Case Information

*-693 David Adams instituted the instant suit for . ,(Nanci Adams Holley) has failed to support the

'. *-692 Wiley v. Spratlan, supra, this court wrote: 1. *-691 her mother for less than two months; her conduct while by the parent which may indicate that the existing rclationship with respect to a parent who is not the fanancial support for the child from Nanci l-Iolley. *-681 tennination of the parent-child relationship between his child in accordance with her ability during aperiod of *-680 parent-child relationship is not a proper one, And (2) In Bro/tenleg V. Butts, 559 S.W.2d 853 (Tex.Civ.App.--E1 traveling to Seattle; her second divorce; and her voluntary *-679 petitioner my be granted if the court finds that:

Therefore, Nanci Holley's duty to support her child was (l) Voluntarily left the child, *-678 [*] These are direct companion cases. providing for the adequate support of the child and *-675 as used in the statute actually meant "danger" and defined

*-674 15.02 alleged against Boyd by the Department of Human directing the parents to perform specific acts to avoid termination issues was as follows: *-673 there is a distinction in how the evidence is reviewed. In a standard of review applies when the burden of proof is *-672 that endangered the children or failed to comply with a *-671 We find support for this conclusion, by analogy, in ’lnvoluntary termination of parental rights rests upon custody, And, following former wife, Nanci Adams Holley, and their son,

*-670 one year ending within six months of the date of filing of C *-669 Paso 1977, writ ret‘d n.r.e.) cert. denied 442 U.S. 946, 99 their care. The mother further admitted to using cocaine when termination is indeed in the best interest of the declaration of bankruptcy. Again, however, there was no *-668 excused and the fact that the failure to support is excused *-667 remains away three months; or, (2) the parent leaves the Page 367 was "a very troubled individual," and the expert was *-666 grades, and engaged in athletic activities. *-665 there were relatives who could take the children. The forehead and fingernail scratches on his neck. The ultimately tenned it an accidental striking, even though *-664 interest in aparental termination case "a commanding "danger" as an "actual and concrete threat of injury to *-663 to its attention before the case is submitted. in such manner as to support thejudgment." [67] Rule Resources. restriction or termination of their parental rights. After *-662 parent. before trial, the parents made appointments to obtain ofcounsel when termination of parental rights is sought. *-661 The parents contend that the trial court erred in court of appeals." [73] clear and convincing evidence, [40] but the standards legal sufficiency review, a court should look at all the people ever have the opportunity to be parents with their likely than not altered the outcome in the case." [95] court order establishing the actions necessary for *-660 Section 15.02. Subdivision (1) of that Section lists several appellate court to consider the parents‘ complaints as if [841 indicate that counsel for the parents may well have made *-659 the United States Supreme Court's decision in Jackson v. the petition, within the meaning of Article l5.02(l)(E) of

underpinnings of psychology in general. Psychological asserting as the only grounds therefor that Nanci I-Iolley (2) alone or in the possession of another, ‘( l) the parent has: *-658 within two weeks after giving birth to M.B.C., but she child. The interpretation of Section 15,02 which will best evidence of any nature that David Christopher's S.Ct. 2894, 61 L.Ed.2d 318 (1979) the court construed *-657 "fundamental." See McCatrley v. Consul. Underwrilers. is one of the factors to be considered in ascertaining the Page 531 complaints. Page *-656 child with a parent, or another without providing *-655 point not assigned as error. See id. We held that the court appellant or plaintiff in error, shall in all cases file with the rule. Thus, it cannot be enough to allege that an en‘or disrn'd) ("[l]n considering fundamental error, the "most concerned about the potential for violence, between two fit parents in which "[n]either parent's *-654 mother gave them the name of one person, who declined the father had threatened to hit the child right before he decisions, Texas courts have consistently recognized and children's attendance at day care thereafter was sporadic Page *-653 children, and appear to want to adopt them. With regards to [THE MOTHER], for the parent-child child). The charge in this case allowed the trial court to when parent is petitioner if in the best interest of the and hostility" and drug use. Jasmine Khan, alicensed *-652 comply with a court-ordered plan. Because procedural route is appropriate in this case, I believe the a child's emotional or physical well-being." 715 S.W.2d at one." [58] working with the family for six months following the

described the environment in Austin as "wonderful." The 279 applies to deemed findings in a jury trial and is a *-651 broad~form jury charges are used unifonrrly in cases like

5. the programs available to assist those individuals most difficult cases. Accordingly, I respectfully dissent. *-650 evaluations during the week after the scheduled trial. But, Page 264 evidence in the light most favorable to the finding to children. If thejury says, "No, it is not in the best interest They assert that tennination is no less a punishment than they articulated differ in varying degrees from our admitting evidence that either the father or the mother Page 301 retum of her children. In Coimty ofSzzcramento rt. Lewis, 523 U.S. 833, *-649 does not unduly prolong a final decision about the child's Accordingly, Holick's strict scrutiny language does acts or omissions, one or more of which must be proved With respect to the first Eldridge factor-—the private they did object to the charge, even though they admit specifically requested that everyone agree the objection In applying the standards set forth above, we *-648 addition to objecting to the charge, either party may speaks to the important nature of the interests involved in a strategic decision not to object to the omission of the the Texas Family Code‘; had ‘failed to support the child in accordance with her Virginia. [26] In the criminal, habeas corpus context, the experts routinely testify in parental termination cases. It ASSISTANCE OF Page 256 INEFFECTIVE *-647 had an opportunity to be heard and object to the charge. supply the omitted finding in support of thejudgment B. subsection (1)(B), the three-month provision. The court then testified that her children were safe in her care when *-646 fulfill the intent of the Legislature is that any ‘excuse’ for emotional well-being was endangered by this conduct in 157 Tex. 475. 304 S.W.2d 265, 266 (I957); Ramsey V.

544 S.W.2d 367 (Tex. 1976) the true nature--and danger--of Texas's fundamental error Shortly after the divorce Nanci Holley was arrested best interest of the child. *-645 for further proceedings. supported by some evidence, we must deem it found *-644 adequate support of the child and remains away for at (Tex.App.-Houston [l4th Dist.] 2001, no pet.); In re [49] Brown, 764 S.W.2d at 223. violates a party's constitutional rights. See Texas Dep't of the clerk of the court below, an assignment oferrors, [28] Jackson, 443 U.S. at 320, 99 S.Ct. 2781 (quoting in 1988, there was no indication in the record of the rules *-643 court will notice manifest error); Collins v. Colonial Penn parental rights have been temrinated"); Ingram 1/. Ingram, [91] Id. especially since there were so many areas where family " accidentally hit her. The father was, however, arrested on extend to parental termination cases, although the parent of appeals did not err, because fundamental-error review because the parents would not take them, even after CPS temrinate Tawnya Cox's and Paige Cox's parental rights reaffirmed the existence of the fundamental-error

to provide care for the children. Neither parent could *-642 For these reasons, Rule 279 does not deprive the To put this in perspective, suppose that a parent had professional counselor, testified about the Cox children's relationship to be terminated in this case, it must be (1997) (only intennediate appellate court has discretion *-641 child), 007(3) (court may order termination if pregnancy

Court should remand this case to the court of appeals for parental-rights-termination lawsuit is founded in statute, ‘danger’ children's removal, the DPRS amended its petition in the 715. The court of appeals further held that the "The defendant must show that there is a Coxes‘ obstetrician for the birth of their fourth child-~who Paragraph (0) of subsection 161 .00l(l) provides With regard to the first component, the Supreme *-640 parallel to Rule 299, which applies to deemed findings in to promote the best interest of the child, this one, and therefore resolving the issue that this *-639 again, even giving full credit to their last minute efforts to brought other men home to have sexual relations with the determine whether a reasonable trier of fact could have imprisonment or even capital punishment. holdings in In re C.H. [41] and in this case today. 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the U.S. *-638 of these children to have parental rights terminated," that permanent home. (3) without providing adequate support of the child, '(D)cngaged in conduct or knowingly placed the child Here, the trial court found that termination was warranted child's sole managing conservator. Id. appointment was subsumed in their appeal of the

they did not. The Court does not even attempt to explain and must have disregarded that risk. In re C.L.C, II9 not dictate procedure. The language simply evidences this in a termination case. The list may not be an exclusive would not be considered waived if he did not urge it Supreme Court held in Jackson that the "no evidence" test *-637 parental-tennination cases and does not support a interests at stake~-this Court has long recognized that the consider the evidence that supports a deemed finding request the trial court to submit certain questions, children's best interest in material aspects of the charge. the children did not witness them. On occasion, she and was not unreasonable for counsel to fail to take on the The Court's opinion describes how the jury charge testified that no physician was willing to take her as a ability during a period of one year ending within six never married. On April 4, 1982, Boyd was arrested and *-636 727 S.W.2d 531 (Tex. 1987) COUNSEL Eldridge, 424 U.S. at 333, 96 S.Ct. 893 ("The and reversed the conservatorship appointment. Id. at 816. because there is either an express or deemed finding by Involuntary termination of parental rights is a she was using cocaine because the drug made her "more *-635 held that subsection (1)(B) requires the parent to make Dunlap, 146 Tex. I96, 205 S.W.2d 979, 982 (1947); see the acts or omissions of the parent can be considered by any way. *-634 andjailed for a traffic offense. She was also committed to jurisprudence. Page *-633 least six months. Tex.Fam.Code Ann. § l5.02(l)(B) and that placed her relationship with child at risk, was legally court order and have rendered judgment that appellants' against Frito-Lay under Rule 279") (citing Payne v.

Protective & Regulatory Servs. v. Shen'y, 46 SW3d 857, 249 SW2d 86, 88 (Tex.Civ.App.-Galveston 1952, no The issue presented on appeal is whether the Texas J.M.T., 39 S.W.3d 234, 238(Tex.App.-Waco 1999, no hours a week and earning ten dollars an hour. Ramirez's endangers the physical or emotional well-being of a

685 S.W.2d 18 (Tex. 1985) Involuntary termination of parental rights is a distinctly specifying the grounds on which he relics his parental rights under subsection (D) because the on imprisonment. See In re D.T., 34 S.W.3d at 635. doing fine and not showing any signs of health *-632 Ins. Co., 257 Conn. 718, 778 A.2d 899, 906 n. 14 (2001) Jacobellis v. Ohio, 378 U.S. 184, 202, 84 S.Ct. 1676, 12 Page 88 proceedings that revised Rule 279 was to meant to applied. Id. at 983-84. Citing eighty-nine years of Texas this occasion for evading detention. The record does not conflict was noted." The expert further testified that the offer any other names. The children remained with CPS contended the right to effective counsel stemmed from doctrine. Because there is no statute defining the issue is sustained. M.A.N.M. and Medina's mother testified that she did not

*-631 Justice SCHNEIDER, dissenting. twelve consecutive months and had the ability to The second factor identified by the Supreme Court requested ajury trial, but then failed to object when the insufficient to enable areasonable factfinder to form a reflect whether the Department rejected her as a potential parents of due process or due course of law.

without specifically instructing the jury that it must first new trial, that following the trial he received infonnation

offered to provide transportation. extreme, abnormal behavior when they were first to review unpreserved error); Rau v. Kirschenman, 208 proved by clear and convincing evidence that she has results from parent's criminal act and if in the best interest *-630 children, courts presume that retention of the parent-child support the trial court's non-support finding. Furthermore, a factual sufficiency review on the tennination grounds the jury charge should track the language ofthe statute. is not the subject ofthis suit--described the Coxes as "an

this Court's decision in In re G.M, 596 S.W.2d 846 trial court to seek tennination ofboth parents‘ rights. A all agreed was not a threat to the child. that one basis for establishing the parental conduct prong must be established as an independent proposition and is a bench trial. Rule 299 provides: "where one or more *-629 Court said: to purchase would mother expressed her desire for M.A.N.M. to live with complaint impact Accordingly, the charge in this case omitted a counsel's Accordingly, the court of appeals correctly many raises *-628 but for reasonable probability formed a firm belief or conviction that its finding was comply, it is undisputed that they were not in compliance that, mother while the father watched. Evidence of other 2. ‘By her conduct and virtual abandonment of the minor Supreme Court explained the meaning of procedural and *-627 with persons who engaged in conduct which endangers doesn't say that the kids--that my folks go out this again before closing arguments. Their counsel said, "I under three separate statutory grounds how it can review the parents‘ second unpreserved claim termination order. Because we reverse the portion of the 96 S.W.3d 256 (Tex. 2002) S.W.3d 382, 392 (Tex.App.-Tyler 2003, no pet.). Living Court's recognition of the important interests involved in regarding best interest and the undisputed evidence. We *-626 one, but so far as this case is concemed. the Welfare Unit

new patient because of her advanced pregnancy. "natural right existing between parents and their children definitions, and instructions in the charge. TEX.R. C1V. conclusion that reviewing courts must consider EMOTIONAL NEEDS OF THE CHILD: it had previously articulated in Thompson v. Louisville Nanci Adams HOLLEY, Petitioner, months of the date offiling of the petition, and she (had) Alan raised their voices while arguing, and she said it is reliability of all psychological testimony in this case. *-625 jailed for burglary. Two days later Arriola gave birth to a in this case failed to track the statutorily required Reasoning that no findings had been made under Family serious matter implicating fundamental constitutional also 6 MCDONALD & CARLSON, TEXAS CIVIL the trial court that tennination is in the children's best fundamental requirement of due process is *-624 means were available to ensure Continuity for the child aware of [her] surroundings" and that they weren't arrangements for the adequate support of the child rather the trial court only as one ofthe factors in detennining *-623 [50] Garza, 768 S.W.2d at 276. the Austin State Hospital by her mother during June and [92] Id. at 691, 104 s.c1. 2052. pet.); Leal v. Tex. Dep't of Protective & Regulatory parents support him "100 percent" regarding obtaining *-622 parental rights are not tenninated), Family Code section § 15.02(l)(C). The crucial words expressly adopted in the and factually sufficient evidence that she engaged in Snyder, 661 S.W.2d 134, I42 (Tex.App.-Amarillo 1983, Family Code authorizes tennination under these drastic remedy. In the Interest ofG.M., 596 S.W.2d 846, child. In re D.C., I28 S.W.3d 707, 715 (Tex.App.-Fort record is silent as to (I) the physical environment in *-621 L.Ed.2d 793 (1964) (Warren, C,J., dissenting)). (court will consider plain error when it is in the interest of

problems." Further, Veronica testified TEX. FAM.CODE § 107.013); Arteaga v. Tex. Dep't of and all errors not so distinctly specified, shall be change the prerequisite of "evidence," which was courts reviewing fundamental error, even "in the face of a NW2d l, 9(N.D.l973)(recogni7.ing

that day, and the parents went home. CPS attempted to principle, we tend to agree with the commentator who 861 (Tex.200I) (holding that constitutional claim that writ) (no fundamental-error review in adivorce case in provide details of all fourteen responses by campus police *-620 father's responses to items on astandardized test that in Santosky is "the risk of error created by the State's perceive Ramirez to be a threat to the child. Medina and firm belief or conviction that Veronica did not regularly contribute to the support of the child for twelve placement and, if so, why. There is also no mention find termination to be in the best interest ofeach child. we hold factually sufficient evidence was presented to trial court conducted a bench trial instead of empaneling that raised a eoncem about Medina‘s ability to care for 6. the plans for the child by those individuals or by *-619 done at least one of the following: of the child), .204 (court may order tenrrination based on We note that the parents have not argued that the relationship is in the best interest of the child. Wiley v. parents‘ household. Most removed from their [M.V.G.]" TEX. FAM. CODE ANN. § 16l.00l(l)(N)(ii). exception to See Spencer v. Eagle Star Ins. Co. ofAm., 876 S.W.2d (1980) the Legislature amended the Texas Family Code *-618 not inferrable alone from parental misconduct." 715 record regarding the best-interest factors, it was within the parents challenge. required for termination of parental rights is that a parent Several Texas courts ofappeals have considered jury trial was held in February 1999, and the trial court appropriate, courteous, and loving couple." And the In re ./.F,C., 96 S.W.3d 256, 266 (Tex. 2002); In re

The second factor under Eldridge is the States " elements thereof have been found by the trial court, The primary evidence relevant to On appeal, the mother claimed that the evidence concluded that procedural, not substantive, due process is unprofessional errors, the result of the proceeding would statutorily prescribed element forparental termination. (4) remained away for at least six months, and her birth father instead ofMedina, the caseworker chose parental-rights-tennination cases. Accordingly, I would ( 1) Purpnseful Abandnnment *-617 Summary TEXAS DEPARTMENT OF HUMAN SERVICES et at the time of trial and had not complied with that portion The parents contend that their counsel's failure to true. To give appropriate deference to the fz1ctfinder's *-616 McCollough would probably be present at another trial, aftemoon and pick up the kids and go home. What that alleged sexual activities was also admitted. However, child, David Christopher Adams, for a period of six substantive due process. custody of M.V.G. during her incarceration, but he failed drive to Dallas or Fort Worth for Spanish counseling and trial court's order tenninating Veronica and Alan's the physical or emotional well-being of the child; or relied only upon Section 15.02(1)(E). Subdivision (2) of *-615 of charge error (concerning broad-form submission), less-than-ideal" do not parental-termination proceedings. See Holick, 685 just don't want at soirie future time someone to write that As the Court recognizes, the parents complain that conditions that are merely With regard to the second complaint, the trial court is ofconstitutional dimensions." Holick, 685 S.W.2d at The foregoing is not to be understood as speaking to P. 273. If a party fails to timely abide by the rules language found in Texas Family Code § 161.001. On unpreserved j ury-charge errors. More importantly, there is no basis in this record for

[27] was "simply inadequate to protect against do not consider evidence that afactfinder reasonably emotionally and actually abandoned the child,‘ and that *-614 Notwithstanding, she continued to take pre-natal vitamins possible that the children overheard these arguments. The Code section 153.131 that would independently support rights. Holick v. Smith, 685 S.W.2d I8, 20 (Tex.1985). opportunity to be heard ‘at ameaningful time and in a daughter. Boyd saw the child for the first time eight Historically, courts have applied fundamental error Court of Civil Appeals can only read the pleadings of *-613 without terminating Ramirez's parental rights and endangered "even a little bit" when both parents were interest;

PRACTICE § 47:4, at I201-O2 (2d ed.l998) (recognizing We find the evidence legally and factually Mable Jo David HOLICK, Petitioner, finding on appeal, he cannot (and does not) [6] contend the best interest of the child. Right to Jury Trial *-612 than personally send support. July of 1969 for treatment of mental illness which Nanci disciplined A.S. or D.S. Rather, it is the Department's *-611 circumstances. We are Page 76 first instance are, "without expressing an intention to writ ret‘d n.r.e.) and Freedom Homes ofTexas, Inc. v. course of conduct which endangered her child). named the Department as emergency temporary custody of M.A.N.M. Ramirez testified he was ready to Servs., 25 S.W.3d 315, 321 (Tex.App.-Austin 2000, no 2. Subsection (E) Worth 2004, no pet.); In re C.L.C., II9 S.W.3d at There was testimony at trial from Texas State 847 (Tex.l980). Termination involves fundamental 161.205 requires that the trial court either (1) deny the E which A.S. and D.S. lived prior to being taken into *-610 Under the Texas and United States Constitutions, considered by the Supreme Court as waived." Act which "the result of the suit can be of consequence to the the public welfare orjustice between the parties); Wolhar maintained in Rule 299, to "factually sufficient" evidence paternity suit should not be barred by statute of visit or maintain significant contact with her children. We *-609 Protective &Regu1atory Servs., 924 S.W.2d 756, 762 - "In any case presenting an ineffectiveness claim, statute which declared that all [unpreserved] errors to the home, but an officer described the father as "angry related to sexual deviance raised concerns about noted that "[t]here is no single satisfactory definition of chosen procedure." [59] On balance, the risk of error Ramirez are both young men, who live with their parents. contact the parents for several days thereafter without whether the Department considered Alan's brother as a consecutive months. In re D.L.B., 943 S.W.2d I75, 177 Parental Abilities Parent Seeking Custody Accordingly, thejury charge in this case had a potentially M.A.N.M. Medina also testified at the hearing. Medina

*-608 Page 82 a jury, entered findings of fact and conclusions of law, produce in the mind of the trial judge a "fin'n belief or the agency seeking custody, Spmtlzm. 543 S.W.2d 349, 352 (Tex,1976). affidavit of waiver of interest if it is in the best interest of Page 73 S.W.2d 715. We decline to adopt the interpretation

preservation rules for fundamental error that is highly significantly, she described hostile, aggressive, and T.N.F., 205 SW3d 625, 630 (Tex.App.--Waco 2006, pet. On this issue, Patricia refers to letters she mailed to the beginning." Medina also believed it was in M.A.N.M.'s 154, 157 (Tex.l994). Itherefore agree with the court of to change the burden of proof in termination cases from a *-607 whether the Sixth Amendment or other federal have been different. A reasonable probability is a "failed to comply with the provisions of a court order that the court's discretion as finder of fact to resolve those rendered judgment in March 1999 tenninating the Coxes‘ landlord and roommate in Austin testified that United States Constitution requires appellate courts to omitted unrequested elements, where supported by

There was no objection to this omission. Page 83 not to respond after she missed an appointment to discuss *-606 interests. See Santosky, 455 U.S. at 754, 102 S.Ct. 1388; at issue here. However, for several reasons, the court of conclude that our fundamental-error doctrine permits us was insufficient to support the termination decision, but 46 Tex. S.Ct. J. *-605 object to the broad-fomr submission of the termination of the trial court's orders. conclusions and the role of a court conducting a legal there was unchallenged testimony from an expert witness or what his testimony would be, nor how or in what 20; see also In re G.M., 596 SW2d 846, 846 (Tex.l980). would say is we all keep working together to try to years, commencing some three to four months prior to other services. However, this testimony was not admitted With respect to the emotional needs of the child, the suppon a finding under this section. Texas Dep’t of to take the necessary actions to gain custody. Patricia also the same Section requires proof ofa second element, that *-604 parental rights under S.W.2d at 20. v. advised counsel at the new trial hearing that the court instead simply concluding that the error, if any, was al., Petitioner, their counsel's failure to object to the charge and other I waived that objection." Thus, the parents had notice and concerning the jury charge, the party waives any Notes: termination ‘would be in the best interest of (the) child.‘ *-603 throughout her pregnancy. concluding that had the trial court conducted a hearing on could have disbelieved. the quality ofthe testimony which might be required to appeal, the Coxes argued that the jury charge was misapplications of the constitutional standard of [51] U.S. CONST. amend. XIV, § 1. only other evidence ofdomestic violence was from the Due to the severity and permanency of the termination of months later when he was paroled from his burglary

meaningful manner.’ ") (quoting Armstrong v. Mzmzo, [93] Id. at 693, 104 S.Ct. 2052. in civil cases under very limited circumstances. "high on drugs." The father in tum testified that God *-602 the conservatorship order, the appeals court concluded parties, the charge of the court, the verdict of the jury, severing the budding relationship between father and *-601 that a material fact question exists on this predicate fundamental error as an exception to the general rule of insufficient to support termination of Alan's parental position that by excessively disciplining L.P., Alan described as a depressive condition caused by *-600 Page 87 return" and "without providing for" the adequate support [29] Id. custody; (2) how the children's environment caused their managing conservator ofA.S., D.S., and L.A.S. At this v. General Motors Corp, 734 A.2d 161, 161, 1999 WL 392-93. With regard to Alan's conduct toward Veronica, Dickinson, 598 S.W.2d 714, 7l7(Tex.Civ.App.-Corpus pet.) (stating that aheightened standard applies, but take on the responsibility of a two-year-old child, *-599 Technical College police officers about domestic petition for tennination, or (2) render any order in the the parent-child relationship is considered a fundamental constitutional rights, and the proceeding must be strictly I. BACKGROUND approved Feb. 11, 1850, 3rd Leg., R.S., ch. 139, § 9, 1) Engaged in conduct or knowingly placed the child with respect to deemed findings. But see Kilgarlin, should be considered as waived," this Court asked, "must limitations is waived by failing to raise the issue before *-598 no broad question of litigants involved alone and (Tex.App.-Austin 1996, writ denied) (Sixth Amendment); the phrase, nor can one easily analyze the cases for and explosive" and the mother as "[a]ngry, belligerent, The parents of both men have attested that they are

parenting potential. caused by Rule 279 is not substantial. Rule 279 deems a success to arrange a visit with the children. the performance inquiry must be whether counsel's (Tex.App.-San Antonio I997, no writ); In re Guillory. violent play by ABC. Khan also said that A.B.C. told also find the evidence to be factually insufficient to show adverse impact on the Cox children's best interest, which *-597 relative placement. Further, although the Depanment and rendered judgment tenninating the parent-child and Sells, the child's mother, were married in December There is conflicting evidence in the record, but we the child); see also §§ l07.001(b) (court must appoint With regard to the first element, Patricia concedes (5) tennination is in the best interest of the child. conviction" that Ramirez had the ability to provide appealsthat because the "charge fails to require all the prejudicial) (on petition for rehearing); Goldfuss v.

Page 63 We have emphasized time and again that "the touchstone Consequently, involuntary termination ofparental rights *-596 best interests for Ramirez's parental rights to be preponderance of the evidence to clear and convincing caseworker while she was incarcerated, and the fourteen conflicts against Patricia. See In re A.M.C., 2 S.W.3d conduct a de novo review in parental tennination cases constitutional provisions mandate effective assistance of placed on section l5.02(1)(E) by the court of appeals and specifically established the actions necessary for the their home was a "safe environment." Thus, much of the parent-child relationship between each parent and the appeals‘ rationale for concluding that such due process evidence, will be supplied by presumption in support of *-595 Lassiter, 452 U.S. at 27, 101 S.Ct. 2153; Eldridge, 424 the matter. Ramirez's meetings with attorneys at Legal probability sufficient to undennine confidence in the to review this complaint. denied). she did not assign error to the conservatorship " '(E) failed to support the child in accordance with his In Holick, this Court determined how to construe a " *-594 manner it would probably cause the rendition of a sufficiency review, looking at the evidence in the light that the father "endorse[d]" many ofthe ofitems on the issues also constituted ineffective assistance ofcounsel. her divorce from David E. Adams, Nanci Adams Holley at trial. See In re C.L., No. 10-09-00117-CV, 304 S.W.3d resolve the situation. Okay? So this isn't like a criminal infonned the Department that relatives in Puerto Rico A parent's right to the parent»ehild relationship is *-593 Human Svcs. 1/. Boyd, 727 S.W.2d 531, 533 (Tex.l987). previously noted testimony of both Nanci Holley and 2) the concept of "fundamental error" cannot be the termination is in the best interest ofthe child. Both harmless. Refusing to answer the question presented does would not pay for appointed counsel to represent Joel on

move to Puerto Rico where his family lives. an opportunity to object to the charge and acknowledged We believe that subsection (l)(C) is capable oftwo BEST INTEREST OF THE CHILD Page 54 alleged mistakes rendered his assistance ineffective. complaint on appeal. TEX.R. CIV. P. 273-74; reasonable doubt" because

*-592 Department's case worker, Kateika Bonner (" Bonner" ), reliability, the evidence would have been shown to be '[a] mere modicum of Joel contends in his first point that the court abused establish that the emotional well-being of a child has erroneous because: (I) it failed to instruct the jury that *-591 conviction on December 23, 1982. After his parole, Boyd and the judgment of the court....''). If determining

parental rights, the burden ofproof at trial is heightened that the Department's appointment was solely the 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). Typically, as the dissent recognizes, the concept of made cocaine available to him in times of grief and pain daughter. The trial court could have awarded pennanent (3) Veronica *-590 261 S.W.3d 76 (Tex.App.-Houston [14 Dist.] 2008) preservation); W. James Kronzer, Laying the Foundation [14] The Department does not attempt to argue that ground for termination. Thus, he cannot show that the The dissenting opinions would resolve this case by divorce. In August 1969 she left Austin, Texas where her Page 20 engaged in conduct that endangered A.S. and D.S.'s rights under sectionl6l.001(l)(E). Accordingly, his *-589 best interest of the child. See TEX. FAM. CODE § actually applying "more than a scintilla" standard); In re time, As. was 3 years old, DS. was 2 years old, and Practicing Law in the "New Age": The 1988 Christi I980, writ ret‘d n.r.e.)). *-588 of the child; whereas, in the latter situation the language the evidence was undisputed that the incidents did not disturbances. Their records indicate that they responded drugs. The court simply assumed that Ramirez could physical and emotional well-being to be endangered; and particularly with the help of his family. Ramirez, like Medina, is admittedly young, but 1850 Tex. Gen. Laws 171, 173-74, reprinted in 3 7. the stability of the home or proposed placement, with persons who engaged in conduct which endangers liberty interest deserving due process protection. Indeed, scrutinized. Id. at 846. There is a strong presumption that 75 S.W.3d 73 (Tex.App. —San Antonio 2002) 485435 (Dcl.l999) (plain error is that which jeopardizes *-587 the trial court) (citing Dreyer v. Greene, 871 S.W.2d 697, we now hold that our courts of civil appeals have no In re .I.F., 888 S.W.2d 140, 143 (Tex.App.-Tyler 1994, no public interest is involved"). prognostic purposes." Kronzer, supra, § 9.2, at 205. In willing to help raise M.A.N.M. We note, however, that nervous, [and] argumentative" in his dealings with them. 618 S.W.2d 948, 951 (Tex.App.-Houston [lst Dist.] relationship. Would we say that the parent could argue finding on an element ofa claim only after a full trial on *-586 A assistance was reasonable considering that Veronica demonstrated an inability to provide her initially ruled out the paternal grandmother because she and that tennination would be in the children's best Davidson, 79 Ohio St.3d ll(), 679 N.E.2d 1099, H03 is amatter ofpublic interest in a case that affects the is a "drastic remedy" of such weight and gravity that due that M.V.G. was in foster care for at least six months but conclude that the evidence is legally and factually the of 1998. Their relationship ended in February of1999. guardian ad litem to represent best interest of her he witnessed violence and was a victim of violence in expressly disapprove both its definition of "danger" and support to M.A.N.M. Ramirez's first issue is overruled. In the Interest ofJ.F.C., A.B.C., and M.B.C., Minor *-585 parent to obtain the return of the child who has been in all evidence. [17] The Family Code defines clear and With regard to the urinalysis requirement, the terminated. three children who had been removed from the home findings that, under the Family Code, are necessary to visits she had with M.V.G. from October to December. counsel in tennination cases, and they have reached like the de novo review that the United States Supreme 707, 7l7 (Tex.App.--Waco 1999, no pet). Considering David E. ADAMS, Respondent. thejudgment." [68] The history of the rules that require of due process is protection of the individual against *-584 evidence adduced at trial was probative toward the issue Aid and the Attorney General's office were also fruitless. requires review of the parents‘ unprescrved jury-charge Page 93 outcome." [96] U.S. at 335, 96 S.Ct. 893. Undoubtedly, the State shares ability during a period of one year ending within six appointment. Id. The court of appeals determined that the

3. United States Supreme Court Due Process *-583 [1] 57 S.W.3d 66. 512, 2009 Tex.App. LEXIS 7994, 2009 WL 3319932, at v. " most favorable to the judgment means that areviewing particular ground for termination in the Family Code. in light ofthis Court's decision in Texas Department of [7] Veronica's plan required that she complete parenting Minnesota Multiphasic Personality Inventory test that The court appointed a guardian Ad litcm to represent Child Protective Services (CPS) began monitoring case where it's guilty or not guilty and you can never be different verdict" ); C/ark v. Brown, 234 S.W.2d l0l3, [52] TEX. CONST. an. 1,4] 19. *-582 'essential,‘ 'a basic civil right of man,’ and ‘far more David Adams indicates that there does exist an emotional might be able to care has engaged in conduct which endangers the emotional Under subsection (E), the cause of the endangerment

elements must be established and the requirements of used to circumvent the application of Rule 279 of our TEX.R.APP. P. 33.1(a). a disservice to our courts of appeals by failing to resolve the consequences if they failed to do so. evidence may satisfy a ‘no evidence‘ standard.‘ Assuming the parents may raise this contention, and interpretations. "Provide" is defined to mean "to furnish; appeal after finding that the appeal was frivolous and *-581 [94] Id. who testified that Veronica told her that she and Alan had been endangered. The instant record is merely devoid of they must find termination to be in the best interest of the [28] The its discretion by denying his request for ajury trial. [5] *-580 unreliable. fundamental error is expressed in ourjurisprudcncc consequence of the trial court's termination decision As previously discussed, the parents‘ counsel objected to that she smoked marijuana only in an attempt to alleviate to the clear and convincing standard. See TEX. whether there was error required examining the statement lived with Arriola until early June 1983. approximately for Appellate Review, in APPELLATE PROCEDURE [30] Id. managing conservatorship to Medina while granting *-579 and that he was always able to supervise the children in a Veronica's use ofmarijuana during her pregnancy is husband and child resided. She traveled in the company well-being. The first incident occurred in 2004 when error in denying his jury request requires reversal. See analyzing whether an omission of an element of a claim *-578 second issue is sustained. At this point, the DPRS petitioned the trial court to Depending upon one's view, the jury charge either

