                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-12-00029-CV

              IN THE INTEREST OF A.M. AND E.M., CHILDREN



                               From the 74th District Court
                                McLennan County, Texas
                               Trial Court No. 2010-2778-3


                                         OPINION


       Appellant J.M. appeals the trial court’s order terminating her parental rights to

her daughters A.M. and E.M.1 We will affirm.

       In a proceeding to terminate the parent-child relationship brought under section

161.001 of the Family Code, the Department of Family and Protective Services must

establish by clear and convincing evidence two elements: (1) one or more acts or

omissions enumerated under subsection (1) of section 161.001, termed a predicate

violation; and (2) that termination is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.001(1), (2) (West Supp. 2011); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—

Waco 2002, pet. denied). The factfinder must find that both elements are established by

1The parental rights of the children’s father were terminated upon his voluntary relinquishment of his
parental rights.
clear and convincing evidence, and proof of one element does not relieve the petitioner

of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976);

Swate, 72 S.W.3d at 766. Due process requires the petitioner to justify termination of

parental rights by “clear and convincing evidence.” Spangler v. Texas Dept. of Prot. &

Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco 1998, no pet.). This standard is

defined as “that measure or degree of proof which 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.” Id.

        The jury found, and the trial court ordered termination on, the following

predicate violations under Family Code section 161.001(1): subsection (D) (knowingly

placed or knowingly allowed the children to remain in conditions or surroundings that

endangered the children’s physical or emotional well-being); subsection (E) (engaged in

conduct or knowingly placed the children with persons who engaged in conduct that

endangered the children’s physical or emotional well-being); and subsection (O) (failed

to comply with provisions of court order specifically establishing actions necessary for

parent to obtain return of children). See TEX. FAM. CODE ANN. § 161.001(1)(D, E, O).

        The jury also found that termination of Appellant’s parental rights to A.M. and

E.M. was in their best interest. In her sole issue, Appellant asserts that the evidence is

factually insufficient to support the jury’s best-interest findings.

                                       Preservation

        We initially address the Department’s assertion that Appellant’s factual-

sufficiency complaint is not preserved because she did not file a motion for new trial

In the Interest of A.M. and E.M.                                                    Page 2
asserting factual insufficiency. See TEX. R. CIV. P. 324(b)(2). Our precedent is that, in

termination cases, we may review a factual-sufficiency complaint on core issues

(predicate violation or best interest) even though it was not preserved in the trial court.

See In re A.P., 42 S.W.3d 248, 254-56 (Tex. App.—Waco 2001, no pet.), disapproved on other

grounds by In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002); see also In re T.N.F., 205 S.W.3d

625, 630 n.2 (Tex. App.—Waco 2006, pet. denied) (following A.P.).

        The Department suggests that, in light of the Texas Supreme Court’s decision in

In re B.L.D., 113 S.W.3d 340 (Tex. 2003), we should overrule our precedent and require a

motion for new trial to preserve a factual-sufficiency issue for appellate review.2 In

B.L.D., the court held that jury-charge preservation rules comport with due process in

termination appeals. Id. at 354; see also In re J.F.C., 96 S.W.3d 256, 274 (Tex. 2002)

(holding that Rule of Civil Procedure 279 does not deprive parents of due process in

termination appeals).         The court has not directly addressed whether the factual-

sufficiency preservation requirement comports with due process in termination cases,

though it has viewed the preservation requirement through the prism of an ineffective-

assistance claim. See In re M.S., 115 S.W.3d 534, 546-50 (Tex. 2003). The court concluded

that

        the State’s initial interest in maintaining the familial bond versus its
        interest in maintaining procedural integrity weighs in favor of permitting


2 The Department also points out that at least four other appellate courts have held that a motion for new
trial is required in termination cases to preserve a factual-sufficiency issue for appellate review. See In re
A.J.L., 136 S.W.3d 293, 301-02 (Tex. App.—Fort Worth 2004, no pet.); In re M.S., 73 S.W.3d 537, 541-42
(Tex. App.—Beaumont 2002), rev’d on other grounds, 115 S.W.3d 534 (Tex. 2003); In re I.V., 61 S.W.3d 789,
794 (Tex. App.—Corpus Christi 2001, no pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256,
267 n.39 (Tex. 2002); In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet).

