in the Interest of A.B.

548 S.W.3d 81

• Court: Court of Appeals of Texas
• Decided: March 22, 2018
• Docket: 09-17-00365-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-17-00365-CV ____________________

IN THE INTEREST OF A.B. __________________________________________________________________

On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 16-03-03583-CV __________________________________________________________________

OPINION

In this accelerated appeal, appellant S.B. (“Susan”) appeals from the trial

court’s order in a suit affecting the parent-child relationship, entered after a jury trial,

appointing an intervening nonparent as the sole managing conservator of Susan’s

child, A.B., and appointing Susan as the possessory conservator.1 In two issues,

Susan argues that the evidence is legally and factually insufficient to support the

jury’s finding that a nonparent should be appointed managing conservator of A.B.,

1 To preserve the parties’ privacy and for convenience, we refer to the parties by fictitious names and to the child by her initials. See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8. 1

and that she received ineffective assistance of counsel. We affirm the trial court’s

judgment.

BACKGROUND

In March 2016, the Department of Family and Protective Services (“the

Department”) filed a petition for the protection of a child, for conservatorship, and

for termination. A.B. was one of the children subject to the suit. According to the

Department’s petition, the Department took possession of A.B. after the Department

received a referral alleging neglectful supervision, ongoing violence in the home,

and that Susan had untreated mental health issues and was using methamphetamines.

The Department requested that it be appointed as the temporary sole managing

conservator of A.B., and if A.B. could not be reunited with either parent, that the

trial court appoint a relative or other suitable person as permanent sole managing

conservator of A.B. The Department also requested that Susan’s parental rights to

A.B. be terminated if reunification could not be achieved.

After a full adversary hearing, the trial court appointed the Department as the

temporary managing conservator of A.B., and found that it was in the best interest

of A.B. to limit Susan’s rights and duties as temporary possessory conservator. The

trial court ordered Susan to submit to a home study and comply with the

Department’s service plan during the pendency of the suit. The trial court also

ordered A.B.’s father, A.L.B. Jr. (“Alan”), to comply with a family service plan.

Susan and Alan filed counterpetitions for conservatorship, requesting that the trial

court appoint them, among other things, as joint managing conservators with the

right to determine A.B.’s domicile. During a permanency hearing, the trial court

found that A.B.’s parents were unable to provide A.B. with a safe environment,

ordered A.B. placed in foster care, and ordered A.B.’s parents to have supervised

visitation.

After Susan requested a jury trial, A.B.’s biological half-sister, H.S. (“Holly”),

filed a petition in intervention in the suit and for sibling access, requesting that she

be appointed the sole managing conservator of A.B. J.M. (“James”), a blood relative

of A.B., also filed a petition in intervention for conservatorship and requested that

he be appointed sole managing conservator. The case proceeded to trial, and the jury

was asked whether the Department, Susan, Holly, or James should be appointed

managing conservator. The jury found that Holly should be appointed managing

conservator of A.B. The trial court issued a final order appointing Holly as sole

managing conservator of A.B. and Susan as possessory conservator. Susan appealed.

ANALYSIS

In issue two, which we address first, Susan argues that the evidence is legally

and factually insufficient to support the jury’s finding that Holly should be appointed

as the sole managing conservator of A.B. Our review of the record indicates that

Susan did not preserve her legal and factual sufficiency complaints for our review.

Rule 324 of the Texas Rule of Civil Procedure requires a motion for new trial

to preserve a complaint of factual sufficiency of the evidence to support a jury

finding. Tex. R. Civ. P. 324(b)(2), (3). In a jury trial, a legal sufficiency issue must

be preserved by filing one of the following in the trial court: a motion for instructed

verdict; a motion for judgment notwithstanding the verdict; an objection to the

submission of the question to the jury; a motion to disregard the jury’s answer to a

vital fact question; or a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509,

510-11 (Tex. 1991); In the Interest of T.L.P., No. 09-13-00220-CV, 2013 WL

5874630, at *2-3 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.). The

record shows that Susan failed to file the required motions and objections to preserve

her legal and factual sufficiency complaints. See Tex. R. Civ. P. 324(b)(2), (3); In

the Interest of T.L.P., 2013 WL 5874630, at *2-3. Susan also does not argue in her

brief that trial counsel unjustifiably failed to preserve her legal sufficiency issue. See

In the Interest of J.P.B., 180 S.W.3d 570, 574 (Tex. 2005). Because Susan waived

these complaints, we overrule issue two. See Tex. R. App. P. 33.1(a).

In issue one, Susan complains that she received ineffective assistance of

counsel that resulted in the jury appointing Holly as managing conservator of A.B.

In support of her argument, Susan argues that the Texas Supreme Court has held that

there is a statutory right to effective assistance of counsel for indigent persons in

parental-rights termination cases. See In the Interest of M.S., 115 S.W.3d 534, 544

(Tex. 2003). Susan does not cite to any authority supporting her claim that the right

to effective assistance of counsel extends to cases that only resolve conservatorship

issues.

Although the Department’s petition sought the termination of Susan’s parental

rights if reunification with Susan could not be achieved, the Department did not seek,

and the jury did not find at trial, that Susan’s parental rights to A.B. should be

terminated.2 The record shows that the parties only submitted one question to the

jury: “Who should be appointed managing conservator of the child, [A.B.]?” The

case tried to the jury was one of conservatorship, not termination, and because there

is no constitutional or statutory provision granting a right to appointed counsel in

cases resolving the managing conservatorship of a child, we decline to extend a right

to effective assistance of counsel to the dispute in this case. See In the Interest of

G.J.P., 314 S.W.3d 217, 221-24 (Tex. App.—Texarkana 2010, pet. denied). Further,

2 Although the Department’s original petition sought the termination of Susan’s parental rights, the record shows that the Department did not seek termination at trial. The record further shows that the intervenors abandoned their termination pleadings and that all the parties agreed that termination was not an issue for trial. 5

no motion for new trial was filed, and the record before us is insufficient to show

that counsel’s performance was ineffective. We overrule issue two. Having

overruled both of Susan’s issues, we affirm the trial court’s judgment.

AFFIRMED. ______________________________ STEVE McKEITHEN Chief Justice

Submitted on January 17, 2018 Opinion Delivered March 22, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.