in the Interest of J.S. and R.S., Children

• Court: Court of Appeals of Texas
• Decided: November 8, 2018
• Docket: 02-18-00164-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00164-CV ___________________________

IN THE INTEREST OF J.S. AND R.S., CHILDREN

On Appeal from County Court at Law No. 1 Wichita County, Texas Trial Court No. 12806-JR-E

Before Pittman, Gabriel, and Kerr, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

A jury found that the parent-child relationships between K.S. (Father) and L.H.

(also known as L.W. but hereinafter as Mother) and their daughters J.S. and R.S. (the

girls) should be terminated, and the trial court signed a judgment terminating those

relationships in accordance with the jury verdict. Because neither parent preserved

the sufficiency complaints they raise on appeal, we affirm the trial court’s judgment.

I. PROCEDURAL BACKGROUND

In its petition to terminate Mother’s and Father’s parental rights to the girls, the

Texas Department of Family and Protective Services (TDFPS) alleged six section

161.001, subsection (b)(1) termination grounds (conduct grounds) against each parent

and also alleged that termination of the parent-child relationships was in the girls’ best

interests. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (K), (N), (O), (P),

(2) (West Supp. 2018). After TDFPS rested its case in chief, Father moved for a

directed verdict on the endangerment grounds, subsections (D) and (E). See id.

§ 161.001(b)(1)(D), (E). The trial court denied that motion.

In the jury charge conference, both parents objected to broad-form

submission. The parents argued that broad-form submission could result in an

unfavorable verdict (1) not unanimous as to the underlying conduct ground and

(2) unassailable on appeal because its basis would be unclear. Father also complained

that broad-form submission violated his rights to due process. Neither parent

mentioned best interests. Both parents recognized that the Texas Supreme Court has

2 upheld broad-form submission in termination cases. See Tex. Dep’t of Human Servs. v.

E.B., 802 S.W.2d 647, 648–49 (Tex. 1990) (op. on reh’g). The trial court overruled

the objections.

The jury was charged on best interests and three conduct grounds—the

endangerment grounds and failure to comply with a court order specifying actions the

parents needed to take for reunification. See Tex. Fam. Code Ann. § 161.001(b)(1)(D),

(E), (O), (2). Answering the broad-form jury questions, the jury found that the

parent-child relationships between Mother and Father and the girls should be

terminated. In its judgment terminating the parent-child relationships, the trial court

found that termination of Father’s and Mother’s parental rights was in the girls’ best

interests and that Father and Mother had each:

6.2.1. knowingly placed or knowingly allowed [the girls] to remain in conditions or surroundings which endanger[ed their] physical or emotional well-being . . . ; 6.2.2. engaged in conduct or knowingly placed [the girls] with persons who engaged in conduct which endanger[ed their] physical or emotional well-being . . . ; [and] 6.2.3. failed to comply with the provisions of a court order that specifically established the actions necessary . . . to obtain [the girls’] return[, when they had] been in the permanent or temporary managing conservatorship of [TDFPS] for not less than nine months as a result of [their] removal from the parent[s] . . . for . . . abuse or neglect[.] See id.

3 II. DISCUSSION

Mother and Father each raise one issue contending that the evidence is legally

and factually insufficient to support the trial court’s respective best-interest finding.

See id. § 161.001(b)(2). They do not challenge the respective endangerment and

noncompliance findings. See id. § 161.001(b)(1)(D), (E).

A. Neither Parent Preserved a Legal Sufficiency Challenge to the Best- Interest Finding.

In a jury trial, a no-evidence complaint is preserved through one of the

following: (1) a motion for instructed verdict; (2) a motion for judgment

notwithstanding the verdict; (3) an objection to the submission of the issue to the

jury; (4) a motion to disregard the jury’s answer to a vital fact issue; or (5) a motion for

new trial. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.

1992); see also In re D.J.J., 178 S.W.3d 424, 426–27 (Tex. App.—Fort Worth 2005, no

pet.). Although Father moved for a directed verdict on the endangerment grounds—

subsections (D) and (E)—and Father and Mother both objected to broad-form

submission of the conduct grounds—(D), (E), and (O)—to the jury, neither parent

moved in open court or filed a written motion challenging the sufficiency of the best-

interest evidence or challenging the best-interest finding, and neither parent objected

to the jury charge on the ground that the evidence was legally insufficient to support

submission of the best-interest issue to the jury. Therefore, Father and Mother have

forfeited their complaints that the evidence is legally insufficient to support the best-

4 interest findings against them. See D.J.J., 178 S.W.3d at 426–27; In re B.K.D.,

131 S.W.3d 10, 15 (Tex. App.—Fort Worth 2003, pet. denied); see also In re J.V.,

No. 02-15-00036-CV, 2015 WL 4148500, at *2 (Tex. App.—Fort Worth July 9, 2015,

no pet.) (mem. op.).

B. Neither Parent Preserved a Factual Sufficiency Challenge to the Best- Interest Finding.

A complaint that the evidence is factually insufficient to support a jury answer,

or that the answer is against the overwhelming weight of the evidence, must have

been raised in a motion for new trial. Tex. R. Civ. P. 324(b)(2)–(3); In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003). Neither Mother nor Father filed a motion for new

trial. Because a motion for new trial is a prerequisite to a factual sufficiency challenge

in a jury trial, Mother and Father have forfeited their complaints that the evidence is

factually insufficient to support the best-interest findings against them. See Tex. R.

Civ. P. 324(b)(2)–(3); In re A.J.L., 136 S.W.3d 293, 301 (Tex. App.—Fort Worth 2004,

no pet.); see also J.V., 2015 WL 4148500, at *1.

Accordingly, we overrule the sole issue of each parent.

III. CONCLUSION

Having overruled Father’s only issue and Mother’s only issue, we affirm the

trial court’s judgment.

5 Per Curiam

Delivered: November 8, 2018