringe that fundamental liberty interest, but to end it."
unmedicated state. The expert concluded that the father
[57] The Supreme Couit has thus tenncd the private
interest in aparental termination case "a commanding to its attention before the case is submitted.
one." [58]
For these reasons, Rule 279 does not deprive the
The second by the Supreme Court
factor identified parents of due process or due course of law.
in Santosky is "the risk of error created by the State's
chosen procedure." [59] On balance, the risk of error E
caused by Rule 279 is not substantial. Rule 279 deems a
finding on an element ofa claim only after a full trial on The dissenting opinions would resolve this case by

the merits. Rule 279 does not deem an omitted finding in
analyzing whether an omission of an element of a claim

support of the judg1nent ifthe parent has objected to the
in a jury charge is fundamental error. JUSTICE
omission or requested aproper submission. And, more
SCHNEIDER'S dissenting opinion urges the Court to do
so in order to provide "guidance for practitioners and
importantly, an omitted finding may be supplied by an
express finding of the trial court or a deemed finding only lower courts." [62] But the importance of an issue
asserted by a party cannot justify ignoring applicable
if thatfinding is supported by evidence. In aparental
rules of procedure that bind this Court.
termination case, that evidence must be clear and
convincing. A parent may raise legal and factual
Rule 279 requires a reviewing court to supply an
sufficiency challenges even after the verdict is rendered,
omitted finding in support of the trial court'sjudgment
and an appellate court will review those challenges on
where, as here, there was no objection to the omission in
appeal, including the challenges to the legal and factual
the trial court, and some (in this case clear and
suffieiency of the evidence supporting the omitted
convincing) evidence supports the omitted finding. This
finding. On appeal, the courts also consider whether the
Court must apply the rules of civil procedure unless a
evidence was clear and convincing. [60]
constitutional provision or statute requires us to do

In this case, the parents‘ motion for new trial
otherwise. JUSTICE HANKINSON'S dissent incorrectly
asserted that the evidence was factually insufficient to
asserts that we are considering unpreserved error.
support a finding that the parents had endangered the Appellate courts should not reverse a trial court's
judgment in violation of Rule 279 any more than
children or had failed to comply with court orders
specifying the actions they were to take in order to have appellate courts should reverse a trial court's judgment for
their children returned,
error that was harmless. Rule 279 applies just as Texas
Rule of Appellate Procedure 44.] applies.
Page 274
JUSTICE HANKINSON'S dissenting opinion
There was an opportunity to challenge the legal and seems to reason that since it concludes that the error in

factual sufficiency of the evidence regarding the best omitting an element ofa claim was fundamental error, the
interest of the children, but the parents did not avail charge should be reviewed as if an objection had been
themselves of that opportunity in the trial court. Nor have made. But this reasoning is circular since the fact that no
they challenged legal or factual sufficiency regarding the objection was made is precisely why Rule 27‘) applies.

best interest of the children in the court of appeals or this Because of the operation of Rule 279, we have a very
Court. narrow question before us regarding "fundamental error."
That question is whether the notion of "fundamental
The third due process factor identified in Santosky error" can be used to circumvent the operation of Rule
is the governmental interest supporting use of the 279 when a party fails to object to the
challenged procedure. [61] The government has a
substantial interest in preventing retrial ofa case when 1) Page 275
some but not all elements of a termination action have
been submitted to and found by ajury based on clear and omission of an element ofa claim against that party. We
convincing evidence or have been established as a matter answer that question "no." Assuming, without deciding,
oflaw, 2) the trial court renders judgment on the jury's
that the formulation of fundamental error in JUSTICE
I-IANKINSON'S dissenting opinion is correct, deeming
verdict, and 3) there is clear and convincing evidence to
support a finding of the missing clement. Parents and an omitted finding in support ofa judgment in a parental

children also have an interest in resolving termination
tcmrination case when that finding is supported by clear

proceedings as expeditiously as reasonably possible. A and convincing evidence does not adversely affect any
"fundamental public policy" found in the Texas
retrial results in prolonged uncertainty and disruption in
Constitution or statutes. [63] Giving full effect to Rule
the lives of the parents and children who are involved.
The government has a legitimate interest in encouraging a
279 simply means that a court, rather than a jury, has
court ifa statutorily prescribed
supplied a finding that is supported by clear and
parent to object in the trial
convincing evidence on one ofthe elements ofparental
clement ofa termination action has been omitted from the
termination. Neither the Texas Constitution nor any
court's charge rather than challenging the omission for the
statute prohibits a bench trial ofone or more issues in a
first time on appeal. A trial court can easily cure an
charge to thejury omission termination case when there has been no objection by the
omission in its if that is called
parent. in such manner as to support thejudgment." [67] Rule
279 applies to deemed findings in a jury trial and is a
To put this in perspective, suppose that a parent had parallel to Rule 299, which applies to deemed findings in
requested ajury trial, but then failed to object when the a bench trial. Rule 299 provides: "where one or more
trial court conducted a bench trial instead of empaneling elements thereof have been found by the trial court,
a jury, entered findings of fact and conclusions of law, omitted unrequested elements, where supported by
and rendered judgment tenninating the parent-child evidence, will be supplied by presumption in support of
relationship. Would we say that the parent could argue thejudgment." [68] The history of the rules that require
for the time on appeal that his or her right to ajury
first deemed findings in both jury and bench trials do not
trial had been denied because this was fundamental error? indicate that there is to be any difference in the
The answer to that question is "no." application ofthese rules in requiring acourt to deem a
finding. [69] It is only when there has been afactual
JUSTICE l-lANKlNSON'S dissenting opinion
sufficiency challenge that is preserved in the trial court
concludes that the error in the charge was hannless that a deemed finding must be reviewed for factual
because "the focus" of the trial was the children's best
sufficiency on appeal. [70]
interest. [64] JUSTICE HANKlNSON'S dissent seems to
be saying that in spite of what thejury was told in writing The parents have not contended in the
in this case
by the trial court's charge, the emission of the children's trial court, the court ofappeals, or this Court that the
best interest in three of four material parts of the charge evidence is factually insufficient to support a finding that
was cured because there was so much evidence and termination is in the children's best interest. Accordingly,
argument from counsel about the children's best interest, we need not address whether factual sufficiency of
the jury must (somehow) have understood that it could evidence may be raised for the first time on appeal in a
not find that the parent-child relationships should be parental tcnnination case. [71] The inquiry in this appeal
tenninated unless it concluded that termination was in the is limited to whether there is legally sufficient evidence
children's best interest. to support the trial court's express or deemed finding that
termination is in the best interest of the children. The trial
While we agree that there was legally sufficient court's deemed finding that termination is in the best
clear and convincing evidence that tennination was in the
interest ofthe children is supported by legally sufficient
children's best interest, most ofthe evidence relevant to
clear and convincing evidence.
the best interest of the children was also relevant to the
grounds for termination based on the parents‘ conduct set Page 277
forth in the charge. The jury was not told that it had to
reach separate, distinct conclusions not only that there Ill
were grounds for termination based on the parents‘
conduct, but also that termination would be in the The parents have an additional complaint about the
children's best interest. The jury was specifically jury There are two predicates to parental
charge.
instructed that the best interest of the children must be termination under section 161.001 of the Texas Family
found in connection with only one of the four grounds for Code. The first is that one or more courses ofparental
terminating based on parental conduct. conduct must be established. The second is that
tcnnination must be in the best interest of the children.
F The gravamen of the parents‘ complaint is that the charge
does not require the same ten jurors to agree that a parent
The
record before us does not require a remand to engaged in at least one particular course of conduct
the court of appeals for a factual sufficiency review of the described by section l61.00l(l) and that termination is in
deemed finding that termination was in the children's best the children's best interest. The charge only requires that
interest. In the absence of achallengc to the factual tenjurors agree that the parent-child relationships should
sufficiency ofthe evidence, appellate courts must deem be terminated. [72] They thus contend that this
an omitted finding in support of ajiidgment ifthere is broad-forin submission did not satisfy federal due process
some evidence [65] (in this case clear and convincing requirements.
evidence) to support the
This constitutional challenge was not raised in the
Page 276 trial However, even assuming, without deciding,
court.
that 1) this argument could be raised for the first time on
omitted finding and the other requirements of Rule 279
appeal, and 2) the charge erred in this regard, we do not
have been met. reach the constitutional challenge because the evidence
conclusively establishes that each parent engaged in a
Rule 279 permits a trial court to make an express
course of conduct described by subsection l6l.O01(1) of
finding on an omitted element if there is "factually
the Family Code. Therefore, the alleged error did not
sufficient evidence to support a finding." [66] lftlie trial
cause the rendition of an improper judgment or prevent
court does not make an express finding, "such omitted
the parents "from properly presenting the ease to the
element or elements shall be deemed found by the court
court of appeals." [73] before trial, the parents made appointments to obtain
evaluations during the week after the scheduled trial. But,
Paragraph (0) of subsection 161 .00l(l) provides again, even giving minute efforts to
full credit to their last
that one basis for establishing the parental conduct prong comply, it is undisputed that they were not in compliance
required for termination of parental rights is that a parent at the time of trial and had not complied with that portion
"failed to comply with the provisions of a court order that of the trial court's orders.
specifically established the actions necessary for the
parent to obtain the return of the child who has been in With regard to the urinalysis requirement, the
the pemianent or temporary managing conservatorship of DPRS made no requests for urinalysis under the second
the [DPRS] for not less than nine months as a result of order, but the parents admitted and other evidence shows
the child's removal from the parent under Chapter 262 for that they refused requests to submit to urinalysis during
the abuse or neglect of the child." The State relied on the time the first order was in effect. And, although they
subsection (0) as one of two alternate grounds of parental took one requested urinalysis test under the third order,
conduct that could support termination. they took only two of the six urinalysis tests requested
under the December 15, i998 order, which were
It is undisputed that both parents failed to comply requested in the few weeks before trial.
with numerous, material provisions of court orders that
specifically required their compliance to avoid restriction As noted above, the orders set forth requirements
or tennination of their parental rights. During the with which the parents partially complied. Prior to April
sixteen-month period between the time the DPRS I998, the mother attended six of thirteen scheduled
removed the children and the time of trial, the trial court individual counseling sessions, and the father attended
entered four separate orders. [74] Each order specifically five ofeleven. But because the parents missed so many
advised the parents that failure to provide a safe appointments, the therapist expelled them from the
environment within arcasonable time could result in program. The orders required the parents to maintain
restriction or termination of their parental duties and appropriate housing free from abuse, neglect, and safety
rights or the children not being returned to them. Each hazards. As discussed above in section lI.C., family
order directed each parent to perform specific acts. The violence in the home continued after the removal ofthc
mother testified that they knew they had to comply with children. And, in June 1998, the parents were evicted
the orders to obtain the return of the children. But both from the Texas State Technical College campus. In
the mother and the father admitted that they had August or September 1998, about five or six months
consciously decided not to comply with many of the before trial, the parents moved to Austin. There is some
requirements imposed by the orders. evidence that they had a clean, safe home there. But these
sporadic incidents ofpartial compliance do not alter the
There are some provisions of the orders with which undisputed fact that the parents violated many material
the parents partially complied and others for which they provisions of the trial court's orders.
offered an excuse for their noncompliance. But even
The evidence establishes as a matter of law that the
Page 278 parents failed to comply with the court's orders
specifying the actions the parents had to take for the
givingfull credit to their excuses and partial compliance,
DPRS to retum the children to the parents. The record
therewere a number of material provisions of the orders also conclusively establishes that
with which the parents completely and undisputably
failed to comply. Among other things, each of the four Page 279
orders required the parents to (1) pay $100.00 per month
in child support for the children while they were in DPRS the children were removed from their parents under
custody; [75] (2) obtain an individual psychiatric Chapter 262 of the Family Code, and it is undisputed that
evaluation; [76] (3) participate and make progress in they were in the Dl’RS's custody for more than nine
parenting classes; (4) voluntarily submit to random months after their removal. Accordingly, the parental
urinalysis testing; and and make progress
(5) participate conductdescribed in subsection l6l.00l(l)(O) of the
in anger control classes. While the four orders were in Family Code was established as amatter of law. Any
effect, the parents never paid a single dollar of child error in failing to submit a specific instruction onjuror
support even though they admitted they were capable of agreement regarding parental conduct was thus hannless.
doing so; never attended a single anger control class; and
never attended a single parenting class. IV

had yet to
Similarly, at the time of trial, the parents The parents additionally contend that their counsel's
obtain an individual psychiatric evaluation. At one point, failure to object to en'or in the charge and other alleged
the mother scheduled a psychiatric evaluation and went to mistakes during trial rendered his assistance ineffective
the appointment but refused to participate without her and that they are entitled to a new trial on that basis. The
husband being present during the examination. Shortly parents argue that the Sixth Amendment to the United
States Constitution entitles a parent to effective assistance
ofcounsel when termination of parental rights is sought. [841
They assert that tennination is no less a punishment than
imprisonment or even capital punishment. With regard to the first component, the Supreme
Court said:
Several Texas courts ofappeals have considered
whether the Sixth Amendment or other federal
-
"In any case presenting an ineffectiveness claim,
constitutional provisions mandate effective assistance of the performance inquiry must be whether counsel's
counsel in tennination cases, and they have reached assistance was reasonable considering all the
differing conclusions. A number of courts of appeals circumstances." [85]
have concluded that the federal constitution does not
‘
"The purpose [of the Sixth Amendment's effective
grant that right. [77] At least one court ofappeals has
assistance of counsel guarantee] is simply to ensure that
indicated that it does, [78] although other statements in its
criminal defendants receive a fair trial." [86]
opinion indicate that itconcluded that the right flows
from section 107.013 of the Texas Family Code that -
"Judicial scrutiny ofcounse1's performance must
requires appointment of counsel in limited circumstances.
be highly deferential." [87]
[79] Another court ofappeals has recognized aright to
effective counsel because of both section 107.013 and "A fair assessment of attorney perfomiance
that courts "procedural due process concerns." [80] At
requires that every effort be made to eliminate the
least four decisions in other states recognize aright to
distorting effects of hindsight, to reconstruct the
effective assistance of counsel in termination cases, two
circumstances of counsel's challenged conduct, and to
of those basing the right on a statute requiring
evaluate the conduct from counsel's perspective at the
appointment of counsel, one finding that the right time." [88]
emanates from the due process clause of the Fourteenth
Amendment, and the fourth apparently basing its 4 "A court must indulge a strong presumption that
conclusion on the Sixth Amendment. [81] counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
Page 280 must overcome the presumption under the
that,
circumstances, the challenged action ‘might be considered
We believe that it is prudent to defer the resolution of
whether a parent in a tennination case may seek a new
Page 281
trial based on ineffective assistance of counsel because in

this case, even applying the stringent test set forth by the sound trial strategy.’
"
[89]
United States Supreme Court for use in criminal cases,
assistance ofcounsel was not ineffective. "The court must then determine whether, in light
-

of all the circumstances, the identified acts or omissions
in Strickland v. Washington, the United States were outside the wide range of professionally competent
Supreme Court examined at length the considerations in assistance." [90]
determining whether counsel in a capital or other criminal
case was ineffective. [82] The Supreme Court's "The court should recognize that counsel is
observations were extensive. The Supreme Court said at strongly presumed to have rendered adequate assistance
the outset of Strickland that "[t]he benchmark forjudging and made allsignifieant decisions in the exercise of
any claim ofineffcctivcncss must be whether counsel's reasonable professional judgment." [91]
conduct so undemiined the proper functioning of the
adversarial process that the trial cannot be relied on as The Supreme Court then said with regard to the
having produced ajust result." [83] The Court then said second component even ifan error by counsel were
that

there were two components in a criminal case in professionally unreasonable, that "does not wan'ant
determining whether assistance of counsel was so setting aside thejudgment ofa criminal proceeding if the
defective to require reversal: error had no effect on thejudgment." [92] Elaborating,
the Court said:
Aeonvicted defendant's claim that counsel's assistance
was so defective as to require 1'eve1'sal ofa conviction or "Ccnflict of interest claims aside, actual
death sentence has two components. First, the defendant ineffectiveness claims alleging a deficiency in attorney

must show that counsel's performance was deficient. This performance are subject to a general requirement that the

requires showing that counsel rnade errors so serious that defendant afiinnativcly prove prejudice." [93]
counsel was not functioning as the "counsel" guaranteed
"It is not enough for the defendant to show that the
by the Sixth Amendment. Second, the
<

the defendant
defendant must show that the deficient performance errors had some conceivable effect on the outcome of the
prejudiced the defense. This requires showing that proceeding." [94]

counsel‘s errors were so serious as to deprive the
-
"On the other hand, we believe that adeferrdant
defendant of a fairtrial, a trial whose result is reliable.
need not show that counsel's deficient conduct more
likely than not altered the outcome in the case." [95] people ever have the opportunity to be parents with their
children. If thejury says, "No, it is not in the best interest
"The defendant must show that there is a of these children to have parental rights terminated," that
reasonable probability that, but for counsel's doesn't say that the kids--that my folks go out this
unprofessional errors, the result of the proceeding would aftemoon and pick up the kids and go home. What that
have been different. A reasonable probability is a would say is we all keep working together to try to
probability sufficient to undennine confidence in the resolve the situation. Okay? So this isn't like a criminal
outcome." [96] case where it's guilty or not guilty and you can never be
tried again because I've been found innocent. This isn't
"A court should presume, absent challenge to the like a car wreck where my client gets up and says, "We
~

judgment on grounds ofevidentiary insuffieieney, that
either recover the money or we don't recover the money."
thejudge orjury acted according to law." [97]
In this case it is not that kind offinality. In this case the
jury can say, "Wait a minute. don't believe that these
"A
I
r
weakly supported
verdict or conclusion only
folks had a fair chance to do it," and all you've got to do
by the record is more likely to have been affected by
is say, "No, it's not in the children's best interest to
errors than one with overwhelming record support." [98]
tcnninatc parental rights," and what that says is,

"Taking the unaffected findings as a given, and
~
"Children's Protective Services, you've got to work with
taking due account of the effect of the errors on the
them. We all have to work together." Okay’? If you say,
"Yes, tennination is in the best interest," that's it, it's over.
remaining findings, a court making the prejudice inquiry
must ask if the defendant has met the burden of showing
Okay?
that the decision reached would reasonably likely have
Then again, in his opening statement, counsel for
been different absent the en'ors." [99]
the parents stated to thejury:

We reiterate that we leave open the question of
We're here because the State ofTexas is asking thisjury
whether a claim ofineffeetive assistance of counsel may
to rubber stamp what they did and say, "Looks good to
be asserted as a basis for reversing ajudgment in a
us. Take the kids." We're here because we're saying.
parental tennination ease. Even were we to recognize
ladies and gentlemen, this jury needs to come back and
such a claim, the question of whether our harmless error
say, "No, it's not in those children's best interest. Do not
rule must be discarded in such cases is another significant
tenninate parental rights," and what that will say, what
question that would have to be broached.
that will do is then the State of Texas will have to
honestly work with [the parents], and that's what we're
But even measuring the parents‘ complaints about
asking. Thank you.
their counsel against

Subsequently, during the objections to the charge,
Page 282
counsel for the parents demonstrated his ability to
Strickland's standards, assistance of counsel was not compare the language of the charge to the verbatim
ineffective in this case. Although the parents‘ complaints requirements of the Family Code. Counsel objected to the
about their counsel are numerous, they are not definition of "clear and convincing evidence" in the

well-founded. First, the parents cite the failure oftheir
charge because it omitted three words that the statutory
counsel to object to the omission of the children's best definition contained. Counsel then affirmatively stated to
interest in material parts of the charge Had
to the jury. the court that he had no further objections to the charge.

there been an objection, then no finding would be deemed Notably, when it came time for closing arguments,
under Rule 279. [100] However, in light of the entire counsel for the parents said nothing about the best

record, the parents have not "overcome the presumption interest of the children.
that, under the circumstances, the challenged action
‘might be considered sound trial strategy,‘ " [101] Page 283

Based on this record, the parents did not overcome
Counsel for the parents demonstrated in voir dire of
the presumption that their counsel's decision regarding
thejury that he knew that the parents‘ rights could not be
the charge cn'or was based on strategy. There is precedent
terminated, regardless of whether the conduct of the
in criminal cases for raising jury charge error for the first
parents would otherwise permit termination, unless
time on appeal. [102] There is also precedent for raising
termination was found by the jury to be in the best
He stated: some types of charge error for the first time on appeal in
interest of the children.
juvenile cases. [l03] Counsel may have made the

Now, folks, everyone keeps talking about we are here for strategic decision not to object and to attempt to raise
atermination ofparental rights. Not necessarily true. If charge error for the first time on appeal in the event the

thejury votes and says, "We believe that termination of jury returned an adverse verdict. The diligence exhibited
parental rights is in the best interest of the children," then by counsel in other aspects of the trial and what appear to
parental rights are tenninated, and no longer will these be other tactical decisions, as discussed below, also
indicate that counsel for the parents may well have made underpinnings of psychology in general. Psychological
a strategic decision not to object to the omission of the experts routinely testify in parental termination cases. It

children's best interest in material aspects of the charge. was not unreasonable for counsel to fail to take on the
reliability of all psychological testimony in this case.
The parents contend that their counsel's failure to More importantly, no basis in this record for
there is
object to the broad-fomr submission of the termination concluding that had the trial court conducted a hearing on
issues also constituted ineffective assistance ofcounsel. reliability, the evidence would have been shown to be
in light ofthis Court's decision in Texas Department of unreliable.
Human Services v. E.B., [104] which specifically
approved broad-fonn submission in a tennination case, it The parents argue that their counsel treated the
cannot be said that counsel's failure to object was, "in Family Service Plans developed by CPS as a court order.
light of all the circumstances, outside the wide range of However, the record reflects that only one Family Service
professionally competent assistance." [105] While it Plan was referenced by a court order in setting forth the
would certainly have been within the bounds of tasks that the parents were to perform, and that plan was
professional competency to raise an issue in the trial filed with the court. The other three orders that were in
court so that counsel could ultimately implore this Court evidence and at issue at trial contained directives to the
to reconsider E.B., it is not outside the bounds of parents in the orders themselves, wholly apart from any
competency to follow a decision of this Court. Family Service Plan.

The parents also contend that counsel's failure to The parents did not receive ineffective assistance of
request an instruction not to consider the parents‘ counsel.
religious beliefs constituted ineffective assistance of
counsel. There was considerable testimony during the V
trial about the parents‘ religious At one juncture,
beliefs.
the father testified that his conduct toward his children None of the remaining issues raised by the parents
should be judged by God, not by a court. At another, the require reversal. The parents asserted in their motion for

father testified that it was God who made cocaine new trial and in the court of appeals that there was
available to the parents. Instead ofrequesting a jury factually insufticient evidence to support any finding by
instruction, counsel for the parents cross-examined
the jury that either parent had endangered the children.
the
DPRS witnesses about the relevancy of the parents’ Because the evidence conclusively established other
religious beliefs and made arguments parental conduct described in section l6l.0Ol(l) of the
to the jury that the
parents‘ religious were irrelevant to the
beliefs Family Code, and there is an express or implied finding
tennination inquiry. Even were it assumed that the trial by the trial court, supported by clear and convincing
court should have given an instruction to the jury had evidence, that termination is in the children's best interest,

counsel so requested, it cannot be said that counsel's it is immaterial whether an alternate submission regarding

decision to address the parents’ religious beliefs through parental conduct was supported by factually sufficient

argument was anything other than a reasonable exercise
evidence.

of trial strategy.
The parents equate parental termination for failure

The parents contend that their counsel should have to comply with the court's orders to criminal contempt.
objected to questions They first argue that criminal contempt requires proof
beyond areasonable doubt. As discussed above, the
Page 284 United States Supreme Court held in Santosky that the
federal constitution requires a clear and convincing
they were asked during trial about their sexual conduct evidence standard of proof in parental termination cases,
with third parties and alleged "sexual deviations." but not proof beyond a reasonable doubt. [106]
However, their counsel did object, many times, to
questions of this nature. The he did not object to
fact that The parents‘ second contention is that they have
each and every question is again within the realm of been punished with tennination of their rights for failing
reasonable trial strategy in light of the record in this case. to comply with the trial court's orders delineating what
they must do to have their children returned. This
At trial, the DPRS called expert witnesses with punislunent amounts to contempt, they argue, and
backgrounds in psychology and social work. The parents violates the statutory limits on punishment of contempt to
contend that their counsel provided ineffective assistance sixmonths in jail or a $500 fine. The Legislature has
because he did not challenge the reliability of all specifically provided in subsection l6l.0()l(l)(O) that
psychological expert testimony on the ground that there failure to comply with court orders like those issued in
is no scientific basis for predicting future behavior or this casc is grounds for termination. That statute, not the
evaluating individuals. Counsel for the parents did object contempt statutes, controls.
to the qualifications of one witness, but not to the
scientific reliability of this testimony in particular or the Page 285
 The parents contend that the trial court erred in appellate court to consider the parents‘ complaints as if
admitting evidence that either the father or the mother they did object to the charge, even though they admit
brought other men home
have sexual relations with the
to they did not. The Court does not even attempt to explain
mother while the father watched. Evidence of other how it can review the parents‘ second unpreserved claim

alleged sexual activities was also admitted. However, of charge error (concerning broad-form submission),
there was unchallenged testimony from an expert witness instead simply concluding that the error, if any, was
that the father "endorse[d]" many ofthe ofitems on the harmless. Refusing to answer the question presented does
Minnesota Multiphasic Personality Inventory test that a disservice to our courts of appeals by failing to resolve
relate to sexual deviance. This expert concluded, without the conflict among them as to whether they may review
objection, that the father's responses to this standardized unpreserved error in termination cases; a disservice to our
test raised concerns about his parenting potential. It established jurisprudence, which permits us to review
cannot be said, based on the record as a whole, that the only preserved complaints unless a recognized exception
trial court abused its discretion in admitting the exists;and most importantly, a disservice to the parents
challenged evidence. and children who are entitled to consistent and efficient
appellate review that fairly adjudicates their
Finally, the parents contend that one witness,
Jasmine Khan, gave an expert opinion when she was not Page 286
qualified to do so. Counsel for the parents objected on
this basis. But even ifthis witness's qualifications were complaints in these time-sensitive and compelling cases.
not demonstrated, her testimony was cumulative of other
witnesses. Itherefore dissent and write separately to explain
how I would resolve the actual issue presented in this

In sum, any errors committed by the trial court did case. Because conclude that Texas‘ cornrnon-law
I

not require reversal. doctrine offundamental error permits us to review the
alleged charge errors, would hold that Texas procedures
I

*>k>t<** reviewing
for unpreserved charge en'or in
parentaI-rights-termination cases do not violate due
For the foregoing reasons, we reverse the judgment process. Having considered the alleged errors, however, I

ofthe court ofappcals and render judgment terminating disagree with the court of appeals that the omission in the
the parent-child relationships between each of the jury charge was hannful, and would therefore remandI

children, J.F.C., A.B.C., and M.B.C., and their mother this cause to the court ofappeals for it to consider the
and father. remaining issues it did not yet address.

