                                         NO. 12-14-00238-CV

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

                                                           §       APPEAL FROM THE 258TH
IN THE INTEREST OF S. R.,
                                                           §       JUDICIAL DISTRICT COURT
A CHILD
                                                           §       TRINITY COUNTY, TEXAS


                                         MEMORANDUM OPINION
         A.M. appeals the termination of his parental rights to S.R. He raises four issues on
appeal. We affirm.


                                                  BACKGROUND
         A.M. is the father of S.R., born September 11, 2010.1 J.R. is the mother of S.R., but is
not a party to this appeal. On May 11, 2011, the Department of Family and Protective Services
(the Department) filed an original petition for the protection of S.R., for conservatorship, and for
termination of J.R.’s and A.M.’s parental rights. That same day, the trial court signed an order
for protection of a child in an emergency and appointed the Department as the temporary sole
managing conservator of S.R.
         The trial court conducted a bench trial on the Department’s petition on October 15, 2012.
Thereafter, the court denied the Department’s petition for termination, but found that it was not
in S.R.’s best interest to appoint J.R. and A.M. as managing conservators. As a result, the court
appointed the Department as S.R.’s permanent managing conservator and J.R. and A.M. as
possessory conservators.



         1
          To protect the identity of the child the subject of this suit, we use aliases to identify various individuals
involved. See TEX. R. APP. P. 9.8(b)(2).
          On March 28, 2013, the Department filed a petition requesting the court to modify its
final order and to terminate J.R.’s and A.M.’s parental rights. The petition alleged that the
circumstances of the child, managing conservator, possessory conservator, or other party affected
by the order had materially and substantially changed and that the parents committed one or
more of the acts or omissions necessary to support termination of their parental rights under
Section 161.001 of the family code. On December 5, 2013, S.R.’s foster parents filed a motion
to intervene and a petition seeking to terminate J.R.’s and A.M.’s parental rights and be granted
sole joint managing conservatorship of S.R.
          The trial on the Department’s and the intervenors’ petitions began on July 10, 2014. That
same day, A.M. filed his first amended original answer asserting res judicata and waiver as
affirmative defenses. The Department objected to his pleadings as untimely. The trial court
permitted the filing of A.M.’s pleadings and allowed the Department to amend its pleadings to
add Section 161.004 as an additional ground for termination in response to A.M.’s amended
answer. The Department’s written trial amendment was filed the next day.2
          Ultimately, the jury determined that the parent-child relationship between A.M. and S.R.
should be terminated and that termination was in S.R.’s best interest. This appeal followed.


                                      TERMINATION OF PARENTAL RIGHTS
          The natural right between a parent and child is one of constitutional dimensions; thus,
termination proceedings must be strictly scrutinized. In re K.M.L., 443 S.W.3d 101, 112 (Tex.
2014). Section 161.001 of the Texas Family Code permits the termination of parental rights if
two elements are met. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re C.L.C., 119 S.W.3d
382, 390 (Tex. App.—Tyler 2003, no pet.). First, the parent must have engaged in any one of
the acts or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN.
§ 161.001(1); In re C.L.C., 119 S.W.3d at 390. Second, termination must be in the best interest
of the child. TEX. FAM. CODE ANN. § 161.001(2); In re C.L.C., 119 S.W.3d at 390. Both
elements must be proved by “clear and convincing evidence,” and proof of one element does not
alleviate the petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; In re
C.L.C., 119 S.W.3d at 390. “Clear and convincing evidence” means the measure or degree of


          2
              The Department’s trial amendment also included an additional ground for terminating the parental rights
of J.R.


                                                           2
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established. TEX. FAM. CODE ANN. § 101.007 (West 2014).


