in the Interest of T.L.P. and S.J.P. IV

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00220-CV
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IN THE INTEREST OF T.L.P. AND S.J.P. IV
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On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CV1105186/CV1105131
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MEMORANDUM OPINION
In this parental-rights termination case, a jury found that Mother’s and
Father’s parent-child relationships to their children, T.L.P. and S.J.P. IV, 1 should
be terminated. The trial court rendered a judgment that terminated Mother’s and
Father’s parent-child relationships, and Mother perfected an appeal. We affirm the
trial court’s judgment.
1
To protect the identities of the minors involved in this parental-rights
termination case, we identify both of the minors by their initials. See Tex. R. App.
P. 9.8.
1
Following a trial, the jury terminated Mother’s rights based on at least one of
the following grounds by finding that (1) Mother had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being, (2) Mother had engaged in
conduct or knowingly placed the children with persons who engaged in conduct
that endangered their physical or emotional well-being, or that (3) Mother had
failed to comply for a period of not less than nine months with the provisions of a
court order establishing the actions necessary for Mother to obtain the return of the
children from the Department of Family and Protective Services. See Tex. Fam.
Code Ann. § 161.001(1)(D), (E), (O) (West Supp. 2012). The jury also found that
terminating Mother’s parental rights was in the children’s best interest. See id. §
161.001(2) (West Supp. 2012). Based on the findings of the jury, the trial court
rendered judgment, terminating Mother’s parent-child relationships with T.L.P.
and S.J.P. IV.
In issue one, Mother argues the evidence is legally and factually insufficient
to support terminating her parental rights. The Department argues that Mother
failed to preserve her legal and factual sufficiency complaints. We agree. With
respect to Mother’s legal sufficiency argument, the record reflects that Mother first
raised her legal sufficiency claim in her appeal.
2
To preserve her legal sufficiency claim, the rules of error preservation
require Mother to demonstrate that her legal sufficiency challenge was first raised
with the trial court through 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. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.
1991); In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no
pet.). Because Mother never brought her legal sufficiency challenge to the trial
court’s attention, Mother’s legal sufficiency issue has not been preserved for
appeal. See In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005) (approving analysis
finding that appellant in a parental-rights termination case failed to preserve legal
sufficiency challenge for appellate review).
By failing to file a motion for new trial, Mother also failed to preserve her
factual sufficiency complaint for appellate review. See In re A.M., 385 S.W.3d 74,
78-79 (Tex. App.—Waco 2012, pet. denied); In re J.M.S., 43 S.W.3d 60, 62 (Tex.
App.—Houston [1st Dist.] 2001, no pet.); see also Tex. R. Civ. P. 324(b)(2). We
further conclude that Mother’s factual sufficiency complaint has not been
preserved for our review. See In re A.M., 385 S.W.3d at 78-79.
3
Mother’s appeal does not claim that her trial counsel was ineffective based
on trial counsel’s failure to preserve Mother’s sufficiency challenge for review.
Nevertheless, trial counsel’s failure to preserve a factual sufficiency issue for
review on appeal does not necessarily constitute ineffective assistance. See In re
M.S., 115 S.W.3d 534, 549 (Tex. 2003). An appeals court will presume that trial
counsel’s conduct fell within the wide range of reasonable professional assistance,
absent a record that demonstrates otherwise; we presume that trial counsel believed
that filing a motion for new trial was not warranted because the evidence
supporting Mother’s termination was sufficient. See id. (citing Strickland v.
Washington, 466 U.S. 668, 689 (1984); Smith v. State, 17 S.W.3d 660, 662 (Tex.
Crim. App. 2000)).
Nonetheless, having reviewed the record in detail, the evidence in the trial
record demonstrates that Mother failed to comply with the requirements of her
family service plan, as required by the trial court’s order; therefore, there is legally
and factually sufficient evidence in the record to support the findings that led the
jury to conclude that Mother’s parent-child relationships with T.L.P. and S.J.P. IV
should be terminated. The evidence is also legally and factually sufficient to
support the jury’s determination that terminating Mother’s relationships is in
T.L.P.’s and S.J.P. IV’s best interest. See In re J.O.A., 283 S.W.3d 336, 344 (Tex.