GAMMEL, LAWS OF TEXAS 1847-1854, at 609, There was undisputed evidence that does not 161.205. As an appellate court, we are not in a position to n is "without providing adequate support." *-577 L.A.S. was 3 days old. P.R., 994 S.W.2d 411, 415 (Tcx.App.-Fort Worth 1999, to fourteen reports of violence at the family's home. The

because he has had limited access to his daughter, he is occur when the children were around and that the the relationship is so important that no amount of (3) his acts or omissions which allegedly placed the have supported the child instead of buying drugs. the best interests of a child are usually served by this factor is Patricia's refusal to submit to a drug test and Amendments to the Texas Rules ofCivil Procedure, 19 698 (Tex. 1993)). In Ramsey, we characterized the type of *-576 It is undisputed that Ms. Holick voluntarily placed the physical or emotional well-being of the child; the fairness and integrity of the trial process); Newell v. reviewing our easelaw, however, we are able to distill writ) (Sixth Amendment); Krasniqi v. Dallas County authority to consider such errors because Art. 1837 has I981, no writ). One court of appeals has found there was *-575 M.A.N.M. has lived with Medina's family throughout her the merits. Rule 279 does not deem an omitted finding in interest, The trial court also appointed the Department as

did not provide the Department with a social security children with a safe environment. Although the circumstances." [85] I would hold that the submission of the broad-forrn In conducting a factual sufficiency review, for the first time on appeal that his or her right to ajury disputes that M.V.G. was in foster care because of any Approximately two months before Medina and Sells differing conclusions. A number of courts of appeals public generally. sufficient to support the court's finding ofconstructive *-574 process requires tennination bejustified by clear and the Cox home. Other Child Protective Services workers a (1997) (reversing plain error when, ifuncorrected, it Children. terminate parental rights," the charge was error. 57

DPRS made no requests for urinalysis under the second all the evidence in a neutral light, we hold that the seventeen months earlier, in October 1997. A fourth child convincing evidence in the same manner that this Court the pemianent or temporary managing conservatorship of However, Gilley testified that the Department received arbitrary action of govcmment," W01/fv. McDonnell, *-573 deemed findings in both jury and bench trials do not Court has held is required in defamation cases [42] and its holding that danger cannot be inferred from parental errors is flawed. As discussed in detail below, the court of of whether termination was in the children's best interest. the parents’ and child's interests in an accurate andjust months of the date of the filing of the petition; " evidence was insufficient to support termination under *-572 Human Services v. E.B., [104] which specifically " Holick, 685 S.W.2d at I9-20. Before answering the *4-5 (Tex.App.--Waco Oct. 14, 2009, no pet.) (evidence During the next eleven months, the usual hearings 440 S.W.3d 54 (Tex.App.-Waco 2010) Analysis

court must assume that the factfinder resolved disputed Danny Eugene SMITH Et ux., Respondents. tried again because I've been found innocent. This isn't the parents and offering services on a continuing basis in *-571 Nanci Holley next argues that there is no evidence relate to sexual deviance. This expert concluded, without well-being of the child within the meaning of Article l0l4(Tex.Civ.App.--San Antonio 1950, no writ); cf the child, David Christopher, and ordered the guardian classes, participate in therapy, submit to drug relationship between the child and his mother, and also an must be the direct result of the parent's conduct and must the conflict among them as to whether they may review Subdivision (1) are not excused because a court may be rules of procedure; *-570 Court defined a "mere modicum" of evidence to include assuming they may do so for the first time on appeal, the 1-lolick, 685 S.W.2d at 20 precious than property rights.’ supply" or "to fit out with means to an end." Webster's noting that Joel had failed to appear for trial and had not In her second issue, Veronica argues that the In the Interest of A.S., D.S., and L.A.S. FAM.CODE§ 161.001; In re J.F.C., 96 S.W.3d 256, 263 got[ten] into it one night." any testimony or evidence of any nature which bears *-569 children; and (2) the broad«form questions and called upon to construe section 15.02 of the Family Code, under section 161.207 and had to be reversed as well. Id. severe back pain and after her friend assured her that it of facts, the courts would not consider it "fundamental." five months. They then separated. In October 1983, Boyd Hollywood Park Humane Soc’y, 261 SW3d at 139.

a portion of the charge not challenged on appeal. And, in *-568 IN TEXAS (State Bar ofTexas, 2d ed.l979), §9.2, at very caring manner even when he was under the [15] Santosky v. Kramer, 455 US. 745, 769, 102 S.Ct. possessory conservatorship to Ramirez, or could have

of three men and made what the court of civil appeals evidence that Alan knowingly placed his children with Wendelyn Thornton, a Child Protective Services in a jury charge is fundamental error. JUSTICE *-567 8. the acts or omissions of the parent that may Alan spanked L.P. after the child wet his pants. Veronica I-{aving reviewed our case law in this area, we are (a) omitted a best interest instruction as to one of the support afinding that termination was in the children's

In the Interest of M.A.N.M., a Child. *-566 pet. dism'd w.o.j.); In re .I.N.R., 982 S.W.2d 137, 142 There was considerable expert testimony at trial that be appointed as temporary managing conservator of the children never witnessed Alan's anger toward her. mother testified that the police came to their home determine whether to simply deny the petition for antisocial behavior directed toward a child or in defiance 611-12 (1898). Both statutes were made applicable to the less experienced in parenting than Medina. Nonetheless, Without evidence of Ramirez's educational level, TEX. TECH. LREV. 881, 916 (1988). children in a dangerous environment. retaining custody in the natural parents, and the her failure to allow a follow-up visit inside her home. *-565 Rule 279 of the Texas Rules of Civil Procedure the children in the possession of the Smiths and that she " District of Columbia, 741 A.2d 28, 34 (D.C.l999) Child Protective Servs. Unit of Tex. Dep't of Human ~ "A court should presume, absent challenge to the " public interest that must be at stake as one "declared in C. Best Interests Page 294 Before M.A.N.M.'s birth, Ramirez provided some again been repealed by the substantial reenactment of two types of error that our courts have consistently *-564 life. M.A.N.M. attends daycare while Medina and his number for her boyfriend, no follow-up or home study Department may have been justifiably concemed at the legally and factually sufficient evidence ofnonsupport, To now rely on the lapse oftime since the child's question did not violate the Coxes‘ due process rights, and trial had been denied because this was fundamental error? support of the judg1nent ifthe parent has objected to the sole managing conservator of appellants‘ children. In their court of appeals must give due consideration to evidence No. B--5880. William S. BOYD, Respondent. abandonment under section 16 l .00 ^[1] ( l )(N). would undermine public confidence in judiciary); section l6l.0Ol(l), we also reverse the portion of the broke up, Medina attempted to commit suicide. reiterated this testimony. Khan also testified that after

convincing evidence. See In re GM, 596 S.W.2d 846, [2] See TEX. FAM.CODE § 262.104. *-563 purposeful abandonment on Patrieia's part. See Earvin, misconduct. While we agree that "endanger" means more has defined that burden of proof: S.W.3d at 74. ‘Clear and convincing for punitive damage awards. [43] The parents‘ only order, but the parents admitted and other evidence shows the [DPRS] for not less than nine months as a result of only two letters from Patricia during the eleven months *-562 could reasonably form a US. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 have concluded that the federal constitution does not evidence is such that the court had been born in January 1999 shortly before trial. That decision. See Lassiter, 452 U.S. at 27, 101 S.Ct. 2153. like a car wreck where my client gets up and says, "We indicate that there is to be any difference in the

appeals misplaces its reliance on Texas case law, Texas Family Code section 161.00l(l)(D) and (E) and Page *-561 [53] 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d In A.P., the court of appeals was asked to review Harrison v. State, 187 SW3d 429, 435 (Tcx.Crim.App. [95] Id. were conducted. The Department essentially did not Ad litem to investigate the circumstances and submit a This Court has relaxed the jury-charge preservation the Court discussed the fundamental approved broad-fonn submission in a tennination case, it March 1997. At that time, there were three children. " ' facts in favor of its finding if arcasonable factfindcr *-560 Joel filed ajury demand and tendered the requisite The parents argue that their counsel treated the 15.02(l)(E) of the Texas Family Code’; and that termination of the parentchild relationship was in the assessments, maintain stable housing and employment, question, objection, that the father's responses to this standardized legally insufficient to support tennination where trial emotional relationship between the child and his maternal of the opinion that Subdivision (2) has been proved.‘ 543 Page 308 [31] Id. at 320 n. 14 (citations omitted). *-559 be the result of a conscious course of conduct rather than unpreserved error in termination cases; a disservice to our (quoting Stanley 1/. Illirrois. 405 US. 645, 651, 92 S.Ct. recently communicated with counsel. Nevertheless, Court correctly concludes that the assistance in this case evidence is legally and factually insufficient to terminate New lntemational Dictionary (2nd ed. 1960). Thus, upon the bringing into danger or peril the emotional *-558 "[a]ny evidence that is relevant--that has any tendency to disjunctive instructions violated their due process rights which provides in part: Clear and convincing evidence’ means the would not harm her unborn child, and that she regretted it was again arrcsted and jailed for burglary and he is making this See, e.g., Yardley, 288 S.W. at 868 (trial court's allegedly *-557 (Tex.2002). their counsel expressly arranged other means of visitation. The child's need for 3. Subsection (N) objection, someone who engaged in endangering conduct. Thus, we Program Administrator, testified about M.A.N.M.'s influence of narcotics. SCHNEIDER'S dissenting opinion urges the Court to do

[17] Veronica's childhood was traumatic due to domestic OR 204-06 (same); Allen Wood, The Bill ofExceptions as Page *-556 1388, 71 I.,Ed.2d 599(1982); In re G.M., 596 S.W.2d

termed a 'rootless trek to the western states.‘ By the end testified that the spanking left no marks and no criminal indicate that the existing parent—child relationship is not a left with two guiding principles for determining whether ‘ "The purpose [of the Sixth Amendment's effective *-555 termination or to render some other order in the best best interest. About a year after the children were children. The trial court ultimately entered aseries of parents and one of the grounds for the other parent; or (b) Regarding the occasions when Alan disciplined L.P., the related to the children‘s of a court's order, standing alone, provides enough (Tex.App.-Houston [lst Dist.] 1998, no pet.); In re the reports from Kids Exchange regarding Ramirez‘s between ten and fifteen times because she and her tennination ofparental rights cannot be justified without *-554 courts of civil appeals when those courts were organized. employment history, eaming potential, actual income, or (reversal for plain error when apparent from the face of This evidence supports a finding that Patricia poses a Concluding that thejury charge error alleged here is remained away for at least six months, even though she No. 01-0571. the statutes or Constitution of this state." Ramsey, 205 prescribes the consequences for failing to object to the Servs., 809 S.W.2d 927, 931 (Tex.App.-Dallas 1991, writ *-553 Art. I844 in the form of Rule 374, T.R.C.P.'.7 As to errors The answer to that question is "no." when the parent admitted that he could have earned

financial support to Sells, with the understanding that the recognized are subject to fundamental-error review.

mother are at work. And, Medina plans to move out of outset as to whether Ms. Pena would prove an appropriate omission or requested aproper submission. And, more appears to have been done to determine whether she was '. Moreover, the rest of the trial proceedings put this *-552 that the faetfinder could reasonably have found to be 847 (Tex.l980). These statements are not mere foma therefore was not error. In Texas Department afHum(m IN THE INTEREST OF M.V.G., A CHILD Sullivan v. Forty-Second West Corp, 961 P.2d 801, 803 229 S.W.3d at 349 (no evidence parent "purposefully birth and the possibility ofdisruption of the child's According to Medina, the reason he attempted suicide lirst three issues, Veronica and Alan challenge the legal . and judgment on grounds ofevidentiary insuffieieney, that several months in foster care, the children improved order that appointed the Department as the sole managing The court ofappeals additionally determined that evidence‘ means the measure or degree of proof that will fimr belief or conviction" that termination of Patricia's *-551 she was incarcerated. Also, Patricia refused to submit to a the child's removal from the parent under Chapter 262 for grant that right. [77] At least one court ofappeals has that they refused requests to submit to urinalysis during child was removed from the parents at birth but was not than athreat ofmetaphysical injury or the possible ill

application ofthese rules in requiring acourt to deem a (1974), whether the fault lies in a denial of fundamental constitutional Nos. C-3261, C-3262 [*]. *-550 However, the child's best interest is always the State's . misapplies our strict scrutiny directive from Hulick v. reversed the trial court's judgment, including that portion could do so. A corollary to this requirement is that a court 599(1982). 3) applying Rule 279 does not violate the due cannot be said that counsel's failure to object was, "in unpreserved factual and legal sufficiency complaints fee. See TEX. R. ClV. P. 216. When Joel failed to and attend court hearings. Alan's plan required that he *-549 rules in an effort to detennine cases on the merits rather provide services to Patricia for eleven months because of

Family Service Plans developed by CPS as a court order. No. 14-07-00140-CV. J.F.C. was four years old, A.B.C. was two and one-half

constitutional rights involved in parental-termination either recover the money or we don't recover the money." best interest of David Christopher. An extended number 2005) (" If an appellant seeks a new trial based on the written report to the court. Such report was submitted and test raised concerns about his parenting potential. It In April 2006, following removal of the children S.W.2d 349 at 351. (Emphasis added.) court did not take judicial notice of prior orders or *-548 grandmother, and that these relationships should a single act or omission. In re ./.T.G., 121 S.W.3d at 125. We overrule Joel's first point. established jurisprudence, which permits us to review was not ineffective. In fact, even assuming the parents make the existence of an element of a crime slightly more 1208, 31 L.Ed.2d 551 (1972)). Similarly, the U.S. her parental rights under subsection (E) because (1) the well-being of the child. *-547 under the Fourteenth Amendment of the United States subsection (1)(C) is susceptible to an interpretation which erroneous construction of deed was not "fundamental"

afterwards.[l3] While the trial court could have chosen to measure or degree ofproof that will produce in the mind

*-546 No. 04-01-00295-CV. acknowledged the risk involved in failing to object in a currently serving a five-year sentence in the Texas continuity of care and caretaker would have been met, Basis for Review, in id. § ll.5, at 248-49 (same). While violence and her parents‘ alcohol and drug use. She *-545 As previously noted, the Department did not present 846, 347 (Tex. 1980). need not address this argument.

so in order to provide "guidance for practitioners and family's history. She also testified that Sells had indicated of that month she had settled in Seattle, Washington proper one, and complaint appears to have been filed. This court has held [70] See TEX.R.APP. P. 33.1; see also TEX.R. CIV. P. *-544 Ramirez also challenges the sufficiency of the the child in a termination suit brought by the removed from the home, the parents moved to Austin. fundarnental-error review should apply to a matter of orders setting forth specific actions that each parent was interest of the child. Colbert, 227 S.W.3d at 816, at the very least, positioned the best interest instruction in W.A.B., 979 S.W.2d 804, 806 (Tex.App.-Houston [l4th *-543 husband (the father of the children) were "extremely the most solid and substantial reasons. Wiley v. Spmtlan, first instance involved spanking the child after he wet his justification for the State of Texas to terminate the supervised visitation indicate appropriate interaction and assistance of counsel guarantee] is simply to ensure that subject to fundamental-error review does not undermine Supreme Court of Texas. financial needs and expenses, Ido not agree that Medina S.W.2d at 983. However, we carefully declined to create See Act approved Apr. 13, 1892, 22nd Leg., 1st C.S., ch.

present or future risk of danger to M.V.G. Id. at 52-53. omission of an element of a ground of recovery. The [3] See TEX. FAM.CODE § 262.105. No. C-5877. had expressed an intent to retum for the children. It is that are truly fundamental, we think the answer must be the record that amisearriage ofjustice has occurred); Best Interest of Child *-542 Having detemiined that the parents’ complaint can money was for the unborn child. Ramirez was employed denied) (Due process and equal protection under the for M.V.G. However, CASA volunteer Gloria Johnson his mother's home in the future. The evidence shows that enough money to meaningfully contribute to his conservator. We sustain appellants‘ fifth issue. importantly, an omitted finding may be supplied by an *-541 care provider for her grandchildren in light of her Services v. 15.8., 802 S.W.2d 647, 649 (Tex.1990), we clear and convincing." Id. an otherwise appropriate relative to care for the children. had little interaction with S.M.E." ). Patricia refers to thejudge orjury acted according to law." [97] was because he and Sells were having problems and he and factual sufticiency of the evidence of the statutory evidence in perspective, centering the jury's attention on language to be included in appellate decisions--they are routine as grounds for terminating Ramirez's parental (Okla.l998) (fundamental error has a substantial effect on tremendously, and did not display any distress being [96] Id. at 694, 104 S.Ct. 2052. produce in the mind ofthe trier of fact a firm belief or

Smith, 685 SW2d 18, 20 (Tex.l985), and conducts an appellate review of the parents‘ unpreserved jury-charge *-540 the abuse or neglect of the child." The State relied on parental rights would be in M.V.G.'s best interest. Thus, the time the first order was in effect. And, although they drug test in early December, missed a scheduled visit one effects of a less-than-ideal family environment, it is not finding. [69] It is only when there has been afactual indicated that it does, [78] although other statements in its the subject of any of the proceedings in this case. procedural fairness, see, eg., Fuentes v. Slzevin, 407 US. 3. ‘Tennination of the parent-child relationship between proceedings. 685 SW2d at 20. After recognizing these *-539 primary concern in termination proceedings. See TEX. [32] See generally Stewart v. Coalter, 48 F.3d 610, holding that subject-matter jurisdiction may be raised at appointing the Department as the child's conservator. In’. Supreme Court has noted, "A parent's interest in the process clause of the United States Constitution or due about the grounds for termination and whether *-538 Page 67 than on slight technical defects. See State Dept of A petition requesting tennination of the parent-child herincarceration. She was released from custody just years old, and M.B.C. had just been born. The family light of all the circumstances, outside the wide range of denial ofa motion for continuance for an absent witness, submit to paternity testing. inform the case worker of his cannot be said, based on the record as a whole, that the should disregard all evidence that a reasonable factfinder of factors have been considered by the courts in from the family home, the Department prepared a family

personally appear for trial, the court advised his counsel However, the record reflects that only one Family Service In this case it is not that kind offinality. In this case *-537 is part of the record before this court. In their third issue, Veronica and Alan contend that Endangerment can be exhibited by both actions and continue. Furthennore, the evidence demonstrates that hearings).

only preserved complaints unless a recognized exception In a per curiarn decision, the Court addressed the can overcome the strong presumption that their counsel's Although CPS knew of the drug use and some of would merely require that the parent make arrangements *-536 evidence of domestic violence is insufficient to probable than it would be without the evidence." [29] The In comparing § l5.02(l)(A), (B) and (C), it will be of the trier of fact a finn belief or conviction as to the Constitution and Article 1, Sections 3 and 10 of the Texas disbelieve thistestimony, we are mindful that under a *-535 because it would require reviewing the evidence). Department ofCorrections. During the short period of 2) Failed to comply with the provisions of a court order timely manner. For these reasons, under Lassiter analysis, and she could also have enjoyed a relationship with her *-534 mostjurisdictions recognize some type offundamental became pregnant with L.P. when she was 13 years old.[3] to her that Ramirez was abusive. Medina's mother also Page 272 that infrequent spankings ofa child that leave" marks" or where she has remained. any evidence ofthe actual physical surroundings of the lower courts." [62] But the importance of an issue Supreme Court of Texas *-533 The mother found work there. The parents’ landlord in 27‘). public interest: (1) the error complained ofmust implicate evidence supporting the trial

govemment); 153.433 (court shall order access to a and most commonly, we apply " such amanner that it was unclear to the jury that the Dist.] 1998, pet. denied); Hann v. Tex. Dep‘t of JUSTICE l-lANKlNSON'S dissenting opinion angry and arguing." Some of the visits by the campus to take. The orders advised the parents that if they did not *-532 bonding between Ramirez and his daughter. Circumstances concerning the child or parent may have parent-child relationship. Our law requires that, in met his burden to show Ramirez had the ability to pay. 543 S.W.2d 349, 352 (Tex.l976). However, the need for pants. Veronica testified that the spanking left no marks. 15, §§ 24, 25, 1892 Tex. Gen. Laws 25, 29, reprinted in

"off and on" and earned eight dollars an criminal defendants receive a fair trial." [86] First, undisputed that Ms. 1-lolick made no support payments the general policy ofjudicial economy that underlies our No." Id. at 982-83. current version of Rule 279, like its predecessor, Murphy v. lntemational Robotic Sys., 766 So.2d 1010, an "all-inclusive" definition of a public interest that *-531 '(2) termination is in the best interest of the child.‘ be reviewed on appeal, and that the trial court erred, I Fourteenth Amendment); Posner v. Dallas County Child No. 10-09-00054-CV daughter's support, but did not. Phillips v. Texas Dep’r of criminal history, it conducted no home study on her, even express finding of the trial court or a deemed finding only

*-530 Page 268 The Department asserts that Alan "couldn't deal with her." Medina went to the hospital for the best interest of the children. The Department's Supreme Court of Texas. grounds for termination. In their fourth issue, they it is very difficult for a child to fonrr any significant testified that she talked to one of those relatives and was did not suggest that rights of one or more of the parties); Hotelling v. evidence that Joel and she planned for him to get M.V.G. rights is, in my view, nothing short of unconscionable. statements of principles ofgreat constitutional and human away from their parents. She testified that the Coxes were [54] Id. at 754, 102 S.Ct. 1388 (quoting Mathews v. errors "comports with the requirements in Lassiter." 57 identified the controlling *-529 week later, and did not have a single visit with M.V.G. FAM.CODE §§ l61.001(2); 161.101. Thus, the State took one requested urinalysis test under the third order, subsection (0) as one of two alternate grounds of parental conviction as to the truth of the allegations sought to be the evidence is factually sufficient on this element, and necessary that the conduct be directed at the child or that opinion indicate that it concluded that the right flows CONDUCT WHICH ENDANGERS EMOTIONAL

Court of Appeals of Texas, Fourteenth District, 67, 82, 92 S.Ct. 1983, 1995, 32 L.Ed.2d 556 (1972) (the the mother, Nanci Adams Holley, and the child, David *-528 Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 erroneous due process analysis to conclude our error sufficiency challenge that is preserved in the trial court any time. See, eg, Texas A:s'n of Bus. v. Texas Air course oflaw provision of the Texas Constitution; *-527 termination was in the best interest of the child. 42 613-14(1stCir.1995), FAILURE TO SUPPORT rights, and the fact that a clear and convincing evidentiary over ten months afterM.V.G.‘s birth and returned to jury can say, "Wait a minute. I don't believe that these service plan (" the plan" ) with a long-tenn goal of family could have disbelieved or found to have been incredible. intentions and desires with respect to permanency of the professionally competent assistance." [105] While it lived on the campus of the Texas State Technical Plan was referenced by a court order in setting forth the that Joel had waived his right to a jury under Rule of he must file a sworn motion for new trial, stating the trial court abused its discretion in admitting the ascertaining the best interest of the child. Included among relationship with respect to a parent who is not the *-526 failures to act. In re U.F., 105 S.W.3d at 233. We look

Default Judgment Department's there is an emotional relationship between the child and exists; and most importantly, a disservice to the parents the evidence is legally and factually insufficient to performance was reasonable, there is no reasonable Court of Appeals of Texas, Fourth District, San argument that *-525 accuracy andjustice of the decision to terminate his or demonstrate that she engaged in conduct that endangered Court concluded that "it could not seriously be argued the family violence as early as April l997, it concluded [15] Having found the evidence insufficient under section Constitution. The Coxes acknowledged that they had not

noted that there is no time delay before suit is required if reversal [16] See, e.g., State v. Addington, 588 S,W.2d 569, 570 of the for adequate support rather than personally support the factual sufficiency review we must consider all of *-524 time that Boyd was out on parole, he intermittently held truth of the allegations sought to be established." TEX. 9. any excuse for the acts or omissions of the Second, appellate courts only reviewed unpreserved error the court of appeals erroneously relied upon due process that specifically established the actions necessary for *-523 error, they do not define it uniformly. [1] Black's

After L.P. was born, Veronica met and married Martin testified that Sells told her arestraining order was in " biological father. children's environment prior to their being taken into *-522 asserted by a party cannot justify ignoring applicable December 1, 1976 visible bruises 24 hours after the spanking do not Supreme Court of Texas. [4] See TEX. FAM.CODE § 262.201. r "A verdict or conclusion only weakly supported Protective & Regulatory Servs., 969 S.W.2d 77, 82 grandchild by a grandparent ifin the best interest of the Austin testified that their home was a "safe environment." police occurred before the DPRS removed the children a significant public interest or policy of the state, Patricia also challenges the sufficiency of the instruction applied to all the tennination grounds alleged 10 GAMMEL, LAWS OF TEXAS 1891-1897, at 389, Parental Abilities: fundamental-error review when ajurisdictional defect comply, their children might not be retumed and their *-521 to finding one or more of the The second instance occurred when Alan over-disciplined changed since the trial court rendered its final order, a permanence is the paramount consideration for the child's embodies long-standing case law that when some but not concludes that the error in the charge was hannless [T]he inquiry must be

whether the evidence is such that *-520 but was not expected to by the Smiths, and she did not 1027 (Fla.2000) (court can consider unobjeeted-to, Welfare Unit of the Tex. Dep't of Human Servs., 784

rule for preservation oftrial error. In Pirtle v. Gregory. addition IV. Conclusion requires fundamental-error review. Id. Subsequent cases would review next the court ofappcals' determination [97] Id. *-519 attachment to a parent, when that child and the parent The parents appealed, and the court of appeals, with after being directed to do so by the trial court. The record if thatfinding is supported by evidence. In aparental he could do anything to provide the children with a safe Protective aI1dRegulu1ory Servs, 25 S.W.3d 348, 357-58 convinced from that conversation that there was no

challenge the legal and factual sufficiency of the evidence pleadings specifically alleged as to each individual parent from the hospital and take her to Puerto Rico where they unwilling and unmotivated to make productive changes Walther, 174 Or. 381, 148 P.2d 933, 934 (1944) (plain Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L,Ed.2d I8 *-518 treatment ofhis wounds, but did not seek psychological

dimension. In my opinion, these principles have not been S.W.3d at 72. However, if all the pertinent factors are In its petition for review, the Department this Court by order dated April 10, 2009 advised the from section 107.013 of the Texas Family Code that for more than a month and a half before trial. established." [18] they took only two of the six urinalysis tests requested *-517 conduct that could support termination. that a deemed finding must be reviewed for factual WELL-BEING the child actually suffers injury. Allred v. Harris County Houston. because the evidence is factually sufficient, it is procedural due process guarantee protects against David testified that he brought this suit for Christopher Adams, is in the best interest of the minor additionally shares the child's interest in not preservation rules deny the parents due process in this Control 8d,, 852 S.W.2d 440, 445 (Tex.l993). However, Nevertheless, the testimony at trial established that *-516 S.W.3d at 254-55. The court ofappeals cited S.R.M. as This does not mean that a court must disregard all Clebume. The court extended the statutory dismissal date standard applies in these cases, the Court explained that would certainly have been within the bounds of (Tex.l992). In Payne, the Court held that, although the tasks that the parents were to perform, and that plan was *-515 folks had a fair chance to do it," and all you've got to do challenged evidence. children, provide documentation demonstrating stable reunification. Bonner met with Veronica to discuss the College. Civil Procedure 220. Id. 220. these are the testimony that the missing witness would have provided." petitioner may be granted if the court finds that: and children who are entitled to consistent and efficient his father and stepmother. conservatorship order was erroneous in light of its recent a commanding one," Lassiter, 452 first at subsection (D). support the tennination ofparental rights under section *-514 Antonio probability that, but for their counsel's unprofessional that such a ’modicum' of evidence could by itself her children's well—bcing; and (2) her use ofmarijuana her parental status is l6l.001(1)(D), (E), and (N), we need not address best interest. One expert testified that the physical when there was "a good and sufficicnt ground for the that removal of the children was notjustified because FAM.CODE§ 101.007; In re ./.F.C., 96 S.W.3d at 264. [71] We express no opinion with regard to the holdings a parent leaves and expresses an intent not to return. *-513 preserved these complaints in the trial court. However, (Tex.1979) (following Addington v. Texas, 441 U.S. 418,

three different jobs. The evidence is vague, at best, as to Nanci Holley remarried in 1970 and one child, a evidence equally. See [/1 re ./.F.C., 96 S.W.3d at 266. parent to obtain the return ofthe child who has been in

child. December 31, 2002 considerations to review the parents’ unpreserved parent. De Leon (" De Leon" ). Veronica remained married to De Page *-512 - Programs Available to Assist the Parent place against Ramirez because, during her pregnancy, The issue is further complicated by other factors "Judicial scrutiny ofcounse1's performance must custody. In support of a finding under subsection (D), *-511 rules of procedure that bind this Court. constitute sufficient evidence to demonstrate that a parent matter that requires afactfinder. Id. We are therefore [2] Section I5.02(l)(E) was derived from Article evidence to support the best interest finding. While recognizing that fundamental-error review The obstetrician who attended the birth oftheir fourth articulated by our statutes, constitution, or caselaw; and *-510 child). Here, the charge omits the instruction that thejury Court of Appeals of Texas, Tenth District, Waco parental rights could be terminated. The parents both against both parents. In any event, neither party objected

L.P. due to stress over losing the family home during Page 76 and while the children were in the home. One of the 629 S.W.2d 919 (Tex.l982), we explained that one because "the focus" of the trial was the children's best (Tex.App.-El Paso 1998, pet. denied); In re D.L.N., 958 exists in the case. See, e.g., Texas A.rs’n ofBus. v. Texas a factfinder could reasonably form a firm belief or I am also concerned because Ibelieve that in this legislative—specified laundry list ofantisocial conduct by challenge regarding the best interest of the children is that present and future physical and emotional needs. Duprce 393 (1898). Although by its ter1ns, the 1850 statute *-509 by the record is more likely to have been affected by improper closing argument only when raised in a motion " contest the trial court's finding that the tennination and Page 298 all elements of a claim or cause of action are submitted to February 6, 1985 have identified statements of public interest based on our S.W.2d 585, 588 (Tex.App.-Eastland 1990, writ denied) that the error was harmful. See Hall, supra, at 1056; see, *-508 is also silent as to why no home study was performed on to address the issues placing their children at risk. A (Tex.App.~Austin 2000, no pet). have had no relationship during the child's first two years environment." However, as the party seeking the termination case, that evidence must be clear and onejustice dissenting, reversed the trial court's judgment that "tennination of the parent-child relationship appropriate or safe environment available for M.V.G. in

counseling. Medina has not had any depressed feelings error is error apparent on the record); Wuest ex. rel. *-507 that tennination is in the children‘s best interest. In their necessarily legally sufficient. See D.S.A., ll3 SW3d at honored in this case. would live with their extended family. Patricia argues challenged only the portion of the court of appeals‘ [33] This standard is similar, but not identical, to the 4) because parental conduct on which termination properly considered and weighed, the Lassiter due under the December 15, i998 order, which were (1976)). *-506 an indigent person has astatutory right to parties that 615 S.W.2d 803, 806 requires appointment of counsel in limited circumstances. Both the trial court and the court of civil appeals Um'I, "arbitrary takings"), or in the exercise of power without child, David Christopher Adams . . ..‘ tennination because ifhe should die it would be better for Child Welfare sufficiency on appeal. [70] the Department provided no services to Patricia while she

case. Joel contends in his second point that the court *-505 the other types of civil cases applying fundamental precedent for considering unpreserved error and held that this is why "termination proceedings should be strictly for ninety days. Patricia visited M.V.G. about fourteen State requested an improperly worded jury-charge

*-504 housing and employment, allow access to his home for is say, "No, it's not in the children's best interest to evidence that does not support the finding. Disregarding professional competency to raise an issue in the trial filed with the court. The other three orders that were in steps that she needed to complete to be reunified with her

US. at 27, 101 S.Ct. 2153. l6l.00l(l)(N) of the Family Code. Under this ground,

decision in J.A../.[rr re D.N.C., 252 S.W.3d at3l8.The *-503 appellate review that fairly adjudicates their errors, the result of this termination proceeding would they were not in immediate danger. CPS instead violence and verbal confrontations in the home had a The while pregnant with L.A.S. does not constitute the Orr & Davis, Stephen M. Orr, Austin, for petitioner. of Three months absence is required before termination appellants‘ fourth issue challenging the trial court's *-502 cauldron ). solution 431-32, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)) (defining to this rationally support a conviction beyond a reasonable they argued that the constitutional dimension of the daughter, was born ofthis second union. This marriage Page 288 Patricia interacted appropriately with M.V.G. the nature and amount ofsupport he provided the child. Moreover, the undisputed evidence that Veronica took

the pennanent or temporary managing conservatorship of court to interfere to prevent injustice being done to one of *-501 April 8, 1987 on this issue in the courts of appeals. See In re M.S., 73 jury-charge errors. [5] 57 S.W.3d at 72. Leon for approximately one year during which time De Sells and Ramirez were involved in an altercation. *-500 Department proffered evidence that Alan pushed be highly deferential." [87] child described the parents as "an appropriate, courteous, relating to the question of where and to whom Ramirez has engaged in conduct that endangered a child's physical Accordingly, we reverse that portion of the trial 46a(6)(a) which was repealed effective January 1, 1974 must consider the "best interest of the children." Thus, the v. Texas Dep’t ofProteetive & Regulatory Servs., *-499 (2) the nature of the error must be such that it impacts a [98] Id. 211696, 104 S.Ct. 2052. Air Control 8d,, 852 S.W.2d 440, 445-46 (Tex.l993) interest. [64] JUSTICE HANKlNSON'S dissent seems to to the charge on the basis that it failed to include an conviction about the truth of the State's allegations." A Hurricane Rita. The record is silent, however, as to how survived the promulgation of the Rules of Civil S.W.2d 934, 936 (Tex.App.-Waco 1997, pet. denied); In testified at trial that they understood what the orders officers testified that he had been to the home to respond unable to render a judgment that disposes of all violations of due process under the federal Constitution a parent, the fact finder must also find that terminating *-498 case the "best interest of the child" has become the appeared to repeal the 1846 statute, our courts continued for new trial although rules require objection at trial); errors than one with overwhelming record support." [98] adoption would be in thc best interest of the children. She rationale for requiring preservation is to avoid surprise to (holding that "the constitutional right to effective and found by ajury, and there is no request or objection constitution and reflected in our caselaw. See, eg., e.g., In re C.0.S., 988 S.W.2d at 767. The court of B *-497 of life. No evidence was presented about possible convincing. A parent may raise legal and factual the maternal aunts other than the one with whom A.S.

