in the Interest of A. H., a Child ( 2014 )

NO. 12-14-00257-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 1ST
IN THE INTEREST OF A. H.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ SAN AUGUSTINE COUNTY, TEXAS
MEMORANDUM OPINION
C.L.H. appeals the termination of her parental rights. In one issue, she challenges the
order of termination. We affirm.
BACKGROUND
C.L.H. is the mother of A.H., born July 21, 2005. J.C.H. is the father of the child and is
not a party to this appeal. On February 6, 2013, the Department of Family and Protective
Services (the Department) filed an original petition for protection of A.H., for conservatorship,
and for termination of C.L.H.’s parental rights. The Department was appointed temporary
managing conservator of the children, and C.L.H. was appointed temporary possessory
conservator with limited rights and duties.
At the conclusion of the trial on the merits, the jury found, by clear and convincing
evidence, that C.L.H. had engaged in one or more of the acts or omissions necessary to support
termination of her parental rights under Section 161.001(1) of the Texas Family Code,
subsections (D) and (E). The jury also found that termination of the parent-child relationship
between C.L.H. and A.H. was in the child’s best interest. Based on these findings, the trial court
ordered that the parent-child relationship between C.L.H. and A.H. be terminated. This appeal
followed.
SUFFICIENCY OF THE EVIDENCE
As part of her sole issue on appeal, C.L.H. contends that the evidence is legally
insufficient to support the jury’s finding that termination of the parent-child relationship was in
the child’s best interest. A no evidence complaint is preserved through one of the following: (1)
a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an
objection to the submission of the issue to the jury; (4) a motion to disregard the jury’s answer to
a vital fact issue; or (5) a motion for new trial. T.O. Stanley Boot Co., Inc. v. Bank of El Paso,
847 S.W.2d 218, 220 (Tex. 1992); see also In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—
Fort Worth 2005, no pet). C.L.H. did not file a motion for instructed verdict regarding the
evidence to support the jury’s findings on best interest. Instead, she made an oral motion for a
directed verdict, alleging that the Department did not prove, by clear and convincing evidence,
each element of “the endangerment of the child.” Nor did she file a motion for new trial or any
of the other motions necessary to preserve her legal sufficiency challenge. Therefore, she has
waived the right to complain about the legal sufficiency of the evidence to support the jury’s
finding that termination was in the best interest of the child.
In the remaining part of her sole issue on appeal, C.L.H. contends that the evidence is
factually insufficient to support the jury’s finding that termination of the parent-child relationship
was in the child’s best interest. A point in a motion for new trial is a prerequisite to a complaint
of factual insufficiency of the evidence to support a jury finding. In re A.J.L., 136 S.W.3d 293,
301 (Tex. App.—Fort Worth 2004, no pet.); TEX. R. CIV. P. 324(b)(2); see also In re M.S., 115
S.W.3d 534, 547 (Tex. 2003) (applying Texas Rule of Civil Procedure 324(b)(2) requiring a
motion for new trial to preserve a complaint of factual sufficiency to support jury finding in
parental termination cases). C.L.H. did not file a motion for new trial. Therefore, she has
waived the right to complain about the factual sufficiency of the evidence to support the jury’s
finding that termination was in the best interest of the child.
Because C.L.H. has waived the complaints she raises on appeal, we overrule her sole
issue.1
1
There is no claim that failure to preserve error was unjustifiable or the result of ineffective assistance of
counsel. See In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005).
2
DISPOSITION
Having overruled C.L.H.’s sole issue, we affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Opinion delivered December 10, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 10, 2014
NO. 12-14-00257-CV
IN THE INTEREST OF A. H., A CHILD
Appeal from the 1st District Court
of San Augustine County, Texas (Tr.Ct.No. CV-13-9429)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.