                                NUMBER 13-18-00527-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


         IN THE INTEREST OF A.M.L.M., T.W.M., S.L.M., CHILDREN


                        On appeal from the 24th District Court
                             of Victoria County, Texas.


                                MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa
             Memorandum Opinion by Justice Hinojosa

        Appellants E.L. (Mother) and L.A.M. (Father) appeal from a judgment terminating

their parental rights to fifteen-year-old A.M.L.M. (Doe 1), thirteen-year-old T.W.M. (Doe

2), and eleven-year-old S.L.M. (Doe 3).1 See TEX. FAM. CODE ANN. § 161.001(b)(2) (best

interest ground), (b)(1)(O) (family service plan ground) (West, Westlaw through 2017 1st


         1 In appeals involving the termination of parental rights, the Texas Rules of Appellate Procedure

require the use of an alias to refer to a minor. TEX. R. APP. P. 9.8. We may also use an alias “to [refer to]
the minor’s parent or other family member” to protect the minor’s identity. Id.
C.S.). Mother and Father both challenge the legal and factual sufficiency of the evidence

supporting the family service plan ground.                 Additionally, in what we construe to be

Father’s second issue, he contends that “[n]othing in the affidavit filed by the [Texas]

Department of Family Services shows that reasonable efforts were made to prevent the

removal of the children from their home.”2 We affirm.

                                              I. BACKGROUND

       At the termination trial, the trial court heard from thirteen witnesses who may be

broadly categorized as:            (1) employees of the Texas Department of Family and

Protective Services (Department); (2) counselors; (3) community members who

interacted with the parents; (4) W.M., the children’s paternal grandmother (Grandmother);

and (5) both parents.

A.     Department Employees

       Nikki Carver,3 an investigator with the Department, recalled that, since 2005, the



       2   Section 262.113 provides:

       An original suit filed by a governmental entity that requests to take possession of a child
       after notice and a hearing must be supported by an affidavit sworn to by a person with
       personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence
       and caution that:

                 (1) there is a continuing danger to the physical health or safety of the child caused
                 by an act or failure to act of the person entitled to possession of the child and that
                 allowing the child to remain in the home would be contrary to the child’s welfare;
                 and

                 (2) reasonable efforts, consistent with the circumstances and providing for the
                 safety of the child, have been made to prevent or eliminate the need to remove the
                 child from the child’s home.

TEX. FAM. CODE ANN. § 262.113 (West, Westlaw through 2017 1st C.S.).

       3   Carver’s previous last name was Nagel. We will refer to her as Carver for simplicity.

                                                      2
Department had initiated eighteen investigations into the children’s welfare and the

parents’ conduct. Those investigations closed without escalating to a proceeding to

terminate paternal rights. The nineteenth investigation began because the Department

received an allegation that both parents were using methamphetamines and taking pills

on a daily basis and in the children’s presence. In an affidavit in support of removal, 4

Carver stated:

               On July 10, 201[7][,] I called law enforcement to assist us at the
        [parents’] address . . . . I spoke with Officer Parker and he stated that they
        deal with [the parents] all of the time. Officer Parker stated that [Mother] is
        currently pregnant and he does feel that they are using methamphetamines
        just by their behaviors. He stated that things have gotten bad between
        [Mother] and [Father] and they are always calling law enforcement to come
        to the residence due to arguments and [Mother] calling them stating that
        [Father] is driving with the kids under the influence. Nobody was at the
        residence when we attempted contact. I then went across the street to the
        gas station that the kids have been known to hang out at. While at the gas
        station I spoke with a neighbor and he stated that he talked to [Father] this
        morning and he did not appear to be under the influence but that he uses
        synthetic marijuana. He stated that [Mother] will do $40-$80 a day in pills
        and will sell her food stamps, steal, and solicit herself. He stated that she
        also has the kids stealing for her and soliciting themselves for money. He
        stated that he knows that [Father] had the boys this morning but stated that
        [Mother] is trying to get all of the kids.

                On July 12, 201[7][,] I received a call and a text from [Mother]. At
        this time I did not call her back. I called and texted [Mother] on 7/13/1[7]
        and told her that I needed to see her [and] the kids and sorry that I did not
        call her back the day before. She set an appointment with me for 7/13/17
        at 1:30. [Mother] did not show up to her appointment. I texted [Mother]
        and asked where she was. She replied that she had an emergency and
        that she would call when she was finished. A call was not received from
        her.