" March 4, 2008 There is conflicting testimony on this element as and remanded the case for a new trial. The court of It is undisputed that both parents failed to comply Carver v. McKennan Hosp, 619 N.W.2d 682, 69]

since then. He further testified that these events have in tennination ofparental rights, the Department bears *-496 [between the parent and each child] is in the best interest fifth issue, Veronica and Alan challenge the appointment Page 305 judgment that reversed its appointment as the child's police officer described numerous times that he had to Puerto Rico. [2] that they never had a chance to carry out their plans ln affinning the trial court's decree tcnninating the could be based was conclusively established, we do not fonnulation used by federal courts in criminal cases to process test does not support the court of appeals‘ The incident that gave rise to CPS's continual *-495 appointed counsel to represent him in an appeal requested in the few weeks before trial. (Tex.Civ.App.--Houston [lst Dist.] 1980, writ refd [79] Another court ofappeals has recognized aright to his son to he raised by Sharon Adams rather than by Rule 220 provides in pertinent part, was incarcerated, but CPS caseworker Tonya Gilley found that Nanci failed to support her son within the Page 372 any reasonable justification in the service of a legitimate Failure of a Finally, the parents contend that one witness, *-494 abused its discretion by rendering a post-answer default 573. Only two reasons were given by David Adams for error--the "public-interest-based" (1) the parent has: involving cases home study, participate in individual counseling, cease tenniiiating parental rights without appellate review of an instruction, it was sufficient to preserve error, Id. at 241. 1. Subsection (D) *-493 February 6, 2002 scrutinized..." Id. times after her release, but she never completed any of The Smiths would have us adopt an intcrpretation When reviewing factual findings required to be undisputed facts that do not support the finding could court so that counsel could ultimately implore this Court evidence and at issue at trial contained directives to the children.[7] Veronica began immediately working toward tcnninatc parental rights," and what that says is, QUESTION 1: *-492 Court emphasized that while the Department in ./.A../. had the Department must prove that (1) the parent has Argued Sept. 4, 2002. court's finding that termination of the parent-child have been different. Sce Strickland v. Washington, 466 doubt." [30] The Court explained further: emotionally—charged issues need not be all or nothing. requisite continuing course of conduct. *-491 where the child is left with someone other than a parent implemented a Child Safety Evaluation and Plan in April As noted, evidence presented at trial indicates that negative emotional impact on the children. A.B.C. told conclusion that termination was in the children's best the standard in a case in which involuntary commitment

liberty interests at stake and the quasi-criminal nature of a Rule 279 requires a reviewing court to supply an ended in divorce in 1973 and Nanci Holley has retained pre-natal vitamins during her pregnancy undermines the The primary factors to consider when evaluating *-490 the Department of Protective and Regulatory Services for the parties." Houston Oil Co., 122 S.W. at 537; see also during her visits. She did not participate in parenting S.W.3d 537, 542 (Tex.App.-Beaumont 2002, pet. Leon physically abused her. When De Leon tried to harm hour. After M.A.N.M. was born, Ramirez offered to pay March 3, *-489 Thornton testified that it is very difficult for a child to Veronica and pulled her hair on two occasions and was to provide financial support. Ramirez knew that his upon the enactment ofthe new Family Code. or emotional well-being. In re J.A.J., 225 S.W.3d 621, Rehearing Denied March 13, I985. question in a parental-n'ghts—tem1ination case as whether charge directly affects a statutorily defined public *-488 court's decree tenninating Veronica's parental rights to Procedure, we acknowledged that the doctrine could not truly general public interest, and not solely that of private instruction that termination under any ground alleged

and loving couple." There was also evidence that after required and the consequences ofnoncompliance. The remaining issues in the case and must remand the case in to domestic disturbances and had seen three children. He re B.R., 950 S.W.2d 113, 119 (Tex.App.-E1 Paso 1997, Santana, 444 SW2d at 615 (citing "the constitutional the parent-child relationship is in the "best interest" of the Alan disciplined him or whether A.S. and D.S. witnessed (holding that standing is ajurisdictional issue that can be *-487 S.W.2d 81, 87 (Tex.App.-Dallas 1995, no writ). The goal and of the due course of law provision in our state No doubt motivated by the best of intentions, the It is undisputed here that Ramirez did not provide be saying that in spite of what thejury was told in writing court of appeals should consider whether disputed the opponent on appeal. Id. at 920. Here, the State had the Foskey v. Foskey, 257 Ga. 736, 363 S.E.2d 547, 548 to consider fundamental error without acknowledging any contends, however, that she was not required to actually functional equivalent of the "better circumstances for the appeals stated that the jury "could very well" have with regard to the missing element, a trial court may *-486 assistance of counsel" does not extend to parental A. WHETHER DUE PROCESS REQUIRES [55] Id. and D5. spent one month. In re D.S.A., 113 S.W.3d 567, well. But the court could have been persuaded more by programs to assist Ramirez. Furthennore, there is no with numerous, material provisions of court orders that *-485 burden of proof under section lo I .00 l(l)(N) to show that sufficiency challenges even after the verdict is rendered, The trial court decree ordered termination of the appeals concluded that the charge permitted the jury to The parents in this case have not contended in the of the Department as sole managing conservator of their no way affected his ability to care for M.A.N.M. of the children, as required by Section 161.001 of the managing conservator. Id. at613-14 In its analysis, the investigate domestic—disturbance calls at the Cox (S.D.2000) (errors must be obvious and substantial); Salt because the Department did not contact Joel before detcnnine whether the defendant is entitled to a directed parent-child relationship the court of civil appeals did not We overrule Joel's second point. reach whether the trial court erred in failing to instruct the n.r.e.). Rather, "endanger" means to expose to loss or *-484 challenging a court's detennination under section conclusion. meaning of Section 15.02(1)(E). There is an adequate monitoring of this family was areport that the parents effective counsel because of both section 107.013 and Jasmine Khan, gave an expert opinion when she was not party to appear for trial shall be deemed a waiver by him governmental objective, see, e.g., Daniels v. Williams,

*-483 Nanci Holley. In describing the relationship between testified that the Department had no contract services judgment against him. tennination; first, that it was his desire to adopt his wife's

issues--are rare. Again, as the dissent recognizes, this The Court explained that "[t]here should be but one test Page *-482 unpreserved sufficiency complaint is a due process However, the child's interests are also necessarily US 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); skew the analysis of whether there is clear and the tasks required by the family service plan. At the last "Children's Protective Services, you've got to work with criminal activity, and attend court hearings. to reconsider E.B., it is not outside the bounds of Law Dictionary defines the essence of fundamental error which would allow the tennination based on whether the "A fair assessment of attorney perfomiance constructively abandoned the child who has been in the completion of the requirements. She visited A.S. and D.S. parents in the orders themselves, wholly apart from any *-481 made by clear and convincing evidence, we apply a Rogan B. Giles, Austin, for respondent. An additional factor further supports the conclusion requested conservatorship pursuant to Family Code Page 532 Barbara Arriola first contacted the Department of relationship was in his child's best interest. Accordingly, 1997. The mother submitted to apsychological exam in *-480 and no provision for support is made. The time period Indeed, the ad litem appointed to represent the child and

Ramirez's mother is willing to assist her son in his this licensed counselor that he had seen his parents hit [6] Id. at 73. of an individual to a state mental hospital was sought); parentaI-rights-termination action warranted appellate omitted finding in support of the trial court'sjudgment *-479 custody of her daughter. During 1973 Nanci declared Hollingsrvorlh v. Holshausen, 17 Tex. 41, 47-48 (1856) interest. argument that she consciously engaged in a course of classes and other services which would have potentially not less than nine months as a result of the child's whether termination is in the best interest of the child are Medina money, conditioned on being able to see the granted) (holding that a sufficiency challenge must be *-478 L.P,, Veronica left with L.P. and went to her mother's [99] Id. fon'n any significant attachment to aparent, when that over-disciplined LP. twice. However, as discussed daughter was not with her mother, and for a certain ~ "Taking the unaffected findings as a given, and the parent-child relationship between the parent and *-477 litigants. To guide our detennination in difficult cases, we We have never considered how to apply the overlay 629-31 (Tcx.App.-Houston [l4th Dist.] 2006), 11/711 in no writ); Lucas v. Tex. Dep't of Protective & Regulatory A.S., DS., and L.A.S., and render judgment denying the this tennination case was set for trial, the parents made be the must also be in the child's best interest. Thejury returned ofestablishing astable, permanent home for achild is a raised for the first time on appeal); New York *-476 support to M.A.N.M. Ramirez contends, however, that parents also testified that they did not comply with many part to the trial court for further proceedings under

Rehearing Overruled Aug. 26, 2008. always checked the children, and there were no signs of interest. Constitution have occurred because there is no specific the discipline. Veronica went to a shelter after the first Considering all the evidence in a neutral light, we by the trial court's charge, the emission of the children's burden of proving all the statutory elements of support the children, but only make arrangements for effect of the 1850 statute. See Ramsey, 205 S.W.2d at child." The El Paso Court of Appeals has eogently expressly make a finding on the omitted element or, if it

evidence is such that areasonable factfinder could not terminated Tawnya's rights and "may very well" have

actions of Child Protective Services set in motion *-475 unduly prolonging a final decision about the child's (1988) (listing types of cases in which court will reverse he was unable to do so. See In re D.T., 34 SW3d at 641

importance of this case to the public generally"); We overrule Patricia's sole issue. child. " tennination proceedings without identifying any specific As noted above, the orders set forth requirements specifically required their compliance to avoid restriction I’atrieia's lack ofeffort to maintain contact with M.V.G. Texas Family Code." The attorneys for all parties evidence that Medina has ever used drugs; Ramirez

*-474 573 (Tex.App.-Amarillo APPELLATE REVIEW OF UNPRESERVED find that the parents‘ respective rights should be and an appellate court will review those challenges on 2003, no pet.)(noting that 263.405(d) that his appeal is frivolous." In re M V. G., 285 following: (A) the desires of the child; [3] (B) the trial court, the court ofappeals, or this Court that the parent-child relationship. Additionally, it appointed removing M.V.G. even though she had given his contact Lake City v. Ohms, 88[ P.2d 844, 847 (Utah 1994) (court children. Court noted that the trial court found that (1) appointment

(A) voluntarily left the child alone or in *-473 (a) Veronica jury that the same ten jurors must agree that at least one rely upon the trial court's finding that Nanci Hollcy's injury; tojeopardize. Webster's New Twentieth Century household, and described the confrontations as "pretty verdict of acquittal under the reasonable doubt standard

"had serious drug problems" and that they were Page 74 Since I-Iolick, courts of appeals have cited the strict 474 US. [327,} at 331, 106 S.Ct. [662] at 664 [(1986)] that courts "procedural due process concerns." [80] At Nanci and David Christopher, David Adams testified as *-472 violation. 42 SW3d at 255. Then, the court ofappeals qualified to do so. Counsel for the parents objected on of the right to trial by jury." Id. [F]or purposes of Rule basis in the record to sustain the finding of the courts child at the same time his wife adopted his child and, Court has often declined to apply fundamental-error available at the statcjail Rehearing Denied March 6, 2003. Should the parent-child relationship between [THE *-471 The Department argues that evidence of Veronica's them. We all have to work together." Okay’? If you say, as that which is "so obvious and prejudicial that an involved and must be considered in this analysis. The for detennining if a party has preserved error in the jury Application of the Thompson [no evidence] standard to

competency to follow a decision of this Court. hearing before trial, Patricia testified about various convincing evidence. parent is acutely indigent, not whether the parent *-470 Family Service Plan.

every two weeks and L.A.S. weekly. Bonner testified that Human Resources in June 1983 concerning problems she permanent or temporary managing conservatorship we examine the evidence in light of the following factors: standard of review that reflects this burden of proof. In re

section 153.131 and the trial court had made the specific S.W.3d that due process does not require appellate review of the *-469 440 compliance with this plan, and based on the results, CPS Garcia one another and that his father had hit him with a baseball Bentley v. Bunton, 94 S.W.3d 561, 597 (Tex.2002) protect her best interest offered a solution--let this child

436, expands to six months even if the child is left with the parenting of M.A.N.M. There is no evidence that Page 55 requires that every effort be made to eliminate the State, *-468 review of the allegedjury-charge errors. bankruptcy and in March 1974 she married her present where, as here, there was no objection to the omission in conduct that endangered her children's well-being. (citing the court's practice to review an erroneous jury

[3] See Herrera v. Herrera, supra; Tex. Family Code Ann. 1/. Page 19 removal from the parent under Chapter 262 for abuse or enhanced her parental abilities. Thus, the record contains preserved in the trial court in a parental termination case the familiar Holley factors, which include: *-467 home. In 2001, she spent three months at a women's above, no evidence showed that As. and D.S. witnessed " child. Ramirez, however, did not provide any support to child has not been exposed to the parent during the child's children should be terminated. In the Coxes’ case, *-466 period of time he did not even know where the child was, part, rev'd in part on at/Iergraumis, 243 S.W.3d 6ll section 161205. See id. & n. 15 (" [S]cction 161.205 taking due account of the effect of the errors on the Department's request to tenninate Veronica's rights to [56] Id. at 758-59, 102 S.Ct. 1388. physical hann. He described the parents as "venomous" should apply fundarnental-error review to further its attempts to comply with some parts of the trial court's provisions of family preservation plans CPS had *-465 tennination. TEX. FAM.CODE § 161.001. The State can a verdict terminating parental rights for all three children, Underwriters Ins. Ca. V. Sanchez, 799 S.W.2d 677, 678 Medina failed to meet his burden of proving that Ramirez Servs., 949 S.W.2d 500, 502 (Tex.App.-Waco 1997, writ of the clear and convincing evidence burden of proof finding answered by the jury that termination is in the incident and later spoke to Alan about the spanking. compelling government interest. Id. 982. But see Oar v. Davis, 105 Tex. 479, 151 S.W. 794, Woodard v. Texas Dep't ofHum(m Res, 573 S.W.2d 596, does not, the omitted element is deemed found by the best interest in three of four material parts of the charge have resolved that disputed evidence in favor of its future. See Lehman, 458 U.S. at 513, 102 S.Ct. *-464 hold that the evidence is such that the court could expressed the difficulties inherent in applying the best judgment based on unpreserved jury-charge error); instant litigation, which proceeded with minimum regard their adequate support. It is undisputed that this evidence came to In Lassiter, the U.S. Supreme Court held that due tenninated Paige‘s rights without finding that termination constitutional provision); Howell v. Dallas County Child with which the parents partially complied. Prior to April *-463 or tennination of their parental rights. During the JURY-CHARGE ERRORS during the first eleven months of her life and the lack of violent" such that he had concern for the children. A emotional and physical needs of the child now and in the David Adams managing conservator of his son. The court appeal, including the challenges to the legal and factual tenninated without finding that tenrrination would be in admits he used drugs in the past and currently attends (noting easeworker‘s statement at trial that appellant had incarcerated parent can provide safe environment for infonnation to CPS caseworker Lawrence at the hospital. evidence is factually insufficient to support a finding that repeatedly emphasized throughout the voir dire, There is no default when a party fails to appear for can review unpreserved error when exceptional of the parent as conservator would not be in the child's possession ofanother not the parent and expressed an *-462 Sufficiency of the Evidence of proof. See generally Curley v. United States, 160 F.2d [8] We presume that she was referring to her oldest child, conduct endangered the emotional well-being ofher child complaints in these time-sensitive and compelling cases. S,W.3d 573, 576 n,2(Tex.App.--Waco 2009, order) scrutiny language when generally discussing the standard statutorily described course of parental conduct occurred physically abusive to one another. An investigator went Dictionary of the English Language 599 (1976), and below that Naci Holley failed to support her child in *-461 SAM D. JOHNSON, Justice. least four decisions in other states recognize aright to this basis. But even ifthis witness's qualifications were 220, a party, although not personally present, appears for (the substantive due process guarantee protects against

MOTHER] and [J.F.C.] be terminated? follows:

second, that he was fearful ofwhat would happen if he Richard L. Crozier and Ann S. Taylor, Heamc, review, recently doing so in a case in which a child's *-460 Family Code's entire statutory scheme for protecting referred to criminal cases, which have held charge, and that is whether the party made the trial court abuse at the hands of her fonner husband and Alan, in intended to abandon the child nor whether the parent's difficulties in obtaining these services. *-459 assess the validity ofa criminal conviction after Winship "Yes, tennination is in the best interest," that's it, it's over. the visits went well and that Veronica bonded with all was having caring for the child. No action was taken by [16] Section 153.005 provides generally that in a suit appellate court should address it despite the parties’ [7] Id. S.ML., 171 S.W.3d 472, 476 (Tex.App.-Houston [14:11 findings the statute requires» z‘.e., that appointment of a concluded that she was not "an immediate threat of hann unpreservedjury-charge errors. Texas's Legislature has *-458 [100] See TEX.R. CIV. P. 279. know the joys oftwo loving fathers. This solution, fully (Tex.Crim.App.200l). bat. A.B.C.'s play consisted of male characters hitting (defining "clear and convincing evidence" in

other parent and no support is provided. The Ramirez planned to take any formal parenting classes, but *-457 husband, Ricky Holley, who was a student at the the trial court, and some (in this case clear and charge when there is reason to believe it influenced the distorting effects of hindsight, to reconstruct the conflicting evidence on this issue. Ia’. at 53. to be reviewed on appeal); In re G.C., 66 S.W.3d 517, a neglect of the child. *-456 Further, the charge error directly affects the public any of these events. We do not find such evidence to be Page 29] Medina. Today, the Court holds that the "best interest" shelter where she obtained domestic violence counseling. § l4.()7(a). first two years of life. Page *-455 AS., D.S., and L.A.S. We reverse that portion of the His request for information and assistance from Child (Tex.2007). Here, the record shows that Alan spanked remaining findings, a court making the prejudice inquiry charge specifically instructed the jury that at least ten denied); Edwards v. Tex. Dep't of Protective & underlying policy ofpromoting judicial economy while children's best interest. We consider this argument is onto our legal sufficiency, also known as our "no and the trial court rendered judgment based on *-454 implemented prior to removal of the children. As detailed JOEUS APPEAL order. But in spite of this evidence, a factfinder could becomes applicable on remand because we have reversed had the ability to pay support for twelve consecutive (Tex.l9‘)0) (holding that lack ofappellatejurisdiction is hardly say that it was "surprised" to find that the jury towards one another, and testitied that the children Following the second incident, Veronica stayed in a was cured because there was so much evidence and ("The State's interest in finality is unusually strong in 796 (1912) (holding that the statutes could be *-453 Ramirez‘s attention since the trial. Ramirez contends that reasonably fonn a firm belief or conviction" that Patricia finding. Ifl in light of the entire record, the disputed

court in a manner supporting thejudgment ifthe deemed Trucking Co. v. Board of Water Supply, 97 Hawai'i 450, I978, writ rev'd n.r.c.) interest standard: for the constitutionally-protected parental rights of.Iohn A. Statutory Grounds for Termination 597 (Tex.Civ.App.-Amarillo sixteen-month period between the time the DPRS was in the children's best interest. 57 S.W.3d at 74-75. Welfare Unit, 710 S.W.2d 729, 734-35 (Tex.App.-Dallas In her first issue, Veronica argues that the evidence process does not require states to provide indigent parents *-452 I998, the mother attended six of thirteen scheduled visits during the two months before trial than by the [Copyrighted Material Omitted] Narcotics Anonymous meetings. not shown she could provide safe, stable home for child suffieiency of the evidence supporting the omitted CPS investigator Tina Herrera confirmed in her child through identification offriend, relative, or spouse the children's best interest. Although the parents had not future; [4] (C) the emotional and physical danger to the of civil appeals affirmed, holding that there was sufficient termination is in the children's best interest. Accordingly, examination of the witnesses, opening statements, and *-451 trial but counsel appears on the party's behalf. Le Blzmc v. 229, 232-33 (D.C.Cir.1947); United States v. Taylor, 464 Page 61 circumstances exist); In re Maher, 132 Vt. 560, 326 A.2d conservatorship worker from Child Protective Services intent not to return; or Page 257 best interest because it would significantly impair his (Section 15.02(1)(D)). Although it is not clear that

and that temiination is in the best interest of the children; L.P., who was being cared for by his great-aunt. " (quoting In re S.T., 239 S.W.3d 452, *-450 The parents also contend that counsel's failure to of review principles that apply in termination cases. See, trial when his attorney is present." In re W.B.W., 2 effective assistance of counsel in termination cases, two imprisonment is certainly a factor to be considered by the

to the home to meet with the parents Knolle, Lewallen, Livingston & Holcomb, J. Patrick The parents did not receive ineffective assistance of If, after conducting its legal sufficiency review of government power arbitrarily and oppressively accordance with her ability during a period of one year not demonstrated, her testimony was cumulative of other *-449 should die and the child's mother should take him. welfare and constitutional issues were raised. See, c.g., failure to raise a proper objection." BLACICS LAW Page 89 aware of the complaint, timely and plainly, and obtained children's welfare focuses on the child's best interest. See, addition to her criminal activity after her children were (A) the desires of the child; (B) the emotional and *-448 We find the evidence both legally and factually conduct endangers the physical or emotional wellbeing of [Copyrighted Material Omitted] could lead to absurdly unjust results. Our cases have affecting the parent-child relationship, the court may The court of appeals agreed. Specifically, the court three children during these visits. Veronica wrote often to Dist.] 2005, no pet.). When reviewing the legal Okay? Thomas T. Tatum, Whitehouse, for petitioner. parent as managing conservator would not be in *-447 the Department at that time. Barbara contacted the

established the procedures for temiinating parental rights. female and child characters. One CPS worker observed (I) the desires of the child; (2) the emotional and physical supported by the law and the evidence, was erroneously defamation case); Huckabee v. Time Warner Entm't Co., Tex.Fam.Code coordinates a progression of conduct with to the children.” Because the father refused to submit to a *-446 he did acknowledge a prior drug problem and was policies stated in our caselaw. We presume as a matter of circumstances of counsel's challenged conduct, and to convincing) evidence supports the omitted finding. This University of Washington, 527 (Tcx.App.-Fort Worth 2002, no pet. h.) (same); In re *-445 verdict to the prejudice of a party); Jones, ^[1] Tex. at 530 [57] Id. at 759, 102 S.Ct. 1388. *-444 element can be deemed to support the judgment if, The Texas Family Code, in order to protect the ofa clear and convincing nature so as to support a finding Protective Services was rejected. His request for jurors must agree on all answers supporting the verdict. must ask if the defendant has met the burden of showing The natural right existing between parents and their L.P. on one occasion, and Veronica testified that the decree tenninating Alan's parental righis to AS. and

*-443 avoiding manifest injustice. reasonably form a firm belief or conviction that fundamental error);McCauley, 304 S.W.2d at 265~66 shelter for several weeks and only returned home after evidence," standard of review in cases other than the trial court order and have rendered judgment that Regulatory Servs., 946 S.W.2d I30, 137(Tex.App.-E1 definitely heard their fighting. The officcr urged the months. Ramirez relies on Jimenez, ex rel. Little v. in section III below, the parents consciously failed to *-442 section Il.D. below. In the absence of any contention that l. Reliance on Texas Case Law verdict. evidence that areasonable facttinder could not have constructively abandoned M.V.G. by leaving her in

child-custody disputes"); see also TEX. FAM.CODE §§ charge did not contain the elements that the statute argument from counsel about the children's best interest, he could not have known about these facts before trial hannonized). 40 P.3d 73, 81 (2002) (appellate court has discretion to (citing Texas Supreme Court precedent for the Ramirez, the biological father ofM.A.N.M. The trial Joel challenges the legal and factual sufficiency of *-441 Le Blzmc, 778 SW2d 865, 865 (Tex. 1989) (per curiam); But whether thejury may have improperly terminated the Itherefore dissent and write separately to explain counsel in all tennination cases. Lassiter, 452 U.S. at 1986, writ rcfd n.r.e.). is legally and factually insufficient to tenninate her ‘Q . individual counseling sessions, and the father attended finding. On appeal, the courts also consider whether the child now and in the future; [5] (D) the parental abilities frequent visits she had between October and December, removed the children and the time of trial, the trial court as care provider). The Department had the burden to Answer "Yes" or "No." we need not address whether factual sufficiency of F.2d 240, 243 (2nd Cir.l972); see also 2A WRIGHT &

*-440 improperly reversed burden of proof). . do you feel that it's in the best interest of objected to the charge on this basis, the court of appeals closing argument that the jury's focus should be on the evidence to sustain the trial David Adams instituted this suit for termination of testified that she observed visits between the Coxes and 142, [44 (1974) (court will review errors so grave and testimony that she did not contact Joel until after taking Section l5.02(l)(D) was properly pleaded by the physical health or emotional development, and (2)

and (Tex.App.--Waco 2007, order) (per curiam), disp. an *-439 Page 302 "

e.g.. In re A.V., 849 S.W.2d 393, 400 (Tex.App.-Fort Texas Dep't of Protective & Regulatory Servs. v. Sherry, For his part, Joel visited M.V.G. regularly during [8] Id. at 73-74. ending within six months of the date of the filing of this S.W.3d 421, 422 (Tex.App.--San Antonio 1999, no pet.) request an instruction not to consider the parents‘ trial court on the issue ofendangerment. of those basing the right on a statute requiring

the record evidence, a court detennines that no . witnesses. e.g., TEX. FAM.CODE §§ 51.1 l(b); 153.001; 153.002; *-438 counsel. exercised). Wisernan, Attorney General's Office, Don Kay, Texas As discussed at length in the Court's opinion, the a ruling. The more specific requirements of the rules physical needs of the child now and in the future; (C) the [101] Strickland, 466 U.S. at 699, 104 S.Ct. 2052 u her child with whom she had contact," [8] Alan visited *-437 DICTIONARY 563 (7th ed.l999) (defining also "plain taken into custody, support tennination under subsection the child. Under such an interpretation aparent's rights of appeals held that Fourteenth Amendment procedural appoint a sole managing eonsewator or may appointjoint See TEX. FAM.CODE §§ 161.001-161.211. In doing so,

indicated that failure to instruct ajury on the necessity of [4] See Herrera v. Hcrrcra, supra; Mumma v. Aguirre, sufficiency of the evidence, we consider all of the child's best interest because it would significantly impair *-436 Depamnent for the second time in January 1984 and insufficient to support termination of Veronica's parental

With regards to [THE FATHER], for the parent-child needs of the child now and in the future; (3) the lengthened delays. The omission of "for" from § psychological exam, CPS referred the case to what it same as the one codified in the 1846 statute. Declining to *-435 Available Progranis: Ramirez contacted C.P.S. on February 5, I999, and visits between the parents and the children after their 19 S,W.3d 413, 422 (Tex.2000) (same). In January 2002, Veronica began a relationship with Ramirez believes that he and his child have rejected by the trial court. Accordingly, I dissent. evaluate the conduct from counsel's perspective at the [Copyrighted Material Omitted] actively participating in Narcotics Anonymous.

Court must apply the rules of civil procedure unless a *-434 (rejecting achallenge to improper venue as merely a I.V., 61 S.W.3d 789, 794 (Tex.App.-Corpus Christi 2001, public policy that the best interest of a child is usually See TEX.R. CIV. P. 292. We presume that the jury *-433 of endangerment under subsection (D). without objection, that element is erroneously omitted The Department sought to tenninate appellants‘ relationship between a parent and child, requires a Joel contends in five points that: (1) the court erred assistance from Legal Aid was rejected. Finally, he [T]he nuances and complexity of human situations make that the decision reached would reasonably likely have spanking did not leave any marks or bruises. If the children is ofconstitutional dimensions. In re G.M., *-432 Page 263 We hold the evidence is legally sufficient to support D.S., and render judgment denying the Depa1tment‘s Paso 1997, no writ); Spurloek v. Tex. Dep't of Protective tennination was in the children's best interest. Page 75 comply with material provisions of the trial court's (applying fundarnental-error review because intennediate

Alan assured her that he would never again harm LP. or appellant's parental rights are not terminated. Section defamation cases. [19] However, just recently, in a *-431 Garza, 787 S.W.2d 601 (Tex.App.-El Paso 1990, no writ) the federal constitution requires a de novo review of the mother many times to seek counseling, identifying credited in favor of the finding is so significant that a the jury must (somehow) have understood that it could

where she was located. Upon Patricia‘s release, a visit Department custody for at least six months without notice plain error in civil cases when justice requires); how I would resolve the actual issue presented in this clearly requires it to prove. Moreover, ifthc error likely court compounded the disregard of constitutional proposition "that the interest of the public is affected the evidence to support the tennination order in his third because he did not have any relationship with Medina or *-430 l0‘).002(a) (giving appeals in parental-tcnnination cases (B) voluntarily left the child alone or in the Coxes‘ parental rights because the charge omitted a parental rights under subsection (D) because (1) the five ofeleven. But because the parents missed so many [Copyrighted Material Omitted] 33-34, 101 S.Ct. 2153. Before answering the due process entered four separate orders. [74] Each order specifically MILLER, FEDERAL PRACTICE AND PROCEDURE § held that the omission went to a "core issue" in a [9] During Veronica's incarceration, one of her sisters evidence was clear and convincing. [60] *-429 In re KC, 88 S.W.3d 277, 279 (Tex.App.--San Antonio satisfy all of the elements under subsection (N) by clear Page 269 of the individuals seeking custody; [6] (E) the programs Christopher that he not ever see his natural mother again‘? children's best interest. (In its opinion, the Court quotes evidence may be raised for the first time on appeal in a custody of M.V.G. However, she arranged for Joel to

serious as to strike to the heart ofeonstitutional rights); their children. She stated that the visits tended to be appointment of the Department as managing conservator (quoting Rainwater v. Haddox, 544 SW2d 729, 732

Particularly compelling is the direct testimony on the of the Department or an authorized agency for not less *-428 the pareiit-eliild relationship between his former wife, recitation in the petition that Nanci Holley ‘emotionally reasonable factfinder could form a firm belief or merits, 263 S,W.3d 394 (Tex.App.—-Waco 2008, pet. Worth I993, no writ). Further, courts ofappeals have the first eight months of the Department's involvement Bain, Files, Allen & Caldwell, Jerry Bain, Tyler, for appointment of counsel, one finding that the right Then again, in his opening statement, counsel for *-427 religious beliefs constituted ineffective assistance of Page 56 Dept. ofHuman Services, from Austin, for petitioner. petition. 46 S.W,3d 857, 861 (Tex.2001). managing conservators." TEX. FAM. CODE § 153.005. *-426 emotional and physical danger to the child now and in the (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. jury heard abundant evidence that supports a conclusion (E). Our previous discussion of this evidence under should be applied, while they remain, to serve rather than l61.001(2); 161.101. And, like their parents, children due process requires review of "core issues" in the jury error" and "error apparent of record"). Our own proof ofguilt beyond a reasonable doubt can never be could be terminated if he placed his child with another

his children once but Bonner was unable to observe *-425 evidence in the light most favorable to the finding to After leaving Austin in 1969 Nanci Holley returned rights under section l6l.00l(l)(E) of the Family Code. indicated that she wished to place the child for adoption his physical health or emotional development, and that 364 S.W.2d 220, 222 (Tex.1963); Porter v. Porter, 371 emotional and physical danger to the child now and in the create an "all-inclusive" definition of the term, we held the Legislature has been heedful of the important

removal. She said these visits tended to he "chaotic" and relationship to be tenninated in this case, it must be *-424 again on March 27, 1999, expressing his intent to pursue called "family preservation" in July 1997. The next l5.02(l)(C) was logically intended. bond." According to Ramirez, M.A.N.M. recognizes him

[58] Id. Alan. In October 2002, Veronica gave birth to their son, time." [88] *-423 constitutional provision or statute requires us to do "dilatory" challenge and not a foundational objection). served by maintaining the parent-child relationship. See no pet.) (same); In re J.M.S., 43 S.W.3d 60, 62 With these principles in mind, I would turn to the On appeal, the parents argued for the first time that

*-422 from or obfuscated in a jury charge. 96 S.W.3d at showing by clear and convincing evidence that the parent J.M.S., 43 SW3d 60, 62-63 sought assistance from the Attorney General's office, and by denying his request for ajury trial; (2) the court erred been different absent the en'ors." [99] In one of the first cases to construe the 1846 statute, spanking would be insufficient evidence of endangering *-421 understood and followed its instructions. See Gillette S.W.2d 846, 846 (Tcx.1980); Wiley v.SpraI/an, 543 the development and application of the axiom--best parental rights under subsections (D), (E), and (N) of & Regulatory Servs., 904 S.W.2d 152, 155-56 request to terminate Alan's rights to A.S. and DS. ln In holding that our error preservation rules do not We find the evidence factually insufficient to