In the Interest of A.M. and E.M.                                                                       Page 3
          a factual sufficiency review when counsel unjustifiably fails to follow
          those procedures.

          …

          That a motion for new trial is required for appellate review of a factual
          sufficiency issue is something that competent trial counsel in Texas should
          know. And filing such a motion is not a difficult task. But though a just
          and accurate result cannot ever be absolutely guaranteed, we cannot think
          of a more serious risk of erroneous deprivation of parental rights than
          when the evidence, though minimally existing, fails to clearly and
          convincingly establish in favor of jury findings that parental rights should
          be terminated. Thus, if counsel’s failure to preserve a factual sufficiency
          complaint is unjustified, then counsel’s incompetency in failing to
          preserve the complaint raises the risk of erroneous deprivation too high,
          and our procedural rule governing factual sufficiency preservation must
          give way to constitutional due process considerations.

                  We do not hold here that every failure to preserve factual
          sufficiency issues rises to the level of ineffective assistance. Rather, our
          appellate courts must engage in a review using the established Strickland
          standards.

Id. at 549.3

          M.S. was decided after our decision in A.P., and it appears to us that, in M.S., the

supreme court implicitly declined to dispense with the factual-sufficiency preservation

requirement in termination cases. We therefore overrule A.P. (and T.N.F.) and hold that

in termination cases, to raise a factual-sufficiency complaint on appeal, it must be

3   In B.L.D., the court commented:

                   Assuming that this fact-specific due process analysis under Lassiter controls the
          evaluation of our preservation rules, we acknowledge that in a given parental rights
          termination case, a different calibration of the Eldridge factors could require a court of
          appeals to review an unpreserved complaint of error to ensure that our procedures
          comport with due process. In fact, today in In re M.S., we hold that if appointed counsel
          unjustifiably fails to preserve a sufficiency challenge for appellate review, under some
          circumstances that failure could amount to a due process violation. In re M.S., 115
          S.W.3d 534, 548 (Tex. 2003).

B.L.D., 113 S.W.3d at 354.

In the Interest of A.M. and E.M.                                                                       Page 4
preserved by including it in a motion for new trial.

        We next turn to Appellant’s assertion that, by overruling A.P. (and T.N.F.), we

should apply that ruling prospectively. Court “decisions usually apply retrospectively,

[but] exceptions are recognized when considerations of fairness and policy dictate

prospective effect only.” Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992). We view three

factors to determine whether to apply a decision prospectively or retroactively:

        (1) whether the decision establishes a new principle of law by either
        overruling clear past precedent on which litigants may have relied or by
        deciding an issue of first impression whose resolution was not clearly
        foreshadowed; (2) whether prospective or retroactive application of the
        particular rule will further or retard its operation through an examination
        of the history, purpose, and effect of the rule; and (3) whether retroactive
        application of the rule could produce substantial inequitable results.

Id. (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d

296 (1971), and Carrollton Farmers Branch ISD v. Edgewood ISD, 826 S.W.2d 489, 518-19

(Tex. 1992)).

        We agree with Appellant’s assertion that the first and third factors weigh in favor

of a prospective application.          We are overruling “clear past precedent” on which

Appellant could have relied in the trial court. And if the evidence in this case were

factually insufficient to support the jury’s best-interest findings, retroactive application

of our decision would produce a “substantial inequitable result,” especially given the

constitutional magnitude attached to the parent-child relationship.4                      See M.S., 115


4 The natural right that exists between parents and their children is one of constitutional dimension. In re
J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994). A parent’s right to “the companionship, care, custody and
management” of her children is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (quoting Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)).

In the Interest of A.M. and E.M.                                                                     Page 5
S.W.3d at 549 (“though a just and accurate result cannot ever be absolutely guaranteed,

we cannot think of a more serious risk of erroneous deprivation of parental rights than

when the evidence, though minimally existing, fails to clearly and convincingly

establish in favor of jury findings that parental rights should be terminated”).