                                       STANDARD OF REVIEW
       When the burden of proof is clear and convincing evidence, we conduct a legal
sufficiency review by looking at all of the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or conviction that its
finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact
finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id.
Thus, it follows that the reviewing court should disregard all evidence that a reasonable fact
finder could have disbelieved or found to have been incredible, but this does not mean that the
reviewing court must disregard all evidence that does not support the finding. Id. Disregarding
undisputed facts that do not support the finding could skew the analysis of whether there is clear
and convincing evidence. Id. If, after conducting our legal sufficiency review, we determine
that no reasonable fact finder could form a firm belief or conviction that the matter which must
be proven is true, then we will conclude that the evidence is legally insufficient. Id.
       When we conduct a factual sufficiency review, we must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our
inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations.           Id.   We consider whether the
disputed evidence is such that a reasonable fact finder could not have resolved that disputed
evidence in favor of its finding. Id. If, when viewed in light of the entire record, the disputed
evidence is so significant that a fact finder could not have reasonably formed a firm belief or
conviction, then the evidence is factually insufficient.        Id.    In finding evidence factually
insufficient, the appellate court should detail why it has concluded that a reasonable fact finder
could not have credited disputed evidence in favor of its finding. Id. at 267.
       The standard of review for legal and factual sufficiency challenges maintains a
deferential standard for the fact finder’s role, which means the trier of fact is the exclusive judge
of the credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d
17, 26-27 (Tex. 2002); Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston
[1st Dist.] 1997, pet. denied). Thus, our review must not be so rigorous that the only fact



                                                  3
findings which could withstand review are those established beyond a reasonable doubt. In re
C.H., 89 S.W.3d at 26.


                                        CONSTRUCTIVE ABANDONMENT
        In his second issue, A.M. argues that the evidence is legally and factually insufficient to
terminate his parental rights pursuant to Section 161.001(1)(N) of the family code. He argues
that the Department never intended to return S.R. to his care and failed to make reasonable
efforts to return S.R.
Termination under Section 161.001(1)(N)
        A trial court may terminate the parent-child relationship if clear and convincing evidence
shows that the parent


        (1)(N) constructively abandoned the child who has been in the permanent or temporary managing
        conservatorship of the Department of Family and Protective Services . . . for not less than six
        months, and:

            (i) the department . . . has made reasonable efforts to return the child to the parent;

            (ii) the parent has not regularly visited or maintained significant contact with the child; and

            (iii) the parent has demonstrated an inability to provide the child with a safe environment;

        [and]

        (2) that termination is in the best interest of the child.


TEX. FAM. CODE ANN. § 161.001(1)(N), (2) (West 2014).                           A.M. does not challenge the
sufficiency of the evidence under subsections (N)(ii) and (N)(iii). Accordingly, we limit our
review to the sufficiency of the evidence to support a finding under Section 161.001(1)(N)(i)
regarding “reasonable efforts.”
        The preparation and administration of a service plan constitutes evidence that the
Department made reasonable efforts to return the child to the parent. In re M.R.J.M., 280
S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.). Moreover, the Department’s goal of
termination or unrelated adoption in a service plan does not automatically render the evidence
insufficient to support a finding of reasonable efforts at reunification. See, e.g., In re K.G., 350
S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied); In re J.J.S., 272 S.W.3d 74, 83-84
(Tex. App.—Waco 2008, pet. struck). In reviewing the sufficiency of the evidence supporting


                                                             4
termination under Section 161.001(1)(N), the issue is whether the Department made reasonable
efforts, not ideal efforts. See In re M.V.G., 440 S.W.3d 54, 61 (Tex. App.—Waco 2010, no
pet.).
The Evidence
         The record indicates that prior to the Department’s filing its May 2011 petition, it had
begun an investigation concerning S.R. in February of that year, when S.R. was approximately
five months old.3
         A.M. was incarcerated when S.R. was born, and he first saw her when she was six
months old. He saw S.R. again was when she was nine months old—“when I got out of the
county.” A.M. testified that when the Department first took S.R. in May 2011, he had “no
rights” and no service plan because he was an alleged father. Later, a DNA test confirmed that
S.R. was his biological child. Nevertheless, A.M. testified that he has seen S.R. only once since
May 2011, and that was for four hours. A.M. confirmed that he knew he had to be drug free
before he could have visits with S.R. But the evidence showed that he failed every drug screen
he took. A.M. also admitted that, on the day of trial, he would not pass a drug screen because he
had smoked marijuana.
         Samantha Skinner, the foster care supervisor for the Department in Trinity County,
testified that she was the caseworker in S.R.’s case in 2012. She testified that the Department
prepared and filed a service plan for A.M. in June 2012, and that he signed the service plan in
August 2012.4        Skinner’s and A.M.’s testimony confirmed that a new service plan was not
created after the trial court denied termination in October 2012. But A.M. testified that, after the