Justice O'NEILL concurred in thejudgment only. The Court relieson rule 279 to affinrr the trial
court's tennination judgment. But rule 279 does not tell
Justice HANKINSON filed a dissenting opinion. in
us whether charge error in a parental-rights-termination
which Justice ENOCH joined. case can be reviewed for the first time on appeal. The
purpose of rule 27‘) is to "salvage" a court's
Justice SCHNEIDER filed a dissenting opinion. trial

judgment when a party failed to object to an omitted
Justice HANKINSON dissenting, joined by Justice
element of a ground ofrecovery in ajury charge. See 4
ENOCH. MCDONALD & CARLSON, TEXAS CIVIL
PRACTICE S00-Ol (Zd ed.200l). Under rule
§22:58, at

The Court states the issue in this case as "whether 279, the court may deem the finding in support of the
there is legally sufficient evidence to support the trial judgment if there is "some evidence" to support the
court's express or deemed finding that termination is in finding. See Ramos v. Fritn-Lay, Inc., 784 S.W.2d 667,
the best interest of the children." This statement of the 668 (Tex.l990); Cielo Darado Der/., Inc. v. Cerminleed
issue will come as a surprise to the parties and the court Carp.. 744 S.W.2d 10, ll (Tex.l988). By rnarshaling the
of appeals, as no one has raised, briefed, or addressed this evidence to support a deemed finding against the parents
issue at any stage of these proceedings. In this under rule 279, the Court essentially conducts a
parental-rightsvtermination case the State asked us to hamrful-error analysis of the charge error. But this
decide whether due process requires a court of appeals to approach is circular. The Court determines that applying
review alleged errors in the charge when the parents did rule279 to deem a finding in support of thejudgment
not object to those errors at trial. Instead ofanswering does not violate due process because it concludes there
that question, the Court explains the consequences of the was no harmful error. But had the error been harmful, the
parents‘ failure to object to the first alleged charge error Court could not apply rule 279, and the parents would be
(omission of a statutory element required for termination) left where they started: asking an appellate court to
under Texas Rule of Civil Procedure 279. But those review unpreserved charge error. The Court should
consequences are not at issue, and rule 279 does not address the issue raised in the petition that we granted,
answer the actual question presented of whether, in light and decide whether our law on preservation of error
of the constitutional interests at stake, our law requires an mandates appellate review of the parents’ unpreserved
complaints. "fundamental." See McCatrley v. Consul. Underwrilers.
157 Tex. 475. 304 S.W.2d 265, 266 (I957); Ramsey V.
The Court's opinion describes how the jury charge Dunlap, 146 Tex. I96, 205 S.W.2d 979, 982 (1947); see
in this case failed to track the statutorily required also 6 MCDONALD & CARLSON, TEXAS CIVIL
language found Texas Family Code § 161.001. On
in PRACTICE § 47:4, at I201-O2 (2d ed.l998) (recognizing
appeal, the Coxes argued that the jury charge was fundamental error as an exception to the general rule of
erroneous because: (I) it failed to instruct the jury that preservation); W. James Kronzer, Laying the Foundation
they must find termination to be in the best interest of the for Appellate Review, in APPELLATE PROCEDURE
children; and (2) the broad«form questions and IN TEXAS (State Bar ofTexas, 2d ed.l979), §9.2, at
disjunctive instructions violated their due process rights 204-06 (same); Allen Wood, The Bill ofExceptions as
under the Fourteenth Amendment of the United States Basis for Review, in id. § ll.5, at 248-49 (same). While
Constitution and Article 1, Sections 3 and 10 of the Texas mostjurisdictions recognize some type offundamental
Constitution. The Coxes acknowledged that they had not error, they do not define it uniformly. [1] Black's
preserved these complaints in the trial court. However,
they argued that the constitutional dimension of the Page 288
and the quasi-criminal nature of a
liberty interests at stake
parentaI-rights-termination action warranted appellate Law Dictionary defines the essence of fundamental error
review of the allegedjury-charge errors. as that which is "so obvious and prejudicial that an
appellate court should address it despite the parties’
The court of appeals agreed. Specifically, the court failure to raise a proper objection." BLACICS LAW
of appeals held that Fourteenth Amendment procedural DICTIONARY 563 (7th ed.l999) (defining also "plain
due process requires review of "core issues" in the jury error" and "error apparent of record"). Our own
charge an involuntary parental-rights-tennination case.
in application offundarnental error review has changed
57 S.W.3d at 72. The court defined those "core issues" as throughout the years. Consequently, an analysis of its
"(l) the predicate grounds for tennination, and (2) evolution in our jurisprudence is useful to understanding
whether tennination is in the best interest ofthe child." how and when we should apply it.

Id. at 72 n. 5. After reviewing thejury charge in this case,

the court concluded that the use of the broad-form We first recognized fundamental error as a principle

question and disjunctive instruction in the jury charge firmly rooted in the common law. In Jones v. Black, I

was proper, having been explicitly approved by this Tex. 527 (1846), this Court observed that as a general
Court in Texas Department ofHurnan Services v. E.B.. rule, "the record being silent as to anyjudicial action
802 S.W.2(l 647 (Tex.1990) either sought or had upon the issues of law, they will be
considered as waived. and will not be made the subject of
Page 287 revision here." Id. at 529. Nevertheless, this Court held
" ‘if
that the foundation of the action has manifestly
. 57 S.W.3d at73. The court also concluded, however, failed, we can not, without shocking the common sense
that the omission of the "best interest" instruction as to ofjustice, allow a recovery to stand.’ Id. at 530 (quoting
"

Tawnya and the placement of the "best interest" Palmer v. Lorillard, l6Johnson 343, [348]. I81‘) WL
instruction as to Paige constituted harmful error, because I790 (NY. 1819)); see also Siese v. Malsc/r, 54 Tex. 355,
of the "potential" that thejury could have terminated both 357 (I881) (objections that go to merits and foundation
parents‘ rights "without finding that termination was in of action will be considered though unassigned as error);
the best interest of the children." Id. at 74, 75. The court Rnrrkert v.

remanded the case to the trial court for a new trial
without reviewing the Coxes' other complaints on appeal. Page 289
Id. at 75. In its petition for review, the Department

contends that the court of appeals erred by reviewing the Clow, 16 Tex. 9, 13 (1856) (same); Sa/ina.r V.

unpresen/ed jury-charge error. W/'r'gIr2, Tex. 572, 577 (1854) (same); Wetmore
ll v.

Woodhouse, I0 Tex. 33, 34 (1853) (same).
In effect, the court of appeals held that our state
procedural rules violate due process in Although these early cases considered fundamental
parental-rights~tennination cases because they prohibit error to be aprinciple ofcommon law, our Legislature
review when error is not preserved in the context of "core had already codified its own version of fundamental-error
issues." See id. at 72-73. The analytical starting point for review. In 1846, the Legislature enacted astatute that
determining whether our procedures violate the provided for supreme court review of "error
in law either

Constitution is our law on error preservation for appellate assigned or apparent on the face of the record." Act
review. As ageneral rule, no en‘or may be reviewed on approved May 12, 1846, 1st Leg, §24, 1846 Tex. Gcn.
appeal that was not raised before the trial court. Laws 249, 256-57, reprinted in 2 I-I.P.N. GAMMEL,
TEX.R.AI’I’. I’. 33.l. Nevertheless, like most other THE LAWS OF TEXAS 1838-1846, at 1555, 1562-63
jurisdictions, our civiljurisprudence is well settled that (Austin, Gammel Book Co. 1898). But in 1850, the
appellate courts may consider unpreserved error that is Legislature enacted a statute providing that "[t]hc
 all cases file with
appellant or plaintiff in error, shall in disrn'd) ("[l]n considering fundamental error, the
the clerk of the court below, an assignment oferrors,
distinctly specifying the grounds on which he relics Page 290
and all errors not so distinctly specified, shall be
considered by the Supreme Court as waived." Act Court of Civil Appeals can only read the pleadings of the
parties, the charge of the court, the verdict of the jury,
approved Feb. 11, 1850, 3rd Leg., R.S., ch. 139, § 9,
1850 Tex. Gen. Laws 171, 173-74, reprinted in 3 and the judgment of the court....''). If determining
GAMMEL, LAWS OF TEXAS 1847-1854, whether there was error required examining the statement
at 609,
611-12 (1898). Both statutes were made applicable to the of facts, the courts would not consider it "fundamental."
courts of civil appeals when those courts were organized. See, e.g., Yardley, 288 S.W. at 868 (trial court's allegedly

See Act approved Apr. 13, 1892, 22nd Leg., 1st C.S., ch. erroneous construction of deed was not "fundamental"

15, §§ 24, 25, 1892 Tex. Gen. Laws 25, 29, reprinted in
because it would require reviewing the evidence).
10 GAMMEL, LAWS OF TEXAS 1891-1897, at 389, Second, appellate courts only reviewed unpreserved error
393 (1898). Although by its ter1ns, the 1850 statute when there was "a good and sufficicnt ground for the
appeared to repeal the 1846 statute, our courts continued court to interfere to prevent injustice being done to one of
the parties." Houston Oil Co., 122 S.W. at 537; see also
to consider fundamental error without acknowledging any
effect of the 1850 statute. See Ramsey, 205 S.W.2d at
Hollingsrvorlh v. Holshausen, 17 Tex. 41, 47-48 (1856)

982. But see Oar v. Davis, 105 Tex. 479, 151 S.W. 794, (citing the court's practice to review an erroneous jury
796 (1912) (holding that the statutes could be charge when there is reason to believe it influenced the

hannonized). verdict to the prejudice of a party); Jones, Tex. at 530
1

(rejecting achallenge to improper venue as merely a
In one of the first cases to construe the 1846 statute, "dilatory" challenge and not a foundational objection).
Wr'/son v. Johnson, 94 Tex. 272, 60 S.W. 242 (1900), this
Court stated that "it is difficult to tell what is meant by In were repealed by the act
1941, both statutes

this language; but we incline to think it intended to
vesting the Supreme Court with rulernaking authority.
signify prominent error, either fundamental in
a
TEX.REV.ClV. STAT. ANN. art. 1731a, §§ 1, 2 (Vernon
character, or one determining a question upon which the 1948); see Cily o_/"Santa Anna v. Leach, 173 S.W.2d 193,
197-98 (Tcx.Civ.App.-Eastland 1943, writ ret‘d w.o.rn.).
very right of the case depends." Id. at 243; see also
Houston 01'! C0. of Tex. v. Kimball, 103 Tex. 94, 122 We effectively "rc-enacted" the 1850 statute in the form

S.W. S33, 537(l909) ("Perhaps the best expression is ofTexas Rule of Civil Procedure 374, which required
that any errors had to be presented in the court below or
that it must be a fundamental en'or, such error as being
readily seen lies at the base and foundation of the
would be waived. For the few years immediately
proceeding and affects thcjudgmcnt necessarily"). Thus, following the promulgation of the 1941 rules, a few
"
'fundamental error‘ is not a statutory term, but is one courts of civil appeals held that they could no longer

coined by the courts in interpreting our [statutes]." Texas review fundamental error. See Brown v. O’Mem't1, 193

& Pac. Ry. Co. v. Lilly, 118 Tex. 644, 23 S.W.2d 697, S.W.2d 715, 721 (Tex.Civ.App.-Galveston 1946, writ
ref‘d rr.r.e.); Leach, 173 S.W.2d at 198.
698 (1930).

Our decisions from the prc-rules era disclose two
ln Ramsey V. Dunlap, 146 Tex. 196, 205 S.W.2d

policies that informed the application of 979, 980 (Tcx.l947), however, we held that the courts of

fundamental-error review. a matter of efticiency
civil appeals retained the authority to consider
First, as
and economy, appellate courts were not requirecl to fundamental error, notwithstanding the apparent repeal of
examine the record in order to ascertain whether there the statute and the enactment of rule 374. Ramsey

was abasis for claiming error. See Wilson, 60 S.W. at involved an election for county commissioner. The
243 ("The purpose of assignments of error is to point out candidate who received the fewest number of votes sued

the errors complained of, and not to leave the appellate
the winner on the grounds that the winner was not a
resident of the precinct and therefore ineligible to hold
court to grape through the record to ascertain whether
error has been committed or not.‘'); see also Ford &
officc. The parties agreed that the only issues before the

Damon v. Flewellerr, 276 S.W. 903, 903-04 trial court were their respective residencies, the location

(Tex.Corn.App.l925,judgm't adopted) ("Any other nrle of the precinct and the validity of an order changing
lines,

.. would place an almost unbearable burden upon our those precinct lines. The
court ofcivil appeals, however,
reversed the judgment on the ground that Texas Revised
appellate courts"). Thus, appellate courts considered
unpreserved error only when the complaint could be seen Civil Statute article 3032 pennitted only the candidate
on the face of the "record"--defined as "those proceedings who received the greatest number of votes cast to receive

which lie at the foundation of the court‘s power to render
the certificate ofelection. See id. at 980-81. That issue

thejudgment," such as the pleadings, the charge, the was neither preserved in thetrial court nor assigned as

verdict, and thejudgment itself Texas &
Pac. Ry. Co., 23
error in the briefs. See id. at 980.

S.W.2d at 699; see Yardley v. Houston Oil Co. ofTe.\-.,
The court of appeals certified to this Court the
288 S.W. 861, 868 (Tex.Civ.App.—Beaurnorrt 1926, writ
question of whether it erred in determining a cause on a
point not assigned as error. See id. We held that the court decisions, Texas courts have consistently recognized and
of appeals did not err, because fundamental-error review reaffirmed the existence of the fundamental-error
applied. Id. at 983-84. Citing eighty-nine years of Texas doctrine. Because there is no statute defining the
courts reviewing fundamental error, even "in the face of a principle, we tend to agree with the commentator who
statute which declared that all [unpreserved] errors noted that "[t]here no single satisfactory definition of
is

should be considered as waived," this Court asked, "must the phrase, nor can one easily analyze the cases for
we now hold that our courts of civil appeals have no prognostic purposes." Kronzer, supra, § 9.2, at 205. In
authority to consider such errors because Art. 1837 has reviewing our easelaw, however, we are able to distill
again been repealed by the substantial reenactment of two types of error that our courts have consistently
Art. I844 in the form of Rule 374, T.R.C.P.'.7 As to errors recognized are subject to fundamental-error review.
that are truly fundamental, we think the answer must be
No." Id. at 982-83. First, and most commonly, we apply
fundamental-error review when ajurisdictional defect
While recognizing that fundamental-error review exists in the case. See, e.g., Texas A.rs’n ofBus. v. Texas
survived the promulgation of the Rules of Civil Air Control 8d,, 852 S.W.2d 440, 445-46 (Tex.l993)
Procedure, we acknowledged that the doctrine could not (holding that standing is ajurisdictional issue that can be
be the raised for the first time on appeal); New York
Underwriters Ins. Ca. V. Sanchez, 799 S.W.2d 677, 678
Page 29] (Tex.l9‘)0) (holding that lack ofappellatejurisdiction is

fundamental error);McCauley, 304 S.W.2d at 265~66
same as the one codified in the 1846 statute. Declining to
(applying fundarnental-error review because intennediate
create an "all-inclusive" definition of the term, we held court lackedjurisdiction). With "jurisdictional-based"
that, for purposes of the Ramsey election dispute, "an fundamental-error review, an appellate court may reverse
error which directly and adversely affects the interest of the judgment of the court below for error--without
the public generally, as that interest is declared in the
conducting areview for hann--even if the error is not
statutes or Constitution of this state, is afundamental preserved. See Baker v. Hansen, 679 S.W.2d 480, 481
error." Id. at 983. We further determined that the alleged
(Tex.l984).
trial would adversely affect the "fundamental public
error
policy" found in the Texas Constitution and statutes that Second, we apply fundamental-error review when
no one can be declared elected to public office unless he an important public interest or public policy is at stake.
or she receives a majority or plurality of legal votes cast. See, e.g., Ramsey, 205 S.W.2d at 983.
Id. "Public-interest-based"fundamental error differs from
jurisdiction-based fundamental error in both a procedural
Ten years later, McCan/ey v. Consolidated
in
and substantive way: As a procedural matter,
Underw/‘i/er's, I57 Tex. 475, 304 S.W.2d 265, 266 public-interest-based fundamental-error review does not
(Tex.l957), we reaffirmed the survival of the
mandate
fundamental—error review doctrine, and held that it also
applied in our Court. In McCauley, the trial court had set Page 292
aside and vacated a defaultjudgment. The court ofcivil
appeals affirmed the order, despite the fact that it was a automatic reversal. Instead, after an appellate court
nonappealablc interlocutory order. McCnuley v. determines that it will consider the unpreserved error, the
Consolizln/err’ Underwriter-s, 301 SW2d I81, I85 court conducts the next two steps of appellate review and
(Tex.Civ.App.-Beaumont I957), rev'd, 157 Tex. 475, 304 determines whether an error in fact occurred, and whether
SW2d 265 (Tex.l957). In its response to the plaintiffs the error is harmful. Sec W. Wendell Hall, Standards of
writ of error to this Court, the defendant did not raise the Review in Civil Appeals, 24 ST.
LJ. 1045, MARY'S
jurisdictional defect in the court of appeals. Nevertheless, I056 (1993); see, e.g., In re C.0.S., 988 S.W.2d 760, 767
we held that fundamental error applied, reaffinning the (Tex.l999) (concluding that failure to give statutory
definition from Ramsey. 304 S.W.2d at 265. We adrnonishrnents, while fundamental en'or, was not
expanded on the definition, holding that "[w]hen the hannful error requiring reversal); State v. Santana, 444
record affrnnatively and conclusively shows that the S.W.2d 614, 615 (Tex.l969) (holding thatjury charge in
court rendering the judgment was withoutjurisdiction of juvenile case warranted fundamental-error review and
the subject matter, the error will also be regarded as analyzing whether charge violated due process), vacated
fundamental." Id. at 266. Accordingly, we held that this on other grounds, 397 US. 596, 90 S.Ct. I350, 25
Court had the power to reverse the court of appeals‘ L.Ed.2d 594, on remand, 457 S.W.2d 275 (Tex.l970).
judgment, and we dismissed the appeal on the unassigned
jurisdictional error. Id. Suhstantively, public-interest-based fundamental
error is rare, implicated only when our most significant
Ramsey and McCauley were watershed decisions, state public interests are at stake. The meaning of the
establishing that fundamental-error review is not barred "public interest" that is adversely affected must be
by our procedural rules. In the forty years since those extremely circumscribed, or the exception would swallow
the rule. Thus, it cannot be enough to allege that an en‘or between two fit parents in which "[n]either parent's
violates a party's constitutional rights. See Texas Dep't of parental rights have been temrinated"); Ingram Ingram, 1/.

Protective & Regulatory Servs. v. Shen'y, 46 SW3d 857, 249 SW2d 86, 88 (Tex.Civ.App.-Galveston 1952, no
861 (Tex.200I) (holding that constitutional claim that writ) (no fundamental-error review in adivorce case in
paternity suit should not be barred by statute of which "the result of the suit can be of consequence to the
limitations waived by failing to raise the issue before
is litigants involved alone and no broad question of
the trial court) (citing Dreyer v. Greene, 871 S.W.2d 697, public interest is involved").
698 (Tex. 1993)). In Ramsey, we characterized the type of
public interest that must be at stake as one "declared in I-{aving reviewed our case law in this area, we are
the statutes or Constitution of this state." Ramsey, 205 left with two guiding principles for determining whether
S.W.2d at 983. However, we carefully declined to create fundarnental-error review should apply to a matter of
an "all-inclusive" definition of a public interest that public interest: (1) the error complained ofmust implicate
requires fundamental-error review. Subsequent cases Id. a significant public interest or policy of the state,

have identified statements of public interest based on our articulated by our statutes, constitution, or caselaw; and
constitution and reflected in our caselaw. See, eg., (2) the nature of the error must be such that it impacts a
Santana, 444 SW2d at 615 (citing "the constitutional truly general public interest, and not solely that of private

importance of case to the public generally");
this litigants. To guide our detennination in difficult cases, we

Woodard v. Texas Dep't ofHum(m Res, 573 S.W.2d 596, should apply fundarnental-error review to further its
597 (Tex.Civ.App.-Amarillo I978, writ rev'd n.r.c.) underlying policy ofpromoting judicial economy while
(citing Texas Supreme Court precedent for the avoiding manifest injustice.

proposition "that the interest of the public is affected
when the custody of a child is at issue").
With these principles in mind, I would turn to the
errors alleged in this case to determine whether the
Since Ramsey, our courts have categorically fundamental-error doctrine applies. First, the Coxes
recognized only one other type of public interest so allege that the trial court enoneously failed to instruct the
significant that fundamental-error review applies--the jury that must find termination ofthe Coxes‘ rights to
it

state's interest in the rights and welfare ofminors. In be in The Coxes admit that
the best interest of the child.

particular, our courts have recognized fundamental-error they did not object at trial to the errors that they raised on
review in the following cases: the failure to give statutory appeal. Because charge error does not implicate the
admonishrnents in a juvenile delinquency proceeding, see trial court to act, we should
essentialjurisdiction ofthe

In re C05,, 988 S.W.2d 767; ajury charge submitting
at not review the error unless we detennine that the
"preponderance of the evidence" as the burden of proof in public-interest basis for fundamental-error review
ajuvenile delinquency case, see Santana, 444 S.W.2d at applies.Applying the principles identified above, would I

615; a jury charge based on an invalid theory ofliability conclude that this charge error warrants
in ajuvenile delinquency case, see R.A.M. v. State, 59‘) fundamental-error review.
S.W.2d 841, 846 (Tex.Civ.App.-San Antonio 1980, no
writ); thesubmission of "preponderance of the evidence" Our first inquiry should be whether the error affects

as the burden of proof in aparental-rights-tennination
asignifrcant public interest, articulated in our statutes,

case, see Woodard, 573 S.W.2d at 597; and an omission constitution, or casclaw. See Ramsey, 205 SW2d at 983.
In the statute governing suits affecting the parent-child
in ajury charge in a divorce case that deprived a minor
relationship, our Legislature has declared that "[t]he
child of the right to support, see Rey v. Rey, 487 S.W.2d
public policy of this state is to assure that children will
245, 248 (Tcx.Civ.App.-El Paso I972, no writ).
have frequent and continuing contact with parents who
But not all cases involving children trigger have shown the ability to act in the best interest ofthe
fundarrrental-error review. In one case involving a minor, child." TEX. FAM.CODE§ l53.00l(a). The statute
we rejected fundamental-error review because the error further provides that "[t]he best interest ofthe child shall

and did not
affected only the immediate private litigants always be the primary consideration of the court in
impact a matter of more general public concern. Sec determining the issues of conscrvatorship and possession
Newman v. King, 433 S.W,2tl 420, 422 (Tex.l968) of and access to the child." Id. § 153.002. And in the
(failure to appoint a guardian ad litem for a minor Family Code subchapter goveming the termination of
plaintiffin a change-of-name proceeding parent-child relationships, the Legislature has emphasized
repeatedly that the "best interest of the child" is the state's
Page 293 foremost priority in dctcnnining the welfare of children.
See TEX. FAM.CODE §§ 161.001(2) (court must find by
action does not warrant fundamental-error review clear and convincing evidence that termination is in the
because only the rights of the particular minor and best interest of the child), .003(a)(5) (court may order
litigants are affected). Our courts of appeals have reached termination based on inability to care for a child ifit is in
v. Kosel, 742
the satire result in other cases. See Wristen the child's best interest), .004(a)(4) (court may order
S.W.2d 868, 870-71 (Tex.App.-Eastland I987, writ termination based on a subsequent petition if it is in the
denied) (no fundamental-error review in acustody case child's best interest), .005(a) (court may order tennination
when parent is petitioner if in the best interest of the child).The charge in this case allowed the trial court to
child), 007(3) (court may order termination if pregnancy temrinate Tawnya Cox's and Paige Cox's parental rights
results from parent's criminal act and if in the best interest without specifically instructing the jury that it must first
of the child), .204 (court may order tenrrination based on find termination to be in the best interest ofeach child.
affidavit of waiver of interest if it is in the best interest of Accordingly, thejury charge in this case had a potentially
the child);see also §§ l07.001(b) (court must appoint adverse impact on the Cox children's best interest, which
guardian ad litem to represent best interest of is amatter ofpublic interest in a case that affects the
public generally.
Page 294
Concluding that thejury charge error alleged here is

the child in a termination suit brought by the subject to fundamental-error review does not undermine
govemment); 153.433 (court shall order access to a the general policy ofjudicial economy that underlies our
grandchild by a grandparent ifin the best interest of the rule for preservation oftrial error. In Pirtle v. Gregory.

child). Here, the charge omits the instruction that thejury 629 S.W.2d 919 (Tex.l982), we explained that one
must consider the "best interest of the children." Thus, the rationale for requiring preservation is to avoid surprise to
charge directly affects a statutorily defined public the opponent on appeal. Id. at 920. Here, the State had the
interest. burden of proving all the statutory elements of
tennination. TEX. FAM.CODE § 161.001. The State can
Further, the charge error directly affects the public hardly say that it was "surprised" to find that the jury
policies stated in our caselaw. We presume as a matter of charge did not contain the elements that the statute
public policy that the best interest of a child is usually it to prove. Moreover, ifthc error likely
clearly requires
served by maintaining the parent-child relationship. See caused an improper verdict, the State's interest would be
In re GM, 596 SW2d
846, 847 (Tex.l980); Wiley v. furthered by appellate review. because the State's
Spra/Ian, 543 S.W.2d 349, 352 (Tex.1976). Here, the overriding concern
State's effort to involuntarily tenrrinate the Coxes' rights
affects the public interest in maintaining the parent-child Page 295
relationship. In addition, we employ a higher standard of
proof in parental-tennination cases than we do in is the children's best interest, not the tennination of
ordinary civil cases, reflecting the particular importance parental rights.
of ensuring a eorrectjudgment in these cases. In re G.M.,
596 S.W.2d at 847 (citing Addingtun v. State, 441 US. Accordingly, I would hold that our courts may
418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)); see also review unpreserved jury-charge error relating to the
TEX. FAM.CODE § 161.001 (codifying In re G.M. by required statutory findings in a

establishing and convincing evidence" as the
"clear parental-rights-termination case under our common-law
burden of proof). In this case, the charge omits a required doctrine of fundamental-error review. As a result of this
finding for termination and therefore directly and holding, 1 would conclude that Texas procedures for
adversely impacts the public interest in reaching a correct reviewing unpreserved charge error in

judgment. parental-rights-termination cases do not violate due
process.
Having detemrined that the error alleged here
affects a significant public interest, we should look to see Having determined that the complaint in this case
whether the error impacts the public generally, and not can be reviewed, our appellate procedure next requires
Newman, 433 S.W.2d at
just the immediate litigants. See that we determine whether the jury charge was error. See

422. I would hold that an involuntary termination suit Hall, supra, at 1056; see, e.g., In re C.0.S., 988 S.W.2d at

impacts the public generally. have primary Parents 767. Here, the proposed charge did not properly state the

responsibility for the
"
and nurture‘ " of
‘custody, care essential elements for terminating parental rights. Family
their children. In re G.M., 596 S.W.2d at 846 (quoting Code § 161.001 provides that a court can involuntarily

S/zmley v.1/linais, 405 US. 645, 92 S.Ct. 1208, 31 terminate a parent's rights only after the court has found
L.Ed.2d 551 (1972)). The State has a right and duty to by clear and convincing evidence both that: (1) the parent

look after the welfare of the children within its borders. has committed one or more of the enumerated predicate
See Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878 acts or omissions; and (2) termination is in the best

(1948). Consequently, when the State acts to terminate a interest FAM.CODE § 161.001;
of the child. See TEX.
parent's rights, the State assumes the responsibility for the see also COMM. ON PATTERN JURY CHARGES,
children's welfare. The State's responsibility for the STATE BAR OF TEX., TEXAS PATTERN JURY
support of children is "obviously a matter of public CHARGES (FAMILY) PJC 218.1 (2000). As to Tawnya,
interest" that "transcends the interest of the parties" to the the proposed charge completely omitted the instruction

immediate action. Rey, 487 S.W.2d at 248; cf. Wristen, that the jury find termination to be in the best interest of