        Accordingly, our decision today will apply prospectively, and we will review

Appellant’s complaint that the evidence is not factually sufficient to support the jury’s

best-interest findings.

                                        Sufficiency

        The standard of review for factual sufficiency in termination cases is well-

established. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In a factual sufficiency review,

a court of appeals must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing. Id.

        [T]he inquiry must be “whether the evidence is such that a factfinder
        could reasonably form a firm belief or conviction about the truth of the
        State’s allegations.” A court of appeals should consider whether disputed
        evidence is such that a reasonable factfinder could not have resolved that
        disputed evidence in favor of its finding. If, in light of the entire record,
        the disputed evidence that a reasonable factfinder could not have credited
        in favor of the finding is so significant that a factfinder could not
        reasonably have formed a firm belief or conviction, then the evidence is
        factually insufficient.

J.F.C., 96 S.W.3d at 266-67 (footnotes and citations omitted); see C.H., 89 S.W.3d at 25.

We view the evidence in a neutral light when reviewing for factual sufficiency.

        In determining the best interest of a child, a number of factors have been

considered, 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

In the Interest of A.M. and E.M.                                                        Page 6
now and in the future; (4) the parental abilities of the individuals seeking custody; (5)

the programs available to assist these individuals; (6) the plans for the child by these

individuals; (7) the stability of the home; (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, 544 S.W.2d at 371-72. This list is not

exhaustive, but simply indicates factors that have been or could be pertinent. Id. The

Holley factors focus on the best interest of the child, not the best interest of the parent.

Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no

writ). The goal of establishing a stable permanent home for a child is a compelling state

interest. Id. at 87.

        Appellant contends that, in our factual-sufficiency review of the evidence on the

best-interest findings, we should not include in our review the evidence of Appellant’s

predicate violations and should only review evidence pertaining to her post-removal

conduct.5 Appellant argues that if we consider the evidence that was relied on to

establish Appellant’s predicate violations in reviewing the best-interest findings, the

separate statutory best-interest requirement is meaningless.

        We are required to review the sufficiency of the evidence to support the jury’s

answer based on the charge given and the jury findings in response to that charge. See



5The supreme court has stated: “While it is true that proof of acts or omissions under section 161.001(1)
does not relieve the petitioner from proving the best interest of the child, the same evidence may be
probative of both issues.” C.H., 89 S.W.3d at 28; see In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.—Fort
Worth 2003, no pet.) (best interest of child is often infused with statutory offensive behavior); see also
Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied) (evidence of past
misconduct or neglect can be used to measure parent’s future conduct; Ray v. Burns, 832 S.W.2d 431, 435
(Tex. App.—Waco 1992, no writ) (“Past is often prologue.”).

In the Interest of A.M. and E.M.                                                                   Page 7
Barker v. Eckman, 213 S.W.3d 306, 313 (Tex. 2006); Osterberg v. Peca, 12 S.W.3d 31, 55

(Tex. 2000). In conducting this review, we presume that the jury acted in accordance

with the trial court’s instructions. Barker, 213 S.W.3d at 313.

        When evidence of Appellant’s predicate violations was offered during trial,

Appellant made no request for the jury to be instructed that the evidence be admitted

for the limited purpose of the predicate violations. See TEX. R. EVID. 105(a) (“When

evidence which is admissible … for one purpose but not admissible … for another

purpose is admitted, the court, upon request, shall restrict the evidence to its proper

scope and instruct the jury accordingly; …“). Nor did Appellant object to the jury

charge in this respect; the jury was not instructed to disregard the evidence of

Appellant’s predicate violations in answering the best-interest questions. See TEX. R.

CIV. P. 274; B.L.D., 113 S.W.3d at 349-50; see also Barker, 213 S.W.3d at 313 (requiring

review of sufficiency of evidence based on charge and jury findings in charge).

Appellant has thus not preserved for appellate review her complaint about the evidence

of Appellant’s predicate violations being used in the best-interest review. See TEX. R.

APP. P. 33.1(a); cf. TEX. R. EVID. 105(a) (“in the absence of such request the court’s action

in admitting such evidence without limitation shall not be a ground for complaint on

appeal“).