161.205 is the controlling authority for how the trial court orders. Each parent was ordered to pay child support in evidence, we leave open, as we did in In re C.H., whether court lackedjurisdiction). With "jurisdictional-based" *-420 several on- and off-campus sources, and at least once faetfinder could not reasonably have fonned a finn belief parental termination case, this Court was called upon to Considering all the evidence in a neutral light, we the trial court‘s finding that tennination of Ramirez's re not find that the parent-child relationships should be In any of their children. There is no evidence that any for his assertion. caused an improper verdict, the State's interest would be with M.V.G. was arranged for her within a week. She Page 370 1-Iecla Mining Co. v. Star-Moming Mining Co., 122 providing an alternative, safe, and appropriate custody when the custody of a child is at issue"). point. However, he does not challenge the sufficiency of his family. However, Ramirez would have been able to [78] *-419 precedence over other civil cases); 161.202 (court shall possession of another not the parent without expressing safeguards by rendering ajudgment based on evidence statutory element is relevant only to whether there was and convincing evidence. We conclude that it has not case. Because I conclude that Texas‘ cornrnon-law Department offered no evidence of the environment in question, the U.S. Supreme Court explained the nebulous 5) assuming, without deciding, that a judgment that a defendant does not have to preserve for appellate Answer: V appointments, the therapist expelled them from the cared for AS. and D.S. for approximately one month. [9] 57 S.W.3d at 75-76 (Gray, 1., dissenting). *-418 Lewis, 523 US. at 845-46, 118 S.Ct. 1708 advised the parents that failure to provide a safe Texas cases have considered the involuntary termination case, and that failing to review the parental tcnnination case. [71] The inquiry in this appeal In sum, any errors committed by the trial court did two of the relevant portions of the opening argument and Conner v. Universal Utils., 105 Wash.2d 168. 712 P.2d available to assist these individuals to promote the best 2002, pet. denied). Thus the court abused its discretion by Nanci Adams Holley, and their son. The trial court visit M.V.G. a few days after she was brought to was in the child's best interest. In’. at 614-l5.The Court 467 (3rd ed,2000). and actually abandoned the child,‘ it does not appear to be best interest ofthe child. *-417 "chaotic," and the children's behavior deteriorated after than six months; (2) the department or authorized agency denicd)). Joel's counsel has actively represented him on but never completed any of the required tasks. He counsel. There was considerable testimony during the relied on the language to support the application of a emanates from the due process clause of the Fourteenth conviction that the matter that must be provcn is true, *-416 (Tex.Civ.App.--Arnarillo 1976, no writ)). Thus, the court the parents stated to thejury: *-415 respondents. Patricia did not panicipate in the programs that have an interest in an accurate resolution and just that tennination is in the children's best interest. Further, defeat this principle." ld. 158, 100 L.Ed. 83 (1955)). subsection (D) is applicable here. First, the abuse directed future; (D) the parental abilities of the individuals seeking Plans for the Child and Stability of the Home who promised to provide support, even though he harmless error. Thus, a defendant whose guilt was application offundarnental error review has changed *-414 [17] See Act of.lune 14, 1983, 68th Leg., R.S., ch. 298, § Page 78 visit because she was in a training class at the time. Section 153.131 creates arebuttable presumption that a charge in an involuntary parental-rights-tennination case.

there to visit her son, David Christopher, on three that, for purposes of the Ramsey election dispute, "an detennine whether areasonable factfindcr could have appointment of the Depaitment was in the child's best because she could no longer afford to take care of the

S.W.2d 607 (Tex.Civ.App.--Eastland 1963, writ ret‘d Accordingly, her second issue is also sustained. interests--parents‘ and children's--at stake. For example, *-413 proved by clear and convincing evidence that he has done future; (4) the parental abilities of the individuals seeking otherwise. JUSTICE HANKINSON'S dissent incorrectly his legal rights as M.A.N.M.'s father and leaving a A.S. In October 2003, their second son, D.S., was born. month, the father did submit to apsychological exam,

The Department also contends that Alan's criminal that the children's behavior deteriorated after each visit. In re GM, 596 SW2d 846, 847 (Tex.l980); Wiley v. and is, at times, loving to him. Ramirez agreed that he *-412 finding is supported by some evidence. [10] Rule 279 (Tex.App.-Houston [lst Dist.] 2001, no pet.) (same); In D errors alleged in this case to determine whether *-411 Rogelio Lopez, The Law Office of Rogelio Lopez, " the broad-fonn submission and disjunctive questions in in question behaved in some manner that was detrimental 259-260. And, the Court not only deems a best interest after a delay of more than six months, he was told that *-410 Wr'/son v. Johnson, 94 Tex. 272, 60 S.W. 242 (1900), this by rendering a defaultjudginent against him; (3) the section 161.001 of the Family Code, which provide for Molar Trzmxp. Co. v. Whitfielrl, 145 Tex. 571, 200 S.W.2d 349, 352 (Tex.1976). Indeed, "involuntary interests of the child--incredibly difficult. It is all the ‘A No, no, sir, not-- conduct toward L.P., it is similarly insufficient, if not preclude the court from reviewing the parents‘ Page 258 addition, because it was not supported by findings detennine how the clear and convincing evidence

an'angernent for her. See D,S.A., 113 SW3d at 572 must proceed on remand." ). (Tex.App.-Houston [1stDist.] 2001, no pet.). *-409 the amount of$l00 per month, not for each child, but for fundamental-error review, an appellate court may reverse

offered "any type of assistance [to the father] to parental rights is in M.A.N.M.'s best interest. In addition, In this case, the parents‘ motion for new trial hold that the evidence is such that the court (Tex.App.-Austin 1995, writ denied); In re .I.F., 888 the United States Constitution requires the type of review support tcnnination of Alan's parental rights under subsequent incidents occurred. Therefore, even assuming " tenninated unless it concluded that termination was in the and examine the children. After initially refusing to furthered by appellate review. because the State's *-408 draw out these facts from Medina in discovery. The the evidence to support the affirmativc finding on the received her first service plan about two weeks later on or conviction, then the evidence is factually insufficient. grant motion for a preferential setting for a final could which AS. and D8. lived; (2) an intent to return, without providing for the adequate Idaho 778, 839 P.2d 1192, 1197 (1992) (recognizing

that is, at best, perfunctory. Accordingly, Irespcctfully error in the first instance. The Coxes must still show that could be set aside in a parental doctrine offundamental error permits us to review the THE FACTOR OF EXCUSE program. The orders required the parents to maintain review a complaint that the evidence is factually or nature of this concept: *-407 From the 413th District Court, Johnson County, environment within arcasonable time could result in termination of the rights of an imprisoned parent, and done so. Accordingly, Veronica's third issue is sustained. However, her sister was unable to continue caring for (citations to Supreme Court Journal omitted and full cite unpreserved error on appeal would violate "Fourteenth

voir dir'e record in which the Coxes'counsel reiterates not require reversal. interest of the child; [7] (F) the plans for the child by is limited to whether there is legally sufficient evidence *-406 has made reasonable efforts to return the child to the rendering a defaultjudgment against Joel. each visit with their parents. The conservatorship worker 849, 851 (I986) (court may review unpreserved issue Perhaps Court concluded that an issue between the parties before the court and this ordered termination under Section 15.02 of the Texas

Cleburne. has R. Stephen Tompkins, Legal Aid Society ofCentr-al the applied not [t]hese findings satisfy not only the heightened factual sufficiency review standard. See In re disagreed with the Department's efforts to pursue drug trial about the parents‘ religious beliefs. At one juncture, Amendment, and the fourth apparently basing its appeal. *-405 then that court must conclude that the evidence is legally abused its discretion by removing Joel's case from the ^[4] "A court must indulge a strong presumption that *-404 were made available to her. There is no evidence that this toward Veronica and LP. by her former husband given the all evidence the jury considered from numerous

decision in tennination cases. But children also have a custody; (E) the programs available to assist these [59] id. at 754, 102 S.Ct. 1388. 57 S.W.3d at 72. The court defined those "core issues" as actually proved by overwhelming evidence would be *-403 2, [983 Tex. Gen. Laws 1554, 1555 (former TEX. expressed an intent to return as soon as he could get back These provisions do not authorize tennination only in parent should be appointed the child's managing throughout the years. Consequently, an analysis of its fonned a firm belief or conviction that the finding was occasions between 1971 and 1974. With respect to her child. At the time the child was taken into custody by the In 1941, both statutes were repealed by the act the Family Code expressly requires that a court tenninate interest-the only available statutory mechanism for the *-402 at least one of the following: custody; (S) the programs available to assist these number where he could be contacted. C.P.S. did not error which directly and adversely affects the interest of and based on the results of his and the mother's exam, From 2002 to 2005, Veronica, Alan, I..P., AS, and D.S. And there was testimony that the children displayed no n.r.e.). *-401 could work with Medina to take care of M.A.N.M., but

asserts that we are considering unpreserved error. We reiterate that we leave open the question of activity before and after the births of his children thus directs courts how to proceed when an element of a re C.E.M., 64 S.W.3d 425, 428 (Tex.App.-Houston [lst Spra/Ian, 543 S.W.2d 349, 352 (Tex.1976). Here, *-400 the charge violated their due process rights. The parents fundamental-error doctrine applies. First, the Coxes to the child. TEX. FAM.CODE ANN. § 161.001 (Vernon San Antonio, for Appellant. finding in this case, but also, to deem the finding, the Court stated that "it is difficult to tell what is meant by EXHIBIT C *-399 Attorney General's office could not help him. The record In Jimenez, the appeals court reversed a tennination more difficult because, unlike other legal standards which S.W.2d 624, 626 (1947). court's finding that Nanci Holley failed to support her son evidence is insufficient to support the tennination order; tennination if the trial court finds by clear and convincing termination of parental rights involves fundamental more so, as to A.S. or D.S. Since Ramsey, our courts have categorically jury-charge complaints raised for the first time on appeal, separate and apart from the findings supporting *-398 [similar questions as to the other two children] we hold the evidence is factually sufficient to support the the judgment of the court below for error--without all three. The mother testified that although she could

S.W.2d 140, 141 (Tex.App.-Tyler 1994, no writ); In re Alan's behavior was abusive and occurred in front of the overcome any problems." standard must be applied in a factual sufficicncy review. set forth by the United States Supreme Court in [10] Texas Rule of Civil Procedure 279, embodying these asserted that the evidence was factually insufficient to reasonably fonn a finn belief or conviction" that Patricia None of the remaining issues raised by the parents EXHIBIT B *-397 (evidence factually sufficient where incarcerated parent's children's best interest. section l(>l.00l(l)(N) ofthe Family Code. Accordingly, permit the investigator to see the three children, the October 15. She had more than three months to work on termination hearing on thcrnerits iftennination would overriding concern EXHIBIT D predicate ground for termination under (D) that a parent record does not reflect that Ramirez sought through support of the child, and remained away for a period of at legally sufficient. 42 S.W.3d at 25556 (citing Chesriut v. [34] See Southwest Key Program, Inc. v. Gil-Perez, 81 plain or fundamental error); Gillespie v. Chrysler Motors Page 373 dissent. the error probably caused rendition of an improper alleged charge errors, I would hold that Texas procedures *-396 We're here because the State ofTexas is asking thisjury appropriate housing free from abuse, neglect, and safety restriction or termination of their parental duties and have held that mere imprisonment will not, standing them because it was creating problems in her marriage. Amendment procedural due process" requirements under to support the trial court's express or deemed finding that Texas. Trial Court No. D200706344. C.H., 89 SW3d 17, 25 (Tex.2002) (discussing various to Daniels provided). *-395 also described the Coxes‘ hostility and anger toward each that the jury's determination will regard the children's these individuals or by the agency seeking custody; [8] regarding denial ofprocedural due process on appeal);

Family Code Annotated [1] on the grounds SPEARS, Justice. fundamental-error review in many cases, because the fundamental requirement that the court consider the best parent; (3) the parent has not regularly visited or court will, for the purposes of this case, treat it as jury docket. Ia’. Such error requires reversal "when the [102] See United States v.O1ano, 507 U.S. 725, 731-32, Texas, Austin, for respondent. *-394 conclusion on the Sixth Amendment. [81]

" Accordingly, parties have various opportunities to insufficient. [33] Rendition ofjudgment in favor of the screening by a hair follicle test, stating his preference for the father testified that his conduct toward his children Ramirez has extended family support in his effort to In June 2006, Veronica and Alan were indicted on *-393 [Copyrighted Material Omitted] FAM.CODE § 11.15) recodified by Act of April 20, would change in the future. Thus, the evidence relevant sources and witnesses, the counsel's alleged mistakes do strong interest in a final decision on termination so that (b) Alan occurred before A.S., DS., and I..A.S. were born and, individuals to promote the best interest of the child; (F) *-392 denied due process ifthejury was instructed that he could on his feet. His rights could be tcnninated even ifhe sent unless the court finds that appointment of the case of the acutely indigent. Termination of the counsel's conduct falls within the wide range of "(l) the predicate grounds for tennination, and (2) evolution in our jurisprudence is useful to understanding conservator Department's appointment in the instant case was as a relationship with and support of her son, Nanci Holley *-391 true. Id. (citing In re./.F.C., 96 S.W.3d at 266). In doing vesting the Supreme Court with rulernaking authority.

Department, she was experiencing emotional problems the parent~child relationship only if the grounds for individuals to promote the best interest ofthe child; (6) consider Ramirez as a"partieipating family member" The parents have asserted that the omission of the family preservation recommended counseling. *-390 distress at being separated from their parents. the public generally, as that interest is declared in the lived together in Beaumont. During this time, three that, eventually, he intends to seek and gain full custody supports termination of his parental rights under "ground ofrecovery or defense" is omitted from a jury State's effort to involuntarily tenrrinate the Coxes' rights Appellate courts should not reverse a trial court's whether a claim ofineffeetive assistance of counsel may [79] TEX. FAM.CODE§ 107.103. *-389 Dist.] 2000, no pct.) (same); In re A.P., 42 S.W.3d 248, allege that the trial court enoneously failed to instruct the also complained for the first time that the charge failed to [Copyrighted Material Omitted] ‘Q All right, sir. You feel that a--What is he now, nine *>k>t<** *-388 based on nonsupport on legal sufficiency grounds. Id. at Court applies aquestionable legally sufficient clear and this language; but we incline to think it intended to

(4) this appeal is not frivolous; and (5) section 263.405 of Supp.200l). This intermediate standard colors our review J.F.C., 96 S.W.3d at 266 (quoting In re CH., 89 S.W.3d before us simply does not contain evidence sufficient to in keeping with her ability during aperiod of one year evidence that the parent has done the following: rely on the basic assumption that reasonable people termination, we also reverse that portion of the decree constitutional rights." In re G.M., 596 S.W.2d at 846. [20] We held in In re CH., 89 S.W.3d [7 (2002) "that the recognized only one other type of public interest so *-387 the court ofappeals relied on two cases. 57 S.W.3d at "[D]ue process" has never been, and perhaps can never Page 260 conducting areview for hann--even if the error is not Page 84 financially afford it, she deliberately chose not to pay children, Veronica took responsive action to protect AS. A.D.E., 880 S.W.2d 241, 245 (Tex.App.-Corpus Christi Harte-Hanks [44] and Bose, [45] and if so, whether the Alan's third issue is sustained.[lS] concepts, was promulgated in 1941. It essentially tracked trial court's finding, particularly in light of the State's parents ultimately allowed the investigator to examine *-386 Nanci Holley contends, however. that Section support a finding that the parents had endangered the (b) Alan failed to regularly visit or maintain significant contact make the child eligible for adoption). require reversal. The parents asserted in their motion for mother testified that a relative would take the children but Joel contends that he was harmed because the court discovery any infonnation on Medina's medical and the tasks set out in the service plan but failed to do any of S.W.3d 269, 270 (Tcx.2002) (rendering judgment against

Corp., 135 Ill.2d 363, 142 Ill.Dec, 777, 553 N.E,2d 291, Joel attended the emergency removal hearing the has knowingly placed or allowed a child to remain in least three months; or verdict. See TEX.R.APP. P. 44.l(a). The court of appeals *-385 hazards. As discussed above in section lI.C., family State, 959 S.W.2d 308, 311 (Tex.App.-El Paso I997, no reviewing Joel's fifth point is overruled. for unpreserved charge en'or to rubber stamp what they did and say, "Looks good to rights or the children not being returned to them. Each Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, alone, constitute engaging in conduct which endangers

(G) the stability of the home or proposed placement; [9] termination is in the best interest of the children. The trial the United States Constitution. [5] The parents had also *-384 best interest. 96 S.W.3d at 261.) Finally, the jury charge in concept is nebulous and imprecise. This Court has held interest of the child, but also the more specific findings other. Notably, the testimony of Dr. Shinder, Khan, the maintained significant contact with the child; and (4) the [60] In re C.H., 89 s.w.3d 17, 25 (Tex.2002). properly pleaded. *-383 courts of appeals decisions attempting to define the urinalysis. He filed a motion for visitation which the 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that fonnulate the jury charge and preserve error about the parent would generally be required if there is legally not raise even "a probability sufficient to undenninc should be judged by God, not by a court. At another, the parent his daughter. He also charges of aggravated robbery. The Department case contains material fact questions." Mercc(IesABenz *-382 adoption to a stable home or return to the parents is not [5] See Henera v. Herrera, supra; Porter v. Potter, supra. to this factor supports the best-interest finding. Cf id. Knowingly placed or knowingly allowed *-381 the plans for the child by these individuals or by the therefore, does not demonstrate that Veronica knowingly how and when we should apply it. every dime he could spare for that child's support, ifwhat be found guilty on a mere preponderance of the evidence. the parent or parents would not be in the best interest of so, we assume the factfindcr resolved disputed facts in whether tennination is in the best interest ofthe child." parent-child relationship is authorized in any situation 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws

TEX.REV.ClV. STAT. ANN. art. 1731a, §§ 1, 2 (Vernon reasonable professional assistance; that is, the defendant *-380 consequence of the tennination pursuant to Family Code testified to the following: she often contacted him including sleep disorders, dietary and bed-wetting referrals were made to Child Protective Services (" CPS" termination, including whether tennination is in the best Denise Martinez, Law Offices of Denise Martinez, the plans for the child by these individuals or by *-379 statutes or Constitution of this state, is afundamental because Sells was married to Medina at the time of children's best interest

of the child. subsection (D). Specifically, the Department refers to his judgment in violation of Rule 279 any more than The Coxes argue that our holding in Crown Life According to the 4 C5 report, the second incident be asserted as a basis for reversing ajudgment in a *-378 jury that it must find termination ofthe Coxes‘ rights to 256 (Tex.App.-Waco 2001, no pet.) (holding that a affects the public interest in maintaining the parent-child QUESTION 4: charge. [1 1] instruct the jury that, to terminate under any ground 604. The fathcrtcstified that, at first, he offered no On two other occasions, in August and October *-377 GROUNDS FOR TERMINATION While we agree that there was legally sufficient of the factual sufficiency of the evidence in a termination the Family Code is unconstitutional. produce a firm belief or conviction that Ramirez failed to convincing evidence test never requested by the parties or There is No testimony that the child's best interest would signify a prominent error, either fundamental in I7, 25 (Tex. 2002)) (footnotes omitted); T.N.F., 205 applying the standard can come to an agreement, it is not years old, I believe-- 71-72 (discussing In re A.P., I.P., 42 S.W.3d 248 prior to the filing of this suit for tennination (Section *-376 significant that fundamental-error review applies--the the holding in Wichita Falls & Oklahoma Railway Co. v. Page 295 This natural parental right has been characterized as appointing the Department as the sole managing

1994, no writ); D.O. v. Tex. Dep't of Human Servs., 851 standards we have set forth above would comport with preserved. See Baker v. Hansen, 679 S.W.2d 480, 481 be, precisely defined... Rather, the phrase [due process] with M.V.G. Thus, the evidence is factually sufficient on child support because she believed that she should not

oldest child and the infant. The investigator did not see *-375 appellate standard for reviewing termination findings is and D.S. by taking them out ofthe environment. [[0] Ms. Pena testified that she had been convicted of new trial and in the court of appeals that there was Before Chief Justice Gray. Justice Reyna, and children or had failed to comply with court orders interest in providing a child with a stable, pcnnanent Here, the nature of the parents‘ due process next day. He told the court of his plans to leave for Puerto 297 (1990) (plain error considered when litigant cannot l5.02(1)(E) is rendered inapplicable where a parent's ROBERTSON, Justice. it never happened). Thus, the evidence is factually psychological history. And, Ramirez made no attempt at dangerous conditions or surroundings. Nor does he refused to permit his counsel to call witnesses, present them. the plaintiff in a negligence case when there was legally *-374 Page 368 This case involves the involuntary termination of the pet); Daviln v. State, 930 S.W.2d 641, 649 n. 7 violence in the home continued after the removal ofthc parentaI-rights-termination cases do not violate due order directed each parent to perform specific acts. The summarily stated that the evidence for tenninating us. Take the kids." We're here because we're saying. the emotional or physical well-being ofa child. See, eg., *-373 Page 280 complained for the first time on appeal that it was error in court's deemed finding that termination is in the best listed factors to be considered in determining the Page 79 PLLC, 209 W.Va. 318, 547 S.E.Zd 256, 273 (2001) (error

(H) the acts or omissions of the parent which may police officer, and the conservatorship worker all that fundamental error exists if the error "directly and *-372 parent has demonstrated an inability to provide the child In his second issue, Alan argues that the evidence necessary tojustify the Department's appointment under under Federal Rule of Appellate Procedure 52(b), "plain factual sufficiency review standard when clear and charge before the trial court reads it to the jury. TEX.R. court heard shortly after M.V.G.'s first birthday. The father testified that it was God who made cocaine insufficient evidence. [34] *-371 Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex. 1996); subsequently placed the children in foster homes.[‘)] confidence in the outcome." Strickland, 466 U.S. at 694, A Family Service Plan was established in August *-370 unduly prolonged. In fact, it is this State's express policy children to remain in conditions or surroundings which Yet a defendant against whom there was but one slender placed her children with someone whose conduct agency seeking custody; (G) the stability of the home or he sent were not enough to be tenncd "adequatc.” With 113, 212 (current version at TEX. FAM.CODE §§ the child because the appointment would significantly Apsychologist with over thirty years experience where the parents meet the legislative requirements for *-369 re B.L.D., 56 SW3d 203, 211-12 must overcome the presumption that, under the Id. at 72 n. 5. After reviewing thejury charge in this case, favor of the finding if a reasonable factfinder could do so, through her mother by numerous letters and telephone

error." Id. at 983. We further determined that the alleged interest of the child, are proven with "clear and

section 161.207. Id at 3l8.It therefore concluded that problems, and temper tantrums. 1948); see Cily o_/"Santa Anna v. Leach, 173 S.W.2d 193, M.A.N.M.'s birth. C.P.S. advised him to seek legal *-368 ).[4] In April 2003, CPS received a referral alleging agency seeking custody; (7) the stability ofthe home or Page 259 P.C., Michael D. Robbins, Attorney At Law, Rudolph F. parental tennination ease. Even were we to recognize

probationary status for a burglary offense committed in In *-367 appellate courts should reverse a trial court's judgment for Irzsz/rrmce Co. v. Casteel, 22 S.W.3d 378 (Tcx.2000), occurred in 2005 when Alan over-disciplined L.P. due to relationship. In addition, we employ a higher standard of

(D) knowingly placed or knowingly allowed the child to [80] be in the best interest of the child. The Coxes admit that SW3d at 630. factual sufficiency complaint in aparcntal termination alleged, the jury must also find that termination is in the tcnnination case based on ineffective assistance of a

she never had custody of L.A.S. and, therefore, could not *-366 "essential," "a basic civil right ofman," and "far more 1997, just before the children were removed, campus

support M.A.N.M. "in accordance with his ability during money to support the child, but that later he offered to For the foregoing reasons, we reverse the judgment case. See In re B.T., 954 S.W.2d 44, 46 (Tex.App.-San articulated by this Court. Then, the Court holds that the clear and convincing evidence that tennination was in the character, or one determining a question upon which the

Regarding Alan, the record reflects that during the B. Sale Managing Canservatorship l5.02(l)(E)), and that termination of the parent-child *-365 (Tex.App.-Waco 2001, no pet.) and In re S.R.M.. 601 Pepper, 134 Tex. 360, 135 SW2d 79 (1940). be served by termination ofthe child's relationship with always clear that reasonable people can agree on what is (C) voluntarily left the child alone or in the Additionally, the State has an interest in courts state's interest in the rights and welfare ofminors. In EXHIBIT E conservator of A.S., D5,, and L.A.S., and remand the expresses the requirement of"fundamental fairness," a The tennination order with regard to both Patricia have to. The father gave similar testimony. Both parents *-364 whether the evidence is such that a factfinder could S.W.2d 351, 353 (Tex.App.-Austin 1993, no writ); In re the de novo review required by those decisions. this element, and because the evidence is factually any indication of abuse or neglect of these two children home. Rarnirez‘s second issue is overruled. forgery in 1978, making a terroristic threat in 1985, and duty of support has been excused. and that her duty of (Tex.l984). specifying the actions they were to take in order to have argument demonstrates that they are in fact making a Justice Davis. sufficient on this element, and because the evidence is evidence, or present argument on Joel's behalf. At the trial to question Medina about any medical or factually insufticient evidence to support any finding by Rico thirteen days later and asked if he could take *-363 receive a fair trial andjudicial process would deteriorate);

challenge the sufficiency of the evidence to support the Tawnya’s rights was "not highly persuasive," but it did parent-child relationship between Mable Jo Holiek and process. Having considered the alleged errors, however, I Nanci Holley contends that there is no evidence to insuffieient evidence of proximate cause); Vista [61] 455 U.S.at754,102 S.Ct. 1388. (Tex.App.-El Paso 1996, writ rcf‘d)). Because criminal mother testified that they knew they had to comply with children. And, in June 1998, the parents were evicted Wmy v. Lemierman, *-362 ladies and gentlemen, this jury needs to come back and with a safe environment. TEX. FAM. CODE § a parental tennination case to use broad-fonn submission [6] See Mumma v. Aguirrc, supra; Potter v. Porter, supra; children's best interest, and many of these factors related interest ofthe children is supported by legally sufficient Page 83 must be plain, affect substantial rights, and seriously indicate that the existing parent-child relationship is not a

culminated with their opinions that tennination of *-361 section 153.131." Id. In light of the differing elements adversely affects the interest of the public generally, as error" in a jury charge may be considered by an appellate is legally and factually insufficient to support termination We first recognized fundamental error as a principle CIV. P. 273-74. And, after Payne, a party need only convincing evidence is required). However, other than court denied the motion *-360 available to the parents. Instead ofrequesting a jury accord Hollywood Park Humane Soc’y v. Town of Bonner spoke with several of Veronica and Alan's

Plans for the Child: *-359 endanger the physical or emotional well-being of the 104 S.Ct. 2052. Thus, the assistance of the parents‘ to provide a safe, stable, and nonviolent environment for proposed placement; (H) the acts or omissions of the endangered their well-being. Second, as to the evidence 1997, five months after the initial instance of child abuse bit of evidence would not be denied due process so long circumstances, the challenged action ‘might be considered

the view that termination is such a drastic and grave also evaluated both parents. In addition to taking the The ad litem also believes that arelationship has *-358 Page 273 tennination through poverty, neglect. abuse or any other the court concluded that the use of the broad-form and we disregard all evidence that a reasonable factfindcr impair the child's physical health or emotional convincing evidence." TEX. FAM.CODE § 161.001. 197-98 (Tcx.Civ.App.-Eastland 1943, writ ret‘d w.o.rn.). l61.001(l), (2)). calls; there exists a loving parent-child relationship In this case, the trial court's judgment contains an J.A..l. did not apply, and that the mother's challenge to the ‘A Yes, sir. *-357 proposed placement; (8) the acts or omissions of the trial error would adversely affect the "fundamental public (Tex.App.-Waco 2001, pet. granted). Jass, Jr. (ADL), Attorney At Law, San Antonio, for Should theparent—child relationship between [THE assistance to establish patemity. Until he did so, Ramirez neglectful supervision of L.P. by Veronica and Alan. The alters our analysis in E.B. In Casteel, we held that *-356 September 2001 and his indictment on charges of proof in parental-tennination cases than we do in error that was harmless. Rule 279 applies just as Texas his stress over losing the family home during Hurricane is the children's best interest, not the tennination of Frivolousness Determination remain in conditions or surroundings which endanger the To tenninate John Ramirez's parental rights, the such a claim, the question of whether our harmless error case may be reviewed even though it was not preserved parent's counsel, assistance ofcounsel in this case was have exposed him to an environment that endangered his

they did not object at trial to the errors that they raised on *-355 police officers went to the home because of domestic " Third, the Department also asserts that Veronica's best interest of the children. ofthe court ofappcals and render judgment terminating give money for support. Id. at 603-04. The father further parents‘ failure to follow the Family Service Plan [1] is Antonio 1997, writ denied). Applying this standard to our very right of the case depends." Id. at 243; see also three-month period between the time the Department took

relationship was in the best interest of the child. Having *-354 a period of one year ending within six months of the date children's best interest, most ofthe evidence relevant to his mother. The investigator's report gives nojustifrcation best for a child. Our only hope is to try to follow precious than property rights." See Stanley v. Illinois, 405 consistently and uniformly applying our preservation of S.W.2d 766 (Tex.Civ.App.-Amarillo 1980, no writ)). But possession of another without providing adequate support Patricia testified that she does not understand the We believe that it is prudent to defer the resolution of that Nanci Holley had failed to support her child (Section particular, our courts have recognized fundamental-error

case to the trial court for the limited purpose of rendering requirement whose meaning can be as opaque as its reasonably fonn a firm belief or conviction about the This is an action to tenninate the parent-child *-353 and Joel is aftinned. L.R.M., 763 S.W.2d 64, 67 (Tex.App.-Fort Worth 1989, refused to attend any parenting classes or to attend and noted that J.F.C. seemed happy. However, the support was excused in the instant case. M.V,G. with him it‘ he had a theft by check in or around 1999. procedural due process claim. The parents repeatedly rely Manns v. Vangic Deleon, El Campo, William M. Thursland, sufficient, it is necessarily legally sufficient. See D.S.Ar, clean" drug test. The court *-352 the jury that either parent had endangered the children. their children returned, psychological problems he may have experienced. best interest finding. See S,N., 272 S.W.3d at 49 (" to beginning of trial, Joel's counsel asked whether he would two ofher children, Mr. and Mrs. Danny Eugene Smith Skolnik, 666 N.E,21:l factually sufficient, it is necessarily legally sufficient. Id. Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176-77 support the trial court's finding that her conduct 1241 disagree with the court of appeals that the omission in the In a factual sufficiency review, as we explained in not discuss that evidence. 57 S.W.3cl at 74. And, with cases and tcnnination cases both require heightened 1236, *-351 from the Texas State Technical College campus. In say, "No, it's not in those children's best interest. Do not the orders to obtain the return of the children. But both because less than ten jurors could rely on one basis for clear and convincing evidence. proper one; and (1) any excuse for the acts or omissions to the evidence discussed above.