742 S.W.2d at 870-71 (public interest not affected by the the child. As to Paige, the proposed charge included the
issue of which parent is appointed as managing "best interest" instruction only in conjunction with the
conservator when both parents are able to take care of the alternative ground for tennination that he had failed to
comply with a Because a
court-ordered plan. and hostility" and drug use. Jasmine Khan, alicensed
parental-rights-termination lawsuit founded in statute,
is professional counselor, testified about the Cox children's
the jury charge should track the language ofthe statute. extreme, abnormal behavior when they were first
See Spencer v. Eagle Star Ins. Co. ofAm., 876 S.W.2d removed from their parents‘ household. Most
154, 157 (Tex.l994). Itherefore agree with the court of significantly, she described hostile, aggressive, and
appealsthat because the "charge fails to require all the violent play by ABC. Khan also said that A.B.C. told
findings that, under the Family Code, are necessary to her he witnessed violence and was a victim of violence in
terminate parental rights," the charge was error. 57 the Cox home. Other Child Protective Services workers
S.W.3d at 74. reiterated this testimony. Khan also testified that after
several months in foster care, the children improved
Having detemiined that the parents’ complaint can tremendously, and did not display any distress being
be reviewed on appeal, and that the trial court erred, I away from their parents. She testified that the Coxes were
would review next the court ofappcals' determination unwilling and unmotivated to make productive changes
that the error was harmful. See Hall, supra, at 1056; see, to address the issues placing their children at risk. A
e.g., In re C.0.S., 988 S.W.2d at 767. The court of police officer described numerous times that he had to
appeals stated that the jury "could very well" have investigate domestic—disturbance calls at the Cox
terminated Tawnya's rights and "may very well" have household, and described the confrontations as "pretty
tenninated Paige‘s rights without finding that termination violent" such that he had concern for the children. A
was in the children's best interest. 57 S.W.3d at 74-75. conservatorship worker from Child Protective Services
But whether thejury may have improperly terminated the testified that she observed visits between the Coxes and
Coxes‘ parental rights because the charge omitted a their children. She stated that the visits tended to be
statutory element is relevant only to whether there was "chaotic," and the children's behavior deteriorated after
error in the first instance. The Coxes must still show that each visit with their parents. The conservatorship worker
the error probably caused rendition of an improper also described the Coxes‘ hostility and anger toward each
verdict. See TEX.R.APP. P. 44.l(a). The court of appeals other. Notably, the testimony of Dr. Shinder, Khan, the
summarily stated that the evidence for tenninating police officer, and the conservatorship worker all
Tawnya’s rights was "not highly persuasive," but it did culminated with their opinions that tennination of the
not discuss that evidence. 57 S.W.3cl at 74. And, with Coxes‘ parental rights and adoption would be in the Cox
respect to Paige, the court of appeals said that the children's best interest. And other witnesses who worked
potential for the jury to tenninate without finding on the Cox ease, including a Child Protective Services
tennination in the children's best interest was increased supervisor and Court Appointed Special Advocate,
because there was "less support" in the evidence for the similarly testified that tennination would be in the Cox
ground that Paige had failed to comply with a children's best interest.
court-ordered plan. Id. at 75. But the court ofappeals
never explained how it reached its conclusion as to either The Coxes provided little evidence to contradict the
parent that the error probably caused rendition of an evidence discussed above. However, their case likewise
improperjudgmcnt. We
must review the "pleadings of focused significantly on evidence relevant to whether
the parties, the evidence presented at and the charge trial, termination was in the children's best interest. For
in its entirety" to detennine whether the charge in this example, the Coxes attempted to explain their
case probably resulted in an improper judgment. Island cfforts—-after a trial date was set on the Department's
Recrcazio/ml Dev. v. Republic of Tex. Sav. Ass’/1, 710 termination petition--to comply with the Family Service
S.W.2d 551, 555 (Tex.l986); see Plan and to show their ability to provide the children a
loving home. A year after the trial
court initially ordered
Page 296 compliance with the Family Service Plan, in the fall of
1988, the Coxes moved to Austin from Waco. The jury
Rein/mrl v. Ymmg, 906 SW2d 471, 473 (Tex.l995). heard testimony about a letter the Coxes‘ attorney wrote
to Child Protective Services in Austin, stating that the
The Department's evidence overwhelmingly
Coxes wanted by working with
to "derail the termination"
focused on and supported the conclusion that termination
the Department. Also, Paige Cox he called
testified that
was in the best interest of these children. In particular,
Child Protective Services in Austin once they moved in
Tawnya Cox testified that she and her husband used
an effort to start compliance with the Family Service
cocaine while the children were at home, and that she
Plan. The Coxes also presented evidence about the
believed her children were safe because cocaine made her
changes in their lives and relationship since moving to
more aware ofher surroundings. The Coxes testified to
Austin to demonstrate that termination would not be in
arguing violently with each other. In one of those
the children's best interest. Tawnya testified about her
arguments, she knocked several teeth out of hismouth,
finding work in Austin. She said that Paige had
and during another argument, helocked her out of the
house while she was naked. Dr. Shinder, a psychologist Page 297
whose office evaluated the Coxes, opined that neither
could be fit parents due to their "aggression and violence become more open and communicative, and she
described the environment in Austin as "wonderful." The broad~form jury charges are used unifonrrly in cases like
Coxes‘ obstetrician for the birth of their fourth child-~who this one, and therefore resolving the issue that this
is not the subject ofthis suit--described the Coxes as "an complaint raises would impact many
appropriate, courteous, and loving couple." And the parental-rights-tennination cases. Accordingly, I would
Coxes‘ landlord and roommate in Austin testified that conclude that our fundamental-error doctrine permits us
their home was a "safe environment." Thus, much of the to review this complaint.
evidence adduced was probative toward the issue
at trial
of whether termination was in the children's best interest. I would hold that the submission of the broad-forrn
question did not violate the Coxes‘ due process rights, and
Moreover, the rest of the trial proceedings put this therefore was not error. In Texas Department afHum(m
evidence in perspective, centering the jury's attention on Services v. 15.8., 802 S.W.2d 647, 649 (Tex.1990), we
the best interest of the children. The Department's identified the controlling
pleadings specifically alleged as to each individual parent
that "tennination of the parent-child relationship Page 298
[between the parent and each child] is in the best interest
question in a parental-n'ghts—tem1ination case as whether
of the children, as required by Section 161.001 of the
the parent-child relationship between the parent and the
Texas Family Code." The attorneys for all parties
children should be terminated. In the Coxes’ case, the
repeatedly emphasized throughout the voir dire,
examination of the witnesses, opening statements, and charge specifically instructed the jury that at least ten
jurors must agree on all answers supporting the verdict.
closing argument that the jury's focus should be on the
children's best interest. (In its opinion, the Court quotes
See TEX.R. CIV. P. 292. We presume that the jury

two of the relevant portions of the opening argument and understood and followed its instructions. See Gillette

voir dir'e record in which the Coxes'counsel reiterates
Molar Trzmxp. Co. v. Whitfielrl, 145 Tex. 571, 200

that the jury's determination will regard the children's
S.W.2d 624, 626 (1947).
best interest. 96 S.W.3d at 261.) Finally, the jury charge
The Coxes argue that our holding in Crown Life
listed factors be considered in determining the
to
Irzsz/rrmce Co. v. Casteel, 22 S.W.3d 378 (Tcx.2000),
children's best interest, and many of these factors related
altersour analysis in E.B. In Casteel, we held that
to the evidence discussed above.
"[w]hen a single broad-fonn liability question

In light of the totality of the circumstances and the en'oneously commingles valid and invalid liability
consistent and paramount emphasis upon the children's theories and the appellant's objection is timely and
best interest at trial, lwoulcl conclude that the failure to specific, the crr'or is harmful when it cannot be
detennincd whether the improperly submitted theories
submit the "best interest" instruction was not reasonably
calculated and did not probably cause the rendition of an
fonncd the sole basis for the jury's finding." Id. at 389.
improper verdict. See TEX.R.APP. 44.1; Reinhart, 906 Here, the Coxes do not assert that either of the disjunctive

S.W.2d at 473; Island Recreational Dev., 710 S.W.2d at grounds for termination were invalid theories as applied
to them. See id. And the Coxes raise no new arguments in
555. would conclude that the court of appeals therefore
I

this case togive us cause to revisit our decision in E.B.
erred in reversing the trial court's judgment on the basis
that the omitted instruction was harmful error.
Accordingly, the court of appeals correctly held that the
court did not abuse
trial its discretion in submitting the

The Coxes‘ second complaint is that the submission broad—form jury charge.
of the jury charge in adisjunetive instruction and as a
broad-fonn question violated their constitutional rights to For the reasons expressed above, I respectfully

due process and due course of law. Using the analytical dissent to the Court's opinion and judgment in this cause,

framework I have set out above, I would first determine The Court belabors the consequences of failing to

whether the alleged error affects asignificant public preserve error, instead of deciding whether we can review
interest, articulated in our statutes, constitution, or
that unprcserved error. The Court then inexplicably
The Coxes submission of a reviews an unprcserved complaint that it decides is
caselaw. assert that
hannless. Not only does the Court reach issues not
broad-forrn question violates due process because it

presented by the parties and that are unnecessary to the
permits the termination ofparental rights without first

ensuring that ten jurors agree on each statutory
resolution of the from our
case, it retreats

termination ground. If the charge violates due process for
error-preservation standards, adding further thereby

the reasons that the Coxes would uncertainty to the already conflicting decisions from the
state, that violation
courts ofappeals. The only general proposition I can
adversely impact the public interest in ensuring that the
statutory grounds required for termination are found by draw from the Court's opinion is that courts ofappeals
clear and convincing evidence. See TEX. FAM.CODE should review error when they can dctenninc fiom the
§
same reasons discussed record that the en‘or is ultimately harmless. But my
161.001. Furthermore, for the as
greatest concern is that the Court abandons its
to the first charge complaint, this second charge
complaint relates directly to the public interest in correct responsibility to ensure that parents and children receive
judgments and affects the public generally. Finally,
fair, consistent, and expeditious appellate review in these
most difficult cases. Accordingly, I respectfully dissent. procedural route is appropriate in this case, I believe the
Court should remand this case to the court of appeals for
Justice SCHNEIDER, dissenting. a factual sufficiency review on the tennination grounds
the parents challenge.
Under the Texas and United States Constitutions,
the parent-child relationship is considered a fundamental I. BACKGROUND
liberty interest deserving due process protection. Indeed,
the relationship is so important that no amount of Depending upon one's view, the jury charge either
antisocial behavior directed defiance
toward a child or in (a) omitted a best interest instruction as to one of the
of a court's order, standing alone, provides enough parents and one of the grounds for the other parent; or (b)
justification for the State of Texas to terminate the at the very least, positioned the best interest instruction in

parent-child relationship. Our law requires that, in such amanner that it was unclear to the jury that the

addition to finding one or more of the instruction applied to all the tennination grounds alleged
legislative—specified laundry list ofantisocial conduct by against both parents. In any event, neither party objected
a parent, the fact finder must also find that terminating to the charge on the basis that it failed to include an
the parent-child relationship is in the "best interest" of the instruction that termination under any ground alleged
child. must also be in the child's best interest. Thejury returned
a verdict terminating parental rights for all three children,
Today, the Court holds that the "best interest" and the trial court rendered judgment based on the
element can be deemed to support the judgment if, verdict.
without objection, that element is erroneously omitted
from or obfuscated in a jury charge. 96 S.W.3d at On appeal, the parents argued for the first time that
259-260. And, the Court not only deems a best interest the broad-fonn submission and disjunctive questions in
finding in this case, but also, to deem the finding, the the charge violated their due process rights. The parents
Court applies aquestionable legally sufficient clear and also complained for the first time that the charge failed to
convincing evidence test never requested by the parties or instruct the jury that, to terminate under any ground
articulated by this Court. Then, the Court holds that the alleged, the jury must also find that termination is in the

parents‘ failure to follow the Family Service Plan [1] is best interest of the children.
conclusively established, so
Tire court of appeals held that, in

Page 299 parental-tennination cases, applying Rule 33.1 of the
Rules ofAppellate Procedure to preclude an appellate
that the net effect is the case is reversed and judgment is court from reviewing an unpreserved complaint about
rendered without a remand to the court of appeals for the "core issues" in thejury charge does not afford the parent
requested factual sufficiency review of the termination due process. 57 S.W.3d 66, 72. See also TEX.R.APP. P.
grounds. 96 S.W.3d at 260. 33. l(a) (As a prerequisite for appellate review, the record
must show the complaint was made to the trial court by a
I respectfully dissent. The question squarely before
timely request, objection, or motion in compliance with
the Court is whether due process
procedural Texas's civil and appellate rules.). The court of appeals
considerations require an appellate court to review then reviewed the alleged errors and held the broad-form
unpreserved jury-charge errors in a par'ental~rights
jury charge was proper. 57 S.W.3d at 73-74. After
tennination case. would address that issue directly. And,
I
determining
in doing so, I would hold that Texas and the United States
constitutional procedural due process considerations do Page 300
not mandate appellate review of unpreserved jury-charge
error. The Texas Legislature has devised, and our courts the charge omitting a best interest instruction for all the
have applied, a fair and just procedural framework at the termination grounds alleged was hannful error, the court

trial and appellate levels for handling of appeals reversed the trial court's judgment and
parental-tennination cases. Consequently, I would hold remanded the case for a new trial. 57 S.W.3d at 74-75.
the parents waived their right to appellate review of the
allegedjury-charge errors, because the parents failed to II. ANALYSIS
object in the trial court about the errors they raise here.
The parents contend that their constitutional
Finally, although I agree the court of appeals‘ argument about the best interest instruction in the jury
decision should be reversed, I do not agree that this charge involves their substantive--not procedural--duc
Court, under our Texas Constitution, can obviate the process rights. According to the parents, the Family
court ofappeals' role. Sec TEX. CONST. art. V, § 6; Code's procedural guarantees, such as the requirement
TEX. GOV'T CODE §22.225(a). This Court cannot that tenninationbe in the best interest of the children, are
conclusively determine a factual question, namely, meaningless unless appellate review is afforded to ensure
whether the parents complied with the Family Service the lower court correctly applied these procedures.

Plan. Thus, even ifl agree the Court's "deemed finding"
 In Coimty ofSzzcramento Lewis, 523 U.S. 833,rt. Page 301
118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the U.S.
Supreme Court explained the meaning of procedural and Accordingly, the court of appeals correctly
substantive due process. concluded that procedural, not substantive, due process is

at issue here. However, for several reasons, the court of
We have emphasized time and again that "the touchstone appeals‘ rationale for concluding that such due process
of due process is protection of the individual against requires review of the parents‘ unprescrved jury-charge
arbitrary action of govcmment," W01/fv. McDonnell, 418 errors is flawed. As discussed in detail below, the court of
US. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 appeals misplaces itson Texas case law,
reliance
(1974), whether the fault lies in a denial of fundamental misapplies our strict from Hulick v.
scrutiny directive
procedural fairness, see, eg., Fuentes v. 407 US.
Slzevin, Smith, 685 SW2d 18, 20 (Tex.l985), and conducts an
67, 82, 92 S.Ct. 1983, 1995, 32 L.Ed.2d 556 (1972) (the erroneous due process analysis to conclude our error
procedural due process guarantee protects against preservation rules deny the parents due process in this
"arbitrary takings"), or in the exercise of power without case.
any reasonable justification in the service of a legitimate
governmental objective, see, e.g., Daniels v. Williams, A. WHETHER DUE PROCESS REQUIRES
474 US. [327,} 106 S.Ct. [662] at 664 [(1986)]
at 331, APPELLATE REVIEW OF UNPRESERVED
(the substantive due process guarantee protects against JURY-CHARGE ERRORS
government power arbitrarily and oppressively
exercised). l. Reliance on Texas Case Law

Lewis, 523 US. at 845-46, 118 S.Ct. 1708 our error preservation rules do not
In holding that

(citations to Supreme Court Journal omitted and full cite
preclude the from reviewing the parents‘
court

to Daniels provided). jury-charge complaints raised for the first time on appeal,
the court ofappeals relied ontwo cases. 57 S.W.3d at
Here, the nature of the parents‘ due process 71-72 (discussing In re A.P., I.P., 42 S.W.3d 248
argument demonstrates that they are in fact making a (Tex.App.-Waco 2001, no pet.) and In re S.R.M.. 601
procedural due process claim. The parents repeatedly rely S.W.2d 766 (Tex.Civ.App.-Amarillo 1980, no writ)). But
on the U.S. Supreme Court's analysis for cletennining these cases do not support the court of appeals’
whether parents’ due process rights have been met in conclusion.
termination cases. See Lassiler v. Dep’I of Soc. Services,
In S.R.M., the evidence conclusively showed the
452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). And
the parents consistently claim that the procedure--that mother's parental rights should not be ter1ninated for the
is,

receiving no appellate review of alleged jury-charge ground alleged. In re S.R.M,, 601 S.W.2d at 768-69.
errors because of the failure to preserve error--violated However, the trial court rendered ajudgment terminating
their due process rights, See Daniels, 474 U.S. at 340-41, the mother's parental rights based on grounds not

106 S.Ct. 662 (Stevens, J., concurring) (explaining that pleaded. Id. at 769. The mother argued the court of

petitioners asserted procedural and not substantive due appeals should reverse the trial court's judgment, because
it relied on unpleadcd grounds to terminate her parental
process violations, because they alleged the state
procedures for redressing of prisoners‘
deprivations rights. Id. The paternal grandparents seeking termination

property were constitutionally inadequate). However, the argued the mother implicdly consented to a trial on
parents do not contend that the action by which the State unpleadcd grounds, because she did not specially except
terminates parental rights is arbitrary or oppressive. See or object to the introduction ofevidence related to the

Daniels, 474 U.S. at 331, 106 S.Ct. 677 (substantive due unpleadcd grounds. Id. Family Code
Because the
process bars certain government actions regardless of the mandates grounds
that the petition set forth the statutory

fairness of the procedures used to implement them and for termination to afford the parents due process, and

prevents the government from using its power for because the record showed the mother had no notice that
oppression). Indeed, the court of appeals treated the the trial court would consider tenninating on unpleadcd

parents’ complaint about the refusal to review statutory grounds, the court of appeals reversed the trial

unpreserved jury-charge error as a procedural due process courfsjudgmcnt. Id. at 770.
issue. 57 SW3d at 72. And, the court of appeals applied
Here, unlike the circumstances in S.R.M. in which
the US. Supreme Court's procedural due process analysis
the mother had no notice of the trial court's action, the
to conclude that "[t]o terminate parental rights-~a
parents knew about the jury and had an
charge
Fourteenth Amendment liberty interest--when there is a
opportunity to object. See though the parents‘
Id. In fact,
fundamentally enoneous charge on a ‘core issue,’ only
attorney did not object to the omission or placement of
because the complaint was not preserved in the trial
the best interest instruction, he did object to the definition
court, does not adhere to Fourteenth Amendment
of the clear and convincing evidentiary standard in the
procedural due process." Id. (emphasis added).
charge. And, because the trial court considered objections
to the charge before the parents rested, their attorney
specifically requested that everyone agree the objection speaks to the important nature of the interests involved in
would not be considered waived he did not urge if it parental-tennination cases and does not support a
again before closing arguments. Their counsel said, "I conclusion that reviewing courts must consider
just don't want at soirie future time someone to write that unpreserved j ury-charge errors.
I waived that objection." Thus, the parents had notice and
an opportunity to object to the charge and acknowledged Court determined how to construe a
In Holick, this

the consequences if they failed to do so. particularground for termination in the Family Code.
Holick, 685 S.W.2d at I9-20. Before answering the
In A.P., the court of appeals was asked to review question, the Court discussed the fundamental
unpreserved factual and legal sufficiency complaints constitutional rights involved in parental-termination
about the grounds for whether
termination and proceedings. 685 SW2d at 20. After recognizing these
termination was in the best interest of the child. 42 rights, and the fact that a clear and convincing evidentiary
S.W.3d at 254-55. The court ofappeals cited S.R.M. as standard applies in these cases, the Court explained that
precedent for considering unpreserved error and held that this is why "termination proceedings should be strictly
tenniiiating parental rights without appellate review of an scrutinized..." Id.
unpreserved sufficiency complaint is a due process
violation. 42 SW3d
at 255. Then, the court ofappeals Since I-Iolick, courts of appeals have cited the strict
referred to criminal cases, which have held scrutiny language when generally discussing the standard
of review principles that apply in termination cases. See,
Page 302 e.g.. In re A.V., 849 S.W.2d 393, 400 (Tex.App.-Fort
Worth I993, no writ). Further, courts ofappeals have
that a defendant does not have to preserve for appellate relied on the language to support the application of a
review a complaint that the evidence is factually or heightened factual sufficiency review standard. See In re
legally sufficient. 42 S.W.3d at 25556 (citing Chesriut v. C.H., 89 SW3d17, 25 (Tex.2002) (discussing various
State, 959 S.W.2d 308, 311 (Tex.App.-El Paso I997, no courts of appeals decisions attempting to define the
pet); Daviln v. State, 930 S.W.2d 641, 649 n. 7 factual sufficiency review standard when clear and
(Tex.App.-El Paso 1996, writ rcf‘d)). Because criminal convincing evidence is required). However, other than
cases and tcnnination cases both require heightened the decisions in A.P. and here, no courts of appeals have
burdens of proof--"beyond a reasonable doubt" in relied on Holick's strict scrutiny directive to justify
criminal cases and "clear and convincing" in tennination review of unpreserved error.
cases--the A.P. court concluded it a "logical extension" to
review unpreserved sufficiency issues in termination In sum, there is no indication the Court ever
cases. 42 SW3d at 256. intended Holick's strict scrutiny language to support
appellate review of unpreserved jury-charge errors. In
But the AP. court wholly failed to conduct a due Court recently rejected relying on Holick's strict
fact, this
process analysis, as the US. Supreme Court requires in scrutiny language as a basis for reversing a
parental-tcnnination cases, to detennine if the procedure parental-terminationjudgment based on a parent's due
for preserving sufficiency challenges violates parents‘ due process claim.
process rights. Sce Lassiter, 452 U.S. at 27-28, 101 S.Ct.
2153. Instead, the court summarily citcd S.R.M., without Page 303
recognizing its significantly distinguishable facts, to
support its conclusion that it could review the See In re K.li’., 63 S.W.3d 796, 800, n. 20
unpreserved error. Moreover, the A.P. court improperly (Tex.200l). In K.R., the Court considered a parent's
relied on criminal cases that only opine about how argument that procedural due process precludes a

defendants may raise sufficiency points and, in any event, reviewing court from applying a harmless error analysis
operate under different procedural rules and to his claim that his being handcuffed throughout the trial

jurisprudence. Accordingly, which should be
A.P., improperly prejudiced thejuiy. Id. at 798. The Court held
overruled based on its erroneous analysis and holding, that, while it agreed "thatjudgments terminating the
does not support the court of appeals‘ conclusion here that must be carefully scrutinized
parent-child relationship
due process requires appellate courts to consider because ofthe importance ofthat relationship, [it could
unpreservedjuiy—eharge errors. not] conclude that the Fourteenth Amendment requires
reversal of thejudgment in this case without regard to
2. Strict Scrutiny harm." Id. at 800. The Court explained that, even in
criminal cases, the US. Supreme Court has rejected the
The court of appeals further explained that this notion that any constitutional error requires automatic
"
Court's directive that ‘termination proceedings should be reversal. Id. To the contrary, if "trial errors" such as
"
strictly scrutinized‘ justified its reviewing the "errors in the charge and in evidentiaiy rulings" occur,
unpreservedjury-charge errors. 57 S.W.3d at 72 (quoting courts may not reverse thcjudgmcnt unless the error
Holick V. Smith, 685 S.W.2d 18, 20 (Tex.l985)). caused harm. Id.
However, the strict scrutiny language in Holick only
 Accordingly, Holick's strict scrutiny language does With respect to the first Eldridge factor-—the private
not dictate procedure. The language simply evidences this interests at stake~-thisCourt has long recognized that the
Court's recognition of the important interests involved in "natural right existing between parents and their children
parental-termination proceedings. See Holick, 685 is ofconstitutional dimensions." Holick, 685 S.W.2d at
S.W.2d at 20. 20; see also In re G.M., 596 SW2d 846, 846 (Tex.l980).
A parent's right to the parent»ehild relationship is
"

3. United States Supreme Court Due Process 'essential,‘ 'a basic civil right of man,’ and ‘far more
Analysis precious than property rights.’
"
685 S.W.2d at 20
1-lolick,

(quoting Stanley 1/. Illirrois. 405 US. 645, 651, 92 S.Ct.
The court ofappeals additionally determined that
1208, 31 L.Ed.2d 551 (1972)). Similarly, the U.S.
appellate review of the parents‘ unpreserved jury-charge
Supreme Court has noted, "A parent's interest in the
errors "comports with the requirements in Lassiter." 57 accuracy andjustice of the decision to terminate his or
S.W.3d However, if all the pertinent factors are
at 72.
her parental status is a commanding one," Lassiter, 452
properly considered and weighed, the Lassiter due US. at 27, 101 S.Ct. 2153.
process test does not support the court of appeals‘
conclusion. However, the child's interests are also necessarily
involved and must be considered in this analysis. The
In Lassiter, the U.S. Supreme Court held that due Family Code's entire statutory scheme for protecting
process does not require states to provide indigent parents children's welfare focuses on the child's best interest. See,
counsel in all tennination 452 U.S. at
cases. Lassiter,
TEX. FAM.CODE
e.g., §§ 51.1 l(b); 153.001; 153.002;
33-34, 101 S.Ct. 2153. Before answering the due process
l61.001(2); 161.101. And, like their parents, children
question, the U.S. Supreme Court explained the nebulous
have an interest in an accurate resolution and just
nature of this concept:
decision in tennination cases. But children also have a
strong interest in a final decision on termination so that
"[D]ue process" has never been, and perhaps can never
adoption to a stable home or return to the parents is not
be, precisely defined... Rather, the phrase [due process]
unduly prolonged. In fact, it is this State's express policy
expresses the requirement of"fundamental fairness," a
to provide a safe, stable, and nonviolent environment for
requirement whose meaning can be as opaque as
TEX. FAM.CODE
its
the child. §l53.001(a)(2). And, if
importance Applying the Due Process Clause is
is lofty.
en‘or is properly preserved, the Legislature has upheld
therefore an uncertain enterprise which must discover
this interestby requiring prompt appellate decisions: "An
what "fundamental fairness" consists of in a particular
appeal which termination of the parent-child
in a suit in
situation by first considering any relevant precedents and
relationship is in issue shall be given precedence over
then by assessing the several interests that are at stake.
other civil cases and shall be accelerated by the appellate

Lassiter, 452 US. at 24-25, 101 S.Ct. 2153.
courts." TEX. FAM.CODE § l0‘).002(a). Similarly,
Texas's preservation of error rules promote the child's
The US. Supreme Court then held that the nature of interest in afinal decision and thus placement in asafe
the process due proceedings
in parental-termination and stable home, because they preclude appellate courts
depends upon of three factors: (1) the private
a balancing from unduly prolonging a decision by appellate review of
interests at stake; (2) the government's interests; and (3) issues not properly raised in the trial court.