         3
            Because the Department amended its pleadings to include grounds for termination under Section 161.004
of the family code, evidence presented from the first termination trial was admissible. See TEX. FAM. CODE ANN.
§ 161.004(b) (West 2014) (“At a hearing under this section, the court may consider evidence presented at a previous
hearing in a suit for termination of the parent-child relationship with respect to the same child.”); In re K.G., 350
S.W.3d 338, 352-53 (Tex. App.—Fort Worth 2011, pet denied) (holding that the only way to terminate parental
rights based on evidence presented at hearing in which termination was previously denied is to plead Section
161.004). Accordingly, we review the evidence supporting termination of A.M.’s parental rights prior to and after
the trial court’s denial of termination in October 2012.
         4
          The original dismissal date for this case was set for May 14, 2012. Pursuant to Section 263.401(b) of the
family code, the trial court set the new dismissal date for November 10, 2012. See TEX. FAM. CODE ANN.
§ 263.401(b) (West 2014).




                                                         5
October 2012 trial, he was still required to complete the tasks assigned in the service plan in
order to see S.R.5
         The June 2012 service plan was admitted at trial. Among the tasks A.M. was required to
complete were (1) cooperating with the Department by participating in all scheduled
appointments, meetings, permanency planning meetings, court hearings, and visits with S.R.; (2)
obtaining and maintaining stable employment; (3) submitting to random drug screens; (4)
remaining clean and sober and refraining from criminal activity, including illegal drug use; (5)
participating in counseling to understand CPS’s involvement and demonstrate behavioral
changes; and (6) completing a drug and alcohol assessment and following any and all
recommendations.           The service plan did not include a statement about the Department’s
permanency goals.
         Skinner testified that A.M. was deficient in several areas of his service plan because he
(1) was unsuccessfully discharged from his therapy, (2) participated in only two of the eight
requested drug screens, (3) did not participate in any visitations or permanency conferences, and
(4) did not maintain stable housing or employment. A.M. testified that, since October 2012, he
never received any letters about permanency conferences, and that he felt the Department had
not made reasonable efforts to work with him.
         It is undisputed that A.M. lived at several different locations after S.R. was placed in the
Department’s care. Skinner testified that it was Department policy to make contact with the
parents of a child in Department care at least once each month by phone, in person, or by mail.
However, the Department experienced difficulty in maintaining contact with A.M. because he
changed his residence several times without notifying the Department.
         Skinner testified that, beginning in November 2012, she would call the most recent phone
number they had on file for A.M.6 She testified that someone other than A.M. usually answered
her phone call and she would then have to inquire as to A.M.’s whereabouts. Skinner stated that
she spoke with “Tammy,” A.M.’s sister, several times and that Tammy would give her A.M.’s
contact information. In addition to the telephone calls, the evidence showed that the Department
attempted to send A.M. several letters, notifying him of permanency hearings, meetings, and


         5
           Skinner testified that a service plan “is designed to alleviate the causes for removal and the concerns with
the parents’ ability to care for the child and hopefully reunite the family.”
         6
             Skinner was assigned as the caseworker for this case in November 2012.