                 On July 14, 2017[,] I received a call from [family friend].                      She

         4 Carver’s affidavit in support of removal was initially filed along with the Department’s “Original

Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship and Order Setting Hearing.” Approximately a year later, the trial court admitted, without
objection, Carver’s affidavit in support of removal at the bench trial on the Department’s termination petition.
                                                       3
identified herself as being the one that [Mother] and [Doe 3] have been
staying with. She stated that they had been staying with them for about 2
weeks. [Family friend] stated that [Father] is on [s]ynthetic [m]arijuana and
[m]ethamphetamines. She stated that [Mother] is not doing the right things
right now either. She stated that [Doe 3] told her that if they don’t have any
toilet paper and [Father] goes to the restroom, that he will wipe with her
blanket and then cover her back up with the blanket. [Family friend] stated
that [Mother] solicits herself for sex so that she can get her drugs. She
stated that [Mother] is 4 months pregnant. [Family friend] stated that
[Mother] will leave and stay gone until early hours of the morning. She
stated that [Mother] stole her [c]lonopam [sic] pills. [Family friend] stated
that [Father] took [Doe 1] to a house . . . last week and bought drugs.

        On the above date, myself and co-worker Kelli Williams went by the
residence and the children were outside. We went around the block and
by the time we got to the house the kids were not outside. We knocked on
the door and [Father] came out of the residence. It was very clear that
[Father] was under the influence of some sort of drug. He was slurring his
speech, could not hardly stand up, and could not walk. He did not know
where his children were. He went back inside and looked around and said
they were not home. While waiting for [Father] to find his kids, one of the
children, [Doe 1] came home riding his bicycle. I asked [Doe 1] where [Doe
3] was and he stated that he did not know but must be in the house. I sent
him into the residence to find [Doe 3] since [Father] could not find him.
[Doe 1] came back out and stated that she was not at the residence and he
did not know where she was but she might have gone to a friend’s house.
[Father] called [Mother] and within a short time frame she came walking to
the house from down the street. She would not speak to me at all but
spoke with Kelli Williams. She never told Kelli anything but we discussed
with her that [Father] was highly under the influence but she would not
acknowledge it. [Mother] began speaking to me with vulgarity and calling
me vulgar names. Law enforcement told [Mother] that if she did not go
inside the home and stop referring to me with vulgarity, she would be
arrested. [Mother] told us that we had to leave and she went back inside
her residence. During this time [Doe 3] came walking down the road and I
spoke briefly with her and asked her how she was doing. She stated that
she was good. [Doe 3] went inside the residence. At this point, I and
coworker Williams went back to the car. While we were getting [ready] to
leave [Mother] came outside and apologized and gave co-worker, Kelli
Williams a written letter which stated that she needs help to get away from
[Father] and that she would come to the CPS office. We told her to come
to the office at 2:00 and to bring all of her kids. [Mother] never came to the
office and stopped answering her phone.


                                      4
Carver explained that the first eighteen investigations did not escalate to termination

proceedings because the parents cooperated with family-based services during those

investigations. The parents stopped complying with the family-based services, which

according to Carver, necessitated termination proceedings.

       On August 21, 2017, the trial court signed an order designating the Department as

the temporary managing conservator for the children. Kay Shook, a conservatorship

caseworker with the Department, testified that, upon removal from the parents’ custody,

the Department initially placed the children in a shelter. Later, the children were placed

with Grandmother.

       Shook identified family service plans that required the parents to, among other

things, attend counseling sessions and parental skills classes, submit to drug testing, and

pay child support to the Department. The parents, according to Shook, failed to satisfy

several of the requirements in the family service plans. Mother missed three drug tests,

which according to Shook are presumed positive. Additionally, Mother tested positive

for benzodiazepines on September 15, 2017 and December 14, 2017; she tested positive

for opiates on June 8, 2018. Mother failed to provide a valid prescription to account for

the detection of benzodiazepine. Father missed at least one drug test, but he tested

negative for any drugs at another drug test. Shook stated that the negative drug-test

result may have been because synthetic marijuana is not identified by the drug test that

was administered to him. As of April 2019, Father had paid only $111.69 in child support.