the risk that the procedures used will lead to an erroneous
deprivation. Lassiter, 452 US. 2153 Indeed, the U.S. Supreme Court has recognized that
at 27, 101 S.Ct.
on Ma:/rews v. 424 prolonged termination proceedings can have
(relying Eldridge, U.S. 319, 335, 96
psychological effects on a child of such a magnitude that
S,Ct. 893, 47 L.Ed.2d 18 (1976))§ see also see also
time is of the essence:
Sanmsky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388,
71 L.Ed.2d 599 (1982). Once these Eldridge factors are
It is undisputed that children require secure, stable,
weighed against each other, the court must next "set their
long-tenn, continuous relationships with their parents or
net weight in the scales against the presumption" that the
foster parents.There is little that can be as detrimental to
procedure applied did not violate due process. Id.
a child's sound development as uncertainty over whether
he is to remain in his current "home," under the care of
Here, the analysis begins with the presumption that
his parents or foster parents, especially when such
our rules governing preservation of jury-charge error
uncertainty is prolonged.
comport with due process. Lassiter, 452 U.S. at 27, 101
S.Ct. 2153. But this must be balanced against the net
Lehman v.Lycomr'r1g County Cliildre/1's Sen/r'ce.r
weight of the three Eldridge factors to determine if the
Agency, 458 US. 502, 513-14, 102 S.Ct. 3231, 73
presumption is overcome. Santosky, 455 U.S. at 754, 102
L.Ed.2d 928 (1982); see also Lassiter, 452 U.S. at 32, 101
S.Ct. 1388;Lassiter, 452 U.S. at 27, 101 S.Ct. 2153;
S.Ct. 2153 ("[C]hi1d-custody litigation must be concluded
Eldridge, 424 U.S. at 335, 96 S.Ct. 893.
as rapidly as is consistent with fair'ncss...."). Accordingly,
under the first Eldridge factor, the private interests reflect
Page 304
a desire for an accurate andjust decision, but one that
does not unduly prolong a final decision about the child's addition to objecting to the charge, either party may
permanent home. request the trial court to submit certain questions,
definitions, and instructions in the charge. TEX.R. C1V.
The second factor under Eldridge is the States P. 273. If a party fails to timely abide by the rules
interests. See Santosky, 455 U.S. at 754, 102 S.Ct. 1388; concerning the jury charge, the party waives any
Lassiter, 452 U.S. at 27, 101 S.Ct. 2153; Eldridge, 424 complaint on appeal. TEX.R. CIV. P. 273-74;
U.S. at 335, 96 S.Ct. 893. Undoubtedly, the State shares TEX.R.APP. P. 33.1(a).
the parents’ and child's interests in an accurate andjust
See Lassiter, 452 U.S. at 27, 101 S.Ct. 2153.
decision. This Court has relaxed the jury-charge preservation
However, the child's best interest is always the State's rules in an effort to detennine cases
on the merits rather
primary concern in termination proceedings. See TEX. than on slight technical defects. See State Dept of
FAM.CODE §§ l61.001(2); 161.101. Thus, the State Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241
additionally shares the child's interest in not (Tex.l992). In Payne, the Court held that, although the
State requested an improperly worded jury-charge
Page 305 instruction, it was sufficient to preserve error, Id. at 241.
The Court explained that "[t]here should be but one test
unduly prolonging a final decision about the child's
for detennining if a party has preserved error in the jury
future. See Lehman, 458 U.S. at 513, 102 S.Ct. 3231
charge, and thatis whether the party made the trial court
("The State's interest in finality is unusually strong in
aware of the complaint, timely and plainly, and obtained
child-custody disputes"); see also TEX. FAM.CODE §§ a ruling. The more specific requirements of the rules
l0‘).002(a) (giving appeals in parental-tcnnination cases
should be applied, while they remain, to serve rather than
precedence over other civil cases); 161.202 (court shall
defeat this principle." ld.
grant motion for a preferential setting for a final
termination hearing on thcrnerits iftennination would Accordingly, parties have various opportunities to
make the child eligible for adoption). fonnulate the jury charge and preserve error about the
charge before the trial court reads it to the jury. TEX.R.
Additionally, the State has an interest in courts
CIV. P. 273-74. And, after Payne, a party need only
consistently and uniformly applying our preservation of
timely and plainly make the trial court aware of a
error rules. This interest does not merely refleet afiscal
complaint to preserve such error, Payne, 838 S.W.2d at
policy. Without uniform of our error
application
241.
preservation rules, termination proceedings would be
conducted and reviewed in an arbitrary manner. "At sonre Page 306
point the benefit of an additional safeguard to the
individual affected by the administrative action and to Consequently, Texas's rules for preserving
society in terms ofincreased assurance that the action is jury-charge error raise little risk of erroneous
just, may be outweighed by the cost." Eldridge, 424 U.S. deprivations.
at 348, 96 S.Ct. 893. Here, the cost of disregarding our
error preservation rules risks not only unduly prolonging To summarize the Eldridge factors, then: (1) the
termination proceedings but also losing any predictability parents’ interest is extremely important, but must be
for the State, counsel for parents, and guardians for balanced with the clrild’s important interests for not only
children about how courts will conduct and review these an accurate and just decision but also finality and
proceedings. Consequently, under the second factor, the placement in a stable home; (2) the State shares both the
State's interests encompass all the private interests, but parents‘ and an accurate and just
child's interests in

weigh in favor ofconducting tennination proceedings decision, but the State's interest in not unduly prolonging
under our error preservation rules so that the proceedings finality and in uniformity and predictability in applying
are not unduly prolonged or unpredictable. our preservation of error rules is stronger; and (3) the risk
of an erroneous deprivation under our rules about
Finally, the third Eldridge factor to consider is the preserving error in thcjury charge
is low, because parties

risk that our rules for preserving en‘or about the jury have notice and an opportunity to be heard about issues
charge will lead to an erroneous deprivation. See submitted and omitted from the charge, and error is
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; Lassiter, 452 preserved so long as the party timely and plainly made
U.S. at 27, 101 S.Ct. 2153; Eldridge, 424 U.S. at 335, 96 the trial court aware ofthe party's complaint. Weighing
S.Ct. 893. Texas Rules of Civil Procedure 272-274 these factors‘ net weight against the presumption that our
establish the procedures for parties to participate in the error preservation rules comport with due process, it
formulation of the jury charge. TEX.R. CIV. P. 272-274. cannot be said that the parents‘ were not afforded due
Rule 272 requires a party to object to the charge, either process here so that appellate review of their unpreservcd
orally or in writing, before the court reads the charge to jury-charge en'ors is warranted.
the jury. TEX.R. CIV. P. 272. Aparty objecting to the
charge must point out distinctly the objectionable matter In fact, the record supports the conclusion that the

and the grounds for the objection. TEX.R. CIV. P. 274. In parents‘ due process rights were not violated. The parents
had an opportunity be heard and object to the charge.
to B. INEFFECTIVE ASSISTANCE OF
Eldridge, 424 U.S. at 333, 96 S.Ct. 893 ("The COUNSEL
fundamental requirement of due process is the
opportunity to be heard ameaningful time and in a
‘at As the Court recognizes, the parents complain that
meaningful manner.’ ") (quoting Armstrong v. Mzmzo, their counsel's failure to object to the charge and other
380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). alleged mistakes rendered his assistance ineffective.

As previously discussed, the parents‘ counsel objected to Assuming the parents may and
raise this contention,

of the charge not challenged on appeal. And, in
a portion assuming they may do so for the first time on appeal, the
making this objection, their counsel expressly Court correctly concludes that the assistance in this case
acknowledged the risk involved in failing to object in a was not ineffective. In fact, even assuming the parents
timely manner. For these reasons, under Lassiter analysis, can overcome the strong presumption that their counsel's
the court of appeals erroneously relied upon due process performance was reasonable, there is no reasonable
considerations to review the parents’ unpreserved probability that, but for their counsel's unprofessional
jury-charge errors. errors, the result this termination proceeding would
of
have been Sce Strickland v. Washington, 466
different.
An additional factor further supports the conclusion US 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
that due process does not require appellate review of the Garcia State,
1/. 57 S.W.3d 436, 440
unpreservedjury-charge errors. Texas's Legislature has (Tex.Crim.App.200l).
established the procedures for temiinating parental rights.
See TEX. FAM.CODE §§ 161.001-161.211. In doing so, As discussed at length in the Court's opinion, the
the Legislature has been heedful of the important jury heard abundant evidence that supports a conclusion
interests--parents‘ and children's--at stake. For example, that tennination is in the children's best interest. Further,

the Family Code expressly requires that a court tenninate given the all evidence the jury considered from numerous

the parent~child relationship only if the grounds for sources and witnesses, the counsel's alleged mistakes do
termination, including whether tennination is in the best not raise even "a probability sufficient to undenninc
interest of the child, are proven with "clear and confidence in the outcome." Strickland, 466 U.S. at 694,
convincing evidence." TEX. FAM.CODE § 161.001. 104 S.Ct. 2052. Thus, the assistance of the parents‘
This, ofcourse, is a higher cviclentiary standard than in counsel in this case was not ineffective.
ordinary civil case. See In re G.M., 596 S.W.2d at 847.
Moreover, though the U.S. Supreme Court has held that C. THE COURT'S WRITINGS
states need not do so in every case, the Family Code
The Court engages in procedural gymnastics to
requires courts to provide counsel for indigent parents in
avoid answering the constitutional question in this case.
termination proceedings. TEX. FAM.CODE §
While Rule 279 may indeed resolve the specific alleged
107.0l3(a)(1); sec Lassiter, 452 US. at 3334, 101 S.Ct.
problem with the jury charge in this case, the Court
2153.
refuses to answer thethreshold procedural due process

Neither the Family Code passed by our Legislature question and does not analyze the due process issue under
the US. Supreme Court's guidelines for ascertaining the
nor the procedural and appellate rules promulgated and
applied by our courts deny parents fair notice and the
process due intennination proceedings. Sce Santosky,

right to be heard in parental-tennination cases. The U.S. 455 US. at 754, 102 S.Ct. 1388; Lassiter, 452 U.S. at 27,
Supreme Court has recognized assessing what 101 S.Ct. 2153. Because the Court does not answer the
that, "[i]n

substantial weight must be given to the threshold constitutional question, the Court's writing
process due
is

good-faith judgments" of our law makers "that the leaves little guidance for practitioners and lower courts
procedures they have provided assure fair consideration for how to determine if our error preservation rules

of entitlement claims of individuals." Eldridge, 424 US. violate due process when applied to other types of

at 349, 96 S.Ct. 893. Here, our Legislature has carefully
unpreserved errors. Undoubtedly, the Court must
constructed a statutory scheme governing how courts eventually resolve this issue, as there will not be a Rule
279 "band-aid" for every unpreserved trial error in
Page 307 parental-termination eases.

shall conduct termination proceedings. In that scheme, JUSTICE HANKlNSON'S fundamental error
though the Legislature has expressly provided certain analysis no more compelling. The fundamental-error
is

procedures that differ from other civil cases, see TEX. analysis disregards that the parents’ due process claim
FAM.CODE §§ l07.0l3(a)(l), 161.001, it has chosen not here relates to our procedures about preserving error for
to preclude application of our procedural and appellate appeal. And, the U.S. Supreme Court has dictated how
rules in parental-termination cases. Therefore, substantial courts mustdetemiine what process is due a parent.
weight should be given to the Legislature's good-faith Santosky, 455 us. at 754, 102 S.Ct. 1388; Lassiter, 452
judgment when deciding these cases. See Eldridge, 424 U.S. at 27, 101 S.Ct. 2153. However, rather than conduct
U.S. at 349, 96 S.Ct. 893. this analysis, the dissent contends that our common law
doctrine of fundamental error applies. But this disregards
the true nature--and danger--of Texas's fundamental error for further proceedings.
jurisprudence.

Historically, courts have applied fundamental error
in civil cases under very limited circumstances. Notes:
Typically, as the dissent recognizes, the concept of
fundamental error is expressed in ourjurisprudcncc [1] 57 S.W.3d 66.

Page 308 [2] See TEX. FAM.CODE § 262.104.

may be raised at
holding that subject-matter jurisdiction [3] See TEX. FAM.CODE § 262.105.

any time. See, eg, Texas A:s'n of Bus. v. Texas Air
Control 8d,, 852 S.W.2d 440, 445 (Tex.l993). However,
[4] See TEX. FAM.CODE § 262.201.

the other types of civil cases applying fundamental
[5] 57 S.W.3d at 72.
error--the cases involving "public-interest-based"
issues--are rare. Again, as the dissent recognizes, this
[6] Id. at 73.
Court has often declined to apply fundamental-error
review, recently doing so in a case in which a child's [7] Id.
welfare and constitutional issues were raised. See, c.g.,
Texas Dep't of Protective & Regulatory Servs. v. Sherry, [8] Id. at 73-74.
46 S.W,3d 857, 861 (Tex.2001).
[9] 57 S.W.3d at 75-76 (Gray, 1., dissenting).
Perhaps the Court has not applied
fundamental-error review in many cases, because the [10] Texas Rule of Civil Procedure 279, embodying these
concept nebulous and imprecise. This Court has held
is concepts, was promulgated in 1941. It essentially tracked

that fundamental error exists if the error "directly and the holding in Wichita Falls & Oklahoma Railway Co. v.

adversely affects the interest of the public generally, as Pepper, 134 Tex. 360, 135 SW2d 79 (1940).
that interest is in the statutes or Constitution of
declared
[11] Rule 27‘) provides:
this state." Dim/op, 146 Tex. 196, 205 S.W.2d
Ramsey v.

979, 983 (1947). But under this test, an argument may be
Upon appeal all independent grounds of recovery or of
made under almost any statute that public policy favors
defense not conclusively established under the evidence
reviewing the unprcserved issue.
and no element ofwhich is submitted or requested are
Moreover, under the dissent‘: analysis, if courts can
waived. When a ground of recovery or defense consists
of more than one element, if one or more of such
review unpreserved jury-charge errors based on the
elements necessary to sustain such ground of recovery or
Family Code expressing a public policy that the child's
defense, and necessarily referable thereto, are submitted
best interest is of primary concern, then courts can review
to and found by the jury, and one or more of such
any unpreserved error in parental—termination cases. in
elements are omitted from the charge, without request or
other words, a logical extension of the dissent's applying
objection, and there is factually sufficient evidence to
fundamcntal~error review here is that appellate courts
support a finding thereon, the trial court, at the request of
must review any unpreserved error in a
parentahtennination case, because any error could affect
either party, may after notice and hearing and at any time
the public‘s overarching concern with the child‘s best
before thejudgment is rendered, make and tile written
findings on such omitted element or elements in support
interest. Thus, fundamental-error review results in a
of thejudgment. If no such written findings are made,
slippery slope that, for all the reasons under the Eldridge
such omitted element or elements shall be deemed found
factors adopted in Lassiter and discussed above, would
cause more hann than good in termination cases.
by the court in such manner as to support thejudgment. A
claim that the evidence was legally or factually

III. CONCLUSION insufficient to warrant the submission of any question
may be made for the first time after verdict, regardless of
The question the Court is asked to answer today is whether the submission ofsuch question was requested
whether due process requires an appellate court to review by the complainant.
unpreserved errors in thejury charge. The answer is "no."
lcannot join the Court's opinion, because it declines to TEX.R. CIV. P. 279.

answer this question and instead relies on aprocedural
[12] See id.
rule that gives no guidance for future eases. Moreover,
the parents raised other issues the court of appeals did not
[13] Id.
consider, including a challenge to the factual sufficiency
of the evidence. Accordingly, the court of appeals‘ Ramos S.W.2d 667, 668
[14] See v. Frito-Lay, Inc, 784
judgment should be reversed and remanded to that court
(Tex.l990) (holding that "[i]f the omitted element is
supported by some evidence, we must deem it found [28] Jackson, 443 U.S. at 320, 99 S.Ct. 2781 (quoting
against Frito-Lay under Rule 279") (citing Payne v. Jacobellis v. Ohio, 378 U.S. 184, 202, 84 S.Ct. 1676, 12
Snyder, 661 S.W.2d 134, I42 (Tex.App.-Amarillo 1983, L.Ed.2d 793 (1964) (Warren, C,J., dissenting)).
Freedom Homes ofTexas, Inc. v.
writ ret‘d n.r.e.) and
Dickinson, 598 S.W.2d 714, 7l7(Tex.Civ.App.-Corpus [29] Id.

Christi I980, writ ret‘d n.r.e.)).
[30] Id.

[15] Santosky v. Kramer, 455 US. 745, 769, 102 S.Ct.
1388, 71 I.,Ed.2d 599(1982); In re G.M., 596 S.W.2d [31] Id. at 320 n. 14 (citations omitted).

846, 347 (Tex. 1980).
[32] See generally Stewart v. Coalter, 48 F.3d 610,
[16] See, e.g., Statev. Addington, 588 S,W.2d 569, 570
613-14(1stCir.1995),
(Tex.1979) (following Addington v. Texas, 441 U.S. 418,
[33] This standard is similar, but not identical, to the
431-32, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)) (defining
fonnulation used by federal courts in criminal cases to
the standard in a case in which involuntary commitment
detcnnine whether the defendant is entitled to a directed
of an individual to astate mental hospital was sought);
verdict of acquittal under the reasonable doubt standard
Bentley Bunton, 94 S.W.3d 561, 597 (Tex.2002)
v.
of proof. See generally Curley v. United States, 160 F.2d
(defining "clear and convincing evidence" in a
229, 232-33 (D.C.Cir.1947); United States v. Taylor, 464
defamation case); Huckabee v. Time Warner Entm't Co.,
19 S,W.3d 413, 422 (Tex.2000) (same).
F.2d 240, 243 (2nd Cir.l972); see also 2A WRIGHT &
MILLER, FEDERAL PRACTICE AND PROCEDURE §

[17] See Act of.lune 14, 1983, 68th Leg., R.S., ch. 298, §
467 (3rd ed,2000).
2, [983 Tex. Gen. Laws 1554, 1555 (former TEX.
FAM.CODE § 11.15) recodified by Act of April 20, [34] See Southwest Key Program, Inc. v. Gil-Perez, 81
S.W.3d 269, 270 (Tcx.2002) (rendering judgment against
1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws
the plaintiff in a negligence case when there was legally
113, 212 (current version at TEX. FAM.CODE §§
insuffieient evidence of proximate cause); Vista
l61.001(l), (2)).
Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176-77
[18] TEX. FAM.CODE§
101.007; In re C.H., 89 S.W.3d (Tex.l986) (holding that rendition is proper when a no
17, 25 (Tex.2002) (discussing this Court's and the evidence point is sustained); see also In re D.T., 34
Legislature's use of the same definition of "clear and S.W.3d 625, 642 (Tcx.App.-Fon Worth 2000, pet.
convincing evidence"); see also Bentley Bunton, 94 v.
denied) (partially rendering judgment for the parents in a

S.W.3d at 597 (defining "clear and convincing evidence" tcnnination case because the evidence was legally

in a defamation case) (citing Huckabee v. Time Warner
insuflicient to support findings on two statutory grounds
Entcitainincnt S.W.3d at 422); State v.
19 for termination).
Co.,
Addington, 588 S.W.2d 570 (defining the standard in a
at
[35] In re c.r-1., so S.W.3d 17, 25 (Tex.2002).
case in which involuntary commitment of an individual to
a state mental hospital was sought).
[36] Id.

[19] See In re C.I-1., 89 S.W.3d at 25 n. 1; see also
[37] The parameters oflegal and factual sufficiency that
Bentley v, Bunton, 94 S.W.3d at 577.
we have set forth for parental termination cases differ to
some degree from those adopted by the Texas Court of
[20] In re CH., 89 S.W.3d at 25.
Criminal Appeals for criminal cases. See, e.g., Vasquez

[21] Id.
v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).

[22] Id. at 26. [38] 89 S.W.3d 17 (Tex.2002).

[23] Id. at 25. [39] SeeW.B. v. Tex. Dep't of Protective Regulatory &
Servs.,82 S.W.3d 739, 741 (Tex.App.-Coipus Christi
[24] Id. (citations omitted). 2002, no pet); In re J.M.M., 80 S.W.3d 232, 240
(Tcx.App.-Fort Worth 2002, pet. denied); In re A.L.S., 74
[25] Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & S.W.3d 173, 178 (Tex.App.—El Paso 2002, no pet.); In re
Contractors, lnc., 960 S.W.2d 41, 48 (Tex.l998) (citing R.G., 61 S.W.3d 661, 667 (Tex.App.-Waco 2001, no
Continental Coffee Products Co. v. Cazarez, 937 S.W.2d pet.); In re I.V., 61 SW3d 789, 794 (Tex.App.-Corpus
444, 450 (Tex.l996) and Browning~Fer1'is, Inc. v. Reyna, Christi 2001, no pet.); In re L.S.R., 60 S.W.3d 376, 378
865 S.W.2d 925, 928 (Tex.l993)). (Tex.App.-F011 Worth 2001, pet. denied); In re A.V., 57
S.W.3d 51, 61~62 (Tex.App.-Waco 2001, pet. granted);
[25] 443 us. 307, 99 S.Ct. 2781,61 L.Ed.2d 550 (1979). In re J.O.C., 47 S.W.3d 108, 113 (Tex.App.—Waeo 2001,
no pet); In re AI’., 42 S.W.3d 248, 256 (Tex.App.-Waco
[27] 362 us. 199, so S.Ct. 624, 4 L.Ed.2d 654 (1960).
2001, no pet.); In re V.R.W., 41 S.W.3d 183, 190
(Tex.App.-Houston [l4th Dist.] 2001, no pet.); In re [49] Brown, 764 S.W.2d at 223.
J.M.T., 39 S.W.3d 234, 238(Tex.App.-Waco 1999, no
pet.); Leal v. Tex. Dep't of Protective & Regulatory [50] Garza, 768 S.W.2d at 276.

Servs., 25 S.W.3d 315, 321 (Tex.App.-Austin 2000, no
pet.) (stating that aheightened standard applies, but [51] U.S. CONST. amend. XIV, § 1.

actually applying "more than a scintilla" standard); In re
[52] TEX. CONST. an. 1,4] 19.
P.R., 994 S.W.2d 411, 415 (Tcx.App.-Fort Worth 1999,
pet. dism'd w.o.j.); In re .I.N.R., 982 S.W.2d 137, 142
[53] 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d
(Tex.App.-Houston [lst Dist.] 1998, no pet.); In re
599(1982).
W.A.B., 979 S.W.2d 804, 806 (Tex.App.-Houston [l4th
Dist.] 1998, pet. denied); Hann v. Tex. Dep‘t of 1388 (quoting Mathews v.
[54] Id. at 754, 102 S.Ct.
Protective & Regulatory Servs., 969 S.W.2d 77, 82 Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L,Ed.2d I8
(Tex.App.-El Paso 1998, pet. denied); In re D.L.N., 958 (1976)).
S.W.2d 934, 936 (Tex.App.-Waco 1997, pet. denied); In
re B.R., 950 S.W.2d 113, 119 (Tex.App.-E1 Paso 1997, [55] Id.
no writ); Lucas v. Tex. Dep't of Protective & Regulatory
Servs., 949 S.W.2d 500, 502 (Tex.App.-Waco 1997, writ [56] Id. at 758-59, 102 S.Ct. 1388.
denied); Edwards v. Tex. Dep't of Protective &
Regulatory Servs., 946 S.W.2d I30, 137(Tex.App.-E1 [57] Id. at 759, 102 S.Ct. 1388.
Paso 1997, no writ); Spurloek v. Tex. Dep't of Protective
& Regulatory Servs., 904 S.W.2d 152, 155-56 [58] Id.

(Tex.App.-Austin 1995, writ denied); In re .I.F., 888
[59] id. at 754, 102 S.Ct. 1388.
S.W.2d 140, 141 (Tex.App.-Tyler 1994, no writ); In re
A.D.E., 880 S.W.2d 241, 245 (Tex.App.-Corpus Christi 89 s.w.3d 25 (Tex.2002).
[60] In re C.H., 17,
1994, no writ); D.O. v. Tex. Dep't of Human Servs., 851
S.W.2d 351, 353 (Tex.App.-Austin 1993, no writ); In re [61] 455 U.S.at754,102 S.Ct. 1388.
L.R.M., 763 S.W.2d 64, 67 (Tex.App.-Fort Worth 1989,
no writ). [62] Sec 96 s.w.3d at 307 (SCHNEIDER, 1., dissenting).

[40] In re C.D.B., 94 S.W.3d 306, 308-09 [63] See id. at 291 (HANKINSON, 1., dissenting).
(Tex.App.-Corpus Christi 2002, no pet. h.); In re W.C.,
56 S.W.3d 863, 867-68 (Tex.App.-Houston [l4th Dist] [64] See id. at 298 (HANKINSON, 1., dissenting).

2001, no pct); Rodriguez v. Tex. Dep't ofHuman Se1'vs.,
737 S.W.2d 25, 26-27 (Tex.App.-El Paso 1987, no writ); [65] See Ramos v. Frito-Lay, lnc.,' 784 S.W.2d 667, 668
(Tex.1990) (holding that "[i]f the omitted element
Subia V. Tex. Dep't ot‘Human Servs., 750 S.W.2d 827,
is

supported by some evidence, we must deem it found
831 (Tex.App.-El Paso 1988, no writ); Neiswander v.
against Frito-Lay under Rule 279") (citing Payne V.
Bailey, 645 S.W.2d 835, 836 (Tcx.App.-Dallas 1982, no
Snyder, 661 S.W.2d 134, 142 (Tex.App.-Amarillo 1983,
writ).
writ ref‘d n.r.e.) and Freedom Homes ofTexas, Inc. v.

[41] 89 S.W.3d at 25. Dickinson, 598 S.W.2d 714, 7l7(Tex.Civ.App.-Corpus
Christi 1980, writ ref‘d n.r.e.)).

[42] Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657, 685-86, 109 S.Ct. 2678, 105 L.Ed.2d 562 [66] TEX.R. CIV. P. 279.

(I989); Bose Corp. v. Consumers Union, 466 U.S. 485,
515-16, 104 S.Ct. 1949, 80 L.E(l.2d 502 (1984). [67] id.

Cooper Tool Group, Inc.,
Indus., Inc. v. Leatlterman
[68] TEX.R. CIV. P. 299; see also Wisdom v. Smith, 146
[43]
Tex. 420, 209 S.W.2d 164, 166-67 (1948); Page v. Cent.
532 US. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674
(2001).
Bank &
Trust C0,, 548 S.W.2d 802, 804
(Tex.Civ.App.-Eastland 1977, no writ); Gulf States

[44] 491 us. at 685-86, 109 so. 2678. Theatres of Tex. v. Hayes, 534 S.W.2d 406, 407
(Tex.Civ.App.-Beaumont 1976, writ refd n.r.e.); Go Int'l,
[45] 466 us. at 515-16, 104 S.Ct. 1949. Inc. v. Big-Tex Crude Oil Co., 531 S.W.2d 208, 210
(Tex,Civ.App.-Eastland 1975, no writ); Ives v. Watson,
[46] 768 s.w.2d 273 (Tex.1989). 521 S.W.2d 930, 934 (Tex.Civ.App.-Beaumont 1975,
writ refd n.r.e.).
[47] 764 S.W.2d 220, 223 (Tex.1988).
[69] From 1941 until 1988, Rule 279 provided that if
[48] Garza, 768 S.W.2d at 275-76. "there is evidence to support a finding," omitted findings
would be "deemed as found by the court in such manner
as to suppon: the judgment." When that rule was amended
in 1988, there was no indication in the record of the rules extend to parental termination cases, although the parent
proceedings that revised Rule 279 was to meant to contended the right to effective counsel stemmed from
change the prerequisite of "evidence," which was TEX. FAM.CODE § 107.013); Arteaga v. Tex. Dep't of
maintained in Rule 299, to "factually sufficient" evidence Protective &Regu1atory Servs., 924 S.W.2d 756, 762
with respect to deemed findings. But see Kilgarlin, (Tex.App.-Austin 1996, writ denied) (Sixth Amendment);
Practicing Law in the "New Age": The 1988 In re .I.F., 888 S.W.2d 140, 143 (Tex.App.-Tyler 1994, no
Amendments to the Texas Rules ofCivil Procedure, 19 writ) (Sixth Amendment); Krasniqi v. Dallas County
TEX. TECH. LREV. 881, 916 (1988). Child Protective Servs. Unit of Tex. Dep't of Human
Servs.,809 S.W.2d 927, 931 (Tex.App.-Dallas 1991, writ
[70] See TEX.R.APP. P. 33.1; see also TEX.R. CIV. P. denied) (Due process and equal protection under the
27‘).
Fourteenth Amendment); Posner v. Dallas County Child
Welfare Unit of the Tex. Dep't of Human Servs., 784
[71] We express no opinion with regard to the holdings
S.W.2d 585, 588 (Tex.App.-Eastland 1990, writ denied)
on of appeals. See In re M.S., 73
this issue in the courts
"the
(holding that constitutional right to effective
S.W.3d 537, 542
(Tex.App.-Beaumont 2002, pet.
assistance of counsel" does not extend to parental
granted) (holding that a sufficiency challenge must be
tennination proceedings without identifying any specific
preserved in the trial court in a parental termination case
constitutional provision); Howell v. Dallas County Child
to be reviewed on appeal); In re G.C., 66 S.W.3d 517,
Welfare Unit, 710 S.W.2d 729, 734-35 (Tex.App.-Dallas
527 (Tcx.App.-Fort Worth 2002, no pet. h.) (same); In re
1986, writ rcfd n.r.e.).
I.V., 61 S.W.3d 789, 794 (Tex.App.-Corpus Christi 2001,
no pet.) (same); In re J.M.S., 43 S.W.3d 60, 62 [78] In re J.M.S., 43 SW3d 60, 62-63
(Tex.App.-Houston [lst Dist.] 2001, no pet.) (same); In (Tex.App.-Houston [1stDist.] 2001, no pet.).
re C.E.M., 64 S.W.3d 425, 428 (Tex.App.-Houston [lst
Dist.] 2000, no pct.) (same); In re A.P., 42 S.W.3d 248, [79] TEX. FAM.CODE§ 107.103.
256 (Tex.App.-Waco 2001, no pet.) (holding that a
factual sufficiency complaint in aparcntal termination [80] In re B.L.D., 56 SW3d 203, 211-12
case may be reviewed even though it was not preserved (Tex.App.-Waco 2001, pet. granted).

in the trial court); In re A.V., 57 S.W.3d 51, 56
(Tex.App.—Waco 2001, pct. granted) (same). [81] In re Oghenekevebe, 123 N.C.App. 434, 473 S.E.2d
393, 396 (Ct.App.l996) (basing right on a statute); In re
[72] Thejuiy was instructed only that "[t]he same ten or A.R.S., 480 N.W.2d 888, 891 (Iowa 1992) (holding that

more of you must agree upon all of the answers made and the test for ineffective assistance of counsel in

to the entire verdict." As can be seen from the charge, termination cases is generally the same as in criminal
quoted in Section II, supra, the only questions to be proceedings); In re Adoption ot'T.M.F., 392 Pa.Super.
answered were whether the parent-child relationships 598, 573 A.2d 1035, 1041 (1990) (holding that "[t]he
should be terminated. constitutional rights in atennination proceeding are
derived fiom the due process clause of the fourteenth
[73] TEX.R.APP. P. 44.1(a). amendment of the United States Constitution and not the
sixth amendment"); Simon, 171 Mich.App. 443, 431
In re
[74]The first order, a status hearing order, was signed on N.W.2d 71, 74 (Ct.App.1988) (basing right on a statute).
December 23, 1997. The next three orders, all
permanency hearing orders, were signed on April 28, [82] 466 u.s. 668, 104 S.Ct. 2052, 30 L.Ed.2d 674
1998, August 18, 1998, and December 15, 1998. (1984).