        The evidence shows that in August 2010, A.M. was age five and E.M. was about

to turn three. Police went to the home in the evening in response to a child-neglect call

from a neighbor; the children had been seen banging on their bedroom window and

screaming. Police found the house filthy (full of trash, leftover and rotting food, dirty

In the Interest of A.M. and E.M.                                                       Page 8
clothes, rodents, and rodent droppings) and extremely hot.6 The electricity had been

turned off, but Appellant had an extension cord running from the neighbor’s house.

Inside the house were several extension cords and surge protectors, which the police

officer thought was unsafe for the young children. The only light on was a makeshift

one in the children’s bedroom. Appellant told police that she had locked the children in

their bedroom because they had thrown a tantrum and would not go to bed.

        The Department was called, and a CPS investigator found the home unsafe for

the children. A.M. reported that the house had been in this condition for three to four

weeks.     The children were removed and were placed for a time with Appellant’s

parents, in foster care, and ultimately with their great aunt and uncle. Appellant was

arrested and jailed for several months, pleading guilty to child endangerment and being

placed on community supervision. Thereafter, Appellant stayed with her brother, was

homeless for a while, and ultimately moved to Fort Worth and got a job and an

apartment, which was found to be clean and proper for the children. Appellant again

completed required services, and her supervised visits with the children were

appropriate.

        While doing her services, Appellant failed to inform the Department that she had

unsupervised contact with the children and admitted that she had lied about it in a

hearing. Appellant told the children not to tell the Department about this contact, and

as a result of this pressure, A.M. developed an incontinence problem. Appellant also



6In 2008 Appellant had been investigated by the Department for a filthy house and had received and
completed required services, including parenting classes and individual therapy.

In the Interest of A.M. and E.M.                                                           Page 9
did not inform the Department that her parents had substance-abuse issues and that she

had gotten into a serious relationship with a state prison inmate (Donnie) whom she

had a relationship with in high school.

        Donnie was in prison for the offense of attempted sexual assault (of a prostitute)

and had been on community supervision for drug possession.                      Appellant

communicated with Donnie in prison by email, visited him in prison, and sent him

money monthly while barely making ends meet and not paying her community-

supervision fees. Both her family-service plan and community supervision prohibited

her from associating with criminals. Appellant was in danger of having her community

supervision revoked.         Appellant and Donnie have discussed marriage when he is

released, and if he proves himself, he would live with her and the children.

        At the time of trial, the children had been with the great aunt and uncle for three

weeks, and they ultimately would like to adopt the children.

        We now review the evidence and consider the best-interest factors.

        Desires of the children: At the time of trial, A.M. was nearly age seven and E.M.

was age four. Neither child testified at trial. In visits the children had asked when they

would go “home,” and it is not disputed that they loved Appellant.              A.M. told

Appellant that she wanted things to be different than they were before, and A.M.

wanted stability. The children called their foster parents and their great aunt and uncle

“mommy” and “daddy,” and at the time of trial asked to see their grandmother more

than they asked to see Appellant.

        Evidence that a child loves a parent, enjoys visits, and shows affection is

In the Interest of A.M. and E.M.                                                    Page 10
marginally relevant. In re M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010, no pet.).

And absent a showing of sufficient maturity, a child’s preference is not considered. See

id.; see also In re A.R., 236 S.W.3d 460, 480 (Tex. App.—Dallas 2007, no pet.). In any

event, the evidence on this factor neither weighs in favor of or against the best-interest

findings.

        The children’s emotional and physical needs now and in the future and the emotional and

physical danger to the children: Evidence of past misconduct or neglect can be used to

measure a parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex.

App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco

1992, no writ) (“Past is often prologue.”); see also In re V.A., No. 13-06-00237-CV, 2007

WL 293023, at *5-6 (Tex. App.—Corpus Christi 2007, no pet.) (mem. op.) (considering

parent’s past history of unstable housing, unstable employment, unstable relationships,

and drug usage).

