in the Interest of A.S., J.S., A.S., and D.S., Children

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00281-CV

IN THE INTEREST OF A.S., J.S., A.S., AND D.S., CHILDREN

From the County Court at Law Bosque County, Texas Trial Court No. CV15247

MEMORANDUM OPINION

Candice and Daniel S. appeal separately from a judgment that terminated their

parental rights to their children, A.S., J.S., A.S., and D.S. TEX. FAM. CODE ANN. §

161.001(b)(1) (West 2014). Candice complains that the evidence was factually insufficient

for the jury to have found that termination was in the best interest of the children. Daniel

complains that the evidence was legally and factually insufficient for the jury to have

found the predicate grounds for termination and that termination was in the children's

best interest. Because we find that Candice did not preserve her complaint by filing a

motion for new trial, we overrule her sole issue and affirm the judgment as it relates to

Candice. Because we find that the evidence was legally and factually sufficient for the jury to have found that Daniel failed to complete his service plan and that termination

was in the best interest of the children, we affirm the judgment relating to Daniel.

CANDICE

In her sole issue, Candice complains that the evidence was factually insufficient

for the jury to have found that termination of the parent-child relationship was in the

children's best interest. However, Candice did not file a motion for new trial. In order to

complain on appeal, a party must file a motion for new trial to preserve a factual

sufficiency challenge. TEX. R. CIV. P. 324(b)(2); In re A.M., 385 S.W.3d 74, 79 (Tex. App.—

Waco 2012, pet. denied). We conclude that Candice failed to preserve the factual

sufficiency complaint made in her sole issue. In re A.M., 385 S.W.3d at 79. Accordingly,

we overrule Candice's sole issue.

DANIEL

PREDICATE GROUNDS

In his first issue, Daniel complains that the evidence was legally and factually

insufficient for the jury to have found that he (1) voluntarily left the children in the

possession of another without providing adequate support of the children and remained

away for a period of at least six months; (2) engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangers the physical or

emotional well-being of the children; (3) had been convicted or placed on community

supervision for being criminally responsible for the death or serious injury of a child; (4)

In the Interest of A.S., J.S., A.S., and D.S., Children Page 2 constructively abandoned the children; and (5) failed to comply with the provisions of a

court order that specifically established the actions necessary for the parent to obtain the

return of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(C), (E), (L), (N), & (O).

Only one statutory predicate ground is necessary to support termination of parental

rights when there is a finding of best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex.

2003) ("Only one predicate finding under section 161.001(b)(1) is necessary to support a

judgment of termination when there is also a finding that termination is in the child's best

interest.").

Termination decisions must be supported by clear and convincing evidence. TEX.

FAM. CODE ANN. §§ 161.001(b), 161.206(a). Evidence is clear and convincing if it "will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established." TEX. FAM. CODE ANN. § 101.007.

In evaluating the evidence for legal sufficiency in parental-termination cases, we

determine whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding

and judgment, and resolve any disputed facts in favor of the finding if a reasonable

factfinder could have done so. Id. We disregard all contrary evidence that a reasonable

factfinder could have disbelieved. Id. We consider undisputed evidence even if it is

contrary to the finding. Id. In other words, we consider evidence favorable to termination

In the Interest of A.S., J.S., A.S., and D.S., Children Page 3 if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable

factfinder could not. Id. We do not weigh credibility issues that depend on the

appearance and demeanor of the witnesses, for that is solely the province of the

factfinder. Id. at 573-74. Even when credibility issues appear in the record, we defer to

the factfinder's determinations as long as they are reasonable. Id. at 573.

In reviewing the factual sufficiency of the evidence, we give due deference to the

factfinder's findings and do not supplant the factfinder's judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a

factfinder could reasonably form a firm conviction or belief that the parent committed

the predicate ground alleged and that the termination of the parent-child relationship

would be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1); see In re

C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed evidence

that a reasonable factfinder could not have credited in favor of the finding is so significant

that a factfinder could not reasonably have formed a firm belief in the truth of its finding,

then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.

Section 161.001(b)(2)(O) of the Family Code provides that parental rights may be

terminated if a parent "failed to comply with the provisions of a court order that

specifically established the actions necessary for the parent to obtain the return of the

child who has been in the permanent or temporary managing conservatorship of the

Department of Family and Protective Services for not less than nine months as a result of

In the Interest of A.S., J.S., A.S., and D.S., Children Page 4 the child's removal from the parent under Chapter 262 for the abuse or neglect of the

child." TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Daniel argues that he substantially

complied with the service plan and because of this, the evidence was insufficient to

terminate his parental rights on this basis.

This Court has long held that we do not consider "substantial compliance" to be

the same as completion for purposes of subsection (O) of the Family Code, nor does that

subsection provide for excuses for failure to complete court ordered services. See In re

T.N.F., 205 S.W.3d 625, 630-31 (Tex. App.—Waco 2006, pet. denied) (emphasizing that

parents must comply with every requirement of the court order and that subsection (O)

does not allow for consideration of excuses for noncompliance).