[75] The first order (signed in December 1997) did not [83] Id. at 686, 104 S.Ct. 2052.
order the mother to pay any child support, but ordered the
father to pay $100. The remaining three orders directed [84] Id. at 687, 104 S.Ct. 2052.
each parent to pay $100.
[85] Id. at 688, 104 S.Ct. 2052.
[76] The parents had undergone individual psychological
testing in 1997, before the children were removed, [86] Id. at 689, 104 S.Ct. 2052 (alteration in original).

pursuant to the initial Child Safety Evaluation and Plan
[87] Id.
that CPS had implemented in April 1997. The psychiatric
evaluations ordered after removal were to be new,
[88] Id.
additional evaluations that were distinct from the
previous psychological testing. [89] Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101,
76 S.Ct. 158, 100 L.Ed. 83 (1955)).
[77] In re A.R.R., 61 S.W.3d 691, 695 (Tex.App.—Fort
Worth 2001, pet. denied) (Sixth Amendment); In re B.B., [90] Id. at 690, 104 S.Ct. 2052.
971 S.W.2d 160, I72 (Tex.App.-Beaumont 1998, pet.
denied) (holding that the Sixth Amendment right does not
[91] Id. court will notice manifest error); Collins v. Colonial Penn
Ins. Co., 257 Conn. 718, 778 A.2d 899, 906 n. 14 (2001)
[92] Id. at 691, 104 s.c1. 2052. (court will consider plain error when it is in the interest of
the public welfare orjustice between the parties); Wolhar
[93] Id. at 693, 104 S.Ct. 2052. v.General Motors Corp, 734 A.2d 161, 161, 1999 WL
485435 (Dcl.l999) (plain error is that which jeopardizes
[94] Id.
the fairness and integrity of thetrial process); Newell v.

District of Columbia, 741A.2d 28, 34 (D.C.l999)
[95] Id.
(reversal for plain error when apparent from the face of

[96] Id. at 694, 104 S.Ct. 2052. the record that amisearriage ofjustice has occurred);
Murphy v. lntemational Robotic Sys., 766 So.2d 1010,
[97] Id. 1027 (Fla.2000) (court can consider unobjeeted-to,
improper closing argument only when raised in a motion
[98] Id. 211696, 104 S.Ct. 2052. for new trial although rules require objection at trial);
Foskey v. Foskey, 257 Ga. 736, 363 S.E.2d 547, 548
[99] Id. (1988) (listing types of cases in which court will reverse
judgment based on unpreserved jury-charge error);
[100] See TEX.R. CIV. P. 279.
Trucking Co. v. Board of Water Supply, 97 Hawai'i 450,
40 P.3d 73, 81 (2002) (appellate court has discretion to
[101] Strickland, 466 U.S. at 699, 104 S.Ct. 2052
notice plain error in civil cases when justice requires);
(quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
1-Iecla Mining Co. v. Star-Moming Mining Co., 122
158, 100 L.Ed. 83 (1955)).
Idaho 778, 839 P.2d 1192, 1197 (1992) (recognizing
[102] See United States v.O1ano, 507 U.S. 725, 731-32, plain or fundamental error); Gillespie v. Chrysler Motors

113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that Corp., 135 Ill.2d 363, 142 Ill.Dec, 777, 553 N.E,2d 291,
under Federal Rule of Appellate Procedure 52(b), "plain 297 (1990) (plain error considered when litigant cannot
error" in a jury charge may be considered by an appellate receive a fair trial andjudicial process would deteriorate);

court although it was not brought to the attention ofthe Manns v. Skolnik, 666 N.E,21:l 1236, 1241
trial court); Pondexter v. State, 942 S.W.2d 577, 588 (lI1d.Ct.App, 1996) (court will consider error that is

(Tex.Crim.App.l996); Green v. State, 934 S.W.2d 92, substantial blatant violation ofprinciples rendering the
108 (Tex.Crim.App.l996); Ransom v. State, 920 S.W,2d trial unfair); Berg v.ZuIn1no, 786 So.2d 708, 716 n, 5

288, 303 (Tex.Cri1n.App.l994); Jackson v. State, 898 (La.200l) (court will consider "plain and fundamental
SW2d 896, 899 (Tex.Cri1n.App.1995). error" in jury instructions); Reno v. Townsend, 704 A.2d
309, 311 (Mc.l997) (obvious error affects fairness of
[103] See State v. Smztmm, 444 S.W.2d 614, 615 proceedings); Squibb RM.
Bradley
v. Co., 40 &
(Tex.l969) (holding that a jury charge submitting Mass,App.Ct. 914, 661 N.E.2d 1352, 1353 (1996) (plain
preponderance of the evidence as the burden of proof was error is that which results in manifest injustice); Napier v,
error that could be raised for the first time on appeal), Jacobs, 429 Mich. 222, 414 N.W.2d 862, 871 (1987)
vacated on other grounds, 397 U.S. 596, 90 S.Ct. 1350, (plain error is that which results in manifest miscarriage
25 L.Ed.2d 594 (1970); RAM.
v. State, 599 S.W.2d 841, ofjustice); Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d
844-45 (Tex.Civ.App.-San Antonio 1980, no writ). 709, 727 (Miss.200l) (to reverse for plain error, court
must find error and harm); Stanziale v. Musick, 370
[104] 802 S.W.2d 647 (Tex.l990). S.W.2d 261, 269 (Mo.l963) (court will reverse for
manifest injustice or miscarriage ofjustice); State ex. rel
[105] Strickland, 466 U.S. at 690, 104 S.Ct. 2052. State Comp. Mut. Ins. Fund v. Berg, 279 Mont. 161, 927
P.2d 975, 982 (1996) (plain-error doctrine pemiits review
[[06] 455 us. 745, 769, 102 s.C:. 1388, 71 L.Ed.2d 599
of error that results in substantial injustice); Barks v.
(1982).
Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749, 754 (1995)
(court will reach the merits of plain error in jury charge);
[1] See, e.g., Hill v. Sherwood, 488 So.2d 1357, I359
Sunrise Manor Town Protective Ass‘n V. City ofN. Las
(Ala.l986) (court may consider unpreservcd error in
Vegas, 91 Nev. 713, 541 P.2d 1102, 1104 (1975) (plain
closing argument only when so grossly improper and
error is so substantial as to result in injustice); Fertile ex.
highly prejudicial so as to be beyond conective action by
Michael's Med. Ctr., 169 NJ. 481, 779
rel. Fertile v. St.
trial court); Holiday Inns ofAIn., Inc. v. Peck, 520 P.2d
" A.2d 1078, 1085 (2001) (the standard for plain error is
87, 90 (Alaska 1974) (court will consider ‘plain error‘
whether error had clear capacity for producing unjust
that is likely to result in a miscarriage ofjustice"); Hale v.
result); Chavez v. Board of County Comm'rs., 130 NM.
Morgan, 22 Cal.3d 388, 149 Cal.Rptr. 375, 584 P.2d 512,
753, 31 P.3d 1027, 1039 (Ct.App.2001) (fundamental
516 (1978) (consideration of points not raised below
error applies, for example, when there is nojurisdiction
permitted for important matters of public policy in which
or issue is a Inatter of public interest affecting large
pure question of law is presented); Scheer v. Cromwell,
number ofpeople); Elezaj v. P.J. Carlin Constr. Co., 89
158 Colo. 427, 407 P.2d 344, 345 (1965) (in rare cases,
N.Y.2d 992, 657 N.Y.S.2d 399, 679 N.E.2d 638, 638
(1997) (only intennediate appellate court has discretion
to review unpreserved error); Rau v. Kirschenman, 208
NW2d l, 9(N.D.l973)(recogni7.ing exception to
preservation rules for fundamental error that is highly
prejudicial) (on petition for rehearing); Goldfuss v.

Davidson, 79 Ohio St.3d 679 N.E.2d 1099, H03
ll(),

(1997) (reversing plain error when, ifuncorrected, it
would undermine public confidence in judiciary);
Sullivan v. Forty-Second West Corp, 961 P.2d 801, 803
(Okla.l998) (fundamental error has a substantial effect on
rights of one or more of the parties); Hotelling v.

Walther, 174 Or. 381, 148 P.2d 933, 934 (1944) (plain
error is error apparent on the record); Wuest ex. rel.
Carver v. McKennan Hosp, 619 N.W.2d 682, 69]
(S.D.2000) (errors must be obvious and substantial); Salt
Lake City v. Ohms, 88[ P.2d 844, 847 (Utah 1994) (court
can review unpreserved error when exceptional
circumstances Maher, 132 Vt. 560, 326 A.2d
exist); In re
142, [44 (1974) (court will review errors so grave and
serious as to strike to the heart ofeonstitutional rights);
Conner v. Universal Utils., 105 Wash.2d 168. 712 P.2d
849, 851 (I986) (court may review unpreserved issue
regarding denial ofprocedural due process on appeal);
Sheetz, Inc. v. Bowles Rice McDavid Graff Love, &
PLLC, 209 W.Va. 318, 547 S.E.Zd 256, 273 (2001) (error
must be plain, affect substantial and seriously rights,
affect fairness ofjudicial proceedings); Hatch v. State
Farm Fire &Cas. Co., 930 P.2d 382, 39l (Wyo.l997)
(court must be able to discern error from record that
affects substantial rights).

[1] The Family Service Plan is the trial court's order
specifying the actions the parents had to take for the
Department to return the children to their custody. See
TEX. FAM.CODE§ l6l.00l(l)( 0).
EXHIBIT E
Page 76 named the Department as emergency temporary
managing conservator ofA.S., D.S., and L.A.S. At this
261 S.W.3d 76 (Tex.App.-Houston [14 Dist.] 2008) time, As. was 3 years old, DS. was 2 years old, and
L.A.S. was 3 days old.
In the Interest of A.S., D.S., and L.A.S.
Veronica's childhood was traumatic due to domestic
No. 14-07-00140-CV. violence and her parents‘ alcohol and drug use. She
became pregnant with L.P. when she was 13 years old.[3]
Court of Appeals of Texas, Fourteenth District,
After L.P. was born, Veronica met and married Martin
Houston.
De Leon (" De Leon" ). Veronica remained married to De
Leon for approximately one year during which time De
March 4, 2008
Leon physically abused her. When De Leon tried to harm
Rehearing Overruled Aug. 26, 2008. L.P,, Veronica left with L.P. and went to her mother's
home. In 2001, she spent three months at a women's
Page 77 shelter where she obtained domestic violence counseling.

[Copyrighted Material Omitted] In January 2002, Veronica began a relationship with
Alan. In October 2002, Veronica gave birth to their son,
Page 78 A.S. In October 2003, their second son, D.S., was born.
From 2002 to 2005, Veronica, Alan, I..P., AS, and D.S.
[Copyrighted Material Omitted] lived together in Beaumont. During this time, three
referrals were made to Child Protective Services (" CPS"
Page 79
).[4] In April 2003, CPS received a referral alleging

Vangic Deleon, El Campo, William M. Thursland,
neglectful supervision of L.P. by Veronica and Alan. The
report, however, was apparently never validated because
William B. Connolly, Houston, for appellant.
the family moved. In July 2004, Alan spanked L.P., who
Sandra D. Haehem, Houston, for appellee. was four years old at the time, for wetting his pants.
Though the spanking left no marks or bruises, Veronica
Panel consists oflusticcs YATES, FOWLER, and went to a shelter with L.P. where she spoke with a police
GUZMAN. officerand a CPS officer. After this incident, Veronica
spoke with Alan about the spanking. Their relationship
OPINION was not abusive at that time and Alan had never
inappropriately disciplined AS. or D.S.
WANDA MCKEE FOWLER, Justice.
In 2005, after Veronica and Alan's home in
This is an appeal from a judgment terminating Beaumont was destroyed by Hurricane Rita, the family
appellants‘ parental rights to their minor children. In five moved to Houston and stayed with Alan's mother.
issues each, appellants challenge the legal and factual According to the 4 C's report, Veronica filed a police
sufticiency of the evidence underlying the findings in the complaint that Alan had again over-disciplined LP. The
tennination order and the appointment of appellee Department investigated the complaint and advised
Department of Family & Protective Services (" the Veronica to move into a shelter. Veronica stayed in a
Department" ) as sole managing conservator. We reverse shelter for two or three weeks and only returned home
and render in pan, and reverse and remand in part. after Alan convinced her that he would never again harm
L.P. or any of their childrcn.[5] Veronica later decided to
Factual and Procedural Background
send LP. to live with his great-aunt in El Campo because
I.

the aunt loved LP. and wanted to care for him, not
Veronica is the mother ofA.S., D.S., and L.A.S,[l]
because she feared that Alan would harm him. During
Alan is the father of A.S. and D.S.[2] On March 10,
this time, Veronica was pregnant with L.A.S. She saw a
2006, a day after the
gynecologist in Beaumont while pregnant with L.A.S. but

Page 80 was unable to obtain pre-natal care once the family
relocated to Houston.[()]
birth of L.A.S., the Department received information that
Veronica and L.A.S. had tested positive for marijuana. Page 81
The hospital social worker who reported L.A.S.'s positive
Veronica testified that Alan pushed her and pulled
test result formarijuana to the Department stated that
her hair on two occasions early in their relationship, but
L.A.S. "
was doing fine and not showing any signs of
she denied that he ever struck her. While is unclear
On March
it
health problems." 13, 2006, the trial court
when these incidents occurred, the record indicates that
the children did not witness them. On occasion, she and Involuntary termination of parental rights is a
Alan raised their voices while arguing, and she said it is serious matter implicating fundamental constitutional
possible that the children overheard these arguments. The rights. Holick v. Smith, 685 S.W.2d I8, 20 (Tex.1985).
only other evidence ofdomestic violence was from the Due to the and permanency of the termination of
severity
Department's case worker, Kateika Bonner (" Bonner" ), ofproof at trial is heightened
parental rights, the burden
who testified that Veronica told her that she and Alan had to the clear and convincing standard. See TEX.
"
got[ten] into it one night." FAM.CODE§ 161.001; In re J.F.C., 96 S.W.3d 256, 263
"
(Tex.2002). Clear and convincing evidence’ means the
'

In April 2006, following removal of the children measure or degree ofproof that will produce in the mind
from the family home, the Department prepared a family of the trier of fact a finn belief or conviction as to the
service plan (" the plan" ) with a long-tenn goal of family truth of the allegations sought to be established." TEX.
reunification. Bonner met with Veronica to discuss the FAM.CODE§ 101.007; In re ./.F.C., 96 S.W.3d at 264.
steps that she needed to complete to be reunified with her
children.[7] Veronica began immediately working toward When reviewing factual findings required to be
completion of the requirements. She visited A.S. and D.S. made by clear and convincing evidence, we apply a
every two weeks and L.A.S. weekly. Bonner testified that standard of review that reflects this burden of proof. In re
the visits went well and that Veronica bonded with all S.ML., 171 S.W.3d 472, 476 (Tex.App.-Houston [14:11
three children during these visits. Veronica wrote often to Dist.] 2005, no pet.). When reviewing the legal
"
her child with whom she had contact," [8] Alan visited sufficiency of the evidence, we consider all of the
his children once but Bonner was unable to observe the evidence in the light most favorable to the finding to
visit because she was in a training class at the time. detennine whether areasonable factfindcr could have
fonned a firm belief or conviction that the finding was
June 2006, Veronica and Alan were indicted on
In true. Id. (citing In re./.F.C., 96 S.W.3d at 266). In doing
charges of aggravated robbery. The Department so, we assume the factfindcr resolved disputed facts in
subsequently placed the children in foster homes.[‘)] favor of the finding if a reasonable factfinder could do so,
Bonner spoke with several of Veronica and Alan's and we disregard all evidence that a reasonable factfindcr
relatives regarding placement of the children. including could have disbelieved or found to have been incredible.
Veronica's mother (" Ms. Pena" ) and Alan's mother. Id. However, because of the heightened standard, we
According to Bonner, her supervisor told her that placing must also be mindful of any tr/tdisptlzed evidence contrary
the children with Ms. Pena would be problematic because to the finding and consider that evidence in our analysis.
of her criminal history.[l0] Placement of the children In reJ.F.C., 96 S.W.3d at 266 (" Disregarding undisputed
with the paternal grandmother was not an option because facts that do not support the finding could skew the
the grandmother's boyfriend did not have a social security analysis of whether there is clear and convincing
number. However, the Department did not conduct a evidence." ).

home study on either grandmother to determine whether
placement of the children would be otherwise Under afactual sufficicncy review, we also must
appropriate. determine whether a factfindcr could reasonably form a
firm belief or conviction about the truth of the
A bench trial was held on January 18, 2007.[l I] At allegations. In re S.ML,, l7l S.W.3d at 476. When
the time of trial, the children remained in foster care and reviewing a factual sufficicncy challenge, the analysis is
no prospective adoptive homes had been identified. In somewhatdiffercnt in that we must consider all of the
closing arguments, both Veronica's attorney and the evidence equally, both disputed and undisputed. In re
guardian ad litem requested that the trial court order the J.F.C., 96 S.W.3d at 266. If, in light of the entire record,
Department complete a home study on Ms. Pena. The
to the disputed evidence that a reasonable factfindcr could
guardian ad litem informed the trial not have credited in favor of the finding is so significant
that a factfindcr could nothave reasonably formed a firm
Page 82 belief or conviction, then the evidence is factually
insufficient. In re S.ML., l7l S.W.3d at 476 (citing In re
court that she did not believe the Department had met
J.F.C., 96 SW3d at 266).
its

evidentiary burdcn supporting termination of Veronica
and Alan's parental rights. Upon recessing the
III. Analysis
proceedings for one week, the trial court directed the
Department to conduct a home study on Ms. Pena. In order to terminate parental rights in Texas, the
However, no home study was ever conducted. On State bears the burden to prove the following: (1) the
January 25,2007, the trial court terminated Veronica's parent committed one or more acts specifically listed in
parental rights to A.S., D.S., and L.A.S., and Alan's rights section l6l.00l(l) of the Texas Family Code as grounds
to A.S. and D.S. The court also appointed the Department for termination; and (2) temiination is in the child's best
as sole managing conservator of the children. See TEX. FAM.CODE
interest. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex.2005); In re U.P., I05 S.W.3d 222,
II. Standard of Review 229 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).
Here, the trial court found that termination was warranted and must have disregarded that risk. In re C.L.C, II9
under three separate statutory grounds S.W.3d 382, 392 (Tex.App.-Tyler 2003, no pet.). Living
conditions that are merely " less-than-ideal" do not
Page 83 suppon a finding under this section. Texas Dep’t of
Human Svcs. Boyd, 727 S.W.2d 531, 533 (Tex.l987).
1/.

and that tennination would be in the children's best
Under subsection (E), the cause of the endangerment
interest, The trial court also appointed the Department as must be the direct result of the parent's conduct and must
sole managing conservator of appellants‘ children. In their be the result of a conscious course of conduct rather than
three issues, Veronica and Alan challenge the legal
lirst
S.W.3d at 125.
a single act or omission. In re ./.T.G., 121
and factual sufticiency of the evidence of the statutory
Endangerment can be exhibited by both actions and
grounds for termination.
failures to act. In re U.F., 105 S.W.3d at 233. We look
In their fourth issue, they
challenge the legal and factual sufficiency of the evidence
first at subsection (D).
that tennination is in the children‘s best interest. In their
fifth issue, Veronica and Alan challenge the appointment 1. Subsection (D)
of the Department as sole managing conservator of their
children. (a) Veronica

A. Statutory Grounds for Termination Veronica argues that the evidence
In her first issue,
is and factually insufficient to tenninate her
legally
The Department sought to tenninate appellants‘ parental rights under subsection (D) because (1) the
parental rights under subsections (D), (E), and (N) of Department offered no evidence of the environment in
section 161.001 of the Family Code, which provide for which AS. and D8. lived; (2)
tennination if the trial court finds by clear and convincing
evidence that the parent has done the following: Page 84

(D) knowingly placed or knowingly allowed the child to she never had custody of L.A.S. and, therefore, could not
remain in conditions or surroundings which endanger the have exposed him to an environment that endangered his
physical or emotional well-being of the child; physical or emotional well-being; and (3) the evidence of
domestic violence was insufticient to show that she
(E) engaged conduct or knowingly placed the child
in knowingly placed her children in an endangering
with persons who engagedin conduct which endangers environment.
the physical or emotional well-being of the child; [or]
The Department introduced no evidence of the
actual physical surroundings or conditions of the
children's enviromncnt. It is also undisputed that the
(N) constructively abandoned the child who has been in Department took L.A.S. into custody shortly after he was
the permanent or temporary managing conservatorship of
born because he tested positive for marijuana. However,
the Department of Family and Protective Services or an
the Department argues that termination is supported by
authorized agency for not less than six months, and:
the following evidence: (1) prior to her relationship with
Alan, Veronica lived with an abusive husband, thereby
(i) department or authorized agency has made
the
exposing her son, LP,, to an abusive environment; (2)
reasonable efforts to return the child to the parent;
Alan pushed Veronica and pulled her hair on two
occasions; (3) Alan over-disciplined L.P. twice; and (4)
(ii) the parent has not regularly visited or maintained
significant contact with the child; and
Veronica engaged in criminal activity after the
Department took her children into custody.
(iii) the parent has demonstrated an inability to provide
First, the evidence of domestic violence committed
the child with a safe environment,
by Veronica's tirst husband toward Veronica and LI’.
TEX. FAM.CODE§ l6l.00l(l)(D), (E) & (N). does not support the termination of Veronica's parental
rights to AS., D.S., and L.A.S. under subsection (D). The
Subsections (D) and (E) both focus on abuse directed toward Veronica and LP. by her first
endangenncnt, but they differ with regard to the source husband, with whom she no longer lived, occurred before
and proof ofendangerment. In re S.ML., l7l S.W.3d at A.S., D.S., and L.A.S. were born, and in a living
477. Subsection (D) concerns the child's living environment to which they were never exposed.
environment, rather than the parent's conduct, though
parental conduct is certainly relevant to the child's The Department next contends that evidence that
environment. In’; In re J.T.G., 121 S.W.3d H7, 125 Alan pushed Veronica and pulled her hair on two
(Tex.App.-Fort Worth 2003, no Although the parent
pet.). occasions, and over-disciplined L.P. twice, demonstrates
need not have certain knowledge that an actual injury is that Veronica provided an unsafe home environment.

occurring, the parent must at least be aware of the Abusive or violent conduct by a parent or other resident
potential for danger to the child in such an environment of a child's home may produce an environment that
endangers the physical or emotional well-being of a his parental rights under subsection (D) because the
child. In re D.C., I28 S.W.3d 707, 715 (Tex.App.-Fort record is silent as to (I) the physical environment in
Worth 2004, no pet.); In re C.L.C., II9 S.W.3d at which A.S. and D.S. lived prior to being taken into
392-93. With regard to Alan's conduct toward Veronica, custody; (2) how the children's environment caused their
the evidence was undisputed that the incidents did not physical and emotional well-being to be endangered; and
occur when the children were around and that the (3) his acts or omissions which allegedly placed the
children never witnessed Alan's anger toward her. children in a dangerous environment.
Regarding the occasions when Alan disciplined L.P., the
first instance involved spanking the child after he wet his As previously noted, the Department did not present
pants. Veronica testified that the spanking left no marks. any evidence ofthe actual physical surroundings of the
The second instance occurred when Alan over-disciplined children's environment prior to their being taken into

L.P. due to stress over losing the family home during custody. In support of a finding under subsection (D), the
Hurricane Rita. The record is silent, however, as to how Department proffered evidence that Alan pushed
Alan disciplined him or whether A.S. and D.S. witnessed Veronica and pulled her hair on two occasions and
the discipline. Veronica went to a shelter after the first over-disciplined LP. twice. However, as discussed
incident and later spoke to Alan about the spanking. above, no evidence showed that As. and D.S. witnessed
Following the second incident, Veronica stayed in a any of these events. We do not find such evidence to be
shelter for several weeks and only returned home after ofa clear and convincing nature so as to support a finding
Alan assured her that he would never again harm LP. or of endangerment under subsection (D).
any of their children. There is no evidence that any
subsequent incidents occurred. Therefore, even assuming
The Department also contends that Alan's criminal

Alan's behavior was abusive and occurred in front of the activity before and after the births of his children

children, Veronica took responsive action to protect AS.
supports termination of his parental rights under
subsection (D). Specifically, the Department refers to his
and D.S. by taking them out ofthe environment.
probationary status for a burglary offense committed in
Third, the Department also asserts that Veronica's September 2001 and
his indictment on charges of

actual and alleged criminal activity after her children aggravated robbery June 2006. Several Texas courts
in

were taken into custody demonstrates that she placed have recognized that the possibility of a parent's
them in an endangering environment. Specifically, the incarceration can negatively impact a child's living
Department refcr's to one week in April 2006 during environment and well-being and may be sufficient to
which Veronica was incarcerated for hindering the show endangennent. In re S.M.L., I71 S.W.3d at 479 ("
apprehension of a felon, and to her indictment for When parents are incarcerated, they are absent from the

aggravated robbery and subsequent incarceration in June child's daily life and are unable to provide support, and
2006. when parents like appellant repeatedly commit criminal
acts that subject them to the possibility ofincarceration,
Imprisonment ofa parent, standing alone, does not that can negatively impact achild's living environment
constitute endangerment of a child's emotional or and emotional well-being." ); In re C.L.C,, ll‘) S.W.3d at
physical well-being. 393; In re SD., 980 S.W.2d 758, 763 (Tex.App.-San
Antonio I998, pet. denied). Alan's criminal acts,
Page 85 however, do not support afinding under subsection (D)
for several reasons. First, Alan was given probation for
In re S.M.L., I71 S.W.3d at 478. Nonetheless,
his burglary conviction, not imprisonment. Second, as to
imprisonment is a factor the trial court may consider. See his indictment on charges of aggravated robbery,
Boyd, 727 S.W.2d at 533; In re SML, I71 S.W.3d at although he was incarcerated while awaiting trial on that
478. As for her indictment, Veronica had not been
charge, there was no conviction at the time of the
convicted of any crime at the time of trial and, therefore,
termination hearing and, thus, the length of
what confinement she might serve, if any, is speculative. imprisonment, if any, was speculative. See In re D.7"., 34
See In re D.T., 34 S.W.3d 625, 638-39 (Tex.App.-Fort S.W.3d at 638-39. In the absence ofother endangering
Worth 2000, pet. denied) (finding appellant's pending conduct, Alan's incarceration while awaiting trial is
charges in other states amounted only to "possibilities"
insufficient to support termination under subsection (D).
as to her future incarceration).
In re S.M.L., I71 S.W.3d at 478 (noting imprisonment,
alone, does not suffice to support termination under
We find the evidence legally and factually
subsection (D)).
insufficient to support terminating Veronica's parental
rights under section loI.O0I(l)(D) ofthe Family Code. Page 86
Accordingly, Veronica's first point oferror is sustained.