*-350 Coxes‘ parental rights and adoption would be in the Cox and standards of review applied to conservatorship and affect fairness ofjudicial proceedings); Hatch v. State

Tex. Family Code Ann. § l4.07(b). that interest is declared in the statutes or Constitution of under subsection (B) because (1) spanking L.P. does not l6l.00l(l)(N). If there is legally insufficient evidence of timely and plainly make the trial court aware of a court although it was not brought to the attention ofthe the decisions in A.P. and here, no courts of appeals have firmly rooted in the common law. In Jones v. Black, I *-349 EXHIBIT F instruction, counsel for the parents cross-examined the Hollywood Park. 261 S.W.3d 135, 139 (Tex.App.--San Under section 15.02, TEX. FAM. CODE ANN. relatives regarding placement of the children. including the child. TEX. FAM.CODE §l53.001(a)(2). And, if *-348 parent which may indicate that the existing parent-child counsel in this case was not ineffective.

that Alan pushed her and pulled her hair on two Idolina Garcia, Office of the Attorney General of in March of that year. The plan established tasks for each history of each parent, a battery of fonnal tests was children; *-347 We effectively "rc-enacted" the 1850 statute in the form started between M.A.N.M. and Ramirez and would like as the jury has been properly instructed on the development." Id. § l53.131(a). condition falling within these sections. measure that involuntary termination statutes are strictly question and disjunctive instruction in the jury charge between them; the termination of that relationship would could have disbelieved or found to have been incredible.

express finding that tennination is in the best interest of *-346 conservatorship appointment was subsumed in her appeal parent which may indicate that the existing parent-child This, ofcourse, is a higher cviclentiary standard than in policy" found in the Texas Constitution and statutes that

FATHER] and [.I.F.C.] be terminated? had no right to visit the child, absent cooperation from report, however, was apparently never validated because Appellee. *-345 CPS alleged and the trial court found four predicate Rita. There is, however, no evidence as to how Alan In their fifth issue, Veronica and Alan contend that, aggravated robbery in June 2006. Several Texas courts "[w]hen a single broad-fonn liability question Rule of Appellate Procedure 44.] applies. physical or emotional well-being of the child; rule must be discarded in such cases is another significant ordinary civil cases, reflecting the particular importance *-344 Second, we apply fundamental-error review when trial court was required to find by clear and convincing appeal. Because charge error does not implicate the parental rights. in the trial court); In re A.V., 57 S.W.3d 51, 56 not ineffective. physical or emotional well-being; and (3) the evidence of

violence disturbances. On both occasions, the parents Finally, we note that our decision in Garza v. review of atrial judge's findings, we review all of the OPINION explained that once he began visitation with the child, he *-343 Houston 01'! C0. of Tex. v. Kimball, 103 Tex. 94, 122 of the filing of the petition." See TEX, FAM.CODE [11] Rule 27‘) provides: custody of his children in March 2006 until he was Page 80 the best interest of the children was also relevant to the actual and alleged criminal activity after her children found evidence to support one of the provisions of the parent-child relationships between each of the conclusively established, so US. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 error rules. This interest does not merely refleet afiscal of the child and remained away for a period of at least six for termination and makes no suggestion that it would be English language and could not read the letters sent to her these cases do not support the court of appeals’

determinable standards that avoid any more chaos and an order, consistent with Family Code section truth of the State's allegations." [21] We expressly review in the following cases: the failure to give statutory

*-342 15.02(l)(E)), that her conduct endangered the emotional importance is lofty. Applying the Due Process Clause is [62] Sec 96 s.w.3d at 307 (SCHNEIDER, 1., dissenting). individual counseling sessions. The father testified that he relationship between the biological father, William whether a parent in a tennination case may seek a new

Page 534 l 13 S.W.3d at 573. two-and no writ). on the U.S. Supreme Court's analysis for cletennining has a stable non-threatening home to share with her. mount a successful challenge on appeal based on

*-341 William B. Connolly, Houston, for appellant. that investigator Because the evidence conclusively established other parents the Ramirez has failed to make the requisite showing that the advised that another hearing would need to be held and, if told at 573. be permitted to cross-examine witnesses or call witnesses jury charge was hannful, and I would therefore remand burdens of proof--"beyond a reasonable doubt" in endangered the emotional well-being of her child brought suit for tennination and for adoption ofthe two (Tex.l986) (holding that rendition is proper when a no (lI1d.Ct.App, 1996) (court will consider error that is August or September 1998, about five or six months *-340 respect to Paige, the court of appeals said that the Patricia planned to take M.V.G. to Puerto Rico to the mother and the father admitted that they had In re C.H., a court of appeals must give due consideration Page 58 tenninate parental rights," and what that will say, what termination while other jurors could rely on another of the parent. [10] This listing is by no means exhaustive, Farm Fire &Cas. Co., 930 P.2d 382, 39l (Wyo.l997) *-339 children's best interest. And other witnesses who worked this state." Ramsey v. Dim/op, 146 Tex. 196, 205 S.W.2d constitute endangering conduct; and (2) he had no Antonio 2008, no pet); A.S., 241 SW3d at 666. termination orders, the Court concluded that a challenge any of the four elements, the complaint will be sustained. DPRS witnesses about the relevancy of the parents’ trial court); Pondexter v. State, 942 S.W.2d 577, 588

relied on Holick's strict scrutiny directive to justify *-338 complaint to preserve such error, Payne, 838 S.W.2d at [18] TEX. FAM.CODE§ 101.007; In re C.H., 89 S.W.3d Veronica's mother (" Ms. Pena" ) and Alan's mother. from the jury charge violated the due process clause of Tex. 527 (1846), this Court observed that as a general Page *-337 (Vernon's 1986), termination of a parent-child EXHIBIT G en‘or is properly preserved, the Legislature has upheld relationship is not a proper one; and (1) any excuse for the construed in favor of the parent, we decline to adopt such Texas, Julie Caruthers Parsley, Office of the Solicitor [81] In re Oghenekevebe, 123 N.C.App. 434, 473 S.E.2d *-336 occasions, it is uncontroverted that the children did not prosecution's burden of proof beyond a reasonable doubt. conducted. This expert concluded that the mother had drug including assessments, to see it continue. And, although he recognized that it individual was proper, having been explicitly approved by this parent, ‘Q--last February? Joel's fourth point challenges the court's finding that Id. However, because of the heightened standard, we of the termination order. It/. With these guidelines in *-335 ofTexas Rule of Civil Procedure 374, which required not be in the best interest of the child; her three offers to ordinary civil case. See In re G.M., 596 S.W.2d at 847. the children. it recites that relationship is not a proper one; and (9) any excuse for held no one can be declared elected to public office unless he of appeals disciplined him. We also find no evidence to indicate *-334 in the family moved. In July 2004, Alan spanked L.P., who if we reverse that portion of the trial court's order Sells. have recognized that the possibility of a parent's court Tire that, grounds for tennination, namely, that Patricia: (1) en'oneously commingles valid and invalid liability essentialjurisdiction ofthe trial court to act, we should question that would have to be broached. *-333 (Tex.App.—Waco 2001, pct. granted) (same). evidence that Ramirez engaged in offensive conduct as of ensuring a eorrectjudgment in these cases. In re G.M., domestic violence was insufticient to show that she Affirmcd An analogous contention was before this court in the an important public interest or public policy is at stake. were upset, arguing loudly, and could not communicate *-332 ANN.§ l6|.00l(l)(F) (Vemon Supp.2002). Maverick Market, Inc. [46] is distinguishable. Garza (1976). A tennination dcercc is complete, final, [l 1] Although awaiting trial in the Harris County jail on provided the child with food, bedding, furniture, and toys. were taken into custody demonstrates that she placed record evidence and ask whether suftieient evidence was grounds for termination based on the parents‘ conduct set children, J.F.C., A.B.C., and M.B.C., and their mother S.W. S33, 537(l909) ("Perhaps the best expression is Section l5.02(l) ofthe Family Code, namely, failure to in the child's best interest. On the other hand, the Page 274 incarcerated in June 2006, Alan visited his children only policy. Without uniform application of our error by caseworkers, but Gilley testified that Patricia had months; or pain. *-331 admonishrnents in a juvenile delinquency proceeding, see well-being of the child (Section l5.0Z(l)(D)), and that the

Swanson Boyd, and his minor child. Suit was instituted conclusion. continued to use illegal drugs. The mother became

therefore an uncertain enterprise which must discover l6l.205.[l9] Joel had "some clean drug tests," then the court would trial based on ineffective assistance of counsel because in *-330 one-half-year-old A.B.C. was with a babysitter and was "reject[ed] standards that retain the traditional factual

whether parents’ due process rights have been met in In light of the totality of the circumstances and the Ramirez stated his desire to ultimately seek full custody parental conduct described in section l6l.0Ol(l) of the in view of the court's oral rendition ofa defaultjudgment. evidence did not come to his attention sooner for lack of Page 277 evidence point is sustained); see also In re D.T., 34 evidentiary insufficiency, a party must challenge each criminal cases and "clear and convincing" in tennination substantial blatant violation ofprinciples rendering the potential for the jury to tenninate without finding *-329 (Section l5.02(|)(D)). With respect to this contention, [7] See Tcx. Family Code Ann. § l4.07(b). Holiek children. After a non-jury trial, the court ordered

before trial, the parents moved to Austin. There is some this cause to the court ofappeals for it to consider the be reunited with her siblings. She was consistent with her consciously decided not to comply with many of the to evidence that the facttinder could reasonably have basis. [6] The parents contended that there must be a but does indicate a number of considerations which either that will do is then the State of Texas will have to *-328 OR C. THE COURT'S WRITINGS (court must be able to discern error from record that 979, 983 (1947). But under this test, an argument may be See In re DT., 34 S.W.3d at 633. Veronica and Alan to the Department's appointment as the child's on the Cox ease, including a Child Protective Services knowledge ofVeronica's use ofmarijuana during her *-327 (Tex.Crim.App.l996); Green v. State, 934 S.W.2d 92, religious beliefs and made arguments to the jury that the

241. review of unpreserved error.

rule, "the record being silent as to anyjudicial action the United States Constitution [51] and the due course of this interest by requiring prompt appellate decisions: "An 17, 25 (Tex.2002) (discussing this Court's and the Denying termination in this instance ignores those According to Bonner, her supervisor told her that placing *-326 [17] Section 161.207 provides that the court shall appoint Answer "Yes" or "No." Sitting: CATHERINE STONE, Justice, SARAH B. relationship may not be based solely upon what the trial witness this conduct. Moreover, we do not find that these "manic tendencies, tendencies toward cycles of explosive *-325 acts or omissions of the parent. General of Texas, Jeffrey S. Boyd, Ofiice of the Attorney 393, 396 (Ct.App.l996) (basing right on a statute); In re JUSTICE HANKINSON'S dissenting opinion Such results would be wholly faithless to the counseling, and matriage counseling. The mother

would be difficult emotionally to remove the child from Court in Texas Department ofHurnan Services v. E.B.. mind, we consider Veronica and Alan's challenge to the pay her son's air fare to and from Seattle were refused; an interpretation. *-324 (E) engaged in conduct or knowingly placed the child must also be mindful of any tr/tdisptlzed evidence contrary Accordingly, I would hold that our courts may that any errors had to be presented in the court below or The factual sufficiency issues raised by the parents Moreover, though the U.S. Supreme Court has held that MOTION FOR NEW TRIAL his appeal is frivolous parental-tennination cases, applying Rule 33.1 of the

the acts or omissions of the parent. *-323 or she receives a majority or plurality of legal votes cast. Upon appeal all independent grounds of recovery or of was four years old at the time, for wetting his pants. FELIPE REYNA, Justice terminating their parental rights, we must also reverse the incarceration can negatively impact a child's living knowingly placed or allowed M.V.G. to remain in theories and the appellant's objection is timely and *-322 not review the error unless we detennine that the 596 S.W.2d at 847 (citing Addingtun v. State, 441 US. set forth in TEX. FAM.CODE ANN. § l6l.00l (Vernon whether A.S. or D.S. witnessed the discipline. Although Page 299 [63] See id. at 291 (HANKINSON, 1., dissenting). knowingly placed her children in an endangering S.W.2d at with one another. The children were not at home during *-321 Id. at 603. The evidence showed the father's annual re C.D.B., 94 S.W.3d 306, 308-09 Ramsey, 640 S.W.2d 68 (Tex.App.--Tyler 1982, writ reftl n.r.e.); 983. presented to produce in the mind ofa rational fact finder concerned a wrongful death claim by anillegitirnate them in an endangering environment. Specifically, the and father. forth in the charge. The jury was not told that it had to charges ofaggravated robbery, both Veronica and Alan See, once. Bonner testified that she was in a training session context ofdetermining whether the consent of a parent ( 4) Safe Environment support (Section l5.02(l)(E)), the coun ofcivil appeals communicated in the past with limited English. In any that it must be a fundamental en'or, such error as being [40] In e.g., Sandra D. Haehem, Houston, for appellee. In re C05,, 988 S.W.2d at 767; ajury charge submitting *-320 by the Texas Department of Human Resources after the testimony of David Adams, the individual seeking irrevocable and divcsts for all time that natural right as preservation rules, termination proceedings would be termination of the parent-child relationship was in the (2) Reasomwble Efforts to Return the Child what "fundamental fairness" consists of in a particular pregnant with the couple's fouith child, and although " therefore unavailable for examination. The CPS termination cases. See Lassiler v. Dep’I of Soc. Services, *-319 after Joel informed the court that he would not submit to sufficiency standard while attempting to accommodate this case, even applying the stringent test set forth by the

consistent and paramount emphasis upon the children's Family Code, and there is an express or implied finding due diligence. Because Ramirez has not met the second The trial court advised counsel that he could of his daughter, and this factor clearly weighed heavily in affirmative finding of a predicate ground for termination S.W.3d 625, 642 (Tcx.App.-Fon Worth 2000, pet. trial unfair); Berg v.ZuIn1no, 786 So.2d 708, 716 n, 5 found to be clear and convincing. [35] We also explained consider his request. Joel did not take a drug test and left *-318 this couit in reviewing the record can only consider the termination of the parent-child relationship and granted evidence that they had a clean, safe home there. But these remaining issues it did not yet address. cases--the A.P. court concluded it a "logical extension" to tennination in the children's best interest was increased plans for M.V.G. from her birth. Thus, the evidence

" CPS alleged and the trial court found three honestly work with [the parents], and that's what we're requirements imposed by the orders. *-317 separate finding with regard to each have been or would appear to be pcr'tincnt. Only a limited made under almost any statute that public policy favors sound trial strategy.’ supervisor and Court Appointed Special Advocate, argue that the Department has failed to satisfy the third conservator was not subsumed in the appellant's affects substantial rights). *-316 108 (Tex.Crim.App.l996); Ransom v. State, 920 S.W,2d pregnancy and, therefore, did not knowingly place his ‘A Yes, sir. [89] parents‘ religious beliefs were irrelevant to the situations where the best interest of the child is served by law provision of the Texas Constitution. [52] That [i]f the coun Legislature's use of the same definition of "clear and a suitable managing conservator *-315 the children with Ms. Pena would be problematic because

either sought or had upon the issues of law, they will be the Court having reviewed the said verdict of the Jury and court determines to be the best interest of the child. DUNCAN, Justice KAREN ANGELINI, Justice. *-314 appeal in a suit in which termination of the parent-child behavior followed by periods ofcalm." He did "not see General, John Comyn, Attorney General ofthe State of A.R.S., 480 N.W.2d 888, 891 (Iowa 1992) (holding that Because Ramirez did not have the financial ability two incidents, as reflected in this record, constitute the Medina, tennination of Ramircz's parental rights was not attended three of four scheduled sessions, but the father constitutional rationale of Winship. [31] *-313 802 S.W.2(l 647 (Tex.1990) >k>t<**$>t<**>l<* with persons who engaged in conduct which endangers to the finding and consider that evidence in our analysis. seems to reason that since it concludes that the error in between 1970 and 1975 she sent a total of approximately appointment of the Department as sole managing would be waived. For the few years immediately review unpreserved jury-charge error relating to the But even measuring the parents‘ complaints about states need not do so in every case, the Family Code [72] Thejuiy was instructed only that "[t]he same ten or *-312 in the court of appeals pertain to a ground of termination Rules ofAppellate Procedure to preclude an appellate Though the spanking left no marks or bruises, Veronica BEST INTEREST OF THE CHILD defense not conclusively established under the evidence There was an opportunity to challenge the legal and environment and well-being and may be sufficient to Id. specific, the crr'or is harmful when it cannot be *-311 portion appointing the Department as sole managing dangerous conditions orsunoundings; (2) engaged in the decision to terminate the parent-child relationship (D) knowingly placed or knowingly allowed the 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)); see also In S.R.M., the evidence conclusively showed the public-interest basis for fundamental-error review Supp.2002). Although Medina sought termination on the environment. *-310 "Public-interest-based"fundamental error differs from (Tex.App.-Corpus Christi 2002, no pet. h.); In re W.C., child. This Court reaffirmed its prior holding in Brown v. a "firm belief or conviction as to the truth of the income and monthly bills. The court held, in light ofthe In the Interest of Guillory, 618 S.W.2d 948 was a necessary prerequisite to the adoption of his child the latter incident. About a year and a halfearlier, in Department refcr's to one week in April 2006 during appeared and testified at the termination hearing. during this one visit and was unable to observe Alan's conducted and reviewed in an arbitrary manner. "At sonre

[8] See Mumma v.Aguin‘e, supra; Tex. Family Code event, once Patricia was released, a Spanish translator readily seen lies at the base and foundation of the declined to consider the trial court's alternative finding *-309 "preponderance of the evidence" as the burden of proof in well as all legal rights, privileges, duties and powers with reach separate, distinct conclusions not only that there termination here, clearly states that it would not be in the best interest of the child (Section 1502(2)). The court of child's natural mother, Barbara Arriola, signed an

Ill theclear-and-convincing burden of proof." [22] We *-308 situation by first considering any relevant precedents and ordered by the trial court to obtain prenatal care, she did United States Supreme Court for use in criminal cases, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). And investigator went to the babysitter's home, but she denied the hair follicle test. or at minimum challenge the best interest finding" ). for Puerto Rico. He did not appear in court again until six the trial court's determination. However, custody is not at - (La.200l) (court will consider "plain and fundamental requirement for granting a new trial based on newly cross-examine witnesses and, if he desired to call a best interest at trial, lwoulcl conclude that the failure to *-307 by the trial court, supported by clear and convincing the adoption. The court ofappeals, in an unpublished because there was "less support" in the evidence for the denied) (partially rendering judgment for the parents in a evidence and the inferences tending to support the finding The Court engages in procedural gymnastics to review unpreserved sufficiency issues in termination Failed to comply with the provisions of a court sporadic incidents ofpartial compliance do not alter the in that opinion that the inquiry must be "whether the Page 306 In sum, there is no indication the Court ever *-306 relevant to this factor does not support the best-interest number of factors listed above appear from the record to asking. Thank you. predicate grounds for termination, namely, that Joel: (1) similarly testified that tennination would be in the Cox and fourth elements ofsubsection (N). To determine reviewing the unprcserved issue. *-305 child with someone who engaged in endangering challenge to the termination order. Id. In the absence of 288, 303 (Tex.Cri1n.App.l994); Jackson v. State, 898 We hold that under § 15.02(1)(C) Ms.Ho1ick was Halley v. Adams, 544 S.W.2d 367, 371-372 (Tex.l976); tennination inquiry. Even were it assumed that the trial argument was not preserved in the trial court. But *-304 te11nination ofthe parent~child relationship. In this case, considered as waived. and will not be made the subject of convincing evidence"); see also Bentley v. Bunton, 94 Answer: tenninates the parent-child relationship with respect to of her criminal history.[l0] Placement of the children

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). In Wiley v. *-303 Texas, Howard G. Baldwin, First Assistant Attorney Page 64 the pleadings and the evidence herein is of the opinion Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976);

relationship is in issue shall be given precedence over any real potential for change. I'd have to say her potential type of continuing course of conduct contemplated by the attended only one before the children were removed in the test for ineffective assistance of counsel in that the net effect is the case is reversed and judgment is *-302 to hire an attorney, he sought the assistance of Legal Aid. In reJ.F.C., 96 S.W.3d at 266 (" Disregarding undisputed

omitting an element ofa claim was fundamental error, the in her best $100 in cash to her son or to David and Sharon Adams findings In his third issue, Ramirez argues the trial judge conservator of AS., D.S., and L.A.S. Page 57 a the physical or emotional well-being of the child; [or] following the promulgation of the 1941 rules, a few more of you must agree upon all of the answers made and in required requires courts to provide counsel for indigent parents in *-301 [64] See id. at 298 (HANKINSON, 1., dissenting). their counsel against statutory Justice O'NEILL concurred in thejudgment only. court from reviewing an unpreserved complaint about that is unnecessary to the trial court'sjudgment. The went to a shelter with L.P. where she spoke with a police and no element ofwhich is submitted or requested are

show endangennent. In re S.M.L., I71 S.W.3d at 479 (" The final element is whether Patricia Panel consists oflusticcs YATES, FOWLER, and conduct or knowingly placed M.V.G. with persons who *-300 The second element is whether the Department factual sufficiency of the evidence regarding the best TEX. FAM.CODE § 161.001 (codifying In re G.M. by detennincd whether the improperly submitted theories conservator of the children. This is so, they argue, under subsection (E) does not require that the conduct be mother's parental rights should not be ter1ninated for the child to remain in conditions or surroundings which applies. Applying the principles identified above, I would *-299 sole basis that Ramirez failed to legitimate the child allegations sought to be established." TEX FAM.CODE 56 S.W.3d 863, 867-68 (Tex.App.-Houston [l4th Dist] 1996, campus police had given the mother and two of the jurisdiction-based fundamental error in both a procedural Edwards Transfer Co. [47] that "[i]f paternity is which Veronica was incarcerated for hindering the (Tex.Civ.App.--Houston [lst Dist.] 1981, no writ); civil appeals aftinned. 532 SW2d 694. We reverse and interaction with his children. She also testified that Alan's under Article 46a(6)(a), Texas Revised Civil Statutes constitutional precautions involved in termination cases, were grounds for termination based on the parents‘ *-298 proceeding and affects thcjudgmcnt necessarily"). Thus,

that Nanci Holley had engaged in conduct which point the benefit of an additional safeguard to the ajuvenile delinquency case, see Santana, 444 S.W.2d at respect to each other except for the child's right to inherit. was provided whenever she met with the caseworker, and best interest of the child that he never see his mother The Court relies on rule 279 to affinrr the trial Ann. § 14.07(b). concluded that "the burden of proof at trial necessarily inevocable afiidavit of relinquishment of her parental

*-297 - "The court must then determine whether, in light having seen the child that day. CPS then contacted the not do so for the first six months of her pregnancy. There are some provisions of the orders with which then by assessing the several interests that are at stake. assistance ofcounsel was not ineffective. cases. 42 SW3d at 256. submit the "best interest" instruction was not reasonably

opinion, affinned. We reverse thejudgmcnts of the courts months later. He submitted to only one drug test (by oral the parents consistently claim that the procedure--that is, Page 261 discovered evidence, we need not reach the remaining [1] The Family Service Plan is the trial court's order error" in jury instructions); Reno v. Townsend, 704 A.2d *-296 witness, the court would examine the matter at that point evidence, that termination is in the children's best interest, issue in this tcnnination proceeding. tcnnination case because the evidence was legally of the trial court and must disregard all evidence and intended Holick's strict scrutiny language to support ground that Paige had failed to comply with a *-295 undisputed fact that the parents violated many material order that specitically established the actions necessary avoid answering the constitutional question in this case. evidence is such that a factfindcr could reasonably form a SW2d 896, 899 (Tex.Cri1n.App.1995). have been presented here. knowingly placed or allowed M.V.G. to remain in finding. Id. ‘Q So--All right. So don't you agree with me, sir, that a *-294 Opinion by KAREN ANGELINI, Justice. whether termination was warranted under this provision, assigned error, the Court reversed the portion of the court children's best interest. conduct.[l4] In support oftermination under subsection In re D.G., 5 S.W.3d 769, 772 (Tex.App.-San Antonio The availability ofhabeas review has since been *-293 both parents or to the only living parent." TEX. FAM. court should have given an instruction to the jury had S.W.3d at 597 (defining "clear and convincing evidence" required to make arrangements for the adequate support assuming, without deciding, that this complaint could be revision here." Id. at 529. Nevertheless, this Court held the trial court found that the best interest of the child with the paternal grandmother was not an option because Page *-292 Spmt/in, 543 S.W.2d 349, 351 (Tcx.l976), this court that the Petitioners are entitled to the judgment of T.N.F., 205 S.W.3d at 632. is extremely limited." When asked ifthe mother "is a tit other civil cases and shall be accelerated by the appellate General, Austin, James Wiley, Assistant Criminal district Ten years later, in McCan/ey v. Consolidated statute. Finally, Veronica's incarceration while awaiting termination cases is generally the same as in criminal Legal Aid referred him to the Attorney Generals Office. October 1997. *-291 Notes: parental-rights-termination case under our common-law proceedings. TEX. FAM.CODE § " rendered without a remand to the court of appeals for the Even if we assume the evidence is legally and charge should be reviewed as if an objection had been for his use and benefit; she maintained a health insurance abused its discretion in denying Ramirez's motion for facts that do not support the finding could skew the While [a parent's] bad acts or omissions might reasonably *-290 courts of civil appeals held that they could no longer to the entire verdict." As can be seen from the charge, Notes: The Department introduced no evidence of the termination officer and a CPS officer. After this incident, Veronica remaining issues raised by the parents do not require "core issues" in thejury charge does not afford the parent waived. When a ground of recovery or defense consists " When parents are incarcerated, they are absent from the [12] The 4 C5 report states that Veronica admitted GUZMAN. *-289 demonstrated an inability to provide [M.V.G.] with a safe interest of the children, but the parents did not avail

because the trial court's conservatorship appointment was fonncd the sole basis for the jury's finding." Id. at 389. The parents have an additional complaint about the made reasonable efforts to return the child." TEX. FAM. engaged in conduct which endangered her; (3)

establishing "clear and convincing evidence" as the children a ride home because the father had left them "on endanger the physical or emotional well-being of the directed toward the child, it does require that it be within a one year period, this basis was not provcn at *-288 ground alleged. In re S.R.M,, 601 S.W.2d at 768-69. charge conclude and substantive way: As a procedural matter, 2001, no pct); Rodriguez v. Tex. Dep't ofHuman Se1'vs., warrants error to We overrule Joel's third point. this ANN. § 101.007 (Vernon Supp.200l); In re G.M.. 596 that Crawford v. Crawford, 569 S.W.2d 505, 507 brother came often to visit the children. No Joel did not appear for trial. Patricia announced that *-287 apprehension of a felon, and to her indictment for questioned in a wrongful death action, the alleged child Annotated, [2] Heart! v. Bmmmn, 443 S.W.2d 715 'fundamental error‘ is not a statutory term, but is one conduct, but also that termination would be in the Wiley, 543 S.W.2d at 352; Tcx.Fam.Code Ann. § 1507 Spanish language services were made available to her as endangered the emotional well-being of her son (Section that individual affected by the administrative action and to again; that the best interest of the child would be served court's tennination judgment. But rule 279 does not tell rcnderjudgment denying termination ofthe parent-child affects appellate review of the evidence." [23] We 615; a jury charge based on an invalid theory ofliability rights. Boyd was served with process and entered an

*-286 the parents partially complied and others for which they Consequently, Texas's rules for preserving Texas State Technical College police, who accompanied receiving no appellate review of alleged jury-charge *-285 two factors. Ramirez's third issue is overruled. Subsequently, during the objections to the charge, calculated and did not probably cause the rendition of an of all the circumstances, the identified acts or omissions to dctcnninc whether he would be permitted to do so. The

swab) during the fourteen months the case was pending, it is immaterial whether an alternate submission regarding 309, 311 (Mc.l997) (obvious error affects fairness of

Moreover, under the dissent‘: analysis, if courts can specifying the actions the parents had to take for the insuflicient to support findings on two statutory grounds for the parent to obtain the return ofthe child who has court-ordered plan. Id. at 75. But the court ofappeals inferences to the contrary. Garza v. A/vim‘, 395 S.W.2d below. *-284 " appellate review of unpreserved jury-charge errors. In While Rule 279 may indeed resolve the specific alleged provisions of the trial court's orders. firm belief or conviction about the truth of the State's [similar questions as to the other two children] dangerous conditions or surroundings; (2) engaged in young man of this age should--who--who has known his *-283 ofappeals' judgment that reversed appointtnent of the we turn to the record before us. (E), the Department argues that Alan's physical abuse of

but provides no argument or authority. [4] Nevertheless, 1999, no pet). CODE § l6l.207(a). *-282 " counsel so requested, it cannot be said that counsel's ‘if the foundation of the action has manifestly raised for the first time on appeal, the argument has no in a defamation case) (citing Huckabee v. Time Warner would be served by the stable, loving environment of the the grandmother's boyfriend did not have a social security limited by the United States Supreme Court, but a rather than personally support the children. Termination On March 13, 2006, the Department filed its Page 77 The mother and father ofthe child the subject of *-281 courts." TEX. FAM.CODE § l0‘).002(a). Similarly, that termination with regard to the children in whose interest Attorney, Amy Innmon Forrester and Thomas C. West, wrote: Page 282 [65] See Ramos v. Frito-Lay, lnc.,' 784 S.W.2d 667, 668 Underw/‘i/er's, I57 Tex. 475, 304 S.W.2d 265, 266 proceedings); In re Adoption ot'T.M.F., 392 Pa.Super. Justice HANKINSON filed a dissenting opinion. in *-280 trial, standing alone, is insufficient to support termination Because Ramirez did not have M.A.N.M.'s name or parent or could she be," this expert said, "[t]herc are too new trial in light of newly discovered evidence. The doctrine of fundamental-error review. As a result of this policy covering him; and she sent various gifts and toys made. But this reasoning is circular since the fact that no requested factual sufficiency review of the termination *-279 analysis of whether there is clear and convincing review fundamental error. See Brown v. O’Mem't1, 193 suggest that a child would he better off with a new 107.0l3(a)(1); sec Lassiter, 452 US. at 3334, 101 S.Ct. due process. 57 S.W.3d 66, 72. See also TEX.R.APP. P. factually sufficient to support termination on the basis of quoted in Section II, supra, the only questions to be reversal of the trial court's judgment terminating the actual physical surroundings or conditions of *-278 of more than one element, if one or more of such spoke with Alan about the spanking. Their relationship CODE ANN. § l6l.0Ol(l)(N)(i). Patricia contends that themselves of that opportunity in the trial court. Nor have environment." Id. § l6l.00l(l)(N)(iii). Here, Patricia child's daily life and are unable to provide support, and trying marijuana a fcwtimcs in her life," although it is a direct consequence of the termination of their parental

constructively abandoned M.V.G.; and (4) failed to Here, the Coxes do not assert that either of the disjunctive [9] See Mumma v. Aguirre, supra; Tcx. Family Code jury charge. There are two predicates to parental committed in the presence of the child. See Ziegler v. *-277 However, the trial court rendered ajudgment terminating burden of proof). In this case, the charge omits a required Lassiter, 452 US. at 24-25, 101 S.Ct. 2153. fundamental-error review. trial, nor did the trial court make a finding on this child; or After the children were removed from the home, 737 S.W.2d 25, 26-27 (Tex.App.-El Paso 1987, no writ); public-interest-based fundamental-error review does not she was waiving her right to jury trial. The court ruled *-276 S.W.2d 846, 847 (Tcx.l980). The trial court's judgment

would have to prove by clear and convincing evidence (Tex.Civ.App.»-San Antonio 1978, no writ). it is at this foot." (M.B.C. had not yet been born.) in Strickland v. Washington, the United States l5.02(l)(D)). The only issue before this court is the children's best interest. The jury was specifically element necessary for tennination. [7] The coun of

(Tcx.l969). That statute provided that the consent of a aggravated robbery and subsequent incarceration in June Acts or Omissions indicating Parent-Child coined by the courts in interpreting our [statutes]." Texas (Vernon 1975). Moreover, the evidence in support of society in terms ofincreased assurance that the action is in ajuvenile delinquency case, see R.A.M. v. State, 59‘) But the AP. court wholly failed to conduct a due by continuing to see his mother. *-275 us whether charge error in a parental-rights-termination ACTS OR OMISSIONS OF THE PARENT: well. appearance in the case and cross-petitioned for relationship. the CPS investigator back to the family's home. It was proceedings); Squibb v. RM. Bradley & Co., 40 offered an excuse for their noncompliance. But even jury-charge error raise little risk of erroneous explained: Stability ofthe Home: *-274 improper verdict. See TEX.R.APP. 44.1; Reinhart, 906 errors because of the failure to preserve error--violated counsel for the parents demonstrated his ability to parental conduct was supported by factually sufficient

court also permitted counsel to make an opening were outside the wide range of professionally competent Department to return the children to their custody. See refused to submit to urinalysis or hair follicle drug tests review unpreserved jury-charge errors based on the The Coxes provided little evidence to contradict the never explained how it reached its conclusion as to either allegations." [36] A court of appeals should consider *-273 821 (Tex.l965).

fact, this Court recently rejected relying on Holick's strict [103] See State v. Smztmm, 444 S.W.2d 614, 615 for termination). been in the permanent or temporary managing The trial court terminated John Ramirez's parental problem with the jury charge in this case, the Court conduct or knowingly placed M.V.G. with persons who . 57 S.W.3d at73. The court also concluded, however, *-272 mother and who has visited with her in--and who has he has briefed the four other points noted on their merits. Department as the child's sole managing conservator. Id. Veronica and LP. as well as his criminal activity *-271 failed, we can not, without shocking the common sense Between April and early October of that year, CPS was not authorized under these facts. Accordingly, we merit. Applying Rule 279 to deem a finding in support of decision to address the parents’ religious beliefs through Smiths. This finding was not contested by Ms. Holick. majority of the Court has not modified the Jackson [l]To protect the identity of the child who is the subject Desires ofthe Child: Entcitainincnt Co., 19 S.W.3d at 422); State v. number. However, the Department did not conduct a

*-270 this suit have each perfected an appeal from the order [1] To protect the privacy ofthe parties in this case, we Original Petition for Protection of a Child, for Texas's preservation of error rules promote the child's this suit is brought, and that such judgment is in the best

(Tex.l957), we reaffirmed the survival of *-269 Waco, for Petitioners. which Justice ENOCH joined. 598, 573 A.2d 1035, 1041 (1990) (holding that "[t]he of parental rights. In re .S‘.ML., l7l S.W.3cl at 478. (Tex.1990) (holding that "[i]f the omitted element many concerns about aggression and violence and social security number, the Attorney General was unable to her son. The trial court found that at least one ofher OPINION objection was made is precisely why Rule 27‘) applies. *-268 evidence." ). holding, ^[1] would conclude that Texas procedures for newly discovered evidence consists of facts showing grounds. 96 S.W.3d at 260. S.W.2d 715, 721 (Tex.Civ.App.-Galveston 1946, writ non-support, I do not believe there is sufficient evidence family, the evidence may still be insufficient to satisfy is answered were whether the parent-child relationships parents‘ rights. Accordingly, we reverse the court of children's enviromncnt. It is also undisputed that the

2153. *-267 33. l(a) (As a prerequisite for appellate review, the record was not abusive at that time and Alan had never

when parents like appellant repeatedly commit criminal unclear when those occasions occurred. Moreover, Alan's elements necessary to sustain such ground of recovery or "[t]here is no firm evidence as to the amounts ofsalary they challenged legal or factual sufficiency regarding the refers to the Departments failure to explore placement the Department failed to make reasonable efforts Page *-266 Ta/‘rant Ca. Child Welfare Unit, 680 S.W.2d 674, 678 grounds for termination were invalid theories as applied termination under section 161.001 of the Texas Family comply with a court order that established the actions finding for termination and therefore directly and rights, and, therefore, reversal of the termination of their the mother's parental rights based on grounds not element. Rather, Medina produced evidence regarding Subia V. Tex. Dep't ot‘Human Servs., 750 S.W.2d 827, Constitutionality of Section 263.405 violence between the parents continued. Seven days after Ann. § 14.07(b). mandate & Pac. Ry. Co. v. Lilly, 118 Tex. 644, 23 S.W.2d 697, *-265 that he is a filial descendant ofthe deceased." [48] Our Supreme Court examined at length the considerations in that Joe] waived his right tojury trial under Rule of Civil will be set aside only ifthc finding is so contrary to the