                                                          6
changes in S.R.’s placement, but most were not received due to A.M.’s frequent changes of
address.
       The record indicates that A.M. lived in Houston during part of the time that S.R. was in
Department care. The first time A.M. reported a Houston address, the Department assigned a
courtesy worker in Houston to help facilitate A.M.’s progress on his service plan. Skinner
testified that A.M.’s courtesy worker continued to offer services to A.M. after the October 2012
trial, which included therapy sessions. However, A.M.’s attendance at the therapy sessions was
inconsistent. Skinner testified that, as a result, she received a notice of A.M.’s “unsuccessful
discharge” from therapy in February 2013.          She further testified that the courtesy worker
discontinued A.M.’s services in March 2013 because A.M. had no contact with her for three
months, and Harris County policy requires parents to pay for their own services when they reach
a certain amount of “no shows” or fail to participate in the Department’s services.
       A.M. testified that he did not believe the Department had made reasonable efforts to work
with his family during the case. The evidence showed that sometime after S.R.’s initial removal,
but before the October 2012 trial, A.M. named his brother “Jason” and sister Tammy as possible
placements for S.R. According to A.M., Jason never participated in the case, but Tammy has
had visits with S.R. A.M. testified that he wanted Tammy to have S.R. because “I wasn’t ready
for [S.R.] to be just with me, but I know that I could help my sister take care of her.” But the
record indicates that A.M.’s statement that he would “help” Tammy care for S.R. was
speculative—A.M. never provided financial support for S.R. while she was in foster care and
never requested visitation (even for S.R.’s birthday and Christmas). A.M.’s desires were best
made known by his response to his attorney’s question, “Have you ever not been interested in
getting [S.R.?]” A.M. responded, “No, I’ve always been interested in getting her and—well, not
me getting her but placing her with a relative.”
       Skinner testified that when a parent provides names for a relative placement, the
Department obtains as much information as it can from the parent about the relative, contacts the
relative, and begins gathering information to determine if placement with the named relative is a
feasible option. She confirmed that A.M. listed Jason as a possibility, but explained that the
Department could “never get any contact information from anyone regarding him.” When
Tammy was initially named as a potential placement, she was living in a one bedroom apartment




                                                   7
with two children and had pending criminal charges.7 Skinner explained that the Department
will not conduct home studies when a criminal history search shows pending charges. She
testified that Tammy would not have passed a home study because Tammy’s home was small
and she had pending criminal charges. As a result, Skinner advised Tammy to contact her once
those issues were resolved.
         In August or September of 2013, Tammy contacted the Department regarding a home
study.       By this time, Tammy’s criminal issues had been resolved and a home study was
conducted. The results of the home study found that Tammy had stable employment and was
committed to providing S.R. with a safe home environment. However, the Department did not
approve the home study. Skinner testified that the Department’s disapproval of the home study
was partly due to the fact that Tammy had given false information.
Discussion
         A.M. argues that because the Department failed to file a new service plan after the
October 2012 trial, there is no evidence that the Department attempted to return S.R. to A.M. and
there is no evidence as to why S.R. should not be returned to him. We disagree.
         S.R. argues that after the trial court denied termination in October 2012, S.R.’s service
plan was no longer in effect because the trial court’s order denying termination stated that “all
relief requested in this case and not expressly granted is denied.” But the question of whether the
Department engaged in reasonable efforts to reunite S.R. with A.M. does not turn on whether the
old service plan was still in effect or whether a new service plan was filed. Instead, the question
of reasonable efforts focuses on the Department’s conduct.
         Moreover, the absence of a stated goal on A.M.’s service plan is not a per se failure to
engage in reasonable efforts at reunification. We note that the Department’s goal after the 2012
trial was unrelated adoption and has never changed. But even when the goal is termination, at
least one court has held that the preparation and implementation of a service plan constitutes
reasonable efforts at reunification. See, e.g., In re K.G., 350 S.W.3d at 354. Accordingly, the
Department’s goal in this case—regardless of whether it was written in the service plan—does
not mean that it failed to engage in reasonable efforts at reunification.
         The record indicates that A.M. had little desire to have a relationship with S.R., and no
desire for custody. Here, the Department offered services before and after October 2012 that

         7
             Tammy later testified that at that time, she was actually living in a two bedroom apartment.


                                                            8
were designed to facilitate S.R.’s reunification with A.M. This evidence, when viewed in light
of the fact that the Department attempted to provide A.M. notice of meetings and hearings
concerning S.R. and conducted a home study at Tammy’s request, shows that the Department’s
efforts at reunification went beyond the preparation and filing of a service plan and occurred
after the trial court’s denial of termination in October 2012.
Conclusion
        After viewing the evidence in the light most favorable to the finding, we conclude that a
reasonable trier of fact could have formed a firm belief or conviction that the Department made
reasonable efforts to return S.R. to A.M. See TEX. FAM. CODE ANN. § 161.001(1)(N)(i); In re
J.F.C., 96 S.W.3d at 266. After viewing the entire record, we hold that a fact finder could
reasonably have formed a firm belief or conviction that the Department’s allegation that it made
reasonable efforts to return S.R. to A.M. was true. See id. Accordingly, we overrule A.M.’s
second issue.8