The evidence is undisputed that Daniel did not complete every requirement of the

service plan. He was ordered to complete a psychological evaluation, which he did later

in the proceedings, and was to follow its recommendations which included a requirement

to attend a behavioral intervention program, which he did not do. Daniel was ordered

to participate in therapy and follow all recommendations, but his attendance was

extremely sporadic, with him missing scheduled sessions. Daniel was required to

maintain housing and employment during the case, but failed to do both. However, he

and Candice were living in a residence at the time of trial and he had been working at a

job for a few months. Daniel had only provided one paystub to the Department during

the entire case showing that he made $300. He had four jobs and he and Candice had

In the Interest of A.S., J.S., A.S., and D.S., Children Page 5 multiple residences throughout the proceedings. Daniel and Candice were even

homeless at one point after having to leave his family's residence. After reviewing the

evidence under the appropriate standards, we determine the evidence to be legally and

factually sufficient to prove that Daniel failed to complete his court-ordered service plan.

Accordingly, termination of his parental rights was proper pursuant to section

161.001(1)(O).

Because it is only necessary that we determine the evidence was legally and

factually sufficient as to one predicate ground under section 161.001(b)(1), we will not

address the sufficiency of the evidence relating to sections 161.001(1)(C), (E), (L), or (N).

Issue one is overruled.

BEST INTEREST

In his second issue, Daniel complains that the evidence was legally and factually

insufficient for the jury to have found that termination was in the children's best interest.

There are several nonexclusive factors that the trier of fact in a termination case may

consider in determining the best interest of the child, which include: (a) the desires of the

child, (b) the emotional and physical needs of the child now and in the future, (c) the

emotional and physical danger to the child now and in the future, (d) the parental abilities

of the individuals seeking custody, (e) the programs available to assist these individuals

to promote the best interest of the child, (f) the plans for the child by these individuals or

by the agency seeking custody, (g) the stability of the home or proposed placement, (h)

In the Interest of A.S., J.S., A.S., and D.S., Children Page 6 the acts or omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one, and (i) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In

re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Some listed factors may be inapplicable to some

cases while other factors not on the list may also be considered when appropriate. Id.

The children were removed from their parents after Daniel slapped J.S. so hard

that it left a substantial bruise on his face and neck. Daniel ultimately pled guilty to injury

to a child for this offense and was placed on community supervision. Their home was

also found to be very unsanitary at the time of the removal. The children were initially

placed with Daniel's father, but that placement ended when Daniel's father was unable

to meet the children's needs. The children all had special needs. The children were placed

in a children's home in Lubbock where A.S., A.S., and D.S. showed improvement during

the pendency of the proceeding. J.S. continued to have behavioral problems which

resulted in his placement at a residential treatment facility a couple of months before the

jury trial, and this placement would only continue after the trial if the Department was

the managing conservator of the children or if Daniel and Candice paid for it directly.

There was a substantial history of domestic violence, both physical and sexual,

between Daniel and Candice, and Daniel admitted to raping Candice. Candice told the

caseworker she was fearful of Daniel, but Candice reconciled with Daniel after he was

released from jail because he apologized to her, which she said he had never done before.

In the Interest of A.S., J.S., A.S., and D.S., Children Page 7 The children exhibited significant anger and fear toward their father, and told their

therapist that both Candice and Daniel would hit all of them regularly. A.S. and J.S. were

only slightly bonded to Daniel. The children exhibited emotional distress at their

placement due to the trauma they had previously suffered, and made multiple outcries

of abuse against their parents. Although at times the children were jealous of other

children at the home who visited with their parents, their therapist did not recommend

that Daniel have contact with the children. A.S., J.S., and A.S. were all in therapy and

therapy would continue if the Department remained the children's conservator. D.S. was

too young at the time of trial for counseling to be of benefit to him, but it would also be

available to him in the future if needed.

Daniel had four different jobs during the pendency of the case, and he and Candice

had moved multiple times and were at times homeless. Daniel and Candice testified that

at the time of the trial they had established a residence and Daniel had a job for several

months that he intended to keep. Candice and Daniel had prior CPS involvement from

Georgia for failing to maintain suitable housing for the children when they resided there.

Candice was suffering from severe depression, which Daniel believed would be

fully resolved if the children were returned; however, Candice had been suffering from

depression prior to the removal and Candice and Daniel claimed that it was a cause of

her inability to maintain the residence in a satisfactory condition.

In the Interest of A.S., J.S., A.S., and D.S., Children Page 8 Daniel did not complete therapy, the behavioral intervention program, pay any

child support, or visit with the children during the pendency of the proceedings. Daniel

blamed these failures on a lack of transportation, the Department's refusal to work with

him, and his work schedule.

Using the appropriate standards for reviewing the legal and factual sufficiency of

the evidence, we find that the evidence was both legally and factually sufficient for the

jury to have found that termination of Daniel's parental rights was in the best interest of

the children. We overrule Daniel's second issue.

CONCLUSION

Having found no reversible error, we affirm the judgment.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed April 19, 2017 [CV06]

In the Interest of A.S., J.S., A.S., and D.S., Children Page 9