A. W. and R. R. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00048-CV
A. W. and R. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
NO. 14-1433, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
MEMORANDUM OPINION
A.W. and R.R. appeal from the trial court’s order terminating their parent-child
relationship with their daughter, K.R.1 In two issues, A.W. contends that the evidence is legally and
factually insufficient to support the termination of her parental rights. In four issues, R.R. contends
that the evidence is factually insufficient to support the termination of his parental rights. We will
affirm the trial court’s order terminating A.W.’s and R.R.’s parental rights.
DISCUSSION
To terminate the parent-child relationship, a court must find by clear and convincing
evidence that: (1) the parent has committed one of the enumerated statutory grounds for termination
and (2) it is in the child’s best interest to terminate the parent’s rights. Tex. Fam. Code § 161.001(b).
1
To protect the privacy of the parties, we refer to the child and her parents by their initials.
See Tex. Fam. Code § 109.002(d).
A.W. contends that the evidence is legally and factually insufficient to support the termination of
her parental rights, while R.R. contends that the evidence is factually insufficient to support the
termination of his parental rights. “The distinction between legal and factual sufficiency when the
burden of proof is clear and convincing evidence may be a fine one in some cases, but there is a
distinction in how the evidence is reviewed.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When
reviewing the legal sufficiency of the evidence in a parental-rights-termination case, we consider all
the evidence in the light most favorable to the jury’s finding and determine whether a reasonable
fact-finder could have formed a firm belief or conviction that its finding was true. See id.; see also
In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). When reviewing the factual sufficiency of the
evidence, we view all of the evidence in a neutral light and determine whether a reasonable fact-finder
could form a firm belief or conviction that a given finding was true. In re C.H., 89 S.W.3d 17,
18–19 (Tex. 2002). We assume that the fact-finder resolved disputed facts in favor of its finding if
a reasonable person could do so, and we disregard evidence that a reasonable fact-finder could have
disbelieved or found incredible. In re J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient
only if a reasonable fact-finder could not have resolved the disputed evidence in favor of its finding
and if that disputed evidence is so significant that the fact-finder could not reasonably have formed
a firm belief or conviction that its finding was true. Id.
A.W.
The jury found by clear and convincing evidence that A.W. committed actions
corresponding to at least one of the statutory grounds for termination found in subsections (D), (E),
(M), and (O). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (M), (O). The jury further found by
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clear and convincing evidence that termination of A.W.’s rights was in K.R.’s best interest. See id.
§ 161.001(b)(2). In her first issue, A.W. challenges the legal and factual sufficiency of the evidence
supporting the jury’s finding that A.W. had satisfied a ground for termination. In her second issue,
A.W. challenges the legal and factual sufficiency of the jury’s best-interest finding.
To preserve a challenge to the legal sufficiency of evidence in a jury trial, a party
must either (1) file a motion for instructed verdict, (2) file a motion for judgment notwithstanding
the verdict, (3) object to the submission of the issue to the jury, (4) file a motion to disregard the
jury’s answer to a vital fact issue, or (5) file a motion for new trial; to preserve a challenge to
the factual sufficiency of the evidence in a jury trial, a party must file a motion for new trial. See
Mason v. Texas Dep’t of Family & Protective Servs., No. 03-11-00205-CV, 2012 WL 1810620, at *7
(Tex. App.—Austin May 17, 2012, no pet.) (mem. op.); see also Tex. R. Civ. P. 324(b)(2), (3) (“A
point in a motion for new trial is a prerequisite to the following complaints on appeal . . . (2) A
complaint of factual insufficiency of the evidence to support a jury finding . . . (3) A complaint that
a jury finding is against the overwhelming weight of the evidence . . . .”); Cecil v. Smith, 804 S.W.2d
509, 510–11 (Tex. 1991) (“A point in a motion for new trial is a prerequisite to complain on appeal
that the evidence is factually insufficient to support a jury finding and that a jury finding is against
the overwhelming weight of the evidence. ‘No evidence’ points may be raised by either (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.”) (citations and footnote omitted); In re J.B., No. 09-16-00442-CV,
2017 WL 2180682, at *7 (Tex. App.—Beaumont May 18, 2017, no pet. h.) (mem. op.); In re A.L.,
486 S.W.3d 129, 130 (Tex. App.—Texarkana 2016, no pet.); Key v. Richards, No. 03-14-00116-CV,
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2016 WL 240773, at *5 (Tex. App.—Austin Jan. 13, 2016, no pet.) (mem. op.); In re G.H.,
No. 02-14-00261-CV, 2015 WL 3827703, at *5 (Tex. App.—Fort Worth June 18, 2015, no
pet.) (mem. op., en banc); In re H.D.B.-M., No. 10-12-00423-CV, 2013 WL 765699, at *8 (Tex.
App.—Waco Feb. 28, 2013, pet. denied) (mem. op.).
Nothing in the record before us indicates that A.W. filed a motion for new trial.