       Shook testified that Doe 1 was at risk of losing four front teeth and that dental care

provided during the removal period prevented such loss.               However, on cross


                                             5
examination by the parents, Shook admitted that there was no evidence that the parents

had left the children in a situation that caused them physical injury or emotional harm,

instead removal was initiated because of “non[-]cleanliness of the home” and illegal drug

use. Shook identified pictures of the home taken upon the children’s removal and noted

that the home “smelled like smoke of some sort” and “had a very foul odor.” She also

identified pictures that she took of a motel room where the parents stayed for one night

during the removal period.5 The pictures depict fast-food boxes, empty cups, and soda

cans on the desk. Shook testified that a trashcan was full of hair and opined that Father

had shaved his head.6

B.     Community Members

       Christine Jackson, a Court Appointed Special Advocate (CASA), met with the

children and parents over the year between the children’s removal and the termination

trial. She personally observed approximately six or seven visits between the children

and the parents during the separation period. Jackson recounted that after being initially

placed at a shelter, the children were relocated to live with Grandmother in the trailer

home where they previously resided with the parents. Jackson testified that Doe 1 and

Doe 2 want their parents’ parental rights terminated.                  Doe 2 specifically prefers the

Grandmother’s structure—even though it at times causes friction between the two—as

opposed to the chaotic household run by the parents. As for Doe 3, Jackson testified:


       5    Before the children’s removal, the parents and children resided in a trailer home owned by
Grandmother. After removal, the parents were displaced from the trailer home so that it could eventually
be occupied by Grandmother and the children. Monica de la Santos, a general manager at Motel 6,
testified that the pictures Shook took were from the same motel location where the parents had stayed a
night.

       6   The June 8, 2018 drug test Mother failed used a hair follicle to detect drug use.
                                                      6
       [Doe 3’s] opinion is different than her brothers. I don’t know if [Doe 3] fully
       understands the situation because of her age. She—the brothers would
       like termination. The—[Doe 3] does not want that because she would still
       like to visit with her mother. She would like to stay where she is with her
       grandmother, but she doesn’t want to never see her mother again.

Jackson believed that it would be in the children’s best interest if the parents’ parental

rights were terminated because the parents’ relationship with the children was unstable

and chaotic. Jackson also believed that the parents posed a danger to the children when

they were under the influence of drugs and by associating with drug dealers. As an

example, Jackson recalled that, during one of the parents’ visits, Mother fell asleep with

a knife in her hand as she was cutting summer sausage.

       Michael Brownie owns Cowboy Containment, a business that employed Father

during part of the separation period. Brownie recalled that upon learning of the children’s

removal, he donated material and paid for Cowboy Containment employees to repair the

trailer home where the family had resided. Father was fired because he disobeyed

workplace safety rules by taking Mother into secure work areas.

       Jose Trejo, a detective with the Victoria Police Department, testified that, on March

8, 2018, he was dispatched to perform a wellness check on an individual reported to have

passed out in a vehicle. Trejo roused Father, the vehicle’s occupant, and he noticed the

smell of synthetic marijuana when Father exited the vehicle. In Trejo’s opinion, Father

was intoxicated based on his speech, stance, and slow reaction. Father consented to

Trejo searching his person, and Trejo found a synthetic marijuana cigarette. Around the

time Trejo encountered Father, Mother telephoned the police station and relayed to Trejo

that Father “was an avid synthetic user.”


                                             7
       Rick Williams, a pharmacist at Roger’s Pharmacy, testified that he had known

mother for approximately ten years. Williams recalled that Mother would ask for refills

earlier than they were due, and at times, would slur her speech.

C.     Counselors

       Wendy Holder, a licensed professional counselor (LPC) with Reclamation

Counseling Center, counseled Mother over the course of thirteen sessions and reviewed

records for both parents. Holder testified that the parents missed three of ten required

“life skills” classes, which caused them to not complete the course. As for Mother, Holder

did not recommend reunification for two reasons. First, Holder opined that “the family

role scale is elevated.” This elevation resulted from Mother “dumping” on the children by

using them for comfort and emotional support. Such a dynamic leads to “adultification”

of the children and limits their social engagement outside the home. Second, Holder

believed that Mother suffered from histrionic personality disorder. According to Holder,

Mother seeks attention from people and treats people like they are her best friend when

they are not.    Holder recalled that Mother was prescribed Zoloft, clonazepam, and

Vistaril. At some counseling sessions, Holder observed Mother stumble down the hall

and use the wall for support. Holder recommended against reuniting Mother with the

children because she showed no progress in five months of counseling and could not

meet the children’s emotional needs.7

       John Lenihan, a LPC with Reclamation Counseling Center, counseled Father over

the course of fifteen sessions.        Father failed to attend four counseling sessions.