                                      BEST INTEREST OF THE CHILD
        In his fourth issue, A.M. argues that the evidence is legally and factually insufficient to
support a finding that termination of his parental rights is in S.R.’s best interest. A.M. contends
that the Department failed to present any evidence to overcome the presumption that
reunification was in S.R.’s best interest.
Applicable Law
        The party seeking termination must prove by clear and convincing evidence that
termination of a parent’s rights is in the child’s best interest.                     See TEX. FAM. CODE
ANN.§ 161.001(2). Parental rights may not be terminated merely because a child might be better
off living elsewhere. In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.).
        In determining the best interest of the child, the courts consider a number of factors
including (1) the desires of the child; (2) the emotional and physical needs of the child now and
in the future; (3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to assist these


        8
           Because we have held that the evidence is legally and factually sufficient to terminate A.M.’s parental
rights pursuant to Section 161.001(1)(N), we need not address A.M.’s third issue relating to the sufficiency of the
evidence for termination under subsection (O). See TEX. R. APP. P. 47.1; In re C.T., No. 12-11-00384-CV, 2012
WL 4502427, at *7 (Tex. App.—Tyler 2012, pet. denied) (mem. op.).


                                                        9
individuals; (6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
        The family code also provides a list of factors that we will consider in conjunction with
the above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2014).
Here, the applicable statutory factors include (1) the child’s age and physical and mental
vulnerabilities; (2) whether there is a history of substance abuse by the child’s family or others
who have access to the child’s home; (3) the willingness and ability of the child’s family to seek
out, accept, and complete counseling services and to cooperate with and facilitate an appropriate
agency’s close supervision; (4) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and (5) whether the
child’s family demonstrates adequate parenting skills. See id. § 263.307(b)(1), (8), (10), (11),
(12).
        The evidence need not prove all statutory or Holley factors in order to show that
termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re
J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Undisputed
evidence of just one factor may be sufficient in a particular case to support a finding that
termination is in the child’s best interest. In re M.R.J.M., 280 S.W.3d at 507. But the presence
of scant evidence relevant to each factor will not support such a finding.           Id.   Evidence
supporting termination of parental rights is also probative in determining whether termination is
in the best interest of the child. See In re C.H., 89 S.W.3d at 28-29.
Discussion
        The evidence discussed in our previous section shows that A.M. (1) has a history of
substance abuse; (2) is not willing or able to complete counseling services or cooperate with and
facilitate an agency’s close supervision; (3) is not willing or able to effect positive environmental
and personal changes within a reasonable amount of time; and (4) has not demonstrated adequate
parenting skills. See TEX. FAM. CODE ANN. § 263.307(b)(8), (10), (11), (12); Holley, 544
S.W.2d at 372. These factors weigh in favor of termination.
        The record also shows that (1) at the time of trial, S.R. was three years old and had only
one functioning kidney; (2) the Department’s plan for S.R. was unrelated adoption; (3) S.R. had



                                                 10
been living with her foster parents for almost two years and was bonded with them and their
children; (4) the foster parents (intervenors) wanted to adopt S.R.; and (5) S.R. had been
receiving medical checkups to monitor her kidney status and a heart murmur discovered in a
prior medical appointment.9 See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at
372. These factors weigh in favor of termination.
         We note that A.M. testified it was not in S.R.’s best interest that his parental rights be
terminated and that he “love[d]” his “little baby girl.” He also presented evidence from family
members who testified that they believed it was in S.R.’s best interest for A.M. “to be in her
life.” But none of these witnesses, including A.M., provided testimony showing that he was
willing and able to provide S.R. with a safe environment, other than placing S.R. with Tammy.
Although the home study showed that Tammy could provide S.R. with a safe home environment,
this evidence does not outweigh the other best interest factors.
Conclusion
         After viewing the evidence in the light most favorable to the finding, we conclude that a
reasonable trier of fact could have formed a firm belief or conviction that termination of A.M.’s
parental rights was in S.R.’s best interest. See TEX. FAM. CODE ANN. § 161.001(2); In re J.F.C.,
96 S.W.3d at 266. After viewing the entire record, we hold that a fact finder could reasonably
have formed a firm belief or conviction that the allegation that the termination of A.M.’s parental
rights is in S.R.’s best interest is true. See TEX. FAM. CODE ANN. § 161.001(2); In re J.F.C., 96
S.W.3d at 266. Accordingly, we overrule A.M.’s fourth issue.


