in the Interest of v. G., Children

Opinion

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."