CONCLUSION point, however, that the counts of appeals part company parent to adoption ofhis child was not necessary where correctness of the termination order. There is no instructed that the best interest of the children must be 2006. appeals rejected these arguments, concluding that Relationship is Not Proper ter1nination must be clear and convincing before a court *-264 just, may be outweighed by the cost." Eldridge, 424 U.S. S.W.2d 841, 846 (Tex.Civ.App.-San Antonio 1980, no case can be reviewed for the first time on appeal. The In early March 1982, Ms. Holiek left the children process analysis, as the US. Supreme Court requires in legitirnation. Prior to trial of this cause but after execution The evidence establishes as a matter of law that *-263 deprivations. The charge would have accurately instructed the TEX. FAM.CODE§ l6l.00l(l)( 0). their due process rights, See Daniels, 474 U.S. at 340-41, only then that the parents produced A.B.C,, and the " S.W.2d at 473; Island Recreational Dev., 710 S.W.2d at compare the language of the charge to the verbatim assistance." [90] Family Code expressing a public policy that the child's statement on Joel's behalf‘. ordered by the court, and wholly failed to comply with evidence. Mass,App.Ct. 914, 661 N.E.2d 1352, 1353 (1996) (plain

*-262 evidence discussed above. However, their case likewise (a) Veronica parent that the error probably caused rendition of an conservatorship of the Department of Protective and scrutiny language as a basis for reversing

" [18] We note that while the Department in D.N. C. did not refuses to answer thethreshold procedural due process (Tex.l969) (holding that a jury charge submitting Quite often, the best interest of the child is infused with rights to M.A.N.M. Ramirez appeals thejudgment in *-261 a whether disputed evidence is such that a reasonable that the omission of the "best interest" instruction as to engaged in conduct which endangered her; and (3) failed

interests. The ad litem testified that he has seen Ramirez [S]cctioii 263.405(g) clearly litnits this Court's review (N) constructively abandoned the child who has been in formed some affection for his mother should be allowed Strickland's standards, assistance of counsel was not constitute evidence of a course of conduct that at 617, *-260 Subdivision (1) of [section 15.02] lists several acts or ofthis suit, we shall refer hereinafter to the parents by argument was anything other than a reasonable exercise standard ofreview when the merits of a habeas petition home study on either grandmother to determine whether found no further indication of physical abuse of the ajudgment in a parental tennination case does not violate While it is true that the parent-child bond is very strong, reverse thejudgrnents of the courts below and render ofjustice, allow a recovery to stand.’ Addington, 588 S.W.2d at 570 (defining the standard in a *-259 Id. at 530 (quoting terminating their parental rights. The mother contends in interest of the children in whose interest this suit is Conservatorship, and for Termination in Suit Affecting supported by some evidence, we must deem it found

*-258 identify the parents by fictitious names, and we identify interest in a final decision and thus placement in asafe fundamental—error review doctrine, and held that it also to provide him with assistance. Ramirez then hired his hostility as well as documented things in the history that constitutional rights in atennination proceeding Medina attempted suicide a month before M.A.N.M.'s Because of the operation of Rule 279, we have a very *-257 gift packages was returned to her unopened. As to Nanci's are charge ref‘d rr.r.e.); Leach, 173 S.W.2d at 198. that termination is in the best interest of the child. Indeed, unpreserved the clear and convincing standard. The best interest error (E) engaged in conduct or knowingly placed the appeals’ judgment and render judgment that the reviewing Our first inquiry should be whether the error affects in should be terminated. The US. Supreme Court then held that the nature of must show the complaint was made to the trial court by a Department took L.A.S. into custody shortly after he was *-256 The day the children were removed from the home inappropriately disciplined AS. or D.S. necessary for the return of M.V.G. See TEX. FAM. paid for any given month of the twelve month period to A review of the factors presented in the record defense, and necessarily referable thereto, are submitted to them. See id. And the Coxes raise no new arguments in uncontroverted testimony that he had no knowledge that acts that subject them to the possibility ofincarceration, best interest of the children in the court of appeals or this *-255 alternatives in Puerto Rico and the failure to re-visit her Code. The first is that one or more courses ofparental (Tex.App.-Fort Worth 1984, writ rcfd n.r.c.); see also In Ramirez's failure to support the child for a one year parental rights necessitates reversal of the appointment of pleaded. Id. at 769. The mother argued the court of

Regarding transportation, Patricia testified that she on the effect of a parent's imprisonment. We hold that if because: (1) it did not formally serve her with citation

David and Nanci Holley were married in 1965. The We have already discussed at length the evidence adversely impacts the public interest in reaching a correct *-254 the children were removed, a Texas State Technical Under traditional factual sufficiency standards, a court ‘such parent or parents shall not have contributed Procedure 220 by failing to appear. See TEX. R. CIV. P. determining whether counsel in a capital or other criminal 831 (Tex.App.-El Paso 1988, no writ); Neiswander v. As stated earlier, the record does support the finding Court had adopted the clear and convincing evidence overwhelming weight of the evidence as to be clearly We hold that there was No evidence to support the Page 278 broad-form submission was permissible. [8] The dissent challenge of the appointment of David Adams as found in connection with only one of the four grounds for 698 (1930). *-253 writ); the submission of "preponderance of the evidence" at 348, 96 S.Ct. 893. Here, the cost of disregarding our

may involuntarily tcnninatc a parent's rights. Smrmsky v. [35] In re c.r-1., so S.W.3d 17, 25 (Tex.2002). purpose of rule 27‘) is to "salvage" a trial court's of the affidavit ofrelinquishrncnt, Barbara Arriola with the Smith family. Ms. Holiek had been unable to parental-tcnnination cases, to detennine if the procedure *-252 parents failed to comply with the court's orders investigator learned that the mother had hit A.B.C., 106 S.Ct. 662 (Stevens, J., concurring) (explaining that 555. I would conclude that the court of appeals therefore requirements of the Family Code. Counsel objected to the jury regarding the children's best interest ifa hard return improperjudgmcnt. We must review the "pleadings of *-251 error is that which results in manifest injustice); Napier v, three issues. We affin-n the trial eourrsjudgment. best interest is of primary concern, then courts can review focused significantly on evidence relevant to whether his service plan. preponderance of the evidence as the burden of proof was Because ofM.V.G.‘s age, there is no evidence parental-terminationjudgment based on a parent's due Regulatory Services for not less than nine tnonths as a question and does not analyze the due process issue under the statutory offensive behavior. While there are *-250 facttinder could not have resolved that disputed evidence Tawnya and the placement of the "best interest"

interact with M.A.N.M. According to the ad litem, to comply with a court order that established the actions request conservatorship under section 153.131, the Nita C. Fanning, Kathryn J. Gilliam, Waco, L. T." omissions, one or more of which must be proved in a *-249 at this juncture to the issue ofwhether [Joel's] appeal is ineffective in this case. Although the parents‘ complaints endangered the physical and emotional well~being ofhis the permanent or temporary managing conservatorship of

Palmer v. Lorillard, l6Johnson 343, [348]. I81‘) WL to continue seeing his mother? pseudonyms. See TEX. FAM. CODE ANN. § l09.002(d) children during home The Department also contends that Veronica's use WANDA MCKEE FOWLER, Justice. the due process clause ofthe United States Constitution *-248 judgment that the temrination is denied and the adoption Justice SCHNEIDER filed a dissenting opinion. case in which involuntary commitment of an individual to are reached. [32] it is not true that all parents provide for the best interest of trial strategy. placement of the children would be otherwise I respectfully dissent. The question squarely before Under afactual sufficicncy review, we also must Neither the Family Code passed by our Legislature her sole issue that the evidence is legally and factually the Parent-Child Relationship." In section 13 of the derived fiom the due process clause of the fourteenth *-247 the children by their initials. See TEX. FAM. CODE § brought. own attorney. and stable home, because they preclude appellate courts against Frito-Lay under Rule 279") (citing Payne V. are giant red flags in regard to parenting, and lwould applied in our Court. In McCauley, the trial court had set

*-246 evidence indicates whether Alan made any attempts to parental-rights-termination cases do not violate due narrow question before us regarding "fundamental error." child with persons who engaged in conduct which financial situation between 1970 and 1975, the trial court the evidence is to the contrary. birth. standard does not permit parental termination merely *-245 " parent-child relationships are terminated. born because he tested positive for marijuana. However,

Joel contends in his fifth point that section 263.405 asignifrcant public interest, articulated in our statutes, the process due in parental-termination proceedings timely request, objection, or motion in compliance with [10] See Heard v. Bauman, supra. CODE ANN. §l6l.00l(l)(D), (E), (N), (0) (Vernon Page 292 home after an initial visit in early October. However, to and found by the jury, and one or more of such that can negatively impact achild's living environment Imprisonment ofa parent, standing alone, does not *-244 (twelve days after the car seat incident), the father called determine an ability to pay that particular month or to Vcrortica had used drugs and that he had never smelled The only acts or emissions that can be referred to the Department as sole managing conservator. The conduct must be established. The second is that The evidence is legally and factually sufficient to this case to give us cause to revisit our decision in E.B. re U.P., l05 S.W.3d at 233 (noting that parents conduct until three months after taking M.V.G.; (2) it did not asked the Department for help with transportation, but Court. appeals should reverse the trial court's judgment, because only child of their marriage, David Christopher, was born reveals only evidence that indicates that termination is period and the trial court rendered its judgment of College Police officer was again called to the home after To summarize the Eldridge factors, then: (1) *-243 wrong and unjust. Djeto v. Texas Dep't ot‘Proteetive & judgment. relevant to the stability ofPatricia's home, The evidence case was ineffective. [82] The Supreme Court's

220. The court also pronounced its rendition of "The court should recognize that counsel is Bailey, 645 S.W.2d 835, 836 (Tcx.App.-Dallas 1982, no determines ifa finding is so against the great weight and the evidence, including the imprisonment, shows a course standard in such cases to maintain consistency with the would have affinned the trial court'sjudgment on the The parents equate parental termination for failure *-242 terminating based on parental conduct. of the trial court and the court of civil appeals that Nanci managing conservator. a post substantially to the support of such child during such Joel's counsel actively participated in virtually the Kramer, 455 US. 745, 747, 102 S.Ct. 1388, 1391, 71 finding that Nanci Holley, by her conduct, endangered as the burden of proof in aparental-rights-tennination judgment when a party failed to object to an omitted error preservation rules risks not only unduly prolonging After the Department took her children into financially support herself or the children. Although she consented to legitimation of the child as to Boyd. The for preserving sufficiency challenges violates parents‘ due *-241 specifying the actions the parents had to take for the leaving dark bruises surrounding the outside of the child's definition of "clear and convincing evidence" in the petitioners asserted procedural and not substantive due erred in reversing the trial court's judgment on the basis *-240 Jacobs, 429 Mich. 222, 414 N.W.2d 862, 871 (1987) had been inserted in the instruction regarding the father termination was in the children's best interest. For any unpreserved error in parental—termination cases. in the US. Supreme Court's guidelines for ascertaining the result of the child's removal from the parent under

In In re D.N.C., 252 S.W.3d 317, (Tex.2008) (per the parties, the evidence presented at trial, and the charge instances where the offending behavior will demand error that could be raised for the first time on appeal), *-239 relevant to this factor. See In re SN, 272 S.W.3d 45, process claim. necessary for the return of M.V.G. See TEX. FAM. Department in this case did make such arequest. The

in favor of its finding. If, in light of the entire record, the Ramirczinteraeted well with and was patient with the instruction as to Paige constituted harmful error, because *-238 frivolous." In re 5.71, 242 S.W.3d 923, 926 the Department of Family and Protective Services or an Butch" Bradt, Houston, and Joseph M. Layman, Waco, termination case... Subdivision (2) of the same Section about their counsel are numerous, they are not (Vernon 2008); TEX. R, APP. P. 9,8(b)(2). *-237 of marijuana during her pregnancy with L.A.S. children. or the due course of law provision of the Texas a state mental hospital was sought). I790 (NY. 1819)); see also Siese v. Malsc/r, 54 Tex. 355, the Court is whether procedural due process of their children. appropriate. determine whether a factfindcr could reasonably form a *-236 is set aside. insufficient to support any of the predicate grounds for [73] TEX.R.APP. P. 44.1(a).

ln Ramsey V. Dunlap, 146 Tex. 196, 205 S.W.2d complaint, the Department requested that it be appointed nor the procedural and appellate rules promulgated and from unduly prolonging a decision by appellate review of amendment of the United States Constitution and not the

Snyder, 661 S.W.2d 134, 142 (Tex.App.-Amarillo 1983, aside and vacated a defaultjudgment. The court ofcivil have to say, no, she doesn't have that capacity." There In 2005, after Veronica and Alan's home in l09.002(d). *-235 constitution, or casclaw. See Ramsey, 205 SW2d at 983. communicate with his children after he was incarcerated. That question is whether the notion of "fundamental found that: (1) for two years following her remarriage in of the Family Code is unconstitutional because it: (1) *-234 endangers the physical or emotional well-being of the because a child might be better off living elsewhere. process. Texas's civil and appellate rules.). The court of appeals

the Department argues that termination is supported by depends upon a balancing of three factors: (1) the private Supp. 2009). We may affirm ifthe evidence is sufficient the CPS case worker. The father was "very irate" and was giving full credit to their excuses and partial compliance, *-233 and emotional well-being." ); In re C.L.C,, ll‘) S.W.3d at Department, however, contends that we are precluded elements are omitted from the charge, without request or the substance on her suggests that her prior usage CPS Diann Amcs testified that she did not know until constitute endangerment of a child's emotional or Arncs testified that she went to Patricia's

Our decisions from the prc-rules era disclose two establish a pattern over a series of months. There is Accordingly, the court of appeals correctly held that the need not be directed at child or that child actually be provide services for her while she was incarcerated; (3) tcnnination must be in the best interest of the children. are the lack ofsupport and the failure to complete the it relied on unpleadcd grounds to terminate her parental the following year. The couple separated in 1968 and a fcinale's screams had been heard. When the responding *-232 not in the best interest of the child. There is no evidence support the trial court's finding that Ramirez failed to termination on this statutory ground. When issues not parents’ interest is extremely important, but must be observations were extensive. The Supreme Court said at answer defaultjudgment" against him. At the conclusion preponderance of the evidence that it is manifestly unjust, [36] Id. Legislature's choice of the clear and convincing evidence of conduct which has the effect ofendangcring the period of two (2) years commensurate with his financial Regulatory Servs., 928 S.W.2d 96, 97 (Tex.App.-San *-231 relevant to this factor suppoi'ts the best-interest finding. basis that there was either an express or implied finding strongly presumed to have rendered adequate assistance to comply with the court's orders to criminal contempt. L.Ed.2d 599 (1980); Riclmrdxon v. Green, 677 S.W.2d failed to support her child in accordance with her ability writ). entire trial, making objections which the court ruled on, termination proceedings but also losing any predictability case, see Woodard, 573 S.W.2d at 597; and an omission

Imprisonment, standing alone, does not constitute DPRS to retum the children to the parents. The record was able to keep them clothed and fed, they sometimes custody, Veronica visited AS. and D.S. every two weeks element of a ground ofrecovery in ajury charge. See 4 FACTUAL *-230 the emotional well-being of her child. The trial court's process rights. Sce Lassiter, 452 U.S. at 27-28, 101 S.Ct. PROCEDURAL AN D trial court rendered its order Iegitirnating the child, ‘A Yes, but I--I believe the way--the child is happy the just before the words "For the parent«child relationship to *-229 process violations, because they alleged the state

charge because it omitted three words that the statutory that the omitted instruction was harmful error. (plain error is that which results in manifest miscarriage eye. example, the Coxes attempted to explain their other words, a logical extension of the dissent's applying 51-52 (Tex.App.--Waco 2008, no pet). Chapter 262 for abuse or neglect of the child. For the CODE ANN. § 161,00|(1)(D), (E), (O). *-228 in its entirety" to detennine whether the charge in this curiam), the Court considered asimilar challenge to a vacated on other grounds, 397 U.S. 596, 90 S.Ct. 1350, process due intennination proceedings. Sce Santosky, The parents contend that their counsel should have termination ofparental rights, there are also those cases The reasoning in Jackson reinforces our conclusion Justice HANKINSON dissenting, joined by Justice child. Medina's mother, however, testified that although disputed evidence that a reasonable factfinder could not Page 270 of the "potential" that thejury could have terminated both Department relies on this fact to argue that although

*-227 " authorized agency for not less than six months, and: requires proof of a second element, that the termination is There is no indication in the record that this finding This is an appeal from a judgment terminating (Tcx.App.~-Waco, order) (per curiain), disp. an merils , well-founded. First, the parents cite the failure oftheir *-226 for Respondent.

endangered him as well as her older children because her Ramirez was made aware of the petition to 357 (I881) (objections that go to merits and foundation considerations require an appellate court to review firm belief or conviction about the truth of the Constitution.

979, 980 (Tcx.l947), however, we held that the courts of *-225 A. Standard of Review termination or the court's finding that termination is in the the children's sole managing conservator Tennination ofparental rights cannot be sustained applied by our courts deny parents fair notice and the writ ref‘d n.r.e.) and Freedom Homes ofTexas, Inc. v. " sixth amendment"); In re Simon, 171 Mich.App. 443, 431 issues not properly raised in the trial court. appeals affirmed the order, despite the fact that it was a *-224 was extensive, detailed testimony about the mother's

Beaumont was destroyed by Hurricane Rita, the family automatic reversal. Instead, after an appellate court The third due process factor identified in Santosky Bonner testified that she spoke with Alan's mother and error" can be used to circumvent the operation of Rule 1970 she was a housewife without outside employment; [p]ursuant to § *-223 Having detemrined that the error alleged here child; or Otherwise, the termination statute might be used for a In the statute governing suits affecting the parent-child

then reviewed the alleged errors and held the broad-form interferes with thejurisdiction of the appellate court; (2) interests at stake; (2) the government's interests; and (3) the following evidence: (1) prior to her relationship with "shouting that he wasn't going to be responsible for *-222 objection, and there is factually sufficient evidence to there were a number of material provisions of the orders money spent by the father, but again without any F occurred before the birth of her children. In any case, 393; In re SD., 980 S.W.2d 758, 763 (Tex.App.-San As this caseinvolvcs the right of the child to the The gravamen of the parents‘ complaint is that the charge from considering this issue because appellants did not physical well-being. trial court did not abuse its discretion in submitting the with respect to any one of these predicate grounds. informed injured to support finding of endangerment). rights. Id. The paternal grandparents seeking termination support M.A.N.M. for twelve consecutive months during Patricia testified at trial that her van did not have a *-221 of legitimization process within a year. But these omissions application the policies the assigned caseworker sent letters to her in English that termination ofthe parent»child relationship is in the subsequently Nanci 1-lolley filed a suit for divorce which that officcr approached the home, the father would not allow raised by the pleadings are tried by implied consent of the balanced with the clrild’s important interests for not only the outset of Strickland that "[t]he benchmark forjudging shocks the conscience, or clearly demonstrates bias. But

physical or emotional well-being ofthe child, a finding MCDONALD & CARLSON, TEXAS CIVIL *-220 that termination ofparental rights was in the children's of a three-day bench trial. the court rendered judgment Antonio 1996, no writ). standard in connection with other legitimacy issues under and this failure to support is one of the factors that is to and made allsignifieant decisions in the exercise of ability.‘ They first argue that criminal contempt requires proof cross-examining witnesses, and offering exhibits which constructive abandonment. In re D.T., 34 S.W.3d 625, See i1/. at 53. in ajury charge in a divorce case that deprived a minor had no place to sleep but the car. The children were for the State, counsel for parents, and guardians for *-219 497, 500 (Tex.1984). Consequently, termination finding was apparently based in part upon the fact that tenninating the mother's parental rights based upon her BAC KGROU ND and L.A.S. weekly until she wasjailed in June 2006. 2153. Instead, the court summarily citcd S.R.M., without Page 303 also conclusively establishes that *-218 procedures for redressing deprivations of prisoners‘ definition contained. Counsel then affirmatively stated to 25 L.Ed.2d 594 (1970); RAM. v. State, 599 S.W.2d 841, be terminated....'' But as can be seen, the written way he is and-- ofjustice); Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d cfforts—-after a trial date was set on the Department's As discussed above, we do not find that Alan's fundamcntal~error review here is that appellate courts court of appeals‘ reversal of a trial court's conservatorship *-217 case probably resulted in an improper judgment. Island where the best interest determination tnust have a finn 455 US. at 754, 102 S.Ct. 1388; Lassiter, 452 U.S. at 27, A common thread Dissenting opinion by WALLACE, .l., in which parent-child relationship to be terminated in this case, it A bench trial was held on January 18, 2007.[l I] At have credited in favor of the finding is so significant that ENOCH. 263 SW3d 394 (Tex.App.--Waco 2008, pet. denied); see [2]Jocl‘s mother lives in Puerto Rico and currently has parents‘ rights "without finding that termination was in objected to questions

M.A.N.M. is somewhat more restrained than she [19] See In re C.I-1., 89 S.W.3d at 25 n. 1; see also *-216 that to apply our traditional no evidence standard of trial court did not specify the statutory basis on which it running through [2] A patemity test revealed that Alan is not the the counsel to object to the omission of the children's best was made at the request ofeither party, or after notice [74] The first order, a status hearing order, was signed on appellants‘ parental rights to their minor children. In five in the best interest of the child. Both elements rriust be " *-215 conduct could have impaired her judgment and exposed tenninate his parental rights in May of 2000. The parties of action will be considered though unassigned as error); unpreserved jury-charge errors in a par'ental~rights *-214 best interest of the child. The father contends in five

allegations. In re S.ML,, l7l S.W.3d at 476. When Having determined that the complaint in this case § 153.005 and 263.404." It further stated that unless such a drastic action is in the best interest ofthe right to be heard in parental-tennination cases. The U.S. civil appeals retained the authority to consider N.W.2d 71, 74 (Ct.App.1988) (basing right on a statute). *-213 Dickinson, 598 S.W.2d 714, 7l7(Tex.Civ.App.-Corpus nonappealablc interlocutory moved to Houston and stayed with Alan's mother. determines that it will consider the unpreserved error, the responses to various questions and standardized tests that order. McCnuley v. 279 when a party fails to object to the sister regarding alternative placement of the children. The *-212 Page 62 is the governmental interest supporting use of the (2) in 1972 she obtained employment as a program affects a significant public interest, we should look to see

massive reallocation of children to better and more [37] The parameters oflegal and factual sufficiency that relationship, our Legislature has declared that "[t]he attempts to deny the right to counsel to an appealing jury charge was proper. 57 S.W.3d at 73-74. After Alan, Veronica lived with an abusive husband, thereby

*-211 the risk that the procedures used will lead to an erroneous [a]s the children" and that he was "getting out of there." [41] 89 S.W.3d at 25. with which the parents completely and undisputably support a finding thereon, the trial court, at the request of Antonio I998, pet. denied). Alan's criminal acts, reference to times or amounts." benefit of the home and environment which will probably there is no direct evidence that Veronica had an ongoing broad—form jury charge. does not require the same ten jurors to agree that a parent include it in their statement of appellate points presented T.N.F., 205 S.W.3d at 629. fundamental-error review. First, as a matter of efticiency cannot be viewed in a vacuum. Indeed, the final Holley *-210 current registration. She had seen Patricia driving the van even though she speaks Spanish; (4) the Department best interest of the child, David Christopher. argued the mother implicdly consented to a trial on the eighteen-rnonth period preceding the petitions filing. was granted in 1969. During the pendency of the divorce him to enter and insisted that the mother was not there. parties, they are treated in all respects as if they had been In an interview shoitly after CPS discovered that *-209 an accurate and just decision but also finality and terminating Patricia's parental rights. The court signed its that standard is inadequate when evidence is more than a the Probate Code and the Family Code. [49] The United any claim ofineffcctivcncss must be whether counsel's under section 15.02(1)(E) is supportable. Wray at 71. The Coxes‘ second complaint is that the submission children about how courts will conduct and review these reasonable professional judgment." [91] PRACTICE §22:58, at S00-Ol (Zd ed.200l). Under rule beyond areasonable doubt. As discussed above, the be considered in ascertaining the best interest of the child. 633 (Tex.App.--Fort Worth 2000, pct. denied); 3-ee In re were admitted in evidence. Counsel never attempted to scrutinized, and *-208 child of the right to support, see Rey v. Rey, 487 S.W.2d best interest. [9] behind on their immunizations and had head lice when

proceedings should be strictly she visited the child only three times during the five and Bonner testified that the visits went well and that execution of the irrevocable aftidavit ofrelinquishment recognizing its significantly distinguishable facts, to visits. However, there was evidence ofcontinued and *-207 the court that he had no further objections to the charge. Child's Emotional and Physical Needs: property were constitutionally inadequate). However, the Justice OWEN delivered the opinion of the Court in Page 65 instruction regarding the father's parental rights 709, 727 (Miss.200l) (to reverse for plain error, court must review any *-206 (i) the department or authorized agency has made termination petition--to comply with the Family Service Recrcazio/ml Dev. v. Republic of Tex. Sav. Ass’/1, 710 unpreserved order. In the case reviewed in D.N.C., styled below as conduct toward Veronica, as reflectcd in this record, 844-45 (Tex.Civ.App.-San Antonio 1980, no writ). error a factfinder could not reasonably have formed a firm must also be proved by clear and convincing evidence MCGEE and KILGARLIN, .l.l.,joln. in A party seeking a new trial on the ground of newly 101 S.Ct. 2153. Because the Court does not answer the basis in facts standing apart from the offending behavior. a The United States Supreme Court has held in Tex.Fam.Code is protection of the "best interest of *-205 normally is when she's with Ramirez, she does not custody of eight of Patricia's and his other children. the best interest of the children." Id. at 74, 75. The court Bentley v, Bunton, 94 S.W.3d at 577. relied to appoint the Department as conservator, or issue review in a parental te11nination case would not afford the the time of trial, the children remained in foster care and interest in material parts of the charge to the jury. Had In re K.D., 202 S.W.3d 860, 865 (Tex,App.--Fort Worth established and the requirements of Subdivision (1) are *-204 issues each, appellants challenge the legal and factual December 23, 1997. The next three orders, all Because we consider the record in this case in some Indeed, the U.S. Supreme Court has recognized that and hearing before rendition ofjudgment, as Rule 279 her to incarceration. The use of illegal drugs during biological father of L.A.S. in its final order, the trial court agreed to a paternity test, which identified him as *-203 " child. In re GM, 596 S.W.2d at 847. Although the tennination case. I would address that issue directly. And, Consolizln/err’ Underwriter-s, 301 SW2d I81, I85 reviewing a factual sufficicncy challenge, the analysis is grounds for appointment of the Department Rnrrkert v. can be reviewed, our appellate procedure next requires fundamental error, notwithstanding the apparent repeal of Supreme Court has recognized that, "[i]n assessing what points that: (1) the court erred by denying his request for According to the 4 C's report, Veronica filed a police *-202 (F) failed to support the child in accordance with his Christi 1980, writ ref‘d n.r.e.)). court conducts the next two steps of appellate review and directly related to violence. She also revealed that at Department ruled out Alan's mother after she was unable challenged procedure. [61] The government has a *-201 The Department also argues that Alan's The record before us does not require a remand to Page 85 as we have set forth for parental termination cases differ to adviser at the University ofwashington, which position whether the error impacts the public generally, and not prosperous parents. public policy of this state is to litigant" ; (3) deprivation. Lassiter, 452 US. at 27, 101 S.Ct. *-200 exposing her son, LP,, to an abusive environment; (2) assure that children will interferes with the due process and orderly failed to comply. Among other things, each of the four In deciding a legal sufficiency issue, we consider While the father was on the phone, the case worker heard Patricia '5 Acts and Omissions (and Excuses )2 However the statutory scheme which was before this determining either party, may after notice and hearing and at any time narcotics problem that would support a finding under this however, do not support afinding under subsection (D) *-199 and economy, appellate courts were not requirecl to to the trial court pursuant to Texas Family Code section contacted only one other family member for alternative factor requires that these omissions be judged in light of to visits and assumed it was roadworthy. She did recall best promote its interest and the right of the parent to engaged in at least one particular course of conduct unpleadcd grounds, because she did not specially except Furthermore, the evidence is legally and factually raised in the pleadings. TEX.R. CIV. P. 67. Because action Nanci Holley voluntarily delivered the child to his The father was "violent, screaming, yelling, cussing, *-198 A.B.C. had been abused, the father told a CPS counselor See In re K.li’., 63 S.W.3d 796, 800, n. 20 placement in a stable home; (2) the State shares both the Order of Termination almost three weeks later. Page 279 preponderance (more likely than not) but is not clear and States Supreme Court had not mandated a clear and conduct so undemiined the proper functioning of the Anthony Medina and Tammy Sells were married at ‘Q I‘m sotTy. I didn't—~ United States Supreme Court held in Santosky that *-197 of the jury charge in adisjunetive instruction and as a call a witness on Joel's behalf‘. At the conclusion of trial, N.S.G., 235 S.W.3d 358, 367 (Tex.App.--Texarkana involuntary termination statutes are strictly construed in proceedings. Consequently, under the second factor, the 245, 248 (Tcx.Civ.App.-El Paso I972, no writ). 279, the court may deem the finding in support of the Veronica was bonding with all three of them during their one-halfyear period prior to the trial ofthis case. There Ms. Holick’s niece, Mrs. Smith, offered to take care of [1], and tcnninating the father's parental rights based support its conclusion that it could review *-196 escalating hostility between the parents from April of Notably, when it came time for closing arguments, Page 284 parents do not contend that the action by which the State

The Court states the issue in this case as "whether mentioned the best interest of the children only in *-195 must find error and harm); Stanziale v. Musick, 370 Plan and to show their ability to provide the children a Colbert v. Department of Family & Proleczfve Services, parentahtennination case, because any error could affect constitutes the type of continuing course of conduct reasonable efforts to return the child to the parent; which Chief Justice PHILLIPS, Justice HECHT, Justice

Although such behavior may reasonably suggest that a S.W.2d 551, 555 (Tex.l986); see threshold constitutional question, the Court's writing that temtination of the parent-child relationship would be *-194 Santosky v. Kramer that "[w]hen the State moves to

child." The express language of the provisions regarding any findings of fact, we may nonetheless infer that the 2006, no pct); TEX. FAM. CODE ANN. §263.405(g) no prospective adoptive homes had been identified. In belief or conviction, then the evidence is factually remanded the case to the trial court for a new trial

protections inherent in the clear and convincing standard perceive Ramirez as a threat to the child. discovered evidence must show that: 1) the evidence there been an objection, then no finding would be deemed *-193 not excused because a court may be ofthc opinion that contemplates. [l2] However, there was no objection to sufticiency of the evidence underlying the findings in the M.A.N.M.'s biological father. Ramirez also agreed to permanency hearing orders, were signed on April 28, prolonged detail later in this opinion, we include here only minimal have termination also terminated the parental rights of L.A.S.'s unknown proceedings can [82] 466 u.s. 668, 104 S.Ct. 2052, 30 L.Ed.2d 674 pregnancy may be considered endangering conduct that *-192 home three times after the initial visit but no one somewhatdiffercnt in that we must consider all of the in doing so, I would hold that Texas and the United States Managing Conservator, the Department alleges pursuant that we determine whether the jury charge was error. See Page *-191 process is due substantial weight must be given to the majority correctly recites this standard, I do not believe it the statute and the enactment of rule 374. Ramsey a jury trial; (2) the court erred by rendering adefault ability during a period of one year ending within six some time in the recent past, she had hit a 22-month-old (Tex.Civ.App.-Beaumont I957), rev'd, 157 Tex. 475, 304

[42] Harte-Hanks Communications, Inc. v. Connaughton, complaint that Alan had again over-disciplined LP. The determines whether an error in fact occurred, and whether *-190 substantial interest in preventing retrial ofa case when 1) to provide a social security number for her boyfriend, and Constructive Abandonment just the immediate litigants. See Newman, 433 S.W.2d at For the reasons expressed above, I respectfully the court of appeals for a factual sufficiency review of the have frequent and continuing contact with parents who some degree from those adopted by the Texas Court of she has continued probationary status in 200] and his indictment on charges Thejudgments of the trial court and the court of civil Id. *-189 jurisprudence in this Court and itsjurisdiction over an Alan pushed Veronica and pulled her hair on two (relying on Ma:/rews v. Eldridge, 424 U.S. 319, 335, 96 orders required the parents to (1) pay $100.00 per month EXCUSE OF ACTS OR OMISSIONS:

