in the Interest of J.B., C.B., S.J., B.J., and L.Z., Children

Court of Appeals of Texas

in the Interest of J.B., C.B., S.J., B.J., and L.Z., Children

DecidedJune 17, 1998

Docket10-97-00348-CV

StatusPublished

This text of in the Interest of J.B., C.B., S.J., B.J., and L.Z., Children (in the Interest of J.B., C.B., S.J., B.J., and L.Z., Children) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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in the Interest of J.B., C.B., S.J., B.J., and L.Z., Children, (Tex. Ct. App. 1998).

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Opinion

In the Interest of J.B., C.B., S.J., B.J., and L.Z., Children

IN THE

TENTH COURT OF APPEALS

No. 10-97-348-CV

IN THE INTEREST OF J.B., C.B.,

S.J., B.J., AND L.Z., CHILDREN,

From the 323rd District Court

Tarrant County, Texas

Trial Court # 323-57274-J

O P I N I O N

A jury terminated the parental rights of Appellant Vicki Burton to her five children. See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 1998). Burton presents three issues in which she contends that the evidence is legally and factually insufficient to support the jury’s verdict that: (1) she knowingly placed or knowingly allowed the children to remain in conditions and surroundings which endangered their well-being; (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their well-being; or (3) termination of her parental rights is in the best interest of the children.

The Department of Protective and Regulatory Services (the “Department”) responds that Burton has not properly preserved these issues for appellate review. We agree.

The appellate rules require a party to preserve appellate complaints by presenting them first to the trial court. Tex. R. App. P. 33.1. In order to properly preserve a challenge to the legal sufficiency of the evidence, a party must have first presented the contention to the trial court either by:

(1) motion for instructed verdict;

(2) objecting to submission of the question;

(3) motion for judgment notwithstanding the verdict;

(4) motion to disregard the contested finding; or

(5) motion for new trial.

Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); Crow v. Burnett, 951 S.W.2d 894, 899 (Tex. App.—Waco 1997, pet. denied). Rule 324(b)(2) of the Rules of Civil Procedure requires a party to present a factual insufficiency complaint in a motion for new trial as a prerequisite to asserting the complaint on appeal. Tex. R. Civ. P. 324(b)(2); Cecil, 804 S.W.2d at 510; Crow, 951 S.W.2d at 899.

Burton’s motion for new trial provides in pertinent part that the “jury erred in finding from clear and convincing evidence” that: (1) she knowingly placed or knowingly allowed the children to remain in conditions and surroundings which endangered their well-being; (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their well-being; or (3) termination of her parental rights is in the best interest of the children. Her motion for new trial failed to adequately inform the trial court that she was challenging the legal or factual sufficiency of the evidence to support the jury’s findings. See Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149-51 (Tex. App.—Corpus Christi 1996, no pet.); Marino v. Hartsfield, 877 S.W.2d 508, 512-13 (Tex. App.—Beaumont 1994, writ denied); Morrow v. Flores, 225 S.W.2d 621, 625 (Tex. Civ. App.—Fort Worth 1949, writ ref’d n.r.e.); see also Tex. R. Civ. P. 321. Burton did not challenge the legal sufficiency of the evidence by any of the other means identified above. See Crow, 951 S.W.2d at 899.

For these reasons, we conclude that Burton failed to properly preserve her challenges to the legal and factual sufficiency of the evidence to support the jury’s verdict. Accordingly, we overrule the issues she presents. We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance (dissenting)

Affirmed

Opinion delivered and filed June 17, 1998

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In the Interest of J.B., C.B., S.J., B.J., and L.Z., Children

IN THE

TENTH COURT OF APPEALS

No. 10-97-348-CV

IN THE INTEREST OF J.B., C.B.,

S.J., B.J., AND L.Z., CHILDREN,

From the 323rd District Court

Tarrant County, Texas

Trial Court # 323-57274-J

O P I N I O N

A jury terminated the parental rights of Appellant Vicki Burton to her five children. See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 1998). Burton presents three issues in which she contends that the evidence is legally and factually insufficient to support the jury’s verdict that: (1) she knowingly placed or knowingly allowed the children to remain in conditions and surroundings which endangered their well-being; (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their well-being; or (3) termination of her parental rights is in the best interest of the children.

The Department of Protective and Regulatory Services (the “Department”) responds that Burton has not properly preserved these issues for appellate review. We agree.

The appellate rules require a party to preserve appellate complaints by presenting them first to the trial court. Tex. R. App. P. 33.1. In order to properly preserve a challenge to the legal sufficiency of the evidence, a party must have first presented the contention to the trial court either by:

(1) motion for instructed verdict;

(2) objecting to submission of the question;

(3) motion for judgment notwithstanding the verdict;

(4) motion to disregard the contested finding; or

(5) motion for new trial.

Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); Crow v. Burnett, 951 S.W.2d 894, 899 (Tex. App.—Waco 1997, pet. denied). Rule 324(b)(2) of the Rules of Civil Procedure requires a party to present a factual insufficiency complaint in a motion for new trial as a prerequisite to asserting the complaint on appeal. Tex. R. Civ. P. 324(b)(2); Cecil, 804 S.W.2d at 510; Crow, 951 S.W.2d at 899.

Burton’s motion for new trial provides in pertinent part that the “jury erred in finding from clear and convincing evidence” that: (1) she knowingly placed or knowingly allowed the children to remain in conditions and surroundings which endangered their well-being; (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their well-being; or (3) termination of her parental rights is in the best interest of the children. Her motion for new trial failed to adequately inform the trial court that she was challenging the legal or factual sufficiency of the evidence to support the jury’s findings. See Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149-51 (Tex. App.—Corpus Christi 1996, no pet.); Marino v. Hartsfield, 877 S.W.2d 508, 512-13 (Tex. App.—Beaumont 1994, writ denied); Morrow v. Flores, 225 S.W.2d 621, 625 (Tex. Civ. App.—Fort Worth 1949, writ ref’d n.r.e.); see also Tex. R. Civ. P. 321. Burton did not challenge the legal sufficiency of the evidence by any of the other means identified above. See Crow, 951 S.W.2d at 899.

For these reasons, we conclude that Burton failed to properly preserve her challenges to the legal and factual sufficiency of the evidence to support the jury’s verdict. Accordingly, we overrule the issues she presents. We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance (dissenting)

Affirmed

Opinion delivered and filed June 17, 1998

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