        The evidence shows that Appellant has a history of neglecting and endangering

the children, of exposing them to domestic violence (between Appellant and the

children’s father), and of unstable housing, employment, and relationships. Her future

plans include a life with Donnie, a convicted felon. At the time of trial, Appellant was

subject to having her community supervision revoked and being incarcerated. See, e.g.,

Karl v. Tex. Dept. Prot. & Reg. Serv’s., No. 03-03-00655-CV, 2004 WL 1573162, at *2-3 (Tex.

App.—Austin July 15, 2004, no pet.) (mem. op.) (engaging in criminal conduct

endangers emotional well-being of child because of parent’s resulting incarceration); see

also In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (“conduct

In the Interest of A.M. and E.M.                                                        Page 11
that subjects a child to a life of uncertainty and instability endangers the physical and

emotional well-being of a child”).

        The evidence on these factors, including the statutory offensive behavior, weighs

in favor of the best-interest findings.

        Parental abilities and available programs: The evidence shows that Appellant had

been educated in child development and had worked as a teacher’s aide in Head Start.

Despite that and despite having been through Department services (including

parenting classes) in 2008, Appellant’s home was again found filthy and unsafe in 2010.

After the children were removed, Appellant again completed Department services. At

the time of trial, Appellant had a clean apartment and, if she were to obtain possession

of the children, would be eligible for food stamps. She had also looked into daycare.

        The great aunt and uncle have raised several children and are family-oriented.

The great aunt has a history of depression but has been fine and had not had treatment

since 2005. Upon termination, the Department would continue to provide services to

the children.

        Evidence of a recent improvement does not absolve a parent of a history of

irresponsible choices. In re T.C., No. 10-10-00207-CV, 2010 WL 4983512, at *8 (Tex.

App.—Waco Dec. 1, 2010, pet. denied) (mem. op.) (citing In re J.O.A., 283 S.W.3d 336,

346 (Tex. 2009)); Smith v. Tex. Dep’t Prot. & Reg. Serv’s., 160 S.W.3d 673, 681 (Tex. App.—

Austin 2005, no pet.). The evidence on these factors weighs in favor of the best-interest

findings.

        Plans for the children and stability of the home:   The need for permanence is a

In the Interest of A.M. and E.M.                                                    Page 12
paramount consideration for a child’s present and future physical and emotional needs.

In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc). The

goal of establishing a stable permanent home for a child is a compelling state interest.

Dupree, 907 S.W.2d at 87.

        Appellant planned on continuing the children with their therapy and changing

how she had previously parented. The jury, as the finder of fact, was free to reject

Appellant’s assertions of future stability and of having learned from her mistakes. See

In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th

Dist.] Dec. 23, 2004, no pet.) (mem. op.) (“Ms. Woods has failed to show that she is

stable enough to parent B.S.W. for any prolonged period. The trial court was entitled to

determine that this pattern would likely continue and that permanency could only be

achieved through termination and adoption.”). She also planned a life for her and her

children with Donnie, a convicted felon, if he proved himself when he was released

from prison.

        The great aunt and uncle have been in their current home for over four years.

They want to adopt the children and end their instability. After potential adoptive

parents are identified by the Department, the children must live with them for six

months before adoption, and a caseworker would continue to work with them.

        The evidence on these factors weighs in favor of the best-interest findings.

        Acts or omissions and any excuses for them: Appellant admitted that she neglected

and endangered the children. She blamed it in part on her poor health.

        The evidence on these factors weighs in favor of the best-interest findings.

In the Interest of A.M. and E.M.                                                       Page 13
        In conclusion, on the jury’s findings that termination of Appellant’s parent-child

relationships with A.M. and E.M. would be in their best interest, considering all the

evidence in a neutral light in relation to the Holley factors, we hold that the jury could

have reasonably formed a firm belief or conviction that termination was in the

children’s best interest. Accordingly, the evidence is factually sufficient on the best-

interest findings.

        We overrule Appellant’s sole issue and affirm the trial court’s order of

termination.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs)
Affirmed
Opinion delivered and filed August 9, 2012
[CV06]




In the Interest of A.M. and E.M.                                                   Page 14
