                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00301-CV


IN THE INTEREST OF S.R.-B. AND
T.R.-B., MINOR CHILDREN




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         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                    TRIAL COURT NO. 12323-JR-C

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                       MEMORANDUM OPINION1

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     At the time of the jury trial in this termination-of-parental-rights case,

Appellant Father was incarcerated for a robbery charge and a possession-of-

methamphetamine charge. He used methamphetamine during the pendency of

the case and agreed that he had done so even though he knew that doing so


     1
      See Tex. R. App. P. 47.4.
violated his Child Protective Services (CPS) service plan and could cause him to

lose his rights to S.R.-B. and T.R.-B., his children. Father did not comply with

other terms of his CPS service plan, which were incorporated into the court’s

orders: He did not undergo the court-ordered psychological evaluation, he went

to his required counseling only once, he never finished his parenting classes, and

he missed approximately nineteen of his twenty-six possible visits with the

children. Father also did not provide proof of income and employment to CPS

during the nine months that he was not in jail—instead, he agreed that since

2012, he had not had a job for six or seven months at a time. And he agreed that

it endangered the children to be around people who use drugs.               Father

nonetheless argued that the jury should not terminate his parental rights because

he loved his children.2

      For a trial court to terminate a parent-child relationship, the party seeking

termination must establish by clear and convincing evidence that the parent’s

actions satisfy one ground listed in family code section 161.001(b)(1) and that

termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)

(West Supp. 2015); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination


      2
       The children’s mother opined that Father was a drug addict and that he
had endangered the children through his drug use. She testified that she was no
longer with Father “[b]ecause [they] made bad choices and [they] can’t fix this
together.” She retained her parental rights to the children but DFPS was named
their managing conservator.

                                        2
may not be based solely on the best interest of the child as determined by the

trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).

      After a jury verdict in which ten jurors agreed, Father’s parental rights were

terminated as in the children’s best interest and on the grounds that he had

endangered the children, had constructively abandoned them, and had failed to

comply with the provisions of a court order that specifically established the

actions necessary for him to obtain their return.     See Tex. Fam. Code Ann.

§ 161.001(b)(1)(D), (E), (N), (O), (2). In a single issue, Father now attempts to

challenge the legal and factual sufficiency of the evidence to support the best

interest finding.3

      However, to preserve a legal sufficiency challenge on appeal following a

jury trial, an appellant must raise the challenge with the trial court in one of the

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

      3
        The same evidence may be probative of both the section 161.001(b)(1)
grounds and best interest. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); In re
C.H., 89 S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the trier of fact in
a termination case may also use in determining the best interest of the child
include the children’s desires, their emotional and physical needs now and in the
future, the emotional and physical danger to the children now and in the future,
the parental abilities of the individuals seeking custody, the programs available to
assist those individuals to promote the children’s best interest, the plans for the
children by these individuals or the agency seeking custody, the stability of the
home or proposed placement, the acts or omissions of the parent that may
indicate that the existing parent-child relationship is not a proper one, and any
excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a
best interest finding, “we consider, among other evidence, the Holley factors”);
E.N.C., 384 S.W.3d at 807.
                                         3
notwithstanding the verdict (JNOV); (3) an objection to the submission of the

question to the jury; (4) a motion to disregard the jury’s answer to a vital fact

question; or (5) a motion for new trial. In re D.J.J., 178 S.W.3d 424, 426–27

(Tex. App.—Fort Worth 2005, no pet.); see also Tex. R. Civ. P. 324(b) (listing

appellate complaints that must be preserved by a motion for new trial); T.O.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21 (Tex. 1992). After

a jury trial, factual sufficiency challenges must be raised in a motion for new trial.

Tex. R. Civ. P. 324(b)(2)–(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).

      Father took none of the above actions necessary to preserve his

sufficiency complaints and therefore has preserved nothing for our review. See

In re J.V., No. 02-15-00036-CV, 2015 WL 4148500, at *1–2 (Tex. App.—Fort

Worth July 9, 2015, no pet.) (mem. op.) (overruling father’s legal sufficiency

complaint on best interest for lack of preservation when he did not make or file

any of the required motions or object to the charge on the legal sufficiency of the

evidence to support submission of the best-interest instruction and overruling his

factual sufficiency complaints as to jury’s findings when he failed to preserve

these by filing a motion for new trial); In re G.H., No. 02-14-00261-CV, 2015 WL

3827703, at *5 (Tex. App.—Fort Worth June 18, 2015, no pet.) (en banc mem.

op. on reh’g) (“Because Mother did not raise her legal sufficiency challenge in the

trial court, she has not preserved that complaint.”); In re A.J.L., 136 S.W.3d 293,

301–02 (Tex. App.—Fort Worth 2004, no pet.) (holding that mother waived



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factual sufficiency complaints as to jury findings by failing to file a motion for new

trial).4

           Therefore, we overrule Father’s sole issue and affirm the trial court’s

judgment.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.

DELIVERED: January 21, 2016




           4
        We nonetheless note that even if Father had preserved the issue, the
evidence in this case is such that the jury could have reasonably formed a firm
belief or conviction that it was in the children’s best interest to terminate Father’s
parental rights to them, viewed both in the light most favorable to the finding and
judgment for legal sufficiency and when viewing the entire record for factual
sufficiency. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005). The jury could have determined from this
record that the desires, if any, by the children for two parents instead of just their
mother were outweighed by their existing and future emotional and physical
needs, the emotional and physical danger presented to them by allowing Father
to retain his parental rights, Father’s lack of parenting skills, his failure to take
advantage of programs that would help remedy his lack of parenting skills, his
lack of plans for the children, and his acts and omissions for which he had no
reasonable excuse. See Holley, 544 S.W.2d at 371–72.

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