       7  Lyndal Rosenthal, a LPC with Olive Branch Hope Center, briefly testified, and she echoed
Holder’s recommendation against reunification.
                                                8
Lenihan testified that Father failed to meet his treatment goals, those being to: (1)

increase the accountability of behavior and abide by the rules in our of society, (2) improve

self-awareness and become less self-indulgent by showing more respect to others, (3)

take responsibility for his own actions, express remorse and not project blame on others,

and (4) demonstrate a capability for consistent employment and show financial and

emotional responsibility towards his wife and children. In Lenihan’s opinion, Father could

not provide a stable home environment for himself, much less the children.

D.      Grandmother

        Grandmother has cared for the children on two prior occasions before the current

placement. She opined that the children’s relationship with their parents was volatile.

In Grandmother’s opinion, terminating the parents’ parental rights would be in the

children’s best interest because she does not believe that the parents can provide for the

children and it would prevent Mother from going to the children’s school and agitating

them.

E.      Parents

        Mother denied many of the allegations raised by the Department’s witnesses.

She explained that Father was not under the influence of drugs when Carver and Williams

visited the home. Father, according to Mother, was napping after having worked in the

yard when Carver and Williams woke him up. Mother also explained that she underwent

a tubal ligation surgery shortly after Doe 3’s birth.      Therefore, reports of a recent

pregnancy would be false. Mother also denied using methamphetamine and engaging

in prostitution. She characterized Robert Radar, the neighbor referenced in Carver’s


                                             9
affidavit in support of removal, as “the neighborhood drunk.” Mother admitted that the

results of her most recent drug test, which used Mother’s hair follicle to test for drug use,

were positive. Moreover, she had been homeless for approximately eight months before

the termination trial.

       Father testified that in the preceding year he had transitioned through three

consecutive fulltime jobs. When asked to explain how he came to possess the synthetic

marijuana that Trejo found on his person, Father explained that “someone was in my

vehicle” and “dropped it in my vehicle.”       Father admitted to not attending couples

counseling and stated that he “tried to” inform Shook every time he moved while the

Department was the children’s managing conservator.

F.     Termination Judgment

       On September 19, 2018, the trial court signed a judgment that found by clear and

convincing evidence that termination of Father’s and Mother’s parental rights was in the

children’s best interest and was warranted because the parents failed to comply with the

family service plans. See id. § 161.001(b)(2) (best interest ground), (b)(1)(O) (family

service plan ground).     Mother moved to a new trial on the ground that there was

insufficient evidence that the children were neglected or abused at the time of removal.

The motion for new trial was overruled by operation of law. This appeal followed.

                             II. SUFFICIENCY OF THE EVIDENCE

       In the parents’ first issue, they challenge the legal and factual sufficiency of the

evidence supporting the family service plan ground.

A.     Standard of Review


                                             10
       The distinction between legal and factual sufficiency lies in the extent to which

disputed evidence contrary to a finding may be considered. In re A.C., 560 S.W.3d 624,

630 (Tex. 2018). In conducting a legal-sufficiency review, the reviewing court cannot

ignore undisputed evidence contrary to the finding but must otherwise assume the

factfinder resolved disputed facts in favor of the finding. In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002). Evidence is legally sufficient if, viewing all the evidence in the light most

favorable to the fact-finding and considering undisputed contrary evidence, a reasonable

factfinder could form a firm belief or conviction that the finding was true. Id.

       We perform “an exacting review of the entire record” in determining whether the

evidence is factually sufficient to support the termination of a parent-child relationship.

In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). If, in weighing disputed evidence, the

factfinder could have reasonably resolved the conflicts to form a firm conviction that the

allegations constituting the grounds for termination were true, then the evidence is

factually sufficient, and the termination findings must be upheld. In re C.H., 89 S.W.3d

17, 18–19 (Tex. 2002).      On the other hand, evidence is factually insufficient if the

disputed evidence a reasonable factfinder could not have credited in favor of a finding is

so significant that the factfinder could not have formed a firm belief or conviction that the

finding was true. In re J.F.C., 96 S.W.3d at 266.