Therefore, A.W. has not preserved her factual-sufficiency challenges. Arguably, A.W. has preserved
her legal-sufficiency challenges concerning subsections (D), (E), and (O), because she objected to
the submission of those grounds to the jury at the charge conference. However, nothing in the record
before us indicates that A.W. objected to the submission of subsection (M) or the best-interest
question to the jury or that she ever filed a motion for instructed verdict, a motion for judgment
notwithstanding the verdict, or a motion to disregard the jury’s answer to a vital fact issue. Therefore,
we conclude that A.W. has not preserved her legal-sufficiency challenges to the jury’s findings
concerning subsection (M) or the best-interest finding. Only one ground under section 161.001(b)(1)
is necessary to support a judgment in a parental-rights-termination case. See In re A.V., 113 S.W.3d
355, 362 (Tex. 2003); Spurck v. Texas Dep’t of Family & Protective Servs., 396 S.W.3d 205, 221
(Tex. App.—Austin 2013, no pet.). Because A.W. has not preserved any challenge to the jury’s
findings under subsection (M) or the best-interest finding, we overrule A.W.’s issues.2
2
We also note that, even if A.W. had preserved her challenges to the jury’s finding that she
committed conduct satisfying subsection (M), her challenges would fail. Under subsection (M), a
court may terminate parental rights if the parent “had his or her parent-child relationship terminated
with respect to another child based on a finding that the parent’s conduct was in violation of
Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.” Tex. Fam.
Code § 161.001(b)(1)(M). Subsection (D) allows termination when a parent “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger the physical
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R.R.
In four issues, R.R. contends that the evidence was factually insufficient to support
the jury’s finding that R.R. committed actions corresponding to at least one of the statutory grounds
for termination found in subsections (D), (E), (N), and (O). See Tex. Fam. Code § 161.001(b)(1)(D),
(E), (N), (O).3 Because only one ground under section 161.001(b)(1) is necessary to support the trial
court’s judgment, we will limit our discussion to subsection (E). See Spurck, 396 S.W.3d at 221.
Subsection (E) states that the parent “engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or emotional well-
being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). This subsection requires proof of child
endangerment, i.e., exposing a child to loss or injury or jeopardizing a child’s emotional or physical
well-being. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment
does not need to be established as an independent proposition but may be inferred from parental
or emotional well-being of the child,” and subsection (E) allows termination when a parent “engaged
in conduct or knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child.” Id. § 161.001(b)(1)(D), (E). At trial, the court
admitted evidence that A.W. previously had her rights terminated to another child in Virginia.
According to the termination order, the Virginia court found by clear and convincing evidence that
“[t]he neglect or abuse suffered by such child presents a serious and substantial threat to his or her
life, health or development; and [i]t is not reasonably likely that the conditions which resulted in
such neglect or abuse can be substantially corrected or eliminated so as to allow the child’s safe
return to his or her parent within a reasonable time.” We conclude that the Virginia court order
indicates that the court terminated A.W.’s parental rights because of conduct that would satisfy
subsection (D) or (E) in Texas. While A.W. argues that the Department failed to produce expert
testimony that the findings of the Virginia court would satisfy subsection (D) or (E), she cites no
authority for the proposition that expert testimony is required. We see no reason why the jury, and
this Court, could not conclude that the “neglect or abuse” that presented “a serious and substantial
threat” to the “life, health or development” of A.W.’s child would constitute endangerment in Texas.
3
R.R. preserved his factual-sufficiency challenges by raising them in a motion for new trial.
See Tex. R. Civ. P. 324(b)(2). On appeal, R.R. has not challenged the jury’s best-interest finding.
5
misconduct alone. Id. To constitute endangerment under subsection (E), the parent’s conduct need
not be directed at the child. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). Conduct may endanger
a child even if it does not cause the child to suffer actual injury. In re M.C., 917 S.W.2d 268, 269
(Tex. 1996) (quoting Boyd, 727 S.W.2d at 533).
Although a parent’s incarceration, standing alone, will not support a finding of
endangerment, the fact-finder may consider it as a factor in determining whether the parent has
engaged in a course of conduct that endangers the child. See In re M.C., 482 S.W.3d 675, 685 (Tex.
App.—Texarkana 2016, pet. denied) (“[W]hile we recognize that imprisonment, standing alone, is
not conduct which endangers the physical or emotional well-being of the child, intentional criminal
activity which expose[s] the parent to incarceration is relevant evidence tending to establish a course
of conduct endangering the emotional and physical well-being of the child.”) (internal quotation
marks omitted); In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.) (“Evidence
of criminal conduct, convictions, and imprisonment and its effect on a parent’s life and ability to
parent may establish an endangering course of conduct.”); In re M.D.S., 1 S.W.3d 190, 199 (Tex.
App.—Amarillo 1999, no pet.) (“If the evidence, including the imprisonment, shows a course of
conduct which has the effect of endangering the physical or emotional well-being of the child, a
finding under [subsection (E)] is supportable.”).
A parent’s criminal background is particularly relevant if it demonstrates a tendency
towards violence, especially violence against family members. See D.N. v. Texas Dep’t of Family
& Protective Servs., No. 03-15-00658-CV, 2016 WL 1407808, at *2 (Tex. App.—Austin Apr. 8,
2016, no pet.) (mem. op.) (“[D]omestic violence may constitute endangerment, even if the violence
is not directed at the child.”); In re A.A., No. 06-14-00060-CV, 2014 WL 5421027, at *3 (Tex.