We find the evidence legally insufticient to support
(b) Alan the tennination of Alan's parental rights under section
I6I.00I(I)(D) ofthe Family Code. Accordingly, his first
In his first issue, Alan contends that the evidence is

legally and factually insufficient to support termination of
issue is sustained. doing fine and not showing any signs of health
problems." Further, Veronica testified
2. Subsection (E)
Page 87
(3) Veronica
that she smoked marijuana only in an attempt to alleviate
second issue, Veronica argues that the
In her severe back pain and after her friend assured her that it

evidence is legally and factually insufficient to terminate would not harm her unborn child, and that she regretted it

her parental rights under subsection (E) because (1) the afterwards.[l3] While the trial court could have chosen to
evidence of domestic violence is insufficient to disbelieve thistestimony, we are mindful that under a
demonstrate that she engaged in conduct that endangered factual sufficiency review we must consider all of the
her children's well—bcing; and (2) her use ofmarijuana evidence equally. See [/1 re ./.F.C., 96 S.W.3d at 266.
while pregnant with L.A.S. does not constitute the Moreover, the undisputed evidence that Veronica took
requisite continuing course of conduct. pre-natal vitamins during her pregnancy undermines the
argument that she consciously engaged in a course of
The Department argues that evidence of Veronica's conduct that endangered her children's well-being.
abuse at the hands of her fonner husband and Alan, in
addition to her criminal activity after her children were We find the evidence both legally and factually
taken into custody, support tennination under subsection insufficient to support termination of Veronica's parental
(E). Our previous discussion of this evidence under rights under section l6l.00l(l)(E) of the Family Code.
subsection (D) is applicable here. First, the abuse directed Accordingly, her second issue is also sustained.
toward Veronica and LP. by her former husband
occurred before A.S., DS., and I..A.S. were born and, (b) Alan
therefore, does not demonstrate that Veronica knowingly
placed her children with someone whose conduct second issue, Alan argues that the evidence
In his

endangered their well-being. Second, as to the evidence is and factually insufficient to support termination
legally

that Alan pushed her and pulled her hair on two under subsection (B) because (1) spanking L.P. does not
occasions, it is uncontroverted that the children did not constitute endangering conduct; and (2) he had no

witness this conduct. Moreover, we do not find that these knowledge ofVeronica's use ofmarijuana during her
two incidents, as reflected in this record, constitute the pregnancy and, therefore, did not knowingly place his
type of continuing course of conduct contemplated by the child with someone who engaged in endangering

statute. Finally, Veronica's incarceration while awaiting conduct.[l4] In support oftermination under subsection
trial, standing alone, is insufficient to support termination (E), the Department argues that Alan's physical abuse of

of parental rights. In re .S‘.ML., l7l S.W.3cl at 478. Veronica and LP. as well as his criminal activity
constitute evidence of a course of conduct that
The Department also contends that Veronica's use endangered the physical and emotional well~being ofhis
of marijuana her pregnancy with L.A.S.
during children.
endangered him as well as her older children because her
conduct could have impaired her judgment and exposed As discussed above, we do not find that Alan's
her to incarceration. The use of illegal drugs during conduct toward Veronica, as reflectcd in this record,
pregnancy may be considered endangering conduct that constitutes the type of continuing course of conduct

supports terminating parental rights. In reJ,T.G., l2l required under this section. Furthermore, the undisputed

SW3d at 125. Veronica asserts, however, that a single evidence reflects that the children did not witness Alan's
use of marijuana does not constitute a voluntary,
" conduct. The Department also urges us to consider
deliberate, and conscious course of conduct" sufiicient to Bonncr's testimony that Veronica told her that she and
support atennination finding under subsection (E).[12] Alan had " got[ten] into it one night." This conduct,
We agree. however, does not demonstrate that Alan engaged in
conduct that endangered his children's well-being.
While unquestionably, an exercise of poor Bonner admitted on cross-examination that she did not
judgment, Veronica's use of marijuana on a single know how Veronica and Alan " got into it," or whether
occasion, standing alone, does not rise to the level of a the incident involved aphysieal altercation. Moreover,
conscious course ofconduct. See Ruiz v. Texas Dep'2 of this single incident does not demonstrate the type of

Family and Protective Svcs., 212 S.W.3d 804, 818 conduct contemplated by the statute.

(Tex.App.-Houston [lst Dist.] 2006, no pet.)(noting
termination under subsection (E) must be based on more The Department also contends that the two
than single act or omission); In re S.ML., 171 S.W.3d at occasions when Alan ovcr-disciplined L.P. Support the
477 (same); In reJ.T.G., 121 S.W.3d at 125 (same). trial court's finding oftemrination under subsection (E).

According to the 4 C's report, the hospital social worker The Department does not contend, nor does the record

who first reported L.A.S.'s positive test result for reflect, that Alan inappropriately
marijuana to the Department also stated that L.A.S.
"
was
Page 88 on imprisonment. See In re D.T., 34 S.W.3d at 635.

disciplined A.S. or D.S. Rather, it is the Department's We find the evidence legally and factually
position by excessively disciplining L.P., Alan
that insufficient to support termination of Alan's parental
engaged in conduct that endangered A.S. and D.S.'s rights under sectionl6l.001(l)(E). Accordingly, his
well-being. The first incident occurred in 2004 when second issue is sustained.
Alan spanked L.P. after the child wet his pants. Veronica
testified that the spanking left no marks and no criminal 3. Subsection (N)
complaint appears to have been filed. This court has held
Veronica and Alan contend that
In their third issue,
that infrequent spankings ofa child that leave" marks" or
visible bruises 24 hours after the spanking do not
the evidence is and factually insufficient to
legally
support the tennination ofparental rights under section
constitute sufficient evidence to demonstrate that a parent
has engaged in conduct that endangered a child's physical l6l.00l(l)(N) of the Family Code. Under this ground,
or emotional well-being. In re J.A.J., 225 S.W.3d 621,
the Department must prove that (1) the parent has
constructively abandoned the child who has been in the
629-31 (Tcx.App.-Houston [l4th Dist.] 2006), 11/711 in
permanent or temporary managing conservatorship
part, rev'd in part on at/Iergraumis, 243 S.W.3d 6ll
(Tex.2007). Here, the record shows that Alan spanked
Page 89
L.P. on one occasion, and Veronica testified that the
spanking did not leave any marks or bruises. If the
of the Department or an authorized agency for not less
spanking would be insufficient evidence of endangering
than six months; (2) the department or authorized agency
conduct toward L.P., it is similarly insufficient, if not
has made reasonable efforts to return the child to the
more so, as to A.S. or D.S.
parent; the parent has not regularly
visited or
(3)
maintained significant contact with the child; and (4) the
According to the 4 C5 report, the second incident
parent has demonstrated an inability to provide the child
occurred in 2005 when Alan over-disciplined L.P. due to
with a safe environment. TEX. FAM. CODE §
his stress over losing the family home during Hurricane
l6l.00l(l)(N). If there is legally insufficient evidence of
Rita. There is, however, no evidence as to how Alan
any of the four elements, the complaint will be sustained.
disciplined him. We also find no evidence to indicate
See In re DT., 34 S.W.3d at 633. Veronica and Alan
whether A.S. or D.S. witnessed the discipline. Although
argue that the Department has failed to satisfy the third
the decision to terminate the parent-child relationship
and fourth elements ofsubsection (N). To determine
under subsection (E) does not require that the conduct be
whether termination was warranted under this provision,
directed toward the child, it does require that it be
we turn to the record before us.
committed in the presence of the child. See Ziegler v.
Ta/‘rant Ca. Child Welfare Unit, 680 S.W.2d 674, 678
(a) Veronica
(Tex.App.-Fort Worth 1984, writ rcfd n.r.c.); see also In
re U.P., l05 S.W.3d at 233 (noting that parents conduct After the Department took her children into
need not be directed at child or that child actually be custody, Veronica visited AS. and D.S. every two weeks
injured to support finding of endangerment). and L.A.S. weekly until she wasjailed in June 2006.
Bonner testified that the visits went well and that
The Department also argues that Alan's
Veronica was bonding with all three of them during their
probationary status in 200] and his indictment on charges
visits. After she was incarcerated, however, she was no
of aggravated robbery in 2006 constitute conduct
longer able to visit them due to the seriousness of the
sufficient to support tennination under this section. We offense with which she was charged. Veronica testified
disagree for several reasons. Alan was given
First,
that she wrote often to whom she had
her child with
probation for his burglary conviction, not incarceration.
contact. Bonner testified Veronica did not contact her
that
Second, he was indicted on charges of aggravated
during her incarceration, and there is no evidence that she
robbery, not convicted, and, thus, confinement, if any, is
had any contact with A.S., D.S., or L.A.S. during the
speculative. See In re DT., 34 SW3d at 638-39. Third,
six-month period preceding trial. Veronica provided the
absent other evidence of endangering conduct, mere
Department with a list ofher sisters who could care for
imprisonment will not constitute conduct which
her children during her incarceration. She also asked that
endangers the emotional or physical well-being of a
her mother be permitted to care for her children, but the
child. See Boyd, 727 S.W.2d at 534.
Department would not approve the placement due to Ms.
Pena's criminal history. At the conclusion of the
Finally, we also reject the Department's argument
proceedings on January 18, 2007, the trial court
that, by engagingin conduct he knew could result in his
instructed the Department to perform a home study on the
imprisonment and separation from his children, Alan
maternal grandmother, but it never conducted one.
engaged in a voluntary, deliberate, and conscious course
of conduct that endangered his children. To accept such a
In light of the entire record, we do not believe that
premise would effectively nullify the longstanding rule
the Department has satisfied its burden under subsection
against terminating the parental relationship based solely
(N) as to Veronica. We find the evidence factually
insufficient to enable areasonable factfinder to form a reflect whether the Department rejected her as a potential
firm belief or conviction that Veronica did not regularly placement and, if so, why. There is also no mention
visit or maintain significant contact with her children. We whether the Department considered Alan's brother as a
also find the evidence to be factually insufficient to show relative placement. Further, although the Depanment
that Veronica demonstrated an inability to provide her initially ruled out the paternal grandmother because she
children with a safe environment. Although the did not provide the Department with a social security
Department may have been justifiably concemed at the number home study
for her boyfriend, no follow-up or
outset as to whether Ms. Pena would prove an appropriate appears to have been done to determine whether she was
care provider for her grandchildren in light of her an otherwise appropriate relative to care for the children.
criminal history, conducted no home study on her, even
it The Department Alan
did not suggest that
asserts that
"

after being directed to do so by the trial court. The record he could do anything to provide the children with a safe
is also silent as to why no home study was performed on environment." However, as the party seeking the
the maternal aunts other than the one with whom A.S. tennination ofparental rights, the Department bears the
and D5. spent one month. In re D.S.A., 113 S.W.3d 567, burden of proof under section lo .00 l(l)(N) to show that
I

573 (Tex.App.-Amarillo 2003, no pet.)(noting that he was unable to do so. See In re D.T., 34 at 641 SW3d
incarcerated parent can provide safe environment for (noting easeworker‘s statement at trial that appellant had
child through identification offriend, relative, or spouse not shown she could provide safe, stable home for child
as care provider). The Department had the burden to improperly reversed burden of proof).
of the elements under subsection (N) by clear
satisfy all
and convincing evidence. We conclude that it has not We find the evidence factually insufficient to

done so. Accordingly, Veronica's third issue is sustained. support tcnnination of Alan's parental
under rights
section l(>l.00l(l)(N) ofthe Family Code. Accordingly,
(b) Alan Alan's third issue is sustained.[lS]

Regarding Alan, the record reflects that during the B. Sale Managing Canservatorship
three-month period between the time the Department took
custody of his children in March 2006 until he was In their fifth issue, Veronica and Alan contend that,

incarcerated in June 2006, Alan visited his children only if we reverse that portion of the trial court's order
once. Bonner testified that she was in a training session terminating their parental rights, we must also reverse the
during this one visit and was unable to observe Alan's portion appointing the Department as sole managing
interaction with his children. She also testified that Alan's conservator of the children. This is so, they argue,
brother came often to visit the children. No because the trial court's conservatorship appointment was

a direct consequence of the termination of their parental
Page 90 rights, and, therefore, reversal of the termination of their
parental rights necessitates reversal of the appointment of
evidence indicates whether Alan made any attempts to the Department as sole managing conservator. The
communicate with his children after he was incarcerated. Department, however, contends that we are precluded
Bonner testified that she spoke with Alan's mother and from considering this issue because appellants did not
sisterregarding alternative placement of the children. The include it in their statement of appellate points presented
Department ruled out Alan's mother after she was unable to the trial court pursuant to Texas Family Code section
to provide a social security number for her boyfriend, and 263.405. See TEX. FAM. CODE §263.405(b). In the
it did not conduct a home study on her. The record is alternative, the Department argues that the trial court's
silent as to whether Alan's sister or brother were conservatorship appointment was based on a ground
considered for placement. independent from its decision to terminate appellants‘
parental rights and, therefore, should be upheld.
We find the evidence sufficient to support the trial

court's finding that Alan did not attempt to visit his Page 91
children regularly or maintain significant contact with
them. Other than one visit during the three-month period The Texas Supreme Court recently issued two
after they were placed in the Department's custody and decisions that bear directly on our disposition of this
before he was incarcerated, the record does not reflect issue. In In re J./1../., 243 S.W.3d 611 (Tex.2007), the
any other attempt by Alan to contact them. We find that Court resolved a split among appellate courts regarding
the Department has satisfied its burden with regard to the whether it is necessary to specifically assign error to the
third element. Department's appointment as conservator when a
judgment terminating parental rights is reversed. Id. at
However, we do not believe the Department has 613-l4.ln that case, the Department sought termination of
met its burden for the fourth element-that the parent has the mother's parental rights to her child and requested
demonstrated an inability to provide the child with a safe eonservatorship pursuant to sections 153.005 and
environment. Although Bonner spoke with Alan's sister 153.13]. In’. at 612-l3.[l(:]The trial court terminated the
about placing the children with her, the record does not mother's parental rights and appointed the Department the
 child's sole managing conservator. Id. and reversed the conservatorship appointment. Id. at 816.
Reasoning that no findings had been made under Family
On appeal, the mother claimed that the evidence Code section 153.131 that would independently support
was insufficient to support the termination decision, but the conservatorship order, the appeals court concluded
she did not assign error to the conservatorship that the Department's appointment was solely the
appointment. Id. The court of appeals determined that the
consequence of the trial court's termination decision
evidence was insufficient to support termination under under section 161.207 and had to be reversed as well. Id.
Texas Family Code section 161.00l(l)(D) and (E) and
[17]
reversed the judgment, including that portion
trial court's

appointing the Department as the child's conservator. In’. In a per curiarn decision, the Court addressed the
Department's argument that reversal of the
In its petition for review, the Department conservatorship order was erroneous in light of its recent
challenged only the portion of the court of appeals‘ decision in J.A../.[rr re D.N.C., 252 S.W.3d at3l8.The
judgment that reversed its appointment as the child's Court emphasized that while the Department in ./.A../. had
managing conservator. at613-14 In its analysis, the
Id.
requested conservatorship pursuant to Family Code
Court noted that the trial court found that (1) appointment section 153.131 and the trial court had made the specific
of the parent as conservator would not be in the child's
findings the statute requires» z‘.e., thatappointment of a
best interest because it would significantly impair his
parent as managing conservator would not be in the
physical health or emotional development, and (2) child's best interest because it would significantly impair
appointment of the Department as managing conservator his physical health or emotional development, and that
was in the child's best interest. In’. at 614-l5.The Court appointment of the Depaitment was in the child's best
concluded that " [t]hese findings satisfy not only the
mechanism for the
interest-the only available statutory
fundamental requirement that the court consider the best Department's appointment in the instant case was as a
interest of the child, but also the more specific findings consequence of the tennination pursuant to Family Code
necessary tojustify the Department's appointment under section 161.207. Id at 3l8.It therefore concluded that
section 153.131." Id. In light of the differing elements
did not apply, and that the mother's challenge to the
J.A..l.
and standards of review applied to conservatorship and conservatorship appointment was subsumed in her appeal
termination orders, the Court concluded that a challenge
of the termination order. It/. With these guidelines in
to the Department's appointment as the child's
mind, we consider Veronica and Alan's challenge to the
conservator was not subsumed in the appellant's appointment of the Department as sole managing
challenge to the termination order. absence of
Id. In the
conservator of AS., D.S., and L.A.S.
assigned error, the Court reversed the portion of the court
ofappeals' judgment that reversed appointtnent of the On March 13, 2006, the Department filed "
its
Department as the child's sole managing conservator. Id. Original Petition for of a Child, for
Protection
at 617, Conservatorship, and for Termination in Suit Affecting
the Parent-Child Relationship." In section 13 of the
In In re D.N.C., 252 S.W.3d 317, (Tex.2008) (per
complaint, the Department requested that it be appointed
curiam), the Court considered asimilar challenge to a the children's sole managing conservator "
[p]ursuant to §
court of appeals‘ reversal of a trial court's conservatorship
§ 153.005 and 263.404." It further stated that
"
[a]s
order. In the casereviewed in D.N.C., styled below as grounds for appointment of the Department as
Colbert v. Department of Family & Proleczfve Services, Managing Conservator, the Department alleges pursuant
the Department sought termination of the mother's
to § 153.131 of the Texas Family Code that the
parental rights to her seven children. See 227 SW3d appointment of the parent or parents would not be in the
799, 802 (Tex.App.-I-Ioulston [lst Dist.] 2006), pez. best interest ofthe children because the appointment of
denied, In re D.N.C., 252 S.W.3d 317 (Tcx.2008). The the parent or parents would significantly impair the
trial court found that the mother had endangered her children's physical health or emotional development." In
children and tenninatcd her parental rights under section
its Final Decree forTc11nination, under the section
l61.001(1)(D). Id. at 807. Without making any additional entitled
"
Conservatorship of the Children," the trial court
findings, the trial court appointed the Department as the ordered that the Department be appointed sole managing
children's managing conservator. In’.
conservator of AS., D.S., and L.A.S. and found " this

On appeal, the mother challenged the sufficiency of
appointment to be in the best interest of the children." No
additional findings were made.
the evidence supporting the

Because the trial court made no findings under
Page 92
section 153.131 that would independently support the
termination order, but she did not separately challenge
conservatorship order, we conclude that the Department's
appointment was solely the consequence of the trial
the appointment of the Department as the children's
court's termination decision under Family Code section
managing conservator. Id. The court ofappcals reversed
161.001(1).[l8] In accordance with D.N.C., we conclude
the tennination order on factual insufficiency grounds
that Veronica and Alan's challenge to the conservatorship
 appointment was subsumed in their appeal of the testified that no physician was willing to take her as a
termination order. Because we reverse the portion of the new patient because of her advanced pregnancy.
trial court's order tenninating Veronica and Alan's Notwithstanding, she continued to take pre-natal vitamins
parental rights under throughout her pregnancy.

Page 93 [7] Veronica's plan required that she complete parenting
classes, participate in therapy, submit to drug
section l6l.0Ol(l), we also reverse the portion of the assessments, maintain stable housing and employment,
order that appointed the Department as the sole managing and attend court hearings. Alan's plan required that he
conservator. We
sustain appellants‘ fifth issue. submit to paternity testing. inform the case worker of his
intentions and desires with respect to permanency of the
IV. Conclusion
children, provide documentation demonstrating stable
housing and employment, allow access to his home for
Accordingly, we reverse that portion of the trial
court's decree tenninating Veronica's parental
home study, participate in individual counseling, cease
rights to
criminal activity, and attend court hearings.
A.S., DS., and L.A.S., and render judgment denying the
Department's request tenninate Veronica's rights to
to
[8] We presume that she was referring to her oldest child,
AS., D.S., and L.A.S. We reverse that portion of the
L.P., who was being cared for by his great-aunt.
decree tenninating Alan's parental righis to AS. and
D.S., and render judgment denying the Depa1tment‘s [9] During Veronica's incarceration, one of her sisters
request to terminateAlan's rights to A.S. and DS. ln cared for AS. and D.S. for approximately one month.
addition, because it was not supported by findings However, her sister was unable to continue caring for
separate and apart from the findings supporting the them because it was creating problems in her marriage.
termination, we also reverse that portion of the decree
appointing the Department as the sole managing [[0] Ms. Pena testified that she had been convicted of
conservator of A.S., D5,, and L.A.S., and remand the forgery in 1978, making a terroristic threat in 1985, and
case to the trial court for the limited purpose of rendering theft by check in or around 1999.
an order, consistent with Family Code section
l6l.205.[l9] [l 1] Although awaiting trial in the Harris County jail on

charges ofaggravated robbery, both Veronica and Alan
appeared and testified at the termination hearing.

Notes: [12] The 4 C5 report states that Veronica admitted "
to
trying marijuana a fcwtimcs in her life," although it is
[1] To protect the privacy ofthe parties in this case, we unclear when those occasions occurred. Moreover, Alan's
identify the parents by fictitious names, and we identify uncontroverted testimony that he had no knowledge that
the children by their initials. See TEX. FAM. CODE § Vcrortica had used drugs and that he had never smelled
l09.002(d). the substance on her suggests that her prior usage
occurred before the birth of her children. In any case,
[2] A patemity test revealed that Alan is not the
there is no direct evidence that Veronica had an ongoing
biological father of L.A.S. in its final order, the trial court
narcotics problem that would support a finding under this
also terminated the parental rights of L.A.S.'s unknown section. See Ruiz v. Texas Dep’t of Family and Protective
father.
Svcsx, 212 S.W.3d 804, 818 (Tex.App.-Houston [lst
Dist.] 2006, no pet).
[3] LP. is not a subject ofthis suit.

[13] We are unaware of any cases in which a single use
[4] This evidence was presented through a family
of marijuana~or any drug-during pregnancy has, alone,
evaluation report prepared by the Children's Crisis Care
been held sufficient to constitute a " course of conduct" to
Center on April 24, 2006 (" 4 C's report" ).
support termination under subsection (E). Cf In re

[5] The 4 C5 report also reflects that, in February 2006, MD.V., No. l4~04-00463-CV, 2005 WL 2787006, at *5

CPS received a referral alleging physical abuse and (Tex.App.-Houston [l4th Dist.] Oct. 27, 2005, no
neglectful supervision of A.S., D.S., and LP. by pet.)(rnem.op.) (finding appellant engaged in course of
Veronica and Alan. However, the word " Unknown" conduct that endangered child in light of her extensive
appears under the box entitled " Validatcd'.7," and the drug use for ten years, particularly while pregnant and
Department does not discuss this incident in its brief
while caring for her children, her inability or
unwillingness to abstain from drug use after child was
[6] The evidence is conflicting as to why Veronica was born marijuana positive, and her relapse after children
unable to obtain pre-natal care for L.A.S. in Houston. The were retumed to her); In re S.ML.D., 150 S.W.3d 754,
4 C5 report reflects that she was unable to get her 757-58 (Tex.App.-Amarillo 2004, no pet.)(holding
medicalrceords from Beaumont. However, at trial she mother's drug use during pregnancy and after child was
removed from her care, in face ofrandom drug testing
that placed her relationship with child at risk, was legally court order and have rendered judgment that appellants'
and factually sufficient evidence that she engaged in parental rights are not tenninated), Family Code section
course of conduct which endangered her child). 161.205 requires that the trial court either (1) deny the
petition for tennination, or (2) render any order in the
[14] The Department does not attempt to argue that best interest of the child. See TEX. FAM. CODE §
Veronica's use ofmarijuana during her pregnancy is 161.205. As an appellate court, we are not in a position to
evidence that Alan knowingly placed his children with determine whether to simply deny the petition for
someone who engaged in endangering conduct. Thus, we termination or to render some other order in the best
need not address this argument. interest of the child. Colbert, 227 S.W.3d at 816,
Circumstances concerning the child or parent may have
[15] Having found the evidence insufficient under section changed since the trial court rendered its final order, a
l6l.001(1)(D), (E), and (N), we need not address matter that requires afactfinder. Id. We are therefore
appellants‘ fourth issue challenging the trial court's
unable to render a judgment that disposes of all
conclusion that termination was in the children's best
remaining issues in the case and must remand the case in
interest.
part to the court for further proceedings under
trial

section 161205. See id. & n. 15 (" [S]cction 161.205
[16] Section 153.005 provides generally that in a suit
becomes applicable on remand because we have reversed
affecting the parent-child relationship,
"
the court may
the trial court order and have rendered judgment that
appoint a sole managing eonsewator or may appointjoint
appellant's parental rights are not terminated. Section
managing conservators." TEX. FAM. CODE § 153.005.
161.205 is the controlling authority for how the trial court
Section 153.131 creates arebuttable presumption that a
must proceed on remand." ).
parent should be appointed the child's managing
unless the court finds that appointment of
"
conservator
the parent or parents would not be in the best interest of
the child because the appointment would significantly
impair the child's physical health or emotional
development." Id. § l53.131(a).

[17] Section 161.207 provides that the court shall appoint
a suitable managing conservator "
[i]f the coun
tenninates the parent-child relationship with respect to
both parents or to the only living parent." TEX. FAM.
CODE § l6l.207(a).

[18] We note that while the Department
in D.N. C. did not

request under section 153.131, the
conservatorship
Department in this case did make such arequest. The
Department relies on this fact to argue that although the
trial court did not specify the statutory basis on which it

relied to appoint the Department as conservator, or issue
any findings of fact, we may nonetheless infer that the
court made the necessary findings to support the
conservatorship appointment under section 153.131. We
disagree. In J.A.J., theCoun emphasized that the trial
finding that appointment ofa parent as the
court's specific
child's conservator would not be in his best interest
because it would significantly impair his health or
emotional development was necessary to justify the
Department's appointment under section 153.131. 243
S.W.3d at 614-l5.In the absence of such a finding by the
trial court here, we will not infer one.

[19] When reversing the trial court's judgment or
appcalable order, we ordinarily render thejudgment or
order that the trial court should have rendered. See TEX.
R. APP. P. 43.3; Colbert, 227 S.W.3d at 816. However,
in a case involving the involuntary termination of
parental rights, if the trial court does not order
termination of the parcnt—c11ild relationship (which
becomes the case here because we have reversed the trial
EXHIBIT F
Page 73 beginning." Medina also believed it was in M.A.N.M.'s
best interests for Ramirez's parental rights to be
75 S.W.3d 73 (Tex.App. —San Antonio 2002) terminated.