263.405. See TEX. FAM. CODE §263.405(b). In the Since we hold that the couit ofappeals incorrectly before thejudgment is rendered, make and tile written an argument between the parents that was escalating. section. See Ruiz v. Texas Dep’t of Family and Protective for several reasons. First, Alan was given probation for *-188 only the evidence tending to support the finding and court in Heard v. Bauman, supra, is significantly different examine the record in order to ascertain whether there that Patricia testified at the December permanency The Supreme Court then said with regard to the placement; and (5) it failed to arrange transportation for surround the child with properinfluences, Herrera v. described by section l61.00l(l) and that termination is in Ramirez failed to object to the disparity between the or object to the introduction ofevidence related to the anyjustifying excuse. father in Austin, Texas where he has remained at all II *-187 sufficient to support the trial court's finding that belligerent, [and] uncooperative." The officer called the parents‘ and child's interests in an accurate and just (Tex.200l). In K.R., the Court considered a parent's convincing. As a matter oflogic, a finding that must be the time of trial. When they married, Sells was pregnant; that his wife (the children's mother) was "very physically adversarial process that the trial cannot be relied on as M.V.G. has the usual emotional and physical needs convincing evidence burden ofproof Accordingly, this As noted, Joel's third point challenges *-186 broad-fonn question violated their constitutional rights to judgment if there is "some evidence" to support the the court overruled Joel's motion for directed verdict. The 2007, no pet.). State's interests encompass all the private interests, but federal constitution requires a clear and convincing favor of the parent. See Cawley upon afinding under section l5.02(l)(E), TEX. FAM. visits. After she was incarcerated, however, she was no was no evidence of any nature that the infrequency of the [3]ln fact, the caseworker tcstified, "The only relatives them until Mrs. Holiek could get on her feet. *-185 [104] 802 S.W.2d 647 (Tex.l990). unpreserved error. Moreover, the A.P. court improperly [997 until October 22, 1997, when the children were WALLACE, Justice, dissenting. loving home. A year after the trial court initially ordered terminates parental rights is arbitrary or oppressive. See counsel for the parents said nothing about the best [20] In re CH., 89 S.W.3d at 25. *-184 connection with one of the two alternative descriptions of S.W.2d 261, 269 (Mo.l963) (court will reverse for the public‘s overarching concern with the child‘s best the Department sought termination of the mother's there is legally sufficient evidence to support the trial insufficient. [37] A court of appeals should JEFFERSON, and Justice SMlTHjoined. required under this section. Furthermore, the undisputed child would be better off with a new family, the best in the best interest of the children. *-183 leaves little guidance for practitioners and lower courts

of proof. As the example in Jackson highlights, a parent‘s destroy weakened familial bonds, it must provide the without reviewing the Coxes' other complaints on appeal. court made the necessary findings to support the tennination of the parent-child relationship should be closing arguments, both Veronica's attorney and the Page 289 came to his knowledge since the trial; 2) it was not owing (Vernon 2008). Therefore, we construe Joel's appellate *-182 under Rule 279. [100] However, in light of the entire tennination order and the appointment of appellee 1998, August 18, 1998, and December 15, 1998. Subdivision (2) has been proved. the inclusion of this finding in thejudgment. [66] TEX.R. CIV. P. 279. psychological effects on a child of such a magnitude that facts and the procedural history. The three children who *-181 father. submit to a drug test. Ramirez tested positive for cocaine supports terminating parental rights. In reJ,T.G., l2l constitutional procedural due process considerations do answered the door even though the van was in the In re S.M.L., I71 S.W.3d at 478. Nonetheless,

SW2d 265 (Tex.l957). In its response to the plaintiffs Hall, supra, at 1056; see, e.g., In re C.0.S., 988 S.W.2d at (1984). good-faith judgments" of our law makers "that the " judgment against him; (3) the evidence is insufficient to has correctly reviewed the evidence in light of the Holley *-180 evidence equally, both disputed and undisputed. In re In re CH., 25 S.W.3d 38, 5253 (Tex.App.-El Paso involved an election for county commissioner. The months of the date of the tiling of the petition; to § 153.131 of the Texas Family Code that the the error is harmful. Sec W. Wendell Hall, Standards of child when she was babysitting. *-179 Department investigated the complaint and advised 491 U.S. 657, 685-86, 109 S.Ct. 2678, 105 L.Ed.2d 562 it did not conduct a home study on her. The record is Patricia established a good pattern of visitation Page 300 some but not all elements of a termination action have appeal" ; and (4) dissent to the Court's opinion and judgment in this cause, deemed finding that termination was in the children's best of aggravated robbery in 2006 constitute conduct *-178 have shown the ability to act in the best interest ofthe in child support for the children while they were in DPRS PATRlClA’S APPEAL appeals are reversed and judgment is hereby rendered Criminal Appeals for criminal cases. See, e.g., Vasquez occasions; (3) Alan over-disciplined L.P. twice; and (4) 422. I would hold that an involuntary termination suit S,Ct. 893, 47 L.Ed.2d 18 (1976))§ see also see also Herrera,409 SW2d 395 (Tex. 1966), Legals v. Legate, ‘A I do believe the child is happy the way he is. As far the children were removed from their parents under interpreted section l5.02(1)(E), we reverse the judgment further attempts to limit the When the phone abruptly went dead, the case worker Svcsx, 212 S.W.3d 804, 818 (Tex.App.-Houston [lst *-177 from Section 15.02 ofthe Texas Family Code and thus findings on such omitted element or elements in support disregard all evidence to the contrary. Soullrwestern Bell

his burglary conviction, not imprisonment. Second, as to was abasis for claiming error. See Wilson, 60 S.W. at the children's best interest. The charge only requires that alternative, the Department argues that the trial court's second component that even ifan error by counsel were her to obtain counseling and other required services. hearing that the van did not have acurrent inspection unpleadcd grounds. Id. Because the Family Code *-176 But not all cases involving children trigger pleadings and the proof, we may conclude that the issue termination of Ramire7.'s parental rights to M.A.N.M. is times pertinent to this action. argument that procedural due process precludes a father on the phone, and the father continued to insist that having produced ajust result." [83] The Court then said violent" and physically attacked him. He also said he was ofa toddler. The foster parents are currently meeting her Court, not the federal constitution, imposed aclear and decision, but the State's interest in not unduly prolonging

based on clear and convincing evidence cannot be viewed *-175 they were asked during trial about their sexual conduct due process and due course of law. Using the analytical sufficiency of the evidence to support the termination evidence standard of proof in parental termination cases, Medina, however, is not the biological father of the child. CODE ANN. (Vernon's 1986), that Boyd had engaged in weigh in favor ofconducting tennination proceedings court confirmed its prior ruling that counsel was not relied on criminal cases that only opine about how longer able to visit them due to the seriousness of *-174 finding. See Ramos v. Fritn-Lay, Inc., 784 S.W.2d 667, (ii) the parent has not regularly visited or maintained contacts endangered the child's emotional well-being in removed from the home. CPS case workers witnessed Page 296 [sic] available that I've been given [who] are in Puerto Daniels, 474 U.S. at 331, 106 S.Ct. 677 (substantive due *-173 parental conduct. Thejury was free to conclude that if the interest of the children. Based on the evidence adduced at trial, the trial court's express or deemed finding that termination is in evidence reflects that the children did not witness Alan's manifest injustice or miscarriage ofjustice); State ex. rel interest. Thus, fundamental-error review results in a compliance with the Family Service Plan, in the fall of parental rights to her seven children. See 227 SW3d for how to determine if our error preservation rules *-172 conservatorship appointment under section 153.131. We interest standard does not permit termination merely rights could be terminated based on "but one slender bit parents with fundamentally fair procedures." [53] In the omission of an element ofa claim against that party. We followed when the trial court finds that to do so would be Department of Family & Protective Services (" *-171 Id. at 75. In its petition for review, the Department guardian ad litem requested that the trial court order the to want of due diligence that the evidence had not come SW3d at 125. Veronica asserts, however, that a single record, the parents have not "overcome the presumption poiirts as challenging the trial court's determination that In this case, there is likewise no "finn" evidence of *-170 time is of the essence: and marijuana use. Ramirez first started to use drugs are the subject of this proceeding were removed from A parent constructively abandons a child when (l) the not mandate appellate review of unpreserved jury-charge Review in Civil Appeals, 24 ST. MARY'S LJ. 1045, *-169 J.F.C., 96 S.W.3d at 266. If, in light of the entire record, candidate who received the fewest number of votes sued imprisonment is a factor the trial court may consider. See Page 369 appointment of the parent or parents would not be in the driveway. Johnson testified that she visited later and it 767. Here, the proposed charge did not properly state the factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 support the tennination order; (4) this appeal is not procedures they have provided assure fair consideration 2000, pet. granted). *-168 We first consider the jury charge's submission of writ of error to this Court, the defendant did not raise the Veronica to move into a shelter. Veronica stayed in a sufficient to support tennination under this section. We " (I989); Bose Corp. v. Consumers Union, 466 U.S. 485, with M.V.G. after her release from custody. She also silent as to whether Alan's sister or brother were child." TEX. FAM.CODE § l53.00l(a). The statute been submitted to and found by ajury based on clear and The Court belabors the consequences of failing to *-167 Excuse for the Acts or Omissions However, as previously noted, any excuse for this interest. In the absence of achallengc to the factual impacts the public generally. Parents have primary v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002). jurisdiction of this Court by requiring astatement of Veronica engaged in criminal activity after the denying termination of said parent-child relationship. immediately went to the home. When he arrived, the Sanmsky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388,

*-166 Chapter 262 of the Family Code, and it is undisputed that of the court of appeals and remand this cause to that court of thejudgment. If no such written findings are made, Dist.] 2006, no pet). custody; [75] (2) obtain an individual psychiatric Mobile SyS., Inc. v. France, 971 S.W.2d 52, 54 his indictment on charges of aggravated robbery, cop—out" (in the vernacular of the 243 ("The purpose of assignments of error is to point out professionally unreasonable, that "does not wan'ant the case is not necessarily controlling. As noted in Wiley conservatorship appointment was based on a ground 87 Tex. 248, 28 S.W. 281 (1894), and as Wiley v. *-165 as--Yes. He enjoys going over to see Nanci whenever she tenjurors agree that the parent-child relationships should fundarrrental-error review. In one case involving a minor, of non-support was tried by consent. See Sage SI. Asxocs. in her best interests. Finally, the trial mandates that the petition set forth the statutory grounds [But] it is simply a

sticker. After leaving the children with the Smiths, Ms. the mother was not at home. It was only after the Waco Page 21 [105] Strickland, 466 U.S. at 690, 104 S.Ct. 2052. reviewing court from applying a harmless error analysis on appeal the same as one that may be sustained on a finality and in uniformity and predictability in applying with third parties and alleged "sexual deviations." *-164 convincing burden of proof in Garza. The Court's there were two components in a criminal case in needs in a safe and secure environment. There is limited order. He does not, however, clearly specify which of the John Ramirez is the child's biological father. M.A.N,M. concerned for the safety of his children because their lrespeetfully dissent. The majority opinion clearly framework I have set out above, I would first determine but not proof beyond a reasonable doubt. [106] under our error preservation rules so that the proceedings pcnnittcd to offer evidence or call witnesses, yet counsel *-163 668 (Tex.l990); Cielo Darado Der/., Inc. v. Cerminleed conduct or knowingly placed the child with persons who Some factors to consider in determining the best [21] Id. significant contact with the child; and offense with which she was charged. Veronica testified any way. Similarly, there was no evidence that Nanci's defendants may raise sufficiency points and, in any event, arguments and hostility and met with each parent After ajury trial, the trial court in this case rendered *-162 Rico is [sic] the grandmother that had received the process bars certain government actions regardless of the court terminated Ramirez's parental rights. Specifically, Page 267 father had endangered the children, his rights could be State Comp. Mut. Ins. Fund v. Berg, 279 Mont. 161, 927 Clow, 16 Tex. 9, 13 (1856) (same); Sa/ina.r V. " 1988, the Coxes moved to Austin from Waco. The jury 799, 802 (Tex.App.-I-Ioulston the best interest of the children." This statement of the slippery slope that, for all the reasons under the Eldridge *-161 [75] The first order (signed in December 1997) did not

Based upon its interpretation ofseetion 15.02(1)(E), conduct. The Department also urges us to consider violate due process when applied to other types of But irrespective of whether that written finding [3] LP. is not a subject ofthis suit. because a child might be better off living elsewhere. >r=>r<* termination context, due process "turns on a balancing of ofevidence" as long as the jury was properly instructed

answer that question "no." Assuming, without deciding, disagree. In J.A.J., the Coun emphasized that the trial [83] Id. at 686, 104 S.Ct. 2052. Department to complete a home study on Ms. Pena. The *-160 Department" ) as sole managing conservator. We reverse contends that the court of appeals erred by reviewing the in the best interest ofthc child.

[67] id. [lst Dist.] 2006), pez. to his attention sooner; 3) the evidence is not cumulative; that, under the circumstances, the challenged action the issues discussed are frivolous. See, e.g., In re ML.J., *-159 their parents‘ home by the Texas Department of use of marijuana does not constitute a Boyd, 727 S.W.2d at 533; In re SML, I71 S.W.3d at the charge omitting a best interest instruction for all the This same expert testified that during the voluntary, Ramirez’s salary during the twelve month period before " " " *-158 recreationally as a teenager. Occasionally, Ramirez error. The Texas Legislature has devised, and our courts did appear that Patricia had been cleaning the house and frivolous; and (5) section 263.405 of the Family Code is of entitlement claims of individuals." Eldridge, 424 US. essential elements for terminating parental rights. Family child has been in the permanent or temporary managing the disputed evidence that a reasonable factfindcr could the winner on the grounds that the winner was not a best interest ofthe children because the appointment of (Tex.l976) (setting forth various factors to be considered *-157 jurisdictional defect in the court of appeals. Nevertheless, I056 (1993); see, e.g., In re C.0.S., 988 S.W.2d 760, 767 shelter for two or three weeks and only returned home indicated that she was working to clean up her home to 515-16, 104 S.Ct. 1949, 80 L.E(l.2d 502 (1984). preserve error, instead of deciding whether we can review *-156 convincing evidence or have been established as a matter sufficiency ofthe evidence, appellate courts must deem In her sole issue, Patricia contends that the evidence The State's preparation and administration of a disagree for several reasons. First, Alan was given failure to support is to be considered under best interest, considered for placement. the best interest of the children. There is no indication in ‘custody, care and nurture‘ points for appeal and limits the manner and type of of further provides that "[t]he best interest ofthe child shall they were in the Dl’RS's custody for more than nine 71 L.Ed.2d 599 (1982). Once these Eldridge factors are Department took her children into custody. Nanci Holley did not object to or contest the divorce *-155 evaluation; [76] (3) participate and make progress in responsibility for the father had left. The mother was veiy agitated and highly such omitted element or elements shall be deemed found (Tex.1998); In re 19.0., 955 S.W.2d 364, 368

for their determination of whether the State met its Rein/mrl v. Ymmg, 906 SW2d 471, 473 (Tex.l995). although he was incarcerated while awaiting trial on that independent from its decision to terminate appellants‘ Spmrla/1, 543 S.W.2d 349(Tex.l‘)76), recognized the the errors complained of, and not to leave the appellate *-154 setting aside thejudgment ofa criminal proceeding if the SWAT team arrived that an agreement was reached by

v. Spratlan, supra, the focus of the current termination we rejected fundamental-error review because the error 70's) for anyone to conclude that prison ipso fncto be terminated. [72] They thus contend that this for termination to afford the parents due process, and

comes to town because he gets gifts and, you know, lots Holiek went to Dallas with her youngest child to live with statements in Garza that ifthere is "some evidence," the v. Nor!/rdale Constr. C0,, 863 S.W.2d 438, 445 our preservation of error rules is stronger; and (3) the risk mere preponderance. [24] *-153 to his claim that his being handcuffed throughout the trial mother brought other men home and had sexual relations determining whether assistance of counsel was so was born in January of 1999 with cocaine in her system. evidence with regard to whether Patricia can adequately misconstrues both the obvious intent and the plain However, their counsel did object, many times, to predicate grounds for tenninatiorr he is challenging. Page 283 whether the alleged error affects asignificant public that she wrote often to her child with whom she had *-152 had in fact offered evidence which was admitted and are not unduly prolonged or unpredictable. Carp.. 744 S.W.2d 10, ll (Tex.l988). By rnarshaling the visits with her son endangered his emotional well-being " engaged in conduct that endangered the physical or operate under different procedural ajudgment terminating the rights of both the mother and rules and separately during home visits in order to be able to *-151 interest of the child are: previous children." " fairness of the procedures used to implement them and issue will come as a surprise to the parties and the court the court found based upon clear and convincing terminated without any Consideration of the children‘s

W/'r'gIr2, ll Tex. 572, 577 (1854) (same); Wetmore v. P.2d 975, 982 (1996) (plain-error doctrine pemiits review heard testimony about a letter the Coxes‘ attorney wrote

*-150 factors adopted in Lassiter and discussed above, would satisfies Rule 279 regarding an express finding, the Bonncr's testimony that Veronica told her that she and the court of appeals held that there was no evidence, or order the mother to pay any child support, but ordered the denied, In re D.N.C., 252 S.W.3d 317 (Tcx.2008). The [54] Those factors are: "the It is undisputed that children require secure, stable, unpreserved errors. Undoubtedly, the Court must *-149 court's specific finding that appointment ofa parent as the on the clear and convincing evidence burden of proof. ‘three distinct factors.‘ No. 02~07-00l78-CV, 2008 Tex.App. LEXIS 3218, 2008 guardian ad litem informed the trial that the formulation of fundamental error in JUSTICE and 4) the evidence is so material that it would probably ‘might be considered sound trial strategy,‘ unpresen/ed jury-charge error.

and render in pan, and reverse and remand in part. *-148 to hold; (3) she earned a gross income in excess of $500 Page 84 deliberate, and conscious course of conduct" sufiicient to termination grounds alleged was hannful error, the court Protective and Regulatory Services (DPRS) in October unconstitutional. We will affirm. bought drugs. Ramirez admitted that he spent at least [101] trial. Ramirez testified that he was working "off and on" psychological testing of the father, the father reported an *-147 478. As for her indictment, Veronica had not been have applied, a fair and just procedural framework at the had obtained a baby bed for M.V.G., but Johnson also not have credited in favor of the finding is so significant Atthis point, M.A.N.M. has lived with the Medina resident of the precinct and therefore ineligible to hold Code § 161.001 provides that a court can involuntarily the parent or parents would significantly impair the by trial court in determining whether tennination of we held that fundamental error applied, reaffinning the at 349, 96 S.Ct. 893. Here, our Legislature has carefully

*-146 conservatorship [38] 89 S.W.3d 17 (Tex.2002). [13] We are unaware of any cases in which a single use after Alan convinced her that he would never again harm A comparison of the facts of this case to the (Tex.l999) (concluding that failure to give statutory v. Allums, 518 SW2d 790, 792 (Tex.1975); Heard v. *-145 oflaw, 2) the trial court renders judgment on the jury's is legally and factually insufficient to support any of the provide a safe environment for M.V.G. However, she did that unprcserved error. The Court then inexplicably There is conflicting testimony on this element, and their children. In re G.M., 596 S.W.2d at 846 (quoting Page 81 always be the primary consideration of the court in claims that can be preserved in a motion for new trial." the record that the trial court or any counsel in the case an omitted finding in support of ajiidgment ifthere is

service plan for the parent constitutes evidence that the probation for his burglary conviction, not incarceration. *-144 decree awarding custody of the child to David Adams. weighed against each other, the court must next "set their [[06] 455 us. 745, 769, 102 s.C:. 1388, 71 L.Ed.2d 599 emotional. She complained about A.B.C., who was

by the court in such manner as to support thejudgment. A parenting classes; (4) voluntarily submit to random months after their removal. Accordingly, the parental " burden of proving by clear and convincing evidence that (Tex.App.-San Antonio 1997, pet. denied). lf more than a charge, there was no conviction at the time of *-143 proceeding is twofold; first, on the acts or omissions of parental rights and, therefore, should be upheld. error had no effect on thejudgment." [92] Elaborating, The parents‘ second contention is that they have court to grape through the record to ascertain whether case must go to the jury, that "we ‘consider all of the prevents (or relieves) the parent from providing the child of love and care which, you know, he gets in the home because the record showed the mother had no notice that broad-forin submission did not satisfy federal due process

affected only the immediate private litigants and did not [22] Id. at 26. constitutional dimensions of these rights, this case tnust (iii) the parent has demonstrated an inability to provide phone with the father. He and the mother then appeared *-142 (Tex.l993) (determining issues had been tried by consent improperly prejudiced thejuiy. Id. at 798. The Court held her boyfriend. There, she obtained employment as a of an erroneous deprivation under our rules about provide for her needs because they have had so little questions of this nature. The fact that he did not object to detail in its opinion why it has concluded that a Medina knew Sells was using drugs and drinking heavily, with them. There were also other people living in the Instead, he challenges the findings that: (1) he meaning of Tcx.Farn,Code Ann. § 15.02 (Vernon defective to require reversal: *-141 engaged interest, articulated in our statutes, constitution, or " father to three of their children. A divided court of counsel never attempted to call a witness to testify and jurisprudence. Accordingly, A.P., which should be emotional well-being of the child. [2] The court of contact. Bonner testified that Veronica did not contact her evidence to support a deemed finding against the parents

[68] TEX.R. CIV. P. 299; see also Wisdom v. Smith, *-140 in any way. [4] This evidence was presented through a family In re D.M, B.W., (mdJ.C,W., 58 S.W.3d 801,814 communicate with them. Because of the continual [84] Id. at 687, 104 S.Ct. 2052. prevents the government from using its power for Accordingly, I would affirm thejudgments of the Woodhouse, I0 Tex. 33, 34 (1853) (same). best interest. Because of the way the written charge was evidence that Ramirez "failed to support the child in *-139 of appeals, as no one has raised, briefed, or addressed this cause more hann than good in termination cases. got[ten] into it one night." This conduct, of error that results in substantial injustice); Barks v. "omitted element or elements shall be deemed found by trial court found that the mother had endangered her alternatively that the evidence was less than clear and father to pay $100. The remaining three orders directed to Child Protective Services in Austin, stating that the Alan had long-tenn, continuous relationships with their parents or WL 1932076, at *3 (Tex.App.--Fort Worth May 1, 2008,

*-138 eventually resolve this issue, as there will not be a Rule Our legal sufficiency review, therefore, must " I-IANKINSON'S dissenting opinion is correct, deeming child's conservator would not be in his best interest privateinterests affected by the proceeding; the risk of produce adiffercnt result if a new trial were granted. per month from this employment; (4) she declared *-137 1997. At that time, the children's respective ages were of appeals reversed the trial court's judgment and support atennination finding under subsection (E).[12] We find the evidence sufficient to support the trial *-136 $2,000 on drugs during the two years preceding trial and [43] Cooper Indus., Inc. v. Leatlterman Tool Group, Inc., "extensive drug history," including the use of LSD, with temporary agencies and that he never had full-time convicted of any crime at the time of trial and, therefore, handling testified that she was aware of for that a factfindcr could not have reasonably formed a firm children's physical health or emotional development." In terminate a parent's rights only after the court has found constructed a statutory scheme governing how courts no facts to prove that *-135 definition from Ramsey. 304 S.W.2d at 265. We parental rights serves best interest of child). An officc. The parties agreed that the only issues before the appellate levels and family for three years--they are the only family she has First, the evidence of domestic violence committed trial adrnonishrnents, while fundamental en'or, was not *-134 L.P. or any of their childrcn.[5] Veronica later decided to of marijuana~or any drug-during pregnancy has, alone, not perform any of the services ordered by the court and predicate grounds for termination or the finding that verdict, and 3) there is clear and convincing evidence to was under any misapprehension that there are two State made reasonable efforts to return the child to the circumstances of Heard v. Bauman, supra, leads to the some evidence [65] (in this case clear and convincing Second, he was indicted on charges of aggravated there probably are things the Department could have done S/zmley v.1/linais, 405 US. 645, 92 S.Ct. 1208, 31 reviews an unprcserved complaint that it decides is *-133 Batrman, 443 S.W.2d 715, 719 (Tex.l969). The court decree did not require Nanci to pay child determining the issues of conscrvatorship and possession The same logic dictates the conclusion that our net weight in the scales against the presumption" that the The Department's evidence overwhelmingly error has been committed or not.‘'); see also Ford & urinalysis testing; and (5) participate and make progress claim that the evidence was legally or factually conductdescribed in subsection l6l.00l(l)(O) of the almost three years old at this point, saying that he "yelled *-132 scintilla of evidence supports the trial court's findings, the Boyd engaged in conduct which endangered the physical Based on this record, the parents did not overcome the length of termination hearing and, thus, (1982). the parent And, second, upon the best interest of the impact a matter of more general public concern. Sec been punished with tennination of their rights for failing the trial court would consider tenninating on unpleadcd too, but he gets it every day when he only gets it the Court said: be strictly scrutinized. a safe environment. Again, the incarcerated parent may requirements. because both sides advanced their positions at trial). *-131 Finally, the third Eldridge factor to consider is the the child with a safe environment, waitress. She sent no money to the Smiths, nor did they that, while it agreed "thatjudgments terminating the at a picture window to show the oftieers that had gathered home whom the father said he did not trust. Both parents 1. the desires of the child, preserving error in thcjury charge is low, because parties evidence in the light most favorable to the plaintiff,

reasonable faetfincler could not have credited disputed never identified any witnesses whom counsel wanted to caselaw. The Coxes assert that submission of a *-130 each and every question is again within the realm of interaction outside ofthe scheduled visits. However, the [4]lnstead, Joel has briefed this point together with his

in any act to endanger or abandon the child or leave her at at times, during her pregnancy. Child Protective Services Supp.1984). It is a rule of statutory construction that *-129 under rule 279, the Court essentially conducts a during her incarceration, and there is no evidence that she appeals reversed the trial court and rendered judgment overruled based on its erroneous analysis and holding, arguing between the parents, CPS recommended day care (Tex.App.-Fort Worth 2001, no pet. h.). This case is one appeals reversed and remanded, holding that omission of Tex. 420, 209 S.W.2d 164, 166-67 (1948); Page v. Cent. evaluation report prepared by the Children's Crisis Care courts below and render judgment that the tennination *-128 structured, the factors the jury was to consider in oppression). Indeed, the court of appeals treated the accordance with his ability during aperiod of one year Page 82 In effect, the court of appeals held that our state Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749, 754 (1995) The tragedy here for both father and daughter is that 279 "band-aid" for every unpreserved trial error in however, does not demonstrate that Alan engaged in Coxes wanted to "derail the termination" by working with children and tenninatcd her parental rights under section the court in such manner as to support thejudgment" [13] issue at any stage of these proceedings. In this I. Factual and Procedural Background Counsel for the parents demonstrated in voir dire of convincing, that Boyd had endangered the emotional or *-127 foster parents. There is little that can be as detrimental to each parent to pay $100. BACKGROUND error created by the State's chosen procedure; and the because it would significantly impair his health or *-126 [39] See W.B. v. Tex. Dep't of Protective & Regulatory Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983); an omitted finding in support ofa judgment in a parental We agree. voluntary bankruptcy in 1973; (5) her marriage to Ricky Page 59 remanded the case for a new trial. 57 S.W.3d at 74-75. Notes: *-125 pet. denied) (inein. op.). four years, two years, and seven months. 532 US. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 that he could have used that money to hire a lawyer to amphetamines, cocaine, and marijuana. The expert also We construe Joel's complaint to present in essence parental-tennination cases. Consequently, I would hold employment. He further testified that, at the time of trial, " what confinement she might serve, if any, is speculative. court's finding that Alan did not attempt to visit his *-124 examination of these factors reveals that severing the [Patricia and Joel] are capable of providing the known. Any caring person would hesitate to disrupt that by clear and convincing evidence both that: (1) the parent its Final Decree forTc11nination, under the section belief or conviction, then the evidence is factually trial court were their respective residencies, the location court did not abuse its discretion in denying Ramirez's by Veronica's tirst husband toward Veronica and LI’. parent." M.R.J.M., 280 SW3d at 505; accord MC. V. send LP. to live with his great-aunt in El Campo because expanded on the definition, holding that "[w]hen *-123 hannful error requiring reversal); State v. Santana, 444 been held sufficient to constitute a

of particular concern refused to submit to a drug test. In termination is in the best interest of the child. support a finding of the missing clement. Parents and differently, but the issue is whether the Department made Page 91 hannless. Not only does the Court reach issues not course of conduct" to conclusion that the failure to support was excused. In *-122 robbery, not convicted, and, thus, confinement, if any, is L.Ed.2d 551 (1972)). The State has a right and duty to of and access to the child." Id. § 153.002. And in the prerequisites for termination of parental rights under [23] Id. at 25. support. The court order did, however, designate David evidence) to support the and screamed all the time," that he "threw fits,“ that Family Code was established as amatter of law. Any procedure applied did not violate due process. Id. focused on and supported the conclusion that termination *-121 " in anger control classes. While the four orders were in Aeonvicted defendant's claim that counsel's assistance imprisonment, if any, was speculative. See In re D.7"., 34 child. The emphasis of Article 46a(6)(a) was on whether Damon v. or emotional well-being of the child. the presumption that their counsel's decision regarding appealing parent cannot prevail on a legal suffieiency insufficient to warrant the submission of any question

traditional legal suffieiency standard, Flewellerr, 276 S.W. 903, 903-04 to comply with the trial court's orders delineating what be able to work through surrogates, such as rclativcs,

Newman v. King, 433 S.W,2tl 420, 422 (Tex.l968) *-120 risk that our rules for preserving en‘or about the jury The trial court also may have based its conclusion statutory grounds, the court of appeals reversed the trial disregarding all contrary evidence and inferences,‘ "and one--once a year or whenever she comes to town. expect her to send money for the children's support. She at the scene that the mother was not physically harmed. have notice and an opportunity to be heard about issues parent-child relationship must be carefully scrutinized *-119 evidence in favor of the finding. record does contain evidence giving rise to a concern reasonable trial strategy in light of the record in this case. [85] Id. at 688, 104 S.Ct. 2052. admitted that during one ofthcir many arguments, the places or with persons that would either" ;(2) fifth point challenging the constitutionality of section intervened and implemented a safety plan, allowing every word of a statute is presumed to have aspecific III. CONCLUSION engaged Although these early cases considered fundamental call. Counsel was not permitted to make a final argument broad-forrn question violates due process because it Bank & Trust C0,, 548 S.W.2d 802, 804 that the Texas Department of Human Resources take *-118 Center on April 24, 2006 (" 4 C's report" ). does not support the court of appeals‘ conclusion here that

hamrful-error analysis of the charge error. But this where Ramirez‘s "offending behavior" is not egregious had any contact with A.S., D.S., or L.A.S. during the and in addition, the court further finds that an instruction that termination must be in the children's for the children, to which the parents agreed. Day care *-117 parents’ complaint about the refusal to review Page 266 ending within six months of the date of the tiling of this and adoption be granted. determining the best interest of the children were the Department. Also, Paige Cox testified that he called due process thejury that he knew that the parents‘ rights could not be procedural if Ramircz's attempts to be the child's father had not been parental-rightsvtermination case the State asked us to (court will reach the merits of plain error in jury charge); in rules violate *-116 physical well-being of the child. That section provides for conduct that endangered his children's well-being. if there is evidence to support such a finding. [14] a child's sound development as uncertainty over whether

l61.001(1)(D). Id. at 807. Without making any additional parental-termination eases. " emotional development was necessary to justify *-115 countervailing governmental interest supporting use of In re JM, 955 S.W.2d 405, 408 (Tex.App.-San Antonio tcmrination case when that finding is supported by clear 1-lolley has not resulted in any children; (6) Ricky Holley *-114 Servs., 82 S.W.3d 739, 741 (Tex.App.-Coipus Christi Page 307 assist him in protecting his rights as M.A.N.M.'s testified that psychological testing and medical history the parents waived their right to appellate review of the " See In re D.T., 34 S.W.3d 625, 638-39 (Tex.App.-Fort he was working forty hours a week, eaming ten dollars an *-113 environment that [M.V.G.] requires." In addition, has committed one or more of the enumerated predicate relationship. Yet Ramire7_'s lack of participation is not for insufficient. In re S.ML., l7l S.W.3d at 476 (citing In re motion for new trial based on newly discovered evidence. (2001). two constitutional claims: (1) section 263.405 entitled of the precinct lines, and the validity of an order changing parental rights of Ramirez and his daughter is not in her children regularly or maintain significant contact with The Smiths seek a construction of subsection (1)(C) Conservatorship of the Children," the trial court does not support the termination of Veronica's parental *-112 TERMINATION MAY NOT BE BASED SOLELY ON record affrnnatively and conclusively shows that the S.W.2d 614, 615 (Tex.l969) (holding thatjury charge in the aunt loved LP. and wanted to care for him, not [1] See, e.g., Hill v. Sherwood, 488 So.2d 1357, I359 speculative. See In re DT., 34 SW3d at 638-39. Third, addition, she never allowed Ames to have afollow-up support termination under subsection (E). Cf In re instant case David Adams testified that Nanci Holley Tex. Dep'r 0fFamiIy &Pratectr've SEl'\7S., 300 S.W.3(l TEX. FAM.CODE§ l6l.00l(l)(D), (E) & (N). "Ccnflict of interest claims aside, actual children also have an interest in resolving termination *-111 presented by the parties and that are unnecessary to the This constitutional challenge was not raised in the reasonable efforts" not ideal efforts. Family Code subchapter goveming the termination of Adams as managing conservator and he has continuously section 161.001 of the Texas Family Code. Section Although he was neverjudicially ordered to provide look after the welfare of the children within its borders. " *-110 "[n]obody could control him or calm him down," and that was in the best interest of these children. In particular,

Page 262 effect, the parents never paid a single dollar of child may be made for the first time after verdict, regardless of error in failing to submit a specific instruction onjuror was so defective as to require 1'eve1'sal ofa conviction or S.W.3d at 638-39. In the absence ofother endangering the charge cn'or was based on strategy. There is precedent point. In re R.D., 955 S.W.2d at 368. the conduct of the parentjustifies the waiver of the they must do to have their children returned. This (Tex.Corn.App.l925,judgm't adopted) ("Any other nrle *-109 charge will lead to an erroneous deprivation. See (failure to appoint a guardian ad litem for a minor spouses, or friends, to fulfill that obligation. And, ifhe so courfsjudgmcnt. Id. at 770.

did not visit or write the children for over‘ six months, that Nanci Holley endangered because ofthe importance ofthat relationship, [it could *-108 submitted and omitted from the charge, and error is Medina and Sells to reside with M.A.N.M. at Medina's error to be aprinciple ofcommon law, our Legislature about Patricia's ability to provide for M.V.G.'s needs that "[t]he question of whether the evidence clearly and mother had chipped or knocked out one of the father's in any of the acts found by the trial court" ; or (3) actively 263.405 [flor purposes of brevity and convenience." He purpose. Likewise, every word excluded from a statute court that she did not believe the Department had met its on Jocl’s behalf. permits the termination ofparental rights without first *-107 approach is circular. The Court determines that applying nothing by its suit seeking to terminate Boyd's parental due process requires appellate courts to consider six-month period preceding trial. Veronica provided the [76] The parents had undergone individual psychological Veronica is the mother ofA.S., D.S., and L.A.S,[l] temiination is in the best interest of the child. commenced the first week of October, but a few days

best interest from material parts of the jury charge was enough, on its own, to warrant a finding that termination *-106 (Tex.Civ.App.-Eastland 1977, no writ); Gulf States

petition." The court also found tennination was in We review the court's decision under air Sunrise Manor Town Protective Ass‘n V. City ofN. Las referable only to whether the father had failed to comply unpreserved jury-charge error as a procedural due process The mother" Patricia" [1] gave birth to M.V.G. in a parental-rights~tennination cases because they prohibit decide whether due process requires a court of appeals to he is to remain in his current "home," under the care of Child Protective Services in Austin once they moved in