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App.—Texarkana Oct. 23, 2014, no pet.) (mem. op.) (“Domestic violence, want of self-control,
and the propensity for violence may be considered as evidence of endangerment.”); In re T.G.R.-M.,
404 S.W.3d 7, 14 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Another factor that may
contribute to an environment that endangers a child’s well-being is a parent’s abusive or violent
criminal conduct . . . . Evidence that a parent previously has engaged in abusive conduct allows an
inference that the parent’s violent behavior will continue in the future.”); In re S.M., 389 S.W.3d 483,
492 (Tex. App.—El Paso 2012, no pet.) (“Evidence that a person has engaged in abusive conduct
in the past permits an inference that the person will continue violent behavior in the future.”).
When determining whether a parent has engaged in an endangering course of conduct,
a fact-finder may consider the parent’s actions and inactions that occurred both before and after
the child was born. See D.M. v. Texas Dep’t of Family & Protective Servs., No. 03-17-00137-CV,
2017 WL 2628949, at *3 (Tex. App.—Austin June 13, 2017, no pet. h.) (mem. op.); In re M.C.,
482 S.W.3d at 685 (“The conduct to be examined includes what the parent did both before and after
the child was born.”) (internal quotation marks omitted); In re B.C.S., 479 S.W.3d at 926 (same);
In re S.M., 389 S.W.3d at 491–92 (“[I]n considering whether a relevant course of conduct has been
established, a court properly may consider both actions and inactions occurring both before and
after a child’s birth.”); In re C.A.B., 289 S.W.3d 874, 886 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (“If a parent abuses the other parent or children, that conduct can support a finding of
endangerment even against a child who was not yet born at the time of the conduct.”); In re
M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied) (“[W]hile knowledge
of paternity is a prerequisite to a showing of knowing placement of a child in an endangering
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environment, it is not a prerequisite to a showing of a parental course of conduct which endangers
a child under [subsection (E)].”).
Here, the Department presented evidence that R.R. had previously been convicted
of the felony offenses of assault family violence and unlawful possession of a firearm by a felon.4
The Department also presented evidence that a court had found R.R. in contempt “for failure to
make court-ordered child support and/or medical support payments” and had ordered that R.R. be
committed to the county jail for 180 days. At trial, R.R. testified that he had been incarcerated for
about six months prior to trial. In addition, A.W. testified that domestic violence had occurred
between her and R.R. and that R.R. was “physically abusive” to her “[h]ere and there” during their
relationship. Furthermore, the Department initially began investigating R.R. and A.W. for neglectful
supervision because of an incidence of domestic violence between them.
The Department also produced the report of a psychological evaluation performed
on A.W. in connection with this case. In the report, the medical professional states that “[A.W.]
reported that she was hospitalized on one occasion after a physical altercation with [R.R.]” and that
A.W. further stated, “A couple times I was pregnant with my son and [R.R.] and I got into it. He
was pushing me. One time he tried to choke me and I went to the ER.” Although R.R. denied at
trial that he had choked A.W., the jury could have disbelieved his testimony. See City of Keller v.
4
In its brief, the Department refers to additional convictions of R.R.’s and argues that they
support the jury’s finding under subsection (E). At best, the Department’s argument is incorrect,
and, at worst, it is misleading. The trial court refused to admit these additional convictions into
evidence, and they are only in the appellate record because the Department made an offer of proof.
The Department has not brought a cross-appeal challenging the trial court’s evidentiary rulings.
Instead, it merely refers to these convictions as though they were part of the record. We will not
consider these additional convictions in our analysis.
8
Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“Jurors are the sole judges of the credibility of the
witnesses and the weight to give their testimony.”); In re A.L.H., 515 S.W.3d 60, 80 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied) (“We are mindful in both [legal-sufficiency and
factual-sufficiency review] that the jury, as fact finder, was the sole judge of the credibility of the
witnesses and the weight to be given their testimony.”).
Viewing all of the evidence in a neutral light, we conclude that the jury could have
reasonably formed a firm belief or conviction that R.R. had endangered K.R. See Tex. Fam. Code
§ 161.001(b)(1)(E); see also In re A.A., 2014 WL 5421027, at *4 (“Here, the evidence paints a picture
of a long history of irresponsible choices which were ultimately detrimental to the emotional and
physical well-being of Scott’s children.”). We further determine that there was no disputed evidence
so significant that the jury could not reasonably have formed a firm belief or conviction that its
finding was true. Therefore, we conclude that the evidence is factually sufficient to support the
termination of R.R.’s parental rights under subsection (E). Accordingly, we overrule R.R.’s second
issue. Moreover, because only one ground under section 161.001(b)(1) is necessary to support
the trial court’s judgment, we need not address R.R.’s issues concerning the other grounds for
termination. See Spurck, 396 S.W.3d at 221.
CONCLUSION
We affirm the trial court’s order terminating A.W.’s and R.R.’s parent-child
relationship with K.R.
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__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Field and Bourland
Affirmed
Filed: July 14, 2017
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