                                               SEPARATE TRIALS
         In his first issue, A.M. argues that the trial court erred by granting an oral motion for
separate trials and removing the issue of conservatorship and residency from the jury’s
consideration.10 A.M. contends that the trial court erred because the motions for separate trials
were untimely and prejudiced his case.


         9
          Although S.R. was in good health at the time of trial, the evidence showed that she would continue to
need yearly checkups to monitor her kidney. Additional visits concerning A.M.’s heart murmur were not necessary
unless subsequent doctor’s appointments detected complications.
         10
           At trial, the parties used the terms “bifurcation” and “separate trials” interchangeably. “Separate trials”
are sometimes referred to as bifurcation. See In re Allstate Cnty. Mut. Ins. Co., 209 S.W.3d 742, 745 (Tex. App.—
Tyler 2006, no pet.). In this opinion, we use the term “separate trials” in discussing A.M.’s first issue.


                                                         11
Standard of Review and Applicable Law
       Rule 174 of the Texas Rules of Civil Procedure provides that a court “in furtherance of
convenience or to avoid prejudice may order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-
claims, counterclaims, third-party claims, or issues.” TEX. R. CIV. P. 174(b); In re B.L.D., 113
S.W.3d 340, 346 (Tex. 2003) (trial court may order separate trials to avoid prejudice). The trial
court’s decision to grant separate trials should not be disturbed on appeal absent an abuse of
discretion. See Tarrant Reg. Water Dist. v. Gragg, 151 S.W.3d 546, 556 (Tex. 2004); Van Dyke
v. Boswell, 697 S.W.2d 381, 384 (Tex. 1985).
Discussion
       During trial, the intervenors sought to introduce evidence regarding the benefits that were
potentially available to S.R. if theY were named S.R.’s sole managing conservators. A.M.
objected to the introduction of this evidence, arguing that it was “prejudicial” and “improper” in
a termination trial. In a hearing outside the presence of the jury, the intervenors argued that if the
issue of conservatorship was submitted to the jury, the jury would need to know the potential
benefits that S.R. could receive if the intervenors were named the managing conservators
because their petition sought sole managing conservatorship.
       The intervenors and A.M. agreed that testimony relating to the potential benefits that S.R.
could receive was prejudicial to A.M.’s termination case. Nevertheless, A.M. objected to the
case being divided into separate trials, contending that he did not want to “sever the issue.” The
trial court ruled that it would “bifurcate the issues,” and ordered that the parties not say anything
about benefits until after the jury decided whether A.M.’s parental rights should be terminated.
       After the jury returned its verdict on the issue of whether A.M.’s parental rights should be
terminated (answering “yes”), the Department, the intervenors, and the attorney ad litem for S.R.
agreed to the appointment of the Department as S.R.’s sole managing conservator and the
intervenors as S.R.’s possessory conservators.        A.M. objected to the intervenors’ having
possessory conservatorship, and stated, “[T]heir position is we have no standing. I think the
Court needs to rule.” At this point in the proceeding, the jury had not been discharged, but
A.M.’s objection did not include a specific reference to the conservatorship issue being removed




                                                 12
from the jury’s determination. By failing to raise this objection at trial, A.M. forfeited his right
to raise this issue on appeal. See TEX. R. APP. P. 33.1.
        Moreover, the trial court’s granting of separate trials regarding termination and
conservatorship was to avoid prejudice against A.M. relating to the termination issue. We
conclude that the trial court did not abuse its discretion. See TEX. R. CIV. P. 174(b); Gragg, 151
S.W.3d at 556. Accordingly, we overrule A.M.’s first issue.


                                                 DISPOSITION
        Having overruled A.M.’s first, second, and fourth issues and having concluded that we
need not address A.M.’s third issue, we affirm the judgment of the trial court.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered January 23, 2015.
Panel consisted of Worthen, C.J. and Hoyle, J.




                                                 (PUBLISH)




                                                     13
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         JANUARY 23, 2015


                                         NO. 12-14-00238-CV


                            IN THE INTEREST OF S. R., A CHILD


                                Appeal from the 258th District Court
                            of Trinity County, Texas (Tr.Ct.No. 20870)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J. and Hoyle, J.