B.     Applicable Law

       Because of the fundamental rights at issue, due process requires that termination

be supported by clear and convincing evidence. In re K.M.L., 443 S.W.3d 101, 112 (Tex.

2014); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence


                                             11
is “the measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations sought to be established.” TEX. FAM.

CODE ANN. § 101.007 (West, Westlaw through 2017 1st C.S.); In re J.F.C., 96 S.W.3d at

264.

       Before parental rights may be involuntarily terminated, the trier of fact must find

two elements by clear and convincing evidence: (1) that the parent committed one of

the statutory grounds for termination found in section 161.001(b)(1) of the family code;

and (2) that termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b);

In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012).

       Relevant to this proceeding, section 161.001(b)(1) provides that termination of

parental rights is warranted if the trier of fact finds by clear and convincing evidence, in

addition to the best interest finding, that the parent has:

       (O) failed to comply with the provisions of a court order that specifically
       established the actions necessary for the parent to obtain the return of the
       child who has been in the permanent or temporary managing
       conservatorship of the Department of Family and Protective Services for not
       less than nine months as a result of the child’s removal from the parent
       under Chapter 262 for the abuse or neglect of the child[.]

TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (emphasis added).

C.     Analysis

       The parents do not challenge the evidence supporting their failure to comply with

the requirements in the family service plans. Instead, they contend that the evidence is

legally and factually insufficient to support a finding that the children had been “abused

or neglected” at the time of their removal. Id. As authority, Mother references In re

E.C.R., 402 S.W.3d 239, 243–50 (Tex. 2013) for the proposition that subsection O

                                             12
requires clear and convincing evidence of risk of abuse or neglect. The Department

responds that the parents read too much into E.C.R., and it refers us to In re B.S., No.

11-12-00369-CV, 2013 WL 3878586, at *1–3 (Tex. App.—Eastland Jul. 25, 2013, no pet.)

(mem. op.), which provides in relevant part:

      The father relies upon the lack of evidence showing actual abuse or neglect
      of B.S. The Texas Supreme Court has recently rejected such a contention
      when it interpreted the “abuse or neglect” provision of Section
      161.001(1)(O) in In re E.C.R., 402 S.W.3d 239 (Tex. 2013). The court
      determined “that subsection O requires proof of abuse or neglect,” but it
      held that, considering the use and meaning of those terms in context of the
      Family Code, “abuse or neglect” in subsection O can be read to include
      “risk.” E.C.R., 402 S.W.3d at 246. The E.C.R. court determined that the
      conduct described in Section 161.001(1)(O) was established as a matter of
      law under the circumstances in that case, which included no actual abuse
      or neglect of the child at issue but did include an immediate danger to the
      child’s physical health or safety, a need to protect the child, and a
      substantial risk of a continuing danger if the child were returned home. Id.
      at 248–49.

In re B.S., 2013 WL 3878586, at *12.

      In E.C.R., the court found the affidavit in support of removal sufficient to support

termination under subsection O. Specifically, the court observed:

      Here, the Department’s evidence in support of removal included an affidavit
      showing that the department received a referral of physical abuse of Y.C.[,
      a four year old child]. A witness had seen M.R.[, the mother,] punching
      Y.C. and dragging her by her hair. Y.C. had sustained injuries. M.R.
      denied the abuse, but she was arrested and charged with intentional bodily
      injury to a child. She had been involved in a prior CPS case involving
      physical abuse of her older son, who was in the foster parents’ permanent
      conservatorship. She left E.C.R.[, an eight month old child,] with her
      boyfriend, who was not E.C.R.’s father, had an extensive criminal history,
      and had physically abused her. She was incarcerated and unable to care
      for E.C.R. This affidavit, even if not evidence for all purposes, shows what
      the trial court relied on in determining whether removal was justified. That
      court found sufficient evidence to satisfy a person of ordinary prudence and
      caution that E.C.R. faced an immediate danger to his physical health or
      safety, that the urgent need to protect him required his immediate removal,

                                           13
        and that he faced a substantial risk of a continuing danger if he were
        returned home—findings unchallenged by M.R. [footnote 8]

In re E.C.R., 402 S.W.3d at 248.8

        We conclude that E.C.R. does not support the parents’ legal and factual sufficiency

challenge. While the allegations in Carver’s affidavit in support of removal do not recount

physical abuse as those in the affidavit in E.C.R., there is evidence of the risk of neglect

to the children. Carver’s affidavit states that Mother abuses methamphetamines and that

she solicits herself, sells food stamps, and steals to support her drug addiction. Father,

according to Carver’s affidavit, abuses synthetic marijuana. A family friend stated to

Carver that Father used Doe 3’s blanket as toilet paper, Doe 1 accompanied Father on

his drug purchases, and Mother would leave and stay gone until the early morning hours.