In the Interest of M.A.N.M., a Child. Before M.A.N.M.'s birth, Ramirez provided some
financial support to Sells, with the understanding that the
No. 04-01-00295-CV.
money was for the unborn child. Ramirez was employed
"off and on" and earned eight dollars an
Court of Appeals of Texas, Fourth District, San
Antonio
Page 76

February 6, 2002 M.A.N.M. was born, Ramirez offered to pay
hour. After
Medina money, conditioned on being able to see the
Page 74
child.Ramirez, however, did not provide any support to
Medina.
[Copyrighted Material Omitted]

Page 75 Ramirez contacted C.P.S. on February 5, I999, and
again on March 27, 1999, expressing pursue
his intent to

Rogelio Lopez, The Law Office of Rogelio Lopez, his legal M.A.N.M.'s father and leaving a
rights as

San Antonio, for Appellant. number where he could be contacted. C.P.S. did not
consider Ramirez as a"partieipating family member"
Denise Martinez, Law Offices of Denise Martinez, because Sells was married to Medina at the time of
P.C., Michael D. Robbins, Attorney At Law, Rudolph F. M.A.N.M.'s birth. C.P.S. advised him to seek legal
Jass, Jr. (ADL), Attorney At Law, San Antonio, for assistance to establish patemity. Until he did so, Ramirez
Appellee. had no right to visit the child, absent cooperation from
Sells.
Sitting: CATHERINE STONE, Justice, SARAH B.
DUNCAN, Justice KAREN ANGELINI, Justice. Because Ramirez did not have the financial ability
of Legal Aid.
to hire an attorney, he sought the assistance
Opinion by KAREN ANGELINI, Justice. Legal Aid referred him to the Attorney Generals Office.
Because Ramirez did not have M.A.N.M.'s name or
The trial court terminated John Ramirez's parental
social security number, the Attorney General was unable
rights to M.A.N.M. Ramirez appeals thejudgment in
to provide him with assistance. Ramirez then hired his
three issues. We affin-n the trial eourrsjudgment.
own attorney.
FACTUAL AN D PROCEDURAL Ramirez was made aware of the petition to
BAC KGROU ND tenninate his parental rights in May of 2000. The parties

agreed to a paternity test, which identified him as
Anthony Medina and Tammy Sells were married at
M.A.N.M.'s biological father. Ramirez also agreed to
the time of trial. When they married, Sells was pregnant;
submit to a drug test. Ramirez tested positive for cocaine
Medina, however, is not the biological father of the child.
and marijuana use. Ramirez first started to use drugs
John Ramirez is the child's biological father. M.A.N,M.
recreationally as a teenager. Occasionally, Ramirez
was born in January of 1999 with cocaine in her system.
bought drugs. Ramirez admitted that he spent at least
Medina knew Sells was using drugs and drinking heavily,
$2,000 on drugs during the two years preceding trial and
at times, during her pregnancy. Child Protective Services
that he could have used that money to hire a lawyer to
intervened and implemented a safety plan, allowing
assist him in protecting his rights as M.A.N.M.'s
Medina and Sells to reside with M.A.N.M. at Medina's
biological father. Within the month before trial, Ramirez
mother's home. Approximately one month after
began attending Narcotics Anonymous meetings twice a
M.A.N.M.'s birth, Sells moved out ofMe(lina's mother's
week. He plans to continue attending the meetings.
home. Sells‘ parental rights to M.A.N.M. were later
Ramirez's parents have expressed an interest in helping
terminated. M.A.N.M., however, remained with Medina
him recover from his addiction. Ramirez admitted that he
at his mother's home. The child refers to Medina as
should have stopped using drugs once he learned his
"Dada" and to Medina's mother as "Mamau." At the time
child had been born dependent upon them.
of trial, Medina had applied for insurance for M.A.N.M.
and, while he and his mother are at work, M.A.N.M. is in Ramirez pays $200 in rent to live with his parents.
daycare. Medina's mother believes it is in M.A.N.M.'s He has lived with them his entire life. His mother
best interests to terminate Ramirez's parental rights and testified that Ramirez is capable of eaming and saving
allow the child to remain with the "only family that she
money. At the time of trial, Ramirez was working forty
knows, the family that‘s been there from the very
hours a week and earning ten dollars an hour. Ramirez's Involuntary termination of parental rights is a
parents supporthim "100 percent" regarding obtaining drastic remedy. In the Interest ofG.M., 596 S.W.2d 846,
custody of M.A.N.M. Ramirez testified he was ready to 847 (Tex.l980). Termination involves fundamental
take on the responsibility of a two-year-old child, constitutional rights, and the proceeding must be strictly
particularly with the help of his family. scrutinized. Id. at 846. There is a strong presumption that
the best interests of a child are usually served by
Wendelyn Thornton, a Child Protective Services retaining custody in the natural parents, and the
Program Administrator, testified about M.A.N.M.'s tennination ofparental rights cannot be justified without
family's history. She also testified that Sells had indicated the most solid and substantial reasons. Wiley v. Spmtlan,
to her that Ramirez was abusive. Medina's mother also 543 S.W.2d 349, 352 (Tex.l976). However, the need for
testified that Sells told her arestraining order was in permanence is the paramount consideration for the child's
place against Ramirez because, during her pregnancy, present and future physical and emotional needs. Duprce
Sells and Ramirez were involved in an altercation. v. Texas Dep’t ofProteetive & Regulatory Servs., 907
Thornton testified that it is very difficult for a child to S.W.2d 81, 87 (Tex.App.-Dallas 1995, no writ). The goal
fon'n any significant attachment to aparent, when that ofestablishing astable, permanent home for achild is a
child has not been exposed to the parent during the child's compelling government interest. Id.
first two years of life.

The Texas Family Code, in order to protect the
Ramirez believes that he and his child have u 8 relationship between a parent and child, requires a
bond." According to Ramirez, M.A.N.M. recognizes him showing by clear and convincing evidence that the parent
and is, at times, loving to him. Ramirez agreed that he in question behaved in some manner that was detrimental
could work with Medina to take care of M.A.N.M., but to the child. TEX. FAM.CODE ANN. § 161.001 (Vernon
that, eventually, he intends to seek and gain full custody Supp.200l). This intermediate standard colors our review
of the child. of the factual sufficiency of the evidence in a termination
case. See In re B.T., 954 S.W.2d 44, 46 (Tex.App.-San
The ad litem also believes that arelationship has
Antonio 1997, writ denied). Applying this standard to our
startedbetween M.A.N.M. and Ramirez and would like review of atrial judge's findings, we review all of the
to see it continue. And, although he recognized that it
record evidence and ask whether suftieient evidence was
would be difficult emotionally to remove the child from presented to produce in the mind ofa rational fact finder
Medina, tennination of Ramircz's parental rights was not a "firm belief or conviction as to the truth of the
her best
allegations sought to be established." TEX FAM.CODE
in

ANN. § 101.007 (Vernon Supp.200l); In re G.M.. 596
Page 77
S.W.2d 846, 847 (Tcx.l980). The trial court's judgment
will be set aside only ifthc finding is so contrary to the
The ad litem testified that he has seen Ramirez
interests.
interact M.A.N.M. According to the ad litem,
with
overwhelming weight of the evidence as to be clearly
Ramirczinteraeted well with and was patient with the
wrong and unjust. Djeto v. Texas Dep't ot‘Proteetive &
child. Medina's mother, however, testified that although Regulatory Servs., 928 S.W.2d 96, 97 (Tex.App.-San
Antonio 1996, no writ).
M.A.N.M. is somewhat more restrained than she
normally is when she's with Ramirez, she does not
In deciding a legal sufficiency issue, we consider
perceive Ramirez as a threat to the child.
only the evidence tending to support the finding and
disregard all evidence to the contrary. Soullrwestern Bell
Based on the evidence adduced at trial, the trial

court terminated Ramirez's parental rights. Specifically,
Mobile SyS., Inc. v. France, 971 S.W.2d 52, 54
the court found based upon clear and convincing
(Tex.1998); In re 19.0., 955 S.W.2d 364, 368
(Tex.App.-San Antonio 1997, pet. denied). lf more than a
evidence that Ramirez "failed to support the child in
scintilla of evidence supports the trial court's findings, the
accordance with his ability during aperiod of one year
appealing parent cannot prevail on a legal suffieiency
ending within six months of the date of the tiling of this
point. In re R.D., 955 S.W.2d at 368.
petition." The court also found tennination was in
M.A.N.M.'s best interests.
Page 78
Ramirez appeals the tennination. He challenges the
B. Failure to Support
legal and factual sufficiency ofthe evidence supporting
the trial court's findings. He further maintains that the
The trial court found that Ramirez failed to support
trial court abused its discretion in denying his motion for
M.A.N.M. "in accordance with his ability during a period
new trial.
of one year ending within six months of the date of this
filing of this petition." TEX. FAM.CODE. ANN. §
SUFFICIENCY OF THE EVIDENCE
161.00l(l)(F) (Vernon Supp.200l). To terminate parental
A. Standard of Review
rights on non-support grounds, the evidence must
establish that the parent failed to support the child for
 twelve consecutive months and had the ability to support thetrial court's non-support finding. Furthermore,

contribute to the support of the child for twelve we hold factually sufficient evidence was presented to
consecutive months. In re D.L.B., 943 S.W.2d I75, 177 produce in the mind of the trial judge a "fin'n belief or
(Tex.App.-San Antonio I997, no writ); In re Guillory. conviction" that Ramirez had the ability to provide
618 S.W.2d 948, 951 (Tex.App.-Houston [lst Dist.] support to M.A.N.M. Ramirez's first issue is overruled.
I981, no writ). One court of appeals has found there was
legally and factually sufficient evidence ofnonsupport, C. Best Interests
when the parent admitted that he could have earned
enough money to meaningfully contribute to his
Ramirez also challenges the sufficiency of the
daughter's support, but did not. Phillips
v. Texas Dep’r of
evidence supporting the trial

Protective aI1dRegulu1ory Servs, 25 S.W.3d 348, 357-58
Page 79
(Tex.App.~Austin 2000, no pet).

court'sfinding that termination of the parent-child
It is undisputed here that Ramirez did not provide
was in his child's best interest. Accordingly,
relationship
support toM.A.N.M. Ramirez contends, however, that
Medina failed to meet his burden of proving that Ramirez
we examine the evidence in light of the following factors:
had the ability to pay support for twelve consecutive
(A) the desires of the child; (B) the emotional and
months. Ramirez relies on Jimenez, ex rel. Little v.
physical needs of the child now and in the future; (C) the
Garza, 787 S.W.2d 601 (Tex.App.-El Paso 1990, no writ)
emotional and physical danger to the child now and in the
for his assertion.
future; (D) the parental abilities of the individuals seeking
custody; (E) the programs available to assist these
In Jimenez, the appeals court reversed a tennination
individuals to promote the best interest of the child; (F)
based on nonsupport on legal sufficiency grounds. Id. at
the plans for the child by these individuals or by the
604. The fathcrtcstified that, at first, he offered no
agency seeking custody; (G) the stability of the home or
money to support the child, but that later he offered to
proposed placement; (H) the acts or omissions of the
give money for support. Id. at 603-04. The father further
parent which may indicate that the existing parent-child
explained that once he began visitation with the child, he
relationship is not a proper one; and (1) any excuse for the
provided the child with food, bedding, furniture, and toys.
acts or omissions of the parent.
Id. at 603. The evidence showed the father's annual
income and monthly bills. The court held, in light ofthe
Halley v. Adams, 544 S.W.2d 367, 371-372 (Tex.l976);
constitutional precautions involved in termination cases,
In re D.G., 5 S.W.3d 769, 772 (Tex.App.-San Antonio
that
1999, no pet).

"[t]here is no firm evidence as to the amounts ofsalary
Quite often, the best interest of the child is infused with
paid for any given month of the twelve month period to
the statutory offensive behavior. While there are
determine an ability to pay that particular month or to
instances where the offending behavior will demand
establish a pattern over a series of months. There is
termination ofparental rights, there are also those cases
money spent by the father, but again without any
where the best interest determination tnust have a finn
reference to times or amounts."
basis in facts standing apart from the offending behavior.
Although such behavior may reasonably suggest that a
Id.
child would be better off with a new family, the best

In this case, there is likewise no "finn" evidence of interest standard does not permit termination merely
Ramirez’s salary during the twelve month period before because a child might be better off living elsewhere.
trial. Ramirez testified that he was working "off and on"
In re D.M, B.W., (mdJ.C,W., 58 S.W.3d 801,814
with temporary agencies and that he never had full-time
(Tex.App.-Fort Worth 2001, no pet. h.). This case is one
employment. He further testified that, at the time of trial,
where Ramirez‘s "offending behavior" is not egregious
he was working forty hours a week, eaming ten dollars an
enough, on its own, to warrant a finding that termination
hour. However, Ramirez testified that had Medina
allowed him visitation with the child, he would have
is in the child's best interests. Accordingly, we must look
to other, independent facts to support the trial court's best
provided support for her. Ramirez also admitted that he
interests finding.
spent asignificant amount of money on drugs over the
past two years. Further, Ramirez's mother testified that he
M.A.N.M. is two years
She was born addicted
old.
was able to earn and save money and had done so in the
to cocaine and is Over the
currently on medication.
past. Essentially then, Ramirez could have contributed to
course of six visits, M.A.N.M. and Ramirez have
the support ofhis child, but did not. Phillips, 25 S.W.3d
developed a "bond," even though M.A.N.M. appears
at 357-58.
more reserved than normal in Ramirez's presence. There
was no evidence presented that Ramirez would present
Viewing the evidence in a lightfavorablc to the
any danger to M.A.N.M., now or in the future. In fact, the
judgment, we hold there is legally sufficient evidence to
ad litem testified that Ramirez interacted well with
M.A.N.M. and Medina's mother testified that she did not new trial, that following the trial he received infonnation
perceive Ramirez to be a threat to the child. Medina and that raised a eoncem about Medina‘s ability to care for
Ramirez are both young men, who live with their parents. M.A.N.M. Medina also testified at the hearing. Medina
The parents of both men have attested that they are and Sells, the child's mother, were married in December
willing to help raise M.A.N.M.however, thatWe note, of 1998. Their relationship ended in February of1999.
M.A.N.M. has lived with Medina's family throughout her Approximately two months before Medina and Sells
life. M.A.N.M. attends daycare while Medina and his broke up, Medina attempted to commit suicide.
mother are at work. And, Medina plans to move out of According to Medina, the reason he attempted suicide
his mother's home in the future. The evidence shows that was because he and Sells were having problems and he
it is very difficult for a child to fonrr any significant "couldn't deal with her." Medina went to the hospital for
attachment to a parent, when that child and the parent treatment ofhis wounds, but did not seek psychological
have had no relationship during the child's first two years counseling. Medina has not had any depressed feelings
of life. No
evidence was presented about possible since then. He further testified that these events have in
programs Ramirez. Furthennore, there is no
to assist no way affected his ability to care for M.A.N.M.
evidence that Medina has ever used drugs; Ramirez
admits he used drugs in the past and currently attends It is undisputed that this evidence came to
Narcotics Anonymous meetings. Ramirez‘s attention since the trial. Ramirez contends that
he could not have known about these facts before trial
We hold the evidence is legally sufficient to support because he did not have any relationship with Medina or
the trial court‘s finding that tennination of Ramirez's his family. However, Ramirez would have been able to
parental rights is in M.A.N.M.'s best interest. In addition, draw out these facts from Medina in discovery. The
we hold the evidence is factually sufficient to support the record does not reflect that Ramirez sought through
trial court's finding, particularly in light of the State's discovery any infonnation on Medina's medical and
interest in providing a child with a stable, pcnnanent psychological history. And, Ramirez made no attempt at
home. Rarnirez‘s second issue is overruled. trial to question Medina about any medical or
psychological problems he may have experienced.
Page 80 Ramirez has failed to make the requisite showing that the
evidence did not come to his attention sooner for lack of
MOTION FOR NEW TRIAL due diligence. Because Ramirez has not met the second
requirement for granting a new trial based on newly
In his third issue, Ramirez argues the
trial judge
discovered evidence, we need not reach the remaining
abused its denying Ramirez's motion for
discretion in
two factors. Ramirez's third issue is overruled.
new trial in light of newly discovered evidence. The
newly discovered evidence consists of facts showing
CONCLUSION
Medina attempted suicide a month before M.A.N.M.'s
birth. The evidence and factually sufficient to
is legally
support the trial finding that Ramirez failed to
court's
A. Standard of Review
support M.A.N.M. for twelve consecutive months during
the eighteen-rnonth period preceding the petitions filing.
A party seeking a new trial on the ground of newly
Furthermore, the evidence is legally and factually
discovered evidence must show that: 1) the evidence
sufficient to support the trial court's finding that
came to knowledge since the trial; 2) it was not owing
his
termination of Ramire7.'s parental rights to M.A.N.M. is
to want of due diligence that the evidence had not come
in her best interests. Finally, the trial
to his attention sooner; 3) the evidence is not cumulative;
and 4) the evidence is so material that it would probably
Page 81
produce adiffercnt result if a new trial were granted.
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983); court did not abuse its discretion in denying Ramirez's
In re JM, 955 S.W.2d 405, 408 (Tex.App.-San Antonio motion for new trial based on newly discovered evidence.
1997, no pet.). Whether to grant or deny a motion for new Accordingly, we affinrr the trial court'sjudgment.
trial lies within the sound discretion of the trial court, and

the court's decision will not be disturbed absent a clear Dissenting Opinion by CATHERINE STONE,
abuse ofdiscretion. Jackson, 660 S.W.2d at 809; In re Justice.
./.M., 955 S.W.2d at 408. When atrial court refuses to
grant a new trial based on newly discovered evidence, The natural rights existing between aparent and
every reasonable presumption is to be made in favor of child are constitutionally-protected interests "far more
the trial court's decision. Jackson, 660 SW2d at 809~10; precious than any property right." Santoaky Kramer, v.

In re./.11/L, 955 S.W.2d at 408. 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982). These natural rights are "essential basic civil
B. Application right[s] of man." Stanley Illinois, 405 US. 645, 651, 92
:2.

S,Ct. 1208, 31 L.Ed.2d 551 (1972). In recognition of the
Ramirez testified, at the hearing on his motion for importance of the rights between parents and their
 children, courts presume that retention of the parent-child to purchase
relationship is in the best interest of the child. Wiley v.

Spmtlzm. 543 S.W.2d 349, 352 (Tex,1976). Page 82
Consequently, involuntary termination ofparental rights
is a "drastic remedy" of such weight and gravity that due drugs. The court simply assumed that Ramirez could

process requires tennination bejustified by clear and have supported the child instead of buying drugs.
convincing evidence. See In re GM, 596 S.W.2d 846, Without evidence of Ramirez's educational level,
847 (Tex.l980). These statements are not mere foma employment history, eaming potential, actual income, or
language to be included in appellate decisions--they are financial needs and expenses, Ido not agree that Medina
statements of principles ofgreat constitutional and human met his burden to show Ramirez had the ability to pay.

dimension. In my opinion, these principles have not been
honored in this case.
The issue is further complicated
by other factors
relating to the question of where and to whom Ramirez
No doubt motivated by the best of intentions, the was to provide financial support. Ramirez knew that his
actions of Child Protective Services set in motion the
daughter was not with her mother, and for a certain
instant litigation, which proceeded with minimum regard period of time he did not even know where the child was,
for the constitutionally-protected parental rights of.Iohn His request for information and assistance from Child
Ramirez, the biological father ofM.A.N.M. The trial
Protective Services was rejected. His request for
court compounded of constitutional
the disregard assistance from Legal Aid was rejected. he Finally,
safeguards by rendering ajudgment based on evidence sought assistance from the Attorney General's office, and
after a delay of more than six months, he was told that the
that is, at best, perfunctory. Accordingly, Irespcctfully
dissent. Attorney General's office could not help him. The record
before us simply does not contain evidence sufficient to
GROUNDS FOR TERMINATION produce a firm belief or conviction that Ramirez failed to
support M.A.N.M. "in accordance with his ability during
To tenninate John Ramirez's parental rights, the a period of one year ending within six months of the date
trial was required to find by clear and convincing
court of the filing of the petition." See TEX, FAM.CODE
evidence that Ramirez engaged in offensive conduct as ANN.§ l6|.00l(l)(F) (Vemon Supp.2002).
set forth in TEX. FAM.CODE ANN. § l6l.00l (Vernon
Supp.2002). Although Medina sought termination on the BEST INTEREST OF THE CHILD
sole basis that Ramirez failed to legitimate the child
within a one year period, this basis was not provcn at Even if we assume the evidence is legally and

trial, nor did the trial court make a finding on this factually sufficient to support termination on the basis of
element. Rather, Medina produced evidence regarding non-support, I do not believe there is sufficient evidence
Ramirez's failure to support the child for a one year that termination is in the best interest of the child. Indeed,
period and the trial court rendered its judgment of the evidence is to the contrary.

termination on this statutory ground. When issues not
Tennination ofparental rights cannot be sustained
raised by the pleadings are by implied consent of the
tried
unless such a drastic action is in the best interest ofthe
parties, they are treated in all respects as if they had been
raised in the pleadings. TEX.R. CIV. P. 67. Because
child. In re GM, 596 S.W.2d at 847. Although the
majority correctly recites this standard, do not believe it
Ramirez failed to object to the disparity between the I

has correctly reviewed the evidence in light of the Holley
pleadings and the proof, we may conclude that the issue
factors. See Holley v. Adams, 544 S.W.2d 367, 371-72
of non-support was tried by consent. See Sage SI. Asxocs.
(Tex.l976) (setting forth various factors to be considered
v. Nor!/rdale Constr. C0,, 863 S.W.2d 438, 445
by trial court in determining whether tennination of
(Tex.l993) (determining issues had been tried by consent
because both sides advanced their positions at trial).
parental rights serves best interestof child). An
examination of these factors reveals that severing the
Although he was neverjudicially ordered to provide Ramirez and his daughter is not in her
parental rights of

child support,Ramirez gave the child's mother money best interest.

during her pregnancy and offered to provide support to
Emotional and Physical Needs of Child
Medina if he could visit with his daughter. It seems
disingenuous, at best, to rebuff a party's claim of
Courts presume that it is emotionally best for a
paternity, deny him visitation until paternity is legally
child to retain ties with the child's biological parents.
established, yet use the absence of support as grounds for
Wiley, S43 S.W.2d at 352. Ramirez professed his desire
termination. Moreover, the only evidence the trial court
to maintain a relationship with his daughter. He
could have relied upon to determine Ramirez had the
expressed his willingness to assume parental
ability to pay, but did not, was Ramirez's admission that
responsibilities, and his conduct since the child's birth
he had spent money on drugs. There was no testimony as
confirmed his expressed desire. Ramirez has the support
to the source of the money for drugs nor any indication of
of his family in this endeavor. His mother‘ expressed her
what other basic necessities Ramirez may have foregone
willingness to help, and she provides a stable home that
all agreed was not a threat to the child. mother expressed her desire for M.A.N.M. to live with
her birth father instead ofMedina, the caseworker chose
Parental Abilities Parent Seeking Custody not to respond after she missed an appointment to discuss
the matter. Ramirez's meetings with attorneys at Legal
Ramirez, like Medina, is admittedly young, but
Aid and the Attorney General's office were also fruitless.
because he has had limited access to his daughter, he is
less experienced in parenting than Medina. Nonetheless, To now rely on the lapse oftime since the child's
the reports from Kids Exchange regarding Ramirez‘s birth and the possibility ofdisruption of the child's
supervised visitation indicate appropriate interaction and routine as grounds for terminating Ramirez's parental
bonding between Ramirez and his daughter. rights is, in my view, nothing short of unconscionable.

Programs Available to Assist the Parent I am also concerned because Ibelieve that in this

case the "best interest of the child" has become the
As noted, evidence presented at trial indicates that functional equivalent of the "better circumstances for the
Ramirez's mother is willing to assist her son in his
child." The El Paso Court of Appeals has eogently
parenting of M.A.N.M. There is no evidence that
expressed the difficulties inherent in applying the best
Ramirez planned to take any formal parenting classes, but
interest standard:
he did acknowledge a prior drug problem and was
actively participating in Narcotics Anonymous. [T]he nuances and complexity of human situations make
the development and application of the axiom--best
Plans for the Child and Stability of the Home interests of the child--incredibly difficult. It is all the
more difficult because, unlike other legal standards which
Ramirez has extended family support in his effort to
rely on the basic assumption that reasonable people
parent his daughter. He also
applying the standard can come to an agreement, it is not

Page 83 always clear that reasonable people can agree on what is
best for a child. Our only hope is to try to follow
has a stable non-threatening home to share with her. determinable standards that avoid any more chaos and
Ramirez stated his desire to ultimately seek full custody pain.

of his daughter, and this factor clearly weighed heavily in
>k>t<**$>t<**>l<*
the trial court's determination. However, custody is not at
issue in this tcnnination proceeding.
While [a parent's] bad acts or omissions might reasonably
Acts or Omissions indicating Parent-Child
suggest that a child would he better off with a new
Relationship is Not Proper family, the evidence may still be insufficient to satisfy
the clear and convincing standard. The best interest
The only acts or emissions that can be referred to standard does not permit parental termination merely
are the lack ofsupport and the failure to complete the because a child might be better off living elsewhere.
legitimization process within a year. But these omissions Otherwise, the termination statute might be used for a
cannot be viewed in a vacuum. Indeed, the final Holley massive reallocation of children to better and more
factor requires that these omissions be judged in light of prosperous parents.
anyjustifying excuse.
In re CH., 25 S.W.3d 38, 5253 (Tex.App.-El Paso
Excuse for the Acts or Omissions 2000, pet. granted).

Atthis point, M.A.N.M. has lived with the Medina Page 84
family for three years--they are the only family she has
known. Any caring person would hesitate to disrupt that The tragedy here for both father and daughter is that
if Ramircz's attempts to be the child's father had not been
relationship. Yet Ramire7_'s lack of participation is not for
lack of trying. He began his quest to have contact with his
thwarted--had he instead been helped to connect with his
daughter--none of this would have transpired. Medina's
daughter one month after her birth. Every governmental
counsel argued, and the trial court evidently agreed, that
agency that he contacted essentially closed the door in his
Ramirez's parental rights were not terminated, Medina
face. When suit was filed to terminate Ramirez's parental
if

rights, he was cited by publication despite his having left
would incur further court battles and legal expenses. It is

evident from the record that the most significant factor
a phone number with Child Protective Services; Ramirez

discovered the pending suit by accident. Ramirez made guiding the trial court's decision was the length oftime
repeated attempts to establish his role as a father to his
M.A.N.M. had been living with Medina and his family,
child, yet each attempt was rebuffed. In addition, while
and the high price the child would pay if she were
the caseworker ignored Ramirez's overtures, she removed from that home. Ramirez's expressed desire to
obtain sole custody of his daughter undoubtedly
encouraged Medina to take legal action to ensure the
child would remain in his home. Even when the child's
strengthened the trial court's resolve. Removal from
Medina‘s home, however, is not at issue. Less drastic
means were available toensure Continuity for the child
without terminating Ramirez's parental rights and
severing the budding relationship between father and
daughter. The trial court could have awarded pennanent
managing conservatorship to Medina while granting
possessory conservatorship to Ramirez, or could have
arranged other means of visitation. The child's need for
continuity of care and caretaker would have been met,
and she could also have enjoyed a relationship with her
biological father.

The solution to this cauldron of
emotionally—charged issues need not be all or nothing.
Indeed, the ad litem appointed to represent the child and
protect her best interest offered a solution--let this child
know the joys oftwo loving fathers. This solution, fully
supported by the law and the evidence, was erroneously
rejected by the trial court. Accordingly, I dissent.
EXHIBIT G
Page 54 move to Puerto Rico where his family lives.

440 S.W.3d 54 (Tex.App.-Waco 2010) During the next eleven months, the usual hearings
were conducted. The Department essentially did not
IN THE INTEREST OF M.V.G., A CHILD provide services to Patricia for eleven months because of
herincarceration. She was released from custody just
No. 10-09-00054-CV over ten months afterM.V.G.‘s birth and returned to
Clebume. The court extended the statutory dismissal date
Court of Appeals of Texas, Tenth District, Waco
for ninety days. Patricia visited M.V.G. about fourteen
times after her release, but she never completed any of
March 3, 2010
the tasks required by the family service plan. At the last

Page 55 hearing before trial, Patricia testified about various
difficulties in obtaining these services.
[Copyrighted Material Omitted]
For M.V.G. regularly during
his part, Joel visited
Page 56 the firstmonths of the Department's involvement
eight
but never completed any of the required tasks. He
From the 413th District Court, Johnson County, disagreed with the Department's efforts to pursue drug
Texas. Trial Court No. D200706344. screening by a hair follicle test, stating his preference for
urinalysis. He filed a motion for visitation which the
Before Chief Justice Gray. Justice Reyna, and court heard shortly after M.V.G.'s The
first birthday.
Justice Davis.
court denied the motion

OPINION Page 58

FELIPE REYNA, Justice after Joel informed the court that he would not submit to
the hair follicle test.
Page 57
Joel did not appear for trial. Patricia announced that
The mother and father ofthe child the subject of
she was waiving her right to jury trial. The court ruled
this suit have each perfected an appeal from the order
waived his right tojury trial under Rule of Civil
that Joe]
terminating their parental rights.The mother contends in
Procedure 220 by failing to appear. See TEX. R. CIV. P.
her sole issue that the evidence is legally and factually
220. The court also pronounced its rendition of " a post
insufficient to support any of the predicate grounds for
answer defaultjudgment" against him. At the conclusion
termination or the court's finding that termination is in the
of a three-day bench trial. the court rendered judgment
best interest of the child. The father contends in five
terminating Patricia's parental rights. The court signed its
points that: (1) the court erred by denying his request for
Order of Termination almost three weeks later.
a jury trial; (2) the court erred by rendering adefault
judgment against him; (3) the evidence is insufficient to PATRlClA’S APPEAL
support the tennination order; (4) this appeal is not
frivolous; and (5) section 263.405 of the Family Code is In her sole issue, Patricia contends that the evidence
unconstitutional. We will affirm. is legally and factually insufficient to support any of the
predicate grounds for termination or the finding that
BACKGROUND termination is in the best interest of the child.

