in the Interest of K.D.S.P., Child(ren) ( 2022 )

AFFIRM; Opinion Filed November 21, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00456-CV
IN THE INTEREST OF K.D.S.P., CHILD
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-20-00042
MEMORANDUM OPINION
Before Justices Schenck, Pedersen, III, and Smith
Opinion Per Curiam
In this appeal of the trial court’s final order in a suit affecting child–parent
rights, Mother appeals the decision to terminate her parental rights to a child,
K.D.S.P, and Father appeals the decision to appoint him as possessory conservator
of the same child. Mother challenges the sufficiency of the evidence to support the
jury’s findings that termination of her parental rights was in the best interest of the
child. Father similarly challenges the sufficiency of the evidence to support the
jury’s decision to appoint non-parent Foster Parents as permanent joint managing
conservators and himself as possessory conservator of the child. We affirm trial
court’s order. Because the dispositive issues in this case are settled in law, we issue
this memorandum opinion. See TEX. R. APP. P. 47.4.
BACKGROUND
Father moved from Reynosa, Mexico, to Dallas, Texas, in 2017. At that time,
he had been married to Stepmother for nearly twenty years and had three sons with
her. Father and Stepmother agreed his living and working in Dallas would be
beneficial for their family, and Father regularly called home to stay in touch with his
wife and sons, as well as sent home money each week. That year, Father also met
Mother, and by 2018, Father and Mother had entered into a romantic relationship.
Mother has been addicted to drugs since she was fourteen years old. Prior to
meeting Father, she used heroin while pregnant with her two children from a
previous relationship, and both children were born addicted to the drug. Both
children were removed due to that addiction and placed with paternal relatives.
At his construction job, Father was offered and began using illegal drugs to
keep up with the work. Father and Mother continued to use illegal drugs until
Mother learned she was pregnant around September of 2019. Both parents agreed
to seek treatment, and Mother went to a methadone clinic. Both soon relapsed, but
each hid his or her drug use from the other.
In December of 2019, K.D.S.P. was born two months prematurely and
addicted to heroin. The hospital reported the child’s addiction at birth to the
Department. A few days after her birth, the Department filed a petition for
protection, conservatorship, and termination. Both parents submitted to drug testing
at the Department’s request. Mother and Father tested positive for illegal drugs. The
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Department took custody of K.D.S.P. and subsequently placed her with Foster
Parents.
Mother visited K.D.S.P. in the hospital, but she failed to appear at a hearing
two weeks after K.D.S.P.’s birth. The Department served her by publication.
Mother also failed to appear at a supervised visit scheduled at the beginning of
February 2020. Mother did not file an answer until June 17, 2021.
In January 2020, Father and Stepmother decided together that he would return
to their home in Reynosa to enter drug–rehabilitation treatment. Father entered into
an in-patient rehabilitation–treatment facility in Reynosa, stayed there for three
months, and was released in May 2020. During his treatment, he was not permitted
to have communication with others outside the facility. Before he entered the
facility, Father gave Stepmother the contact information he had received from the
Department and instructed her to call and ask about K.D.S.P. Stepmother sent a
message to the Department and obtained a list of services he needed to complete in
order for Father to be reunified with his daughter. Father worked with the
Department’s office in McAllen and the Mexican equivalent of the Department, DIF,
to complete the services.
While K.D.S.P. remained in the care of Foster Parents, Mother did not visit
her more than three times, and all were in-person visits at the Department’s offices.
However, in June of 2020, Father began visiting K.D.S.P. weekly via video calls and
consistently visited her that way through the pendency of this case. Foster Mother
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facilitated these visits using various methods to keep the infant and then toddler
K.D.S.P. engaged with Father.
On January 13, 2021, Father filed his original answer, requesting a jury trial
and seeking return of K.D.S.P. to him, as well as lesser alternative forms of relief,
such as joint managing conservatorship and possessory conservatorship. That same
day, Father moved to continue the trial set for later that month, arguing the parties
were awaiting the results of an addendum to the home study on Father. That same
month, the trial court conducted a hearing and signed an order extending the
dismissal date in the case until July 2021, noting the parties’ intention to reunify the
child with Father, but that the Department and the child’s guardian ad litem required
time to translate and consider additional information expected to be gathered by DIF.
On August 30, 2021, Foster Parents filed a petition to intervene in the
Department’s suit, seeking the termination of both Mother’s and Father’s parental
rights as to K.D.S.P. Foster Parents requested the Department be appointed
managing conservator and alternatively that they be appointed joint managing
conservators.
The case proceeded to trial before a jury, at which Mother, Father, Foster
Parents, and other witnesses testified. At the conclusion of the trial, the jury returned
a verdict, finding, among other things, it was in the best interest of K.D.S.P. for
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Mother’s parental rights to terminated,1 for Father’s parental rights to not be
terminated,2 for Foster Parents to be appointed joint managing conservators, and for
Father to be appointed possessory conservator. The trial court signed an order
terminating Mother’s parental rights and appointing Foster Parents permanent joint
managing conservators and Father possessory managing conservator consistent with
the jury’s findings. That order also required Father’s possession be supervised and
included a finding that unsupervised access would endanger the physical health or
safety of K.D.S.P.
Mother and Father filed separate notices of appeal and briefs in this case.