Shortly before the children were removed, Carver personally observed Father exhibiting

slurred speech and an inability to stand up and walk. Carver’s observations coupled with

Father’s inability to locate the children led Carver to believe that Father was under the

influence of drugs. Lastly, Carver recounted eighteen previous investigations started by

the Department into the parents.             These allegations—“even if not evidence for all

purposes”—constitute legally sufficient evidence that the children were at risk of neglect

at the time of removal. See id.; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Even



        8  In footnote 8 of E.C.R., the court referenced Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991)
and In re Steed, No. 03-08-00235-CV, 2008 WL 2132014, at *1 (Tex. App.—Austin May 22, 2008, orig.
proceeding [mand. denied]) (mem. op.) for the proposition that mandamus relief may be available to correct
an erroneous temporary order because such orders are not subject to interlocutory appeals. Under a “but
see” signal in the same footnote, the E.C.R. court referenced section 262.112 of the family code, which
provides: In any proceeding in which an expedited hearing is held under Subsection (a), the department,
parent, guardian, or other party to the proceeding is entitled to an expedited appeal on a ruling by a court
that the child may not be removed from the child’s home. TEX. FAM. CODE ANN. § 262.112 (West, Westlaw
through 2017 1st C.S.).
                                                    14
considering Mother’s denial of drug abuse and solicitation and her excuse that Father

was addled after having just awakened from a nap—not under the influence of drugs—

when Carver and Williams visited the home, the trial court could have reasonably resolved

the conflicts to form a firm conviction that the children were at risk of neglect.9 See In re

C.H., 89 S.W.3d at 18–19; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(O).

        We overrule the parents’ first issue.10

                III. SUFFICIENCY OF CARVER’S AFFIDAVIT IN SUPPORT OF REMOVAL

        Father’s second issue, as we construe it, is closely related to the parents’ first

issue. In Father’s second issue, he contends that nothing in Carver’s affidavit in support

of removal shows that reasonable efforts were made to prevent the removal of the

children from their home. See TEX. FAM. CODE ANN. § 262.113(b). Father further argues

that the trial court’s termination determination is infirm and must be reversed because the

children were improperly removed. We read In re E.C.R., 402 S.W.3d at 248, n.8, as

suggesting that complaints regarding the adequacy of an affidavit in support of removal

may be addressed immediately. Moreover, Father points to no adverse ruling regarding

Carver’s affidavit in support of removal.               See TEX. R. APP. P. 33.1, 38.1(i).              To the

contrary, it was admitted at the termination trial without objection.                      Accordingly, we


         9 Although Father filed a motion for new trial, his motion did not challenge the factual sufficiency of

the evidence supporting termination as Mother’s motion did. Thus, Father failed to preserve a factual
sufficiency challenge. See TEX. R. CIV. P. 324(b)(2); In re D.J.J., 178 S.W.3d 424, 426–27 (Tex. App.—
Fort Worth 2005, no pet.). Even had Father preserved such a challenge, it would have failed.

        10  We emphasize that the parents have asserted a limited legal and factual sufficiency challenge
that focuses on the final clause of section 161.001(b)(1)(O) of the family code. Even had the parents
argued that there is legally and factually insufficient evidence that termination of their parental rights was in
the best interests of the children, our disposition would remain the same. The record contains legally and
factually sufficient evidence that termination was in the children’s best interest. See generally, In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012) ((citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)).
                                                      15
conclude that Father’s complaint regarding Carver’s affidavit in support of removal was

rendered moot when he failed to when he failed to challenge it immediately, and even if

not moot, it is unpreserved.

      We overrule Father’s second issue.

                                     IV. CONCLUSION

      The judgment of the trial court is affirmed.

                                                            LETICIA HINOJOSA
                                                            Justice

Delivered and filed the
14th day of March, 2019.




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