                            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."