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2009); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see also In re M.S., 115
S.W.3d at 550. We overrule issue one.
In issue two, Mother complains the trial court erred by denying her motion
to dismiss, which argues that the trial court was required to dismiss the termination
proceeding against Mother under section 263.401 of the Family Code because
more than a year had passed from the date the termination case was originally
filed. See Tex. Fam. Code Ann. § 263.401 (West 2008). Section 263.401 of the
Family Code provides, with exceptions, that trials in termination cases are to
commence twelve months after they are filed; however, the statute allows a single
180 day extension if the trial court finds that extraordinary circumstances
necessitate a continuation of the appointment of the Department as the child’s
temporary managing conservator and that continuing the appointment of the
Department is in the child’s best interest. Id. § 263.401(a), (b). If a final order is
not rendered within the required time frame, either one year or one year and up to
an additional 180 days, section 263.401(c) requires the Department’s suit to be
dismissed, without prejudice. Id. § 263.401(a), (c).
Mother’s motion to dismiss relies on an earlier filed termination proceeding
that she asserts the Department of Family and Protective Services filed in Harris
County. However, Mother’s motion to dismiss was not properly supported by any
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evidence, and the trial court did not take judicial notice of any of the pleadings
filed in a prior cause number in which the Department sought to terminate
Mother’s parental rights. The record that is before us shows the Department filed
the termination proceedings at issue on December 27, 2011; on December 7, 2012,
the trial court signed an order finding that extraordinary circumstances necessitate
that the children remain in the temporary managing conservatorship of the
Department, and finding that continuing the appointment of the Department as
temporary managing conservator is in the best interest of the children. In
December 2012, before the one year anniversary of the date the Department filed
its petition in the cause number before us, the trial court granted a 180 day
extension; the record shows that the trial commenced in the cause number before
us within the period required by section 263.401(c). See id. § 263.401(c).
Based on the record before us on appeal, Mother has not shown the trial
court erred by denying her motion to dismiss. See In re L.J.S., 96 S.W.3d 692, 694
(Tex. App.—Amarillo 2003, pet. denied) (concluding that parents failed to
establish on appeal that trial court should have dismissed the termination
proceeding under section 263.401). Additionally, the record shows the jury found
that Mother failed to comply with the provisions of a court order establishing the
actions necessary for her to obtain the return of the children, and that these
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provisions, which included compliance with a family service plan, were imposed
by virtue of an order dated January 6, 2012, a date that is subsequent to the date of
the Department’s alleged initial filing that Mother claims was dismissed. The
evidence from the trial resulting in the termination of Mother’s parental rights
includes facts showing that Mother violated the trial court’s order imposing a
family service plan after January 6, 2012; therefore, the judgment terminating
Mother’s parental rights does not depend on facts that occurred before the date the
Department filed the petition in the cause number now before us on appeal.
Finally, the Department’s 2011 petition is supported by an affidavit that alleges
new facts that occurred after the Department allegedly filed an earlier petition in
Harris County in 2010, the petition that Mother claims the trial court had earlier
dismissed.
Because the record of the trial shows that Mother’s parental rights were
terminated based on facts that arose after 2010, Mother’s argument that she was
terminated based solely on facts that occurred before the Department allegedly
filed its initial petition seeking to terminate her parental rights with her children is
without merit. See id. (concluding that the parents had failed to “establish on
appeal that the facts presented at the trial of the second suit and upon which the
judgment at bar was founded were none other than those underlying the first suit”).
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We conclude that Mother’s second issue is without merit; it is overruled.
Having overruled both of Mother’s issues, we affirm the trial court’s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on October 18, 2013
Opinion Delivered October 31, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
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