DISCUSSION
In three issues, Mother challenges the legal and factual sufficiency of the
evidence to support the jury’s finding that termination of her parental rights was in
the best interest of K.D.S.P. In a single issue, Father challenges the sufficiency of
the evidence to support the implied findings that the appointment of him as
managing conservator was not in K.D.S.P.’s best interest and that appointment of
Father as managing conservator would significantly impair K.D.S.P.’s physical or
1
The jury also found Mother had allowed K.D.S.P. to be placed or remain in conditions or surroundings
that endangered the child’s physical or emotional well-being, had engaged in conduct or placed K.D.S.P.
with persons who engaged in conduct that endangered the child’s physical or emotional well-being, and
constructively abandoned K.D.S.P.
2
The jury found Father had allowed K.D.S.P. to be placed or remain in conditions or surroundings that
endangered the child’s physical or emotional well-being and had engaged in conduct or placed K.D.S.P.
with persons who engaged in conduct that endangered the child’s physical or emotional well-being. Despite
those findings, the jury concluded termination of his parental rights as to K.D.S.P. would not be in the
child’s best interest.
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emotional development in order to overcome the presumption that a fit parent acts
in a child’s best interest.
No party, other than appellants, has filed a brief in this case. Upon our own
review of the record before us, we question whether the issue of the sufficiency of
the evidence to support termination of Mother’s parental rights and to overcome the
constitutional parental presumption or to establish significant impairment was
properly preserved below.
It is unclear from existing case law whether an appellate court must, should,
or may raise the issue of preservation on its own. See Osman v. City of Fort Worth,
No. 02-21-00117-CV, 2022 WL 187984, at *5 (Tex. App.—Fort Worth Jan. 20,
2022, pet. denied) (mem. op.) (“[p]reservation of error is a systemic requirement on
appeal,” and “a court of appeals should review preservation of error on its own
motion.”) (quoting Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 44 (Tex. App.—
Texarkana 2017, pet. denied)); see also Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d
602, 604 (Tex. 2012) (“When a party fails to preserve error in the trial court . . . an
appellate court may not consider the unpreserved or waived issue.”); Alikhan v.
Alikhan, No. 03-19-00515-CV, 2021 WL 3085844, at *3 (Tex. App.—Austin July
22, 2021, pet. filed) (mem. op.) (“To protect th[e] important prudential
considerations [behind error preservation]—including those of judicial economy—
we may review the record sua sponte for preservation of error.”); cf. Mitchell v.
Wilmington Sav. Funds Soc’y, FSB, No. 02-18-00089-CV, 2019 WL 150262, at *4
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(Tex. App.—Fort Worth Jan. 10, 2019, no pet.) (mem. op.) (“[B]efore we consider
whether an abuse of discretion has occurred, the error must be preserved for our
review.”). Regardless of that question, we conclude that it is proper for us to raise
preservation sua sponte.
Factual sufficiency issues must be preserved by new trial motion. TEX. R.
CIV. P. 324(b)(2); In re A.R.M., 593 S.W.3d 358, 362, n.1 (Tex. App.—Dallas 2018,
pet. denied) (mem. op.) (applying Rule 324 in parental-termination case). The
clerk’s record does not contain a new trial motion, nor does the computer-generated
docket sheet indicate that any such motion was filed. Neither Mother nor Father
preserved a factual sufficiency argument. See, e.g., In re A.P., No. 05-19-01536-
CV, 2020 WL 3071708, at *5 (Tex. App.—Dallas June 10, 2020, no pet.) (mem.
op.), superseded by statute on other grounds as stated in In re D.T., 625 S.W.3d 62,
70 (Tex. 2021).
A legal sufficiency argument can be preserved by: (i) a motion for instructed
verdict, (ii) a motion for judgment notwithstanding the verdict, (iii) an objection to
a jury question’s submission, (iv) a motion to disregard a jury’s answer to a vital fact
issue, or (v) a new trial motion. See In re A.H.J., No. 05-15-00501-CV, 2015 WL
5866256, at *10 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.). Here,
nothing in the record on appeal indicates that either Mother or Father made any of
these motions or objections. Accordingly, neither Mother nor Father preserved a
legal sufficiency argument. See id. (applying ordinary preservation rules to legal
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sufficiency challenge in parental-termination case); see also In re M.M., No. 05-19-
00329-CV, 2019 WL 4302255, at *6 (Tex. App.—Dallas Sept. 11, 2019, pet. denied)
(mem. op.).
In view of the apparent lack of preservation, we are obliged to overrule
Mother’s and Father’s respective issues and affirm the trial court’s order.
CONCLUSION
We affirm the trial court’s order terminating the parental rights of Mother as
to K.D.S.P., appointing Foster Parents as managing conservators of K.D.S.P., and
appointing Father as possessory conservator of K.D.S.P.
/Per Curiam/
PER CURIAM
220456F.P05
Schenck, J., concurring and dissenting.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.D.S.P., On Appeal from the 305th Judicial
District Court, Dallas County, Texas
No. 05-22-00456-CV Trial Court Cause No. JC-20-00042.
Opinion delivered Per Curiam.
Justices Schenck, Pedersen, III, and
Smith participating.
In accordance with this Court’s opinion of this date, We AFFIRM the trial
court’s order terminating the parental rights of MOTHER as to K.D.S.P.,
appointing Foster Parents as managing conservators of K.D.S.P., and appointing
FATHER as possessory conservator of K.D.S.P.
It is ORDERED that appellees recover their costs of this appeal from
appellants MOTHER and FATHER.
Judgment entered this 21st day of November 2022.
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