The mother" Patricia" [1] gave birth to M.V.G. in a
In a legal sufficiency review, a court should look atall
Galveston hospital while she was incarcerated for a state the evidence in the light most favorable to the finding to
jail felony. The father "Joel" lived in Clebume. The day
detennine whether a reasonable trier of fact could have
after M.V.G.'s birth, Patricia gave Joel's contact fonned a firm belief or conviction that its finding was
information to CPS caseworker Linda Lawrence and told true. To give appropriate deference to the facttinder's
her that he was making arrangements for M.V.G. to live conclusions and the role of a court conducting a legal
with him. Two days later, CPS supervisor Marty sufficiency review, looking at the evidence in the light
Samaniego talked to Joel and tried to arrange a meeting. most favorable to thejudgrnent means that areviewing
Joel said that he could not talk at the moment because of courtmust assume that the factfinder resolved disputed
work, so Samaniego advised him that the Department was facts in favor of its finding if areasonable factfinder
taking emergency custody of M.V.G. and there would be could do so. A corollary to this requirement is that a court
an emergency removal hearing. Joel told Samaniego that should disregard all evidence that a reasonable factfinder
Patricia and he wanted custody ofM.V.G. and planned to
could have disbelicved or found to have been incredible.
In re ./.F,C., 96 S.W.3d 256, 266 (Tex. 2002); In re ( 1) Purpnseful Abandnnment
T.N.F., 205 SW3d 625, 630 (Tex.App.--Waco 2006, pet.
denied). With regard to the first element, Patricia concedes
thatM.V.G. was in foster care for at least six months but
n
In conducting a factual sufficiency review, a disputes that M.V.G. was in foster care because of any
court of appeals must give due consideration to evidence purposeful abandonment on Patrieia's part. See Earvin,
that the faetfinder could reasonably have found to be 229 S.W.3d at 349 (no evidence parent "purposefully
clear and convincing." Id. had little interaction with S.M.E." ). Patricia refers to
evidence that Joel and she planned for him to get M.V.G.
[T]he inquiry must be whether the evidence is such that
"
from the hospital and take her to Puerto Rico where they
a factfinder could reasonably form a firm belief or would live with their extended family. Patricia argues
conviction about the truth of the State's allegations." A that they never had a chance to carry out their plans
court of appeals should consider whether disputed because the Department did not contact Joel before
evidence is such that areasonable factfinder could not removing M.V.G. even though she had given his contact
have resolved that disputed evidence in favor of its infonnation to CPS caseworker Lawrence at the hospital.
finding. Ifl in light of the entire record, the disputed CPS investigator Tina Herrera confirmed in her
evidence that areasonable facttinder could not have testimony that she did not contact Joel until after taking
credited in favor of the finding is so significant that a custody of M.V.G. However, she arranged for Joel to
faetfinder could not reasonably have fonned a finn belief visit M.V.G. a few days after she was brought to
or conviction, then the evidence is factually insufficient. Cleburne.

J.F.C., 96 S.W.3d at 266 (quoting In re CH., 89 S.W.3d Joel attended the emergency removal hearing the
I7, 25 (Tex. 2002)) (footnotes omitted); T.N.F., 205 next day. He told the court of his plans to leave for Puerto
SW3d at 630. Rico thirteen days later and asked if he could take
M.V,G. with him it‘ he had a " clean" drug test. The court
CPS alleged and the trial court found four predicate
advised that another hearing would need to be held and, if
grounds for namely, that
tennination, Patricia: (1) Joel had "some clean drug tests," then the court would
knowingly placed or allowed M.V.G. to remain in
consider his request. Joel did not take a drug test and left
dangerous conditions orsunoundings; (2) engaged in
for Puerto Rico. He did not appear in court again until six
conduct or knowingly placed M.V.G. with persons who
months later. He submitted to only one drug test (by oral
engaged in conduct which endangered her; (3)
swab) during the fourteen months the case was pending,
constructively abandoned M.V.G.; and (4) failed to
refused to submit to urinalysis or hair follicle drug tests
comply with a court order that established the actions
ordered by the court, and wholly failed to comply with
necessary for the return of M.V.G. See TEX. FAM. his service plan.
CODE ANN. §l6l.00l(l)(D), (E), (N), (0) (Vernon
Supp. 2009). We may affirm ifthe evidence is sufficient Imprisonment, standing alone, does not constitute
with respect to any one of these predicate grounds. constructive abandonment. In re D.T., 34 S.W.3d 625,
T.N.F., 205 S.W.3d at 629. 633 (Tex.App.--Fort Worth 2000, pct. denied); 3-ee In re
N.S.G., 235 S.W.3d 358, 367 (Tex.App.--Texarkana
Constructive Abandonment 2007, no pet.).

A parent constructively abandons a child when (l) the
[But] it is simply a
"
cop—out" (in the vernacular of the
child has been in the permanent or temporary managing 70's) for anyone to conclude that prison ipso fncto
conservatorship
prevents (or relieves) the parent from providing the child
Again, the incarcerated parent may
a safe environment.
Page 59
be able to work through surrogates, such as rclativcs,
spouses, or friends, tofulfill that obligation. And, ifhe so
of the State or an authorized agency for not less than six
ananges and those surrogates agree to the arrangement, it
months, (2) the State or the authorized agency has made
is hard to deny that the parent has taken steps to provide
reasonable efforts to return the child to the parent, (3) the
parent has not regularly visited or maintained significant
or effectively provided a safe environment. To suggest
otherwise would be to suggest that military personnel
contact with the child, and (4) the parent has
demonstrated an inability to provide the child with a safe
cannot provide for their children because they may be
assigned overseas to combat duty. In that situation,
environment.
family is often available to step in and help. The same
S.W.3d 494, 505 (Tex.App.—-Fort
In re /l/l.R../lM., 280 can be no less true when a parent is incarcerated.

Worth 2009, no pet); nccnrd Enrvin V. Dep’l 0fFamily &
Protective 229 S.W.3d 348 In re D.S./1., 113 S.W.3d 567, 573-74
Sen/5., 345,
(Tex.App.--Amarillo 2003, no pet).
(Tex.App.--Houston [lst Dist.] 2007, no pet); see TEX.
FAM. CODE ANN. § 161.001(1)(N).
Here, Patricia made arrangements for Joel to take
custody of M.V.G. during her incarceration, but he failed drive to Dallas or Fort Worth for Spanish counseling and
to take the necessary actions to gain custody. Patricia also other services. However, this testimony was not admitted
infonned the Department that relatives in Puerto Rico See In re C.L., No. 10-09-00117-CV, 304 S.W.3d
at trial.

might be able to care 512, 2009 Tex.App. LEXIS 7994, 2009 WL 3319932, at
*4-5 (Tex.App.--Waco Oct. 14, 2009, no pet.) (evidence
Page 60 legally insufficient to support tennination where trial
court did not take judicial notice of prior orders or
for M.V.G. However, CASA volunteer Gloria Johnson
hearings).
testified that she talked to one of those relatives and was
convinced from that conversation that there was no Nevertheless, the testimony at trial established that
appropriate or safe environment available for M.V.G. in the Department provided no services to Patricia while she
Puerto Rico. [2] was incarcerated, but CPS caseworker Tonya Gilley
testified that the Department had no contract services
Considering all the evidence in a neutral light, we available at the statcjail
"
hold that the evidence is such that the court could
reasonably fonn a firm belief or conviction" that Patricia Page 61
constructively abandoned M.V.G. by leaving her in
Department custody for at least six months without where she was located. Upon Patricia‘s release, a visit
providing an alternative, and appropriate custody
safe, with M.V.G. was arranged for her within a week. She
an'angernent for her. See D,S.A., 113 SW3d at 572 received her first service plan about two weeks later on
(evidence factually sufficient where incarcerated parent's October 15. She had more than months to work on
three
mother testified that a relative would take the children but the tasks set out in the service plan but failed to do any of
it never happened). Thus, the evidence is factually them.
sufficient on this element, and because the evidence is

factually sufficient, it is necessarily legally sufficient. Id. Patricia testified that she does not understand the

at 573. English language and could not read the letters sent to her
by caseworkers, but Gilley testified that Patricia had
(2) Reasomwble Efforts to Return the Child communicated in the past with limited English. In any
event, once Patricia was released, a Spanish translator
The second element is whether the Department was provided whenever she met with the caseworker, and
made reasonable efforts to return the child." TEX. FAM. Spanish language services were made available to her as
CODE ANN. § l6l.0Ol(l)(N)(i). Patricia contends that well.
the Department failed to make reasonable efforts
because: (1) it did not formally serve her with citation Regarding transportation, Patricia testified that she
until three months after taking M.V.G.; (2) it did not asked the Department for help with transportation, but
provide services for her while she was incarcerated; (3) CPS Diann Amcs testified that she did not know until
the assigned caseworker sent letters to her in English Patricia testified at trial that her van did not have a
even though she speaks Spanish; (4) the Department current registration. She had seen Patricia driving the van
contacted only one other family member for alternative to visits and assumed it was roadworthy. She did recall
placement; and (5) it failed to arrange transportation for that Patricia testified at the December permanency
her to obtain counseling and other required services. hearing that the van did not have acurrent inspection
sticker.
"
The and administration of a
State's preparation
service plan for the parent constitutes evidence that the There is conflicting testimony on this element, and
State made reasonable efforts to return the child to the there probably are things the Department could have done
parent." M.R.J.M., 280 SW3d at 505; accord MC. V. differently, but the issue is whether the Department made
Tex. Dep'r 0fFamiIy &Pratectr've SEl'\7S., 300 S.W.3(l
"
reasonable efforts" not ideal efforts.

305, 309-10 (Tex.App.--El Paso 2009, pct. denied); Liu v.

Dep? ofFz1miIy & Protective Se/'vs.,273 S.W.3d 785, Considering all the evidence in aneutral light, we
"
795 (Tex.App.-~l-louston [lst Dist.] 2008, no pet.). hold that the evidence is such that the court could
reasonably form a firm belief or conviction" that the
We first observe that Patricia relies in part on Department made reasonable efforts to return M.V.G.
testimony from various pretrial hearings to show that the Thus, the evidence is factually sufficient on this element,
Department had failed to promptly conduct a home study and because the evidence is factually sufficient, it is

ofJoel's mother's home in Puerto Rico, had been given necessarily legally sufficient. See D.S.A., ll3 S.W.3d at

the names of" more than one" relative to contact but only 573.
contacted one, [3] and had assured the court that it would
provide services to Patricia while she was incarcerated. ( 3) Regular Visits
She also relies on her own testimony from a December
permanency hearing to show that the Department had The third element is whether Patricia has "

regularly visited or maintained significant contact with
notice that she did not have reliable transportation to
 [M.V.G.]" TEX. FAM. CODE ANN. § 16l.00l(l)(N)(ii). Summary
On this issue, Patricia refers to letters she mailed to the
caseworker while she was incarcerated, and the fourteen There is conflicting evidence in the record, but we
visits she had with M.V.G. from October to December. conclude that the evidence is legally and factually
However, Gilley testified that the Department received sufficient to support the court's finding ofconstructive
only two letters from Patricia during the eleven months abandonment under section 16 l .00 1 ( l )(N).
she was incarcerated. Also, Patricia refused to submit to a
drug test in early December, missed a scheduled visit one Best Interest of Child
week later, and did not have a single visit with M.V.G.
Patricia also challenges the sufficiency of the
for more than a month and a half before trial.
evidence to support the best interest finding.
There is conflicting testimony on this element as
well. But the court could have been persuaded more by
The primary factors to consider when evaluating
whether termination is in the best interest of the child are
I’atrieia's lack ofeffort to maintain contact with M.V.G.
the familiar Holley factors, which include:
during the first eleven months of her life and the lack of
visits during the two months before trial than by the
(I) the desires of the child; (2) the emotional and physical
frequent visits she had between October and December,
needs of the child now and in the future; (3) the

Considering all the evidence in a neutral light, we
emotional and physical danger to the child now and in the
" future; (4) the parental abilities of the individuals seeking
hold that the evidence is such that the court could
custody; (S) the programs available to assist these
reasonably fonn a finn belief or conviction" that Patricia
individuals to promote the best interest ofthe child; (6)
failed to regularly visit or maintain significant contact
the plans for the child by these individuals or by the
with M.V.G. Thus, the evidence is factually sufficient on
agency seeking custody; (7) the stability ofthe home or
this element, and because the evidence is factually
proposed placement; (8) the acts or omissions of the
sufficient, it is necessarily legally sufficient. See D.S.Ar,
parent which may indicate that the existing parent-child
l 13 S.W.3d at 573.
relationship is not a proper one; and (9) any excuse for

Environment the acts or omissions of the parent.
( 4) Safe

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976);
The final element is whether Patricia
demonstrated an inability to provide [M.V.G.] with a safe T.N.F., 205 S.W.3d at 632.
environment." Id. § l6l.00l(l)(N)(iii). Here, Patricia
Desires ofthe Child:
refers to the Departments failure to explore placement
alternatives in Puerto Rico and the failure to re-visit her
Because ofM.V.G.‘s age, there is no evidence
home after an initial visit in early October. However,
relevant to this factor. See In re SN, 272 S.W.3d 45,
Arncs testified that she went to Patricia's
51-52 (Tex.App.--Waco 2008, no pet).

Page 62
Child's Emotional and Physical Needs:
home three times after the initial visit but no one
M.V.G. has the usual emotional and physical needs
answered the door even though the van was in the
ofa toddler. The foster parents are currently meeting her
driveway. Johnson testified that she visited later and it
needs in a safe and secure environment. There is limited
did appear that Patricia had been cleaning the house and
evidence with regard to whether Patricia can adequately
had obtained a baby bed for M.V.G., but Johnson also
provide for her needs because they have had so little
testified that she was aware of
"
no facts to prove that
interaction outside ofthe scheduled visits. However, the
[Patricia and Joel] are capable of providing the
record does contain evidence giving rise to a concern
environment that [M.V.G.] requires." In addition,
about Patricia's ability to provide for M.V.G.'s needs
Johnson testified that she made several phone calls to
because she: (I) has not provided infonnation regarding
Puerto Rico and was convinced that there was no
her family income and expenses; (2) apparently does not
appropriate or safe environment available for M.V.G. in
have reliable transportation; (3) has not allowed a
Puerto Rico.
follow-up visit inside her home; (4) declined to submit to
drug testing; and (5) did not work on her service plan. In
Considering all the evidence in a neutral light, we
" addition, some testimony was presented at trial raising a
hold that the evidence is such that the court could
had moved out of the house she
possibility that Patricia
reasonably form a finn belief or conviction" that Patricia
" shared with Joel, but she was not asked about this during
demonstrated an inability to provide [M.V.G.] with a
safe environment." Thus, the evidence is factually
her own testimony. Thus, the record contains conflicting
evidence on this issue.
sufficient on this element, and because the evidence is
factually sufficient, it is necessarily legally sufficient. See
Emotional and Physical Danger to Child:
D.S.A., 113 S.W.3d at 573.
 The primary evidence relevant to record regarding the best-interest factors, it was within
the court's discretion as finder of fact to resolve those
Page 63 conflicts against Patricia. See In re A.M.C., 2 S.W.3d
707, 7l7 (Tex.App.--Waco 1999, no pet). Considering
this factor is Patricia's refusal to submit to a drug test and all the evidence in a neutral light, we hold that the
her failure to allow a follow-up visit inside her home. "
evidence is such that the court could reasonably form a
This evidence supports a finding that Patricia poses a fimr belief or conviction" that termination of Patricia's
present or future risk of danger to M.V.G. Id. at 52-53.
parental rights would be in M.V.G.'s best interest. Thus,
the evidence is factually sufficient on this element, and
Parental Abilities:
because the evidence is factually sufficient, it is

Patricia appropriately with M.V.G.
interacted
necessarily legally sufficient. See D.S.A., ll3 SW3d at

573.
during her She did not participate in parenting
visits.

classes and other services which would have potentially
We overrule Patricia's sole issue.
enhanced her parental abilities. Thus, the record contains
conflicting evidence on this issue. Ia’. at 53. JOEUS APPEAL
Available Progranis: Joel contends in five points that: (1) the court erred
by denying his request for ajury trial; (2) the court erred
Patricia did not panicipate in the programs that
by rendering a defaultjudginent against him; (3) the
were made available to her. There is no evidence that this
evidence is insufficient to support the tennination order;
would change in the future. Thus, the evidence relevant
(4) this appeal is not frivolous; and (5) section 263.405 of
to this factor supports the best-interest finding. Cf id.
the Family Code is unconstitutional.

Plans for the Child:
Frivolousness Determination

Patricia planned to take M.V.G. to Puerto Rico to
Joel's fourth point challenges the court's finding that
be reunited with her siblings. She was consistent with her
his appeal is frivolous
plans for M.V.G. from her birth. Thus, the evidence
relevant to this factor does not support the best-interest Page 64
finding. Id.

but provides no argument or authority. [4] Nevertheless,
Stability ofthe Home: he has briefed the four other points noted on their merits.
"
[S]cctioii 263.405(g) clearly litnits this Court's review
We have already discussed at length the evidence
at this juncture to the issue ofwhether [Joel's] appeal is
relevant to the stability ofPatricia's home, The evidence
frivolous." In re 5.71, 242 S.W.3d 923, 926
relevant to this factor suppoi'ts the best-interest finding.
(Tcx.App.~-Waco, order) (per curiain), disp. an merils ,

263 SW3d 394 (Tex.App.--Waco 2008, pet. denied); see
See i1/. at 53.

In re K.D., 202 S.W.3d 860, 865 (Tex,App.--Fort Worth
Patricia '5 Acts and Omissions (and Excuses )2
2006, no pct); TEX. FAM. CODE ANN. §263.405(g)
Patricia established good
pattern of visitation
a
(Vernon 2008). Therefore, we construe Joel's appellate
poiirts as challenging the trial court's determination that
with M.V.G. from custody. She also
after her release
e.g., In re ML.J.,
the issues discussed are frivolous. See,
indicated that she was working to clean up her home to
provide a safe environment for M.V.G. However, she did No. 02~07-00l78-CV, 2008 Tex.App. LEXIS 3218, 2008
not perform any of the services ordered by the court and
WL 1932076, at *3 (Tex.App.--Fort Worth May 1, 2008,
pet. denied) (inein. op.).
of particular concern refused to submit to a drug test. In
addition, she never allowed Ames to have afollow-up
visit inside her home to confirm her progress, though
We review the court's decision under air
abuse~of-discretion standard. S. T., 263 S.W.3d at 398;
Ames attempted to do so at least three times. Although
K.D., 202 S.W.3d at 866.
"
An appeal is frivolous when it
Patricia testified that a lack of reliable transportation was
lacks an arguable basis in law or in fact." S.T., 263
the reason she was unable to perform the services, Ames
S.W.3d at 398 (quoting [ii reM.N.V.,2l6 S.W.3d 833,
and Johnson tcstified that she gave other excuses to them
834 (Tex.App.--San Antonio 2006, no pet); (record K.D.,
including issues with paperwork, language barriers, and
202 S.W.3d at 866. For the reasons which follow, we
not wanting to use her cell phone minutes waiting on hold
conclude that Joel's appeal is not frivolous and the trial
when trying to make appointments with providers. Here
coun abused its discretion by concluding otherwise. See
again the record contains conflicting evidence regarding
In re A.S., 241 S.W.3d 661, 666(Tex.App.--Texarkana
these factors.
2007, no pet.) (appeal not frivolous where trial court
improperly dcniedjuiy request).
Summary:

To the extent there is conflicting evidence in the
 Right to Jury Trial finding on appeal, he cannot (and does not) [6] contend
that a material fact question exists on this predicate
Joel contends in his first point that the court abused ground for termination. Thus, he cannot show that the
its discretion by denying his request for ajury trial. [5] error in denying his jury request requires reversal. See
Hollywood Park Humane Soc’y, 261 SW3d at 139.
Joel filed ajury demand and tendered the requisite
fee. See TEX. R. ClV. P. 216. When Joel failed to We overrule Joel's first point.
personally appear for trial, the court advised his counsel
that Joel had waived his right to a jury under Rule of Default Judgment
Civil Procedure 220. Id. 220.
Joel contends in his second point that the court
Rule 220 provides in pertinent part, " Failure of a abused its discretion by rendering a post-answer default
party to appear for trial shall be deemed a waiver by him judgment against him.
of the right to trial by jury." Id. " [F]or purposes of Rule
220, a party, although not personally present, appears for There is no default when a party fails to appear for
trial when his attorney is present." In re W.B.W., 2 trial but counsel appears on the party's behalf. Le Blzmc v.

S.W.3d 421, 422 (Tex.App.--San Antonio 1999, no pet.) Le Blzmc, 778 SW2d 865, 865 (Tex.
1989) (per curiam);
(quoting Rainwater v. Haddox, 544 SW2d 729, 732 In re KC, 88 S.W.3d 277, 279 (Tex.App.--San Antonio
(Tex.Civ.App.--Arnarillo 1976, no writ)). Thus, the court 2002, pet. denied). Thus the court abused its discretion by
abused its discretion by removing Joel's case from the rendering a defaultjudgment against Joel.
jury docket. Ia’. Such error requires reversal "when the
case contains material fact questions." Mercc(IesABenz Joel contends that he was harmed because the court
Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex. 1996); refused to permit his counsel to call witnesses, present
evidence, or present argument on Joel's behalf. At the
accord Hollywood Park Humane Soc’y v. Town of
beginning of trial, Joel's counsel asked whether he would
Hollywood Park. 261 S.W.3d 135, 139 (Tex.App.--San
Antonio 2008, no pet); A.S., 241 SW3d at 666. be permitted to cross-examine witnesses or call witnesses
in view of the court's oral rendition ofa defaultjudgment.

CPS alleged and the trial court found three The trial court advised counsel that he could
predicate grounds for termination, namely, that Joel: (1) cross-examine witnesses and, if he desired to call a
knowingly placed or allowed M.V.G. to remain in witness, the court would examine the matter at that point
dangerous conditions or surroundings; (2) engaged in to dctcnninc whether he would be permitted to do so. The
conduct or knowingly placed M.V.G. with persons who court also permitted counsel to make an opening
engaged in conduct which endangered her; and (3) failed statement on Joel's behalf‘.

to comply with a court order that established the actions
Joel's counsel actively participated in virtually the
necessary for the return of M.V.G. See TEX. FAM.
CODE ANN. making objections which the court ruled on,
entire trial,
§ 161,00|(1)(D), (E), (O).
cross-examining witnesses, and offering exhibits which
Page 65 were admitted in evidence. Counsel never attempted to
call a witness on Joel's behalf‘. At the conclusion of trial,

As noted, Joel's third point challenges the the court overruled Joel's motion for directed verdict. The
sufficiency of the evidence to support the termination court confirmed its prior ruling that counsel was not
order. He does not, however, clearly specify which of the pcnnittcd to offer evidence or call witnesses, yet counsel
predicate grounds for tenninatiorr he is challenging. had in fact offered evidence which was admitted and
Instead, he challenges the findings that: (1) he " engaged counsel never attempted to call a witness to testify and
in any act to endanger or abandon the child or leave her at never identified any witnesses whom counsel wanted to
places or with persons that would either" ;(2) " engaged call. Counsel was not permitted to make a final argument

in any of the acts found by the trial court" or (3) actively ; on Jocl’s behalf.
or constructively abandoned the child. Because Joel's
third point challenges the court's findings regarding his Page 66
conduct, we construe it as challenging the second and
third predicate grounds for termination (abuse and failure
To the cxtcnt counsel was not permitted to present

to comply with court order) but not the first (neglect). witnesses on Joel's behalf, he did not identify a single
witness to the trial court (either during the trial or the
Afinding under (D) that aparent has knowingly hearing on his motion for new trial) whom he wished to

placed or allowed a child to remain in dangerous call nor the substance of such witncss’s testimony.
conditions or surroundings is based on the child‘s " Neither has he done so in his appellate brief. Thus, it
conditions and surroundings" rather than the parent's cannot be said that he was harnred by the trial court's

conduct. S.N., 272 S.W.3d at 61; see In re S.K., 198 erroneous rendering of a default judgment. See Hughes v.

S.W.3d 899, 902 (Tex.App.-»Dallas 2006, pet. denied); In Gr0g(m—Lamm Lumber C0,, 331 S.W.2d 799, 803
re D../../., 178 S.W.3d 424, 429 (Tex.App.--Fort Worth (Tcx.Civ.App.--Dallas 1960, writ refd n.r.e.) (" no
2005, no pet.). Because Joel does not challenge this showing was made on the motion for new trial that
McCollough would probably be present at another trial, With regard to the second complaint, the trial court
or what his testimony would be, nor how or in what advised counsel at the new trial hearing that the court
manner it would probably cause the rendition of a would not pay for appointed counsel to represent Joel on
different verdict" ); C/ark v. Brown, 234 S.W.2d l0l3, appeal after finding that the appeal was frivolous and
l0l4(Tex.Civ.App.--San Antonio 1950, no writ); cf noting that Joel had failed to appear for trial and had not
Harrison v. State, 187 SW3d 429, 435 (Tcx.Crim.App. recently communicated with counsel. Nevertheless,
2005) (" If an appellant seeks a new trial based on the
denial ofa motion for continuance for an absent witness, Page 67
he must file a sworn motion for new trial, stating the
testimony that the missing witness would have provided." this Court by order dated April 10, 2009 advised the
"
).
parties that an indigent person has astatutory right to
appointed counsel to represent him in an appeal
We overrule Joel's second point. challenging a court's detennination under section
263.405(d) that his appeal is 285
frivolous." In re M V. G.,
Sufficiency of the Evidence S,W.3d 573, 576 n,2(Tex.App.--Waco 2009, order)
(quoting In re S.T., 239 S.W.3d 452, 457
Joel challenges the legal and factual sufficiency of (Tex.App.--Waco 2007, order) (per curiam), disp. an
the evidence to support the tennination order in his third merits, 263 S,W.3d 394 (Tex.App.—-Waco 2008, pet.
point. However, he does not challenge the sufficiency of denicd)). Joel's counsel has actively represented him on
the evidence to support the affirmativc finding on the appeal.
predicate ground for termination under (D) that a parent
has knowingly placed or allowed a child to remain in Joel's fifth point is overruled.
dangerous conditions or surroundings. Nor does he
challenge the sufficiency of the evidence to support the The tennination order with regard to both Patricia
best interest finding. See S,N., 272 S.W.3d at 49 (" to and Joel is aftinned.
mount a successful on appeal based on
challenge
evidentiary insufficiency, must challenge each
a party
Affirmcd
affirmative finding of a predicate ground for termination
or at minimum challenge the best interest finding" ).

Notes:
We overrule Joel's third point.
Constitutionality of Section 263.405
[l]To protect the identity of the child who is the subject
ofthis suit, we shall refer hereinafter to the parents by
Joel contends in his fifth point that section 263.405 pseudonyms. See TEX. FAM. CODE ANN. § l09.002(d)
of the Family Code is unconstitutional because (Vernon 2008); TEX. R, APP. P. 9,8(b)(2).
it: (1)
interferes with thejurisdiction of the appellate court; (2) "

[2]Jocl‘s mother lives in Puerto Rico and currently has
attempts to deny the right to counsel to an appealing
" custody of eight of Patricia's and his other children.
litigant" (3)
; interferes with the due process and orderly
jurisprudence in this Court and itsjurisdiction over an
[3]ln fact, the caseworker tcstified, "The only relatives
appeal" and (4) " further attempts to limit the
;
[sic] available that I've been given [who] are in Puerto
jurisdiction of this Court by requiring astatement of Rico is [sic] the grandmother that had received the
points for appeal and limits the manner and type of
previous children."
claims that can be preserved in a motion for new trial."
[4]lnstead, Joel has briefed this point together with his
We construe Joel's complaint to present in essence
fifth point challenging the constitutionality of section
two constitutional claims: (1) section 263.405
[flor purposes of brevity and convenience." He
"
263.405
unconstitutionally limits the appellate issues which may states in conclusory fashion, " Appellant asserts for all of
be considered; and (2) section 263.405 unconstitutionally
the reasons set forth in this Brief that his appeal is not
pennits a trial court to deny the right to counsel to an
frivolous."
indigent appellant.

[5]Joel refers in his brief to Patricia’s jury demand, but
With regard to his first complaint, he has not
the clerk's record indicates that Joel's attorney filed a
identified any issue which he has been prevented by the
writtenjuiy demand on his behalf.
statute from presenting to this Court for review. See
MC, 300 S.W.3d at 314; In re S.N., 292 S.W.3d 807, [6]ln fact, Joel does not even attempt to explain in his
8] 1-12 (Tcx.App.--Eastland 2009, no pet.); In re briefhow he was harmed by the court's erroneous denial
E.A.W.S'., N0. 02-06-00031-CV, 2006 Tex.App. LEXIS of his request for ajury trial other than to say he was "
10515, 2006 WL 3525367, at *l8 (Tcx.App.--Fort Worth adversely affected" because the judgment " was rendered
Dec. 7, 2006, pet. denied) (mcm. op.). herein by the Judge."