*-105 Because thejudgment terminated parental rights, we must thwarted--had he instead been helped to connect with his terminated, regardless of whether the conduct of the findings, the trial court appointed the Department as the of the State or an authorized agency for not less than six tennination of the parent-child relationship if the court Bonner admitted on cross-examination that she did not [1] Section 15.02, Texas Family Code Annotated, II. ANALYSIS The children were initially removed without a court While unquestionably, an exercise of poor the challenged procedure." [55] *-104 Department's appointment under section 153.131. 243 1997, no pet.). Whether to grant or deny a motion for new and convincing evidence does not adversely affect any received Veterans Administration education benefits in *-103 2002, no pet); In re J.M.M., 80 S.W.3d 232, 240 J.F.C., 96 SW3d at 266). biological father. Within the month before trial, Ramirez *-102 indicated that the father suffered from a bipolar disorder The Texas Supreme Court recently issued two hour. However, Ramirez testified that had Medina Worth 2000, pet. denied) (finding appellant's pending lack of trying. He began his quest to have contact with his Johnson testified that she made several phone calls to those precinct lines. The court ofcivil appeals, however, allegedjury-charge errors, because the parents failed to them. Other than one visit during the three-month period In a legal sufficiency review, a court should look atall acts or omissions; and (2) termination is in the best ordered that the Department be appointed sole managing Accordingly, we affinrr the trial court'sjudgment. best interest. Page 276 that would require Ms. 1-lolick to have personally sent *-101 [24] Id. (citations omitted). court rendering the judgment was withoutjurisdiction of MD.V., No. l4~04-00463-CV, 2005 WL 2787006, at *5 rights to AS., D.S., and L.A.S. under subsection (D). The proceedings as expeditiously as reasonably possible. A unconstitutionally limits the appellate issues which may Here, the analysis begins with the presumption that because she feared that Alan would harm him. During juvenile case warranted fundamental-error review and DETERMINATION OF BEST (Ala.l986) (court may consider unpreservcd error in visit inside her home to confirm her progress, though Page *-100 voluntarily agreed to give him custody of the child during resolution of the case, 305, 309-10 (Tex.App.--El Paso 2009, pct. denied); Liu v. trial court. However, even assuming, without deciding, retreats from our absent other evidence of endangering conduct, mere See Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878 ‘Q But you think he ought to continue to see Nanci, do ineffectiveness claims alleging a deficiency in attorney 161.001 sets forth nineteen different courses ofparental parent-child relationships, the Legislature has emphasized *-99 she "just didn't know what she was going to do." The case child support, Ramirez gave the child's mother money On another occasion, campus police responded A number of our courts of appeals held, prior to our retained custody and control of his son since Nanci Tawnya Cox testified that she and her husband used At trial, the DPRS called expert witnesses with it agreement regarding parental conduct was thus hannless. " support even though they admitted they were capable of death sentence has two components. First, the defendant [86] Id. at 689, 104 S.Ct. 2052 (alteration in original). whether the submission ofsuch question was requested conduct, Alan's incarceration while awaiting trial is requirement that the parent consent to an adoption. This *-98 .. would place an almost unbearable burden upon our punislunent amounts to contempt, they argue, and in criminal cases for raising jury charge error for the first ananges and those surrogates agree to the arrangement, it Santosky, 455 U.S. at 754, 102 S.Ct. 1388; Lassiter, 452 plaintiffin a change-of-name proceeding The question the Court is asked to answer today is

although she did call and talk to them once during that [5] The 4 C5 report also reflects that, in February 2006, not] conclude that the Fourteenth Amendment requires *-97 MCGEE and KILGARLIN, J.l., join in this dissenting preserved so long as the party timely and plainly made mother's home. Approximately one month after because she: (I) has not provided infonnation regarding had already codified its own version of fundamental-error

convincingly prove[s paternity is] a question for thejury rights. 715 S.W.2d 711. We reverse the judgment ofthe must be presumed to have been excluded for a particular or constructively abandoned the child. Because Joel's

ensuring that ten jurors agree on each statutory take into consideration whether the evidence is such that *-96 " states in conclusory fashion, evidentiary burdcn supporting termination of Veronica Appellant asserts for all of JUSTICE HANKlNSON'S fundamental error Department with a list ofher sisters who could care for rule 279 to deem a finding in support of thejudgment teeth. issue. 57 SW3d at 72. And, the court of appeals applied Alan is the father of A.S. and D.S.[2] On March 10, unpreservedjuiy—eharge errors. is in the child's best interests. Accordingly, we must look *-95 fundamental error that could be raised for the first time Theatres of Tex. v. Hayes, 534 S.W.2d 406, 407 testing in 1997, before the children were removed, review when error is not preserved in the context of "core M.A.N.M.'s best interests. later, another incident of physical abuse of A.B.C. review alleged errors in the charge when the parents did *-94 abuse~of-discretion standard. S. T., 263 S.W.3d at 398; Vegas, 91 Nev. 713, 541 P.2d 1102, 1104 (1975) (plain with a court order establishing the actions necessary for months, (2) the State or the authorized agency has made children's managing conservator. In’. know how Veronica and Alan daughter--none of this would have transpired. Medina's Galveston hospital while she was incarcerated for a state an effort to start compliance with the Family Service parents would otherwise permit termination, unless got into it," or whether determine whether there is evidence to support a deemed finds that the parent has: originally enacted in 1973, was amended effective shall conduct termination proceedings. In that scheme, his parents or foster parents, especially when such order. [2] The next day, the trial court held an emergency [44] 491 us. at 685-86, 109 so. 2678. judgment, Veronica's use of marijuana on a single *-93 S.W.3d at 614-l5.In the absence of such a finding by the "fundamental public policy" found in the Texas trial lies within the sound discretion of the trial court, and *-92 excess of$300 per month and worked part-time; (7) his (Tcx.App.-Fort Worth 2002, pet. denied); In re A.L.S., 74 " interest of the child. See TEX. FAM.CODE § 161.001; *-91 began attending Narcotics Anonymous meetings twice a allowed him visitation with the child, he would have and that an unmedicated individual with bipolar disorder charges in other states amounted only to "possibilities" the evidence in the light most favorable to the finding to after they were placed in the Department's custody and Puerto Rico and was convinced that there was no Considering all the evidence in aneutral light, we decisions that bear directly on our disposition of this object in the trial court about the errors they raise here. daughter one month after her birth. Every governmental reversed the judgment on the ground that Texas Revised conservator of AS., D.S., and L.A.S. and found *-90 them "adequate support" for the children; however, they be considered; and (2) section 263.405 unconstitutionally Subsections (D) and (E) both focus on abuse directed toward Veronica and LP. by her first closing argument only when so grossly improper and our rules governing preservation of jury-charge error this time, Veronica was pregnant with L.A.S. She saw a the subject matter, the error will also be regarded as analyzing whether charge violated due process), vacated 2. the emotional and physical needs of the child *-89 Ames attempted to do so at least three times. Although (Tex.App.-Houston [l4th Dist.] Oct. 27, 2005, no Page 78 Dep? ofFz1miIy & Protective Se/'vs., 273 S.W.3d 785, retrial results in prolonged uncertainty and disruption in this conduct, any one of which may satisfy the first that 1) this argument could be raised for the first time on repeatedly that the "best interest of the child" is the state's

imprisonment will not constitute conduct which performance are subject to a general requirement that the the course of the divorce proceedings in order to assure error-preservation standards, thereby adding further (1948). Consequently, when the State acts to terminate a *-88 Here, unlike the circumstances in S.R.M. in which during her pregnancy and offered to provide support to when the father had locked the mother out of the home cocaine while the children were at home, and that she Page 371 Holley voluntarily delivered the child to him. you not? must show that counsel's performance was deficient. This worker took the children to day care, found the father,

doing so; never attended a single anger control class; and *-87 backgrounds in psychology and social work. The parents decision in In re C.H., [38] that a legal sufficiency review change demonstrates the intent of the Legislature to move by the complainant. insufficient to support termination under subsection (D). time on appeal. [102] There is also precedent for raising violates the statutory limits on punishment of contempt to appellate courts"). Thus, appellate courts considered CPS received a referral alleging physical abuse and Page 66 is hard to deny that the parent has taken steps to provide reason. Cameron v. Terrell & Garrett, Inc, 618 SW2d U.S. at 27, 101 S.Ct. 2153; Eldridge, 424 U.S. at 335, 96 whether due process requires an appellate court to review *-86 Tex.Fam.Code Ann. § 15.02 (Vemon Supp.l984). reversal of thejudgment in this case without regard to period. to determine," [50] do not control when, as here, we are M.A.N.M.'s birth, Sells moved out ofMe(lina's mother's her family income and expenses; (2) apparently does not the trial court aware ofthe party's complaint. Weighing and Alan's parental rights. Upon recessing *-85 a factfinder could reasonably form a firm belief or the reasons set forth in this Brief that his appeal is not

termination ground. If the charge violates due process for third point challenges the court's findings regarding his " review. In 1846, the Legislature enacted astatute that opinion. her children during her incarceration. She also asked that does not violate due process because it concludes there court ofappeals and remand this cause to that court for *-84 analysis is no more compelling. The fundamental-error pursuant to the initial Child Safety Evaluation and Plan (Tex.Civ.App.-Beaumont 1976, writ refd n.r.e.); Go Int'l, on appeal, and that the error probably caused rendition of the US. Supreme Court's procedural due process analysis

to other, independent facts to support the trial court's best 2006, a day after the occurred. The parents had arrived to pick up A.B.C. at jail felony. The father "Joel" lived in Clebume. The day The parents contend that their constitutional In a parental termination ease, the private interest *-83 issues." See id. at 72-73. The analytical starting point for An appeal is frivolous when it return of the children. Plan. The Coxes also presented evidence about the termination was found by the jury to be in the best K.D., 202 S.W.3d at 866. error is so substantial as to result in injustice); Fertile ex. not object to those errors at trial. Instead ofanswering counsel argued, and the trial court evidently agreed, that finding that termination is in the children's best interest. though the Legislature has expressly provided certain the incident involved aphysieal altercation. Moreover, September 1, 1975. The references herein to Section reasonable efforts to return the child to the parent, (3) the removal hearing and appointed the DPRS temporary *-82 uncertainty is prolonged. [25] Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & occasion, standing alone, does not rise to the level of a trial court here, we will not infer one. " *-81 the court's decision will not be disturbed absent a clear Dissenting Opinion by CATHERINE STONE, Emotional and Physical Needs of Child Constitution or statutes. [63] Giving full effect to Rule omitted finding and the other requirements of Rule 279 tuition averaged $125 per month; and (8) $117 per month S.W.3d 173, 178 (Tex.App.—El Paso 2002, no pet.); In re III. Analysis week. He plans to continue attending the meetings. who was using "street drugs" was "extremely dangerous." *-80 INTEREST UNDER SECTION 15.02 see also COMM. ON PATTERN JURY CHARGES, which upholds a finding supported by "[a]nything more provided support for her. Ramirez also admitted that he detennine whether a reasonable trier of fact could have Notes: before he was incarcerated, the record does not reflect issue. In In re J./1../., 243 S.W.3d 611 (Tex.2007), the as to her future incarceration). husband, with whom she no longer lived, occurred before *-79 appropriate or safe environment available for M.V.G. in appointment to be in the best interest of the children." No never expected such support. The Smiths took the agency that he contacted essentially closed the door in his Civil Statute article 3032 pennitted only the candidate hold that the evidence is such that the court pennits a trial court to deny the right to counsel to an fundamental." Id. at 266. Accordingly, we held that this

could on other grounds, 397 US. 596, 90 S.Ct. I350, 25 now and in the future,

endangenncnt, but they differ with regard to the source comport with due process. Lassiter, 452 U.S. at 27, *-78 highly prejudicial so as to be beyond conective action by gynecologist in Beaumont while pregnant with L.A.S. but IV the lives of the parents and children who are involved. Patricia testified that a lack of reliable transportation was

appeal, and 2) the charge erred in this regard, we do not prerequisite for termination. The second prerequisite pet.)(rnem.op.) (finding appellant engaged in course of that the child would be provided adequate financial endangers the emotional or physical well-being of a uncertainty to the already conflicting decisions from the Medina if he could visit with his daughter. It seems *-77 defendant afiinnativcly prove prejudice." [93] 795 (Tex.App.-~l-louston [lst Dist.] 2008, no pet.). [87] Id. the mother had no notice of the trial court's action, the parent's rights, the State assumes the responsibility for the Page 293 believed her children were safe because cocaine made her foremost priority in dctcnnining the welfare of children. during an argument even though she was stark naked. She and brought both parents to his office. The parents did *-76 requires showing that counsel rnade errors so serious that

in a case in which the burden of proof is clear and In re S.M.L., I71 S.W.3d at 478 (noting imprisonment, never attended a single parenting class. During April 1997, the parents also admitted to some types of charge error for the first time on appeal in unpreserved error only when the complaint could be seen from the concept that the parent cannot block the contend that their counsel provided ineffective assistance unpreserved errors in thejury charge. The answer is "no." sixmonths in jail or a $500 fine. The Legislature has or effectively provided a safe environment. To suggest

S.Ct. 893. Texas Rules of Civil Procedure 272-274 *-75 harm." Id. at 800. The Court explained that, even in neglectful supervision of A.S., D.S., and LP. by these factors‘ net weight against the presumption that our 2. Strict Scrutiny conduct, we construe it as challenging the second and have reliable transportation; *-74 frivolous." considering a constitutionally mandated clear and the reasons that the Coxes state, that violation would provided for supreme court review of "error in law either Ramirez appeals the tennination. He challenges the home. Sells‘ parental rights to M.A.N.M. were later conviction about the truth of the matter on which the (3) has not allowed a proceedings for one week, the trial court directed the On appeal, the mother challenged the sufficiency of 535 (Tex.l98l). an improperjudgment. [1] We hold that: that CPS had implemented in April 1997. The psychiatric was no harmful error. But had the error been harmful, *-73 (E) engaged in conduct orknowingly placed the child Inc. v. Big-Tex Crude Oil Co., 531 S.W.2d 208, 210 her mother be permitted to care for her children, but the analysis disregards that the parents’ due process claim further consideration. [45] 466 us. at 515-16, 104 S.Ct. 1949. interests finding. day care, and the child began what the mother described *-72 to conclude that "[t]o terminate parental rights-~a affcctcd is the right of a parent to raise his or her child, argument about the best interest instruction in the jury interest of the children. He stated: determining whether our procedures violate the

rel. Fertile v. St. Michael's Med. Ctr., 169 NJ. 481, 779 after M.V.G.'s birth, Patricia gave Joel's contact changes in their lives and relationship since moving to if Ramirez's parental rights were not terminated, Medina lacks an arguable basis in law or in fact." S.T., 263 procedures that differ from other civil cases, see TEX. that question, the Court explains the consequences of the parent has not regularly visited or maintained significant this single incident does not demonstrate the type of *-71 conscious course ofconduct. See Ruiz v. Texas Dep'2 of managing conservator of the children. [3] Five days later, l5.02 pertain to the statute enacted in 1973. Section l5.02

Finally, although I agree the court of appeals‘ *-70 abuse ofdiscretion. Jackson, 660 S.W.2d at 809; In re was deducted from Narici's salary to repay loans. Nanci 279 simply means that a court, rather than a jury, has Contractors, lnc., 960 S.W.2d 41, 48 (Tex.l998) (citing have been met. R.G., 61 S.W.3d 661, 667 (Tex.App.-Waco 2001, no *-69 Ramirez's parents have expressed an interest in helping

STATE BAR OF TEX., TEXAS PATTERN JURY Justice. any other attempt by Alan to contact them. We find that The doctor testified that he recommended that the father ‘A Whenever she comes to town, yes.‘ than a scintilla of evidence," [25] is inadequate when the face. When suit was filed to terminate Ramirez's parental

fonned a firm belief or conviction that its finding was Court resolved a split among appellate courts regarding spent asignificant amount of money on drugs over *-68 B. Failure to Support who received the greatest number of votes cast to receive Puerto Rico. reasonably form a firm belief or conviction" that the additional findings were made. children because Ms. Holick could not adequately David married his present wife, Sharon, in 1970. The and proof ofendangerment. In re S.ML., l7l S.W.3d at A.S., D.S., and L.A.S. were born, and in a living Court had the power to reverse the court of appeals‘ indigent appellant. *-67 the emotional well-being of her child upon the conduct S.Ct. 2153. But this must be balanced against the net L.Ed.2d 594, on remand, 457 S.W.2d 275 (Tex.l970). was unable to obtain pre-natal care once the family the reason she was unable to perform the services, Ames trial court); Holiday Inns ofAIn., Inc. v. Peck, 520 P.2d TEX.R. CIV. P. 279. conduct that endangered child in light of her extensive The government has a legitimate interest in encouraging a See TEX. FAM.CODE §§ 161.001(2) (court must find by courts ofappeals. The only general proposition I can support. Nanci Holley was never ordered to make support To the cxtcnt counsel was not permitted to present *-66 parents knew about the jury charge and had an child. See Boyd, 727 S.W.2d at 534. under section 161.001 is that termination must be in the reach the constitutional challenge because the evidence children's welfare. The State's responsibility for the " The Smiths have two children of their own, are very The trial court terminated the parent-child disingenuous, at best, to rebuff a party's claim of counsel was not functioning as the "counsel" guaranteed

broke a window with her hand and aim to gain re—entry more aware ofher surroundings. The Coxes testified to *-65 not calm down. CPS concluded that it would be unsafe

convincing evidence is the same as in a case in which the on the face of the "record"--defined as "those proceedings juvenile cases. [l03] Counsel may have made the because he did not challenge the reliability of all

being under the influence of illegal drugs while watching alone, does not suffice to support termination under severance of the parent-child relationship through *-64 specifically provided in subsection l6l.0()l(l)(O) that otherwise would be to suggest that military personnel

establish the procedures for parties to participate in the lcannot join the Court's opinion, because it declines to criminal cases, the US. Supreme Court has rejected the Unknown" Veronica and Alan. However, the word Page *-63 error preservation rules comport with due process, it follow-up visit inside her home; (4) declined to submit to convincing evidence burden of proof. State bears the burden of proof. Department to conduct a home study on Ms. Pena. assigned or apparent on the face of the record." Act The written instruction to the jury regarding the terminated. M.A.N.M., however, remained with Medina third predicate grounds for termination (abuse and failure legal and factual sufficiency ofthe evidence supporting adversely impact the public interest in ensuring that the with persons who engaged in conduct which endangers *-62 the evidence supporting the Court could not apply rule 279, and the parents would be Due process requires the application of the clear which is undeniably "an interest far more precious than Department would not approve the placement due to Ms. as a "temper tantrum." Aheated argument between the evaluations ordered after removal were to be new, Lehman v.Lycomr'r1g County Cliildre/1's Sen/r'ce.r here relates to our procedures about preserving error for (Tex,Civ.App.-Eastland 1975, no writ); Ives v. Watson, [19] When reversing the trial court's judgment or *-61 Fourteenth Amendment liberty interest--when there is a charge involves their substantive--not procedural--duc parents‘ failure to object to the first alleged charge error A.2d 1078, 1085 (2001) (the standard for plain error is Constitution is our law on error preservation for appellate FAM.CODE §§ l07.0l3(a)(l), 161.001, it has chosen not information to CPS caseworker Linda Lawrence and told Austin to demonstrate that termination would not be in S.W.3d at 398 (quoting [ii reM.N.V.,2l6 S.W.3d 833, would incur further court battles and legal expenses. It is Courts presume that it is emotionally best for a *-60 contact with the child, and (4) the parent has In order to terminate parental rights in Texas, the provided in part: Family and Protective Svcs., 212 S.W.3d 804, 818 conduct contemplated by the statute. We find the evidence legally and factually the court held an adversary hearing, continued the [1] The trial court's order terminating the mother's *-59 pet.); In re I.V., 61 SW3d 789, 794 (Tex.App.-Corpus ./.M., 955 S.W.2d at 408. When atrial court refuses to decision should be reversed, I do not agree that this supplied a finding that is supported by clear and testified that she had not received the child support Under Section 15.02 termination of aparent-child Continental Coffee Products Co. v. Cazarez, 937 S.W.2d *-58 " him recover from his addiction. Ramirez admitted that he see a psychiatrist who could prescribe medication, but he The parents additionally contend that their counsel's CHARGES (FAMILY) PJC 218.1 (2000). As to Tawnya, 3. any emotional and physical danger to the child true. To give appropriate deference to the facttinder's < "It is not enough for the defendant to show that the We first observe that Patricia relies in part on *-57 past two years. Further, Ramirez's mother testified that he United States Constitution requires proof by clear and Department made reasonable efforts to return M.V.G. whether it is necessary to specifically assign error to the the Department has satisfied its burden with regard to the the certificate ofelection. See id. at 980-81. That issue rights, he was cited by publication despite his having left [88] Id. support them. The Smiths, neverthclcss, argue that the judgment, and we dismissed the appeal on the unassigned action does not warrant fundamental-error review *-56 environment to which they were never exposed. trial court found that David Christopher enjoyed a happy 477. Subsection (D) concerns the child's living previously recited that appeared to cast doubt on her ‘plain error‘ weight of the three Eldridge factors to determine if the 87, 90 (Alaska 1974) (court will consider Similarly, at the time of trial, the parents had yet to relocated to Houston.[()] and Johnson tcstified that she gave other excuses to them drug use for ten years, particularly while pregnant and *-55 draw from the Court's opinion is that courts ofappeals payments. It was undisputed that the child had been parent to object in the trial court ifa statutorily prescribed child's best interest. However, the written charge to the witnesses on Joel's behalf, he did not identify a single paternity, deny him visitation until paternity is legally clear and convincing evidence that termination is in the support of children is "obviously a matter of public conclusively establishes that each parent engaged in a " opportunity to object. See Id. In fact, though the parents‘ active in the church, and are able to financially support The court of appeals further explained that this *-54 relationship based on subsection (l)(C). There are five arguing violently with each other. In one of those and was cut and bleeding. We must presume the Legislature intended that the children, and CPS learned that the mother had tested the defendant by the Sixth Amendment. Second, the for the children to go adoption when the parent has engaged in unexcused

burden of proof is a preponderance of the evidence. [39] psychological expert testimony on the ground that there

strategic decision not to object and to attempt to raise *-53 subsection (D)). which lie at the foundation of the court‘s power to render [5]Joel refers in his brief to Patricia’s jury demand, but failure to comply with court orders like those issued in formulation of the jury charge. TEX.R. CIV. P. 272-274. cannot provide for their children because they may be answer this question and instead relies on aprocedural Boyd and Arriola began living together in M.A.N.M. is two years old. She was born addicted *-52 appears under the box entitled l)although the trial court's charge was en'oneous cannot be said that the parents‘ were not afforded due notion that any constitutional error requires automatic the trial court's findings. He further maintains that the drug testing; and (5) did not work on her service plan. In Validatcd'.7," and the at his mother's home. The child refers to Medina as [46] 768 s.w.2d 273 (Tex.1989).

However, no home study was ever conducted. On mother's parental rights omitted any reference to the best to comply with court order) but not the first (neglect). approved May 12, 1846, 1st Leg, §24, 1846 Tex. Gcn. Now, folks, everyone keeps talking about we are here for statutory grounds required for termination are found by *-51 Pena's criminal history. At the conclusion of the left where they started: asking an appellate court to Agency, 458 US. 502, 513-14, 102 S.Ct. 3231, 73

the physical or emotional well-being of the child. appeal. And, the U.S. Supreme Court has dictated how

additional evaluations that were distinct from the and convincing evidence standard of proof in parental 521 S.W.2d 930, 934 (Tex.Civ.App.-Beaumont 1975, *-50 appcalable order, we ordinarily render thejudgment or parents ensued, and the mother grabbed A.B.C. by the any property right." [56] The Supreme Court has fundamentally enoneous charge on a ‘core issue,’ only review. As ageneral rule, no en‘or may be reviewed on process rights. According to the parents, the Family (omission of a statutory element required for termination) whether error had clear capacity for producing unjust *-49 Rule 279 permits a trial court to make an express evident from the record that the most significant factor 834 (Tex.App.--San Antonio 2006, no pet); (record K.D., the children's best interest. Tawnya testified about her child to retain ties with the child's biological parents. The natural rights existing between aparent and her that he was making arrangements for M.V.G. to live State bears the burden to prove the following: (1) the demonstrated an inability to provide the child with a safe to preclude application of our procedural and appellate

(Tex.App.-Houston [lst Dist.] 2006, no pet.)(noting removal, and issued temporary orders appointing *-48 The trial court found that Ramirez failed to support insufficient to support terminating Veronica's parental grant a new trial based on newly discovered evidence, parental rights has not been appealed and that part of the Considering all the evidence in a neutral light, we 444, 450 (Tex.l996) and Browning~Fer1'is, Inc. v. Reyna, Court, under our Texas Constitution, can obviate the convincing evidence on one ofthe elements ofparental In its ‘Conclusions of Law‘ the trial court found that: payments her second husband was ordered to make. *-47 Because the trial court made no findings under relationship may not be based solely upon what the trial With regard to his first complaint, he has not Christi 2001, no pet.); In re L.S.R., 60 S.W.3d 376, 378 now and in the future, testified that he believed the father would not comply in should have stopped using drugs once he learned his failure to object to en'or in the charge and other alleged *-46 was able to earn and save money and had done so in the Suhstantively, public-interest-based fundamental [12] See id. convincing evidence. Requiring only "[a]nything more Department's appointment as conservator when a conclusions and the role of a court conducting a legal errors had some conceivable effect on the outcome of the Finally, we also reject the Department's argument a phone number with Child Protective Services; Ramirez " Thus, the evidence is factually sufficient on this element, the proposed charge completely omitted the instruction was neither preserved in thetrial court nor assigned as testimony from various pretrial hearings to show that the third element. because only the rights of the particular minor and *-45 environment, rather than the parent's conduct, though

legislature intended to require parents to personally relationship with his father and stepmother. His health presumption is overcome. Santosky, 455 U.S. at 754, 102 competency as aparent: her arrest in 1969 for a traffic that is likely to result in a miscarriage ofjustice"); Hale v. obtain an individual psychiatric evaluation. At one point, should review error when they can dctenninc fiom the jurisdictional error. Id. *-44 including issues with paperwork, language barriers, and while caring for her children, her inability or clement ofa termination action has been omitted from the properly cared for while in his fathcr‘s custody and that interest" that "transcends the interest of the parties" to the course of conduct described by subsection l6l.O01(1) of jury in this case omitted the children's best interest as an the children, The social worker's report concludes that the witness to the trial court (either during the trial or the best interest of the child), .003(a)(5) (court may order *-43 attorney did not object to the omission or placement of

We disapprove of those decisions’ articulation of the We turn to evidence in this case of whether established, yet use the absence of support as grounds for Court's directive that arguments, she knocked several teeth out of hismouth, ‘termination proceedings should be birth of L.A.S., the Department received information that requirements for termination under subsection (l)(C): defendant must show that the deficient performance positive for cocaine and methamphetamines shortly after The distinction between legal and factual *-42 is no scientific basis for predicting future behavior or the clerk's record indicates that Joel's attorney filed a blameworthy conduct, to the idea that the parent cannot charge error for the first time on appeal in the event the tennination of the parcnt~child relationship may be thejudgment," such as the pleadings, the charge, the Rule 272 requires a party to object to the charge, either assigned overseas to combat duty. In that situation, this casc is grounds for termination. That statute, not the

"Dada" and to Medina's mother as "Mamau." At the time Page 92 rule that gives no guidance for future eases. Moreover, reversal. Id. To the contrary, if "trial errors" such as *-41 approximately February 1981 but were to cocaine and is currently on medication. Over the clear and convincing evidence. See TEX. FAM.CODE § Department does not discuss this incident in its brief ‘A petition requesting termination of the parent~child addition, some testimony was presented at trial raising a process here so that appellate review of their unpreservcd because it omitted the children's best interest as a Laws 249, 256-57, reprinted in 2 I-I.P.N. GAMMEL, *-40 trial court abused its discretion in denying his motion for January 25,2007, the trial court terminated Veronica's interest of the children. The jury was instructed that her atermination ofparental rights. Not necessarily true. If review unpreserved charge error. The Court should The Department also contends that the two proceedings on January 18, 2007, the trial court *-39 L.Ed.2d 928 (1982); see also Lassiter, 452 U.S. at 32, 101 tennination cases. [15] This Court has looked to the courts mustdetemiine what process is due a parent. previous psychological testing. writ refd n.r.e.). order that the trial court should have rendered. See TEX. throat and face and shoved him into a car seat. A.B.C. Code's procedural guarantees, such as the requirement because the complaint was not preserved in the trial result); Chavez v. Board of County Comm'rs., 130 NM. " correctly observed that "[w]hen a State initiates a parental 202 S.W.3d at 866. For the reasons which follow, we appeal that was not raised before the trial court. with him. Two days later, CPS supervisor Marty *-38 Wiley, S43 S.W.2d at 352. Ramirez professed his desire under Texas Rule of Civil Procedure 279. But those finding work in Austin. She said that Paige had parent committed one or more acts specifically listed in DPRS temporary managing conservator. [4] finding on an omitted element if there is "factually guiding the trial court's decision was the length oftime child are constitutionally-protected interests "far more environment. rules in parental-termination cases. Therefore, substantial termination under subsection (E) must be based on more *-37 M.A.N.M. "in accordance with his ability during a period court ofappeals' role. Sec TEX. CONST. art. V, § 6; order has become final. [89] Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, rights under section loI.O0I(l)(D) ofthe Family Code. 865 S.W.2d 925, 928 (Tex.l993)). *-36 hold that the evidence is such that the court every reasonable presumption is to be made in favor of termination. Neither the Texas Constitution nor any court determines to be the best interest of the child. In section 153.131 that would independently support the could (Tex.App.-F011 Worth 2001, pet. denied); In re A.V., 57 The Department next contends that evidence that identified any issue which he has been prevented by the error is rare, implicated only when our most significant than" a mere scintilla of evidence does not equate to clear *-35 child had been born dependent upon them. taking the medication because he, like other individuals Page 81 past. Essentially then, Ramirez could have contributed to mistakes during trial rendered his assistance ineffective judgment terminating parental rights is reversed. Id. at

sufficiency review, looking at the evidence in the light that the jury find termination to be in the best interest of Department had failed to promptly conduct a home study that, by engaging in conduct he knew could result in his proceeding." [94] and because the evidence is factually sufficient, it is litigants are affected). Our courts of appeals have reached discovered the pending suit by accident. Ramirez made *-34 "provide adequate support" under (1)(C) because (1)(B) " error in the briefs. See id. at 980. was good, he attended school regularly, made good parental conduct is certainly relevant to the child's

offense; her commitment to the Austin State Hospital by S.Ct. 1388;Lassiter, 452 U.S. at 27, 101 S.Ct. 2153; Campus police officers also responded to a call Morgan, 22 Cal.3d 388, 149 Cal.Rptr. 375, 584 P.2d 512, *-33 the mother scheduled a psychiatric evaluation and went to hearing on his motion for new trial) whom he wished to unwillingness to abstain from drug use after child was not wanting to use her cell phone minutes waiting on hold record that the en‘or is ultimately harmless. But my Page 271 David Adams and his wife never sought or wanted any court's charge rather than challenging the omission for the Page 86 element in three material parts of the charge, perhaps *-32 the Family Code. Therefore, the alleged error did not immediate action. Rey, 487 S.W.2d at 248; cf. Wristen, termination based on inability to care for a child ifit is in the best interest instruction, he did object to the definition

termination. Moreover, the only evidence the trial court verdict, and thejudgment itself Texas & Pac. Ry. Co., 23 and during another argument, helocked her out of the Smiths are excellent role models, express love for the Veronica and L.A.S. had tested positive for marijuana. M.B.C.'s birth a month earlier in March 1997. When justified its reviewing the standard of review on appeal. At least five courts of strictly scrutinized‘

Afinding under (D) that aparent has knowingly writtenjuiy demand on his behalf. *-31 prejudiced the defense. This requires showing that jury returned an adverse verdict. The diligence exhibited termination is in the children's best interest. prevent tcnnination (1) when there exist acts or omissions sufficiency when the burden of proof is clear and [47] 764 S.W.2d 220, 223 (Tex.1988). evaluating individuals. Counsel for the parents did object granted when: (1) the parent leaves the child with one not family is often available to step in and help. The same contempt statutes, controls.

The court of appeals stated that the word "endanger" *-30 orally or in writing, before the court reads the charge to the parents raised other issues the court of appeals did not "errors in the charge and in evidentiaiy rulings" occur, THE LAWS OF TEXAS 1838-1846, at 1555, 1562-63

thejury votes and says, "We believe that termination of course of six visits, M.A.N.M. and Ramirez have jury-charge en'ors is warranted.

possibility that Patricia had moved out of the house she prerequisite for termination in material parts of the of trial, Medina had applied for insurance for M.A.N.M. *-29 161.001. Furthermore, for the same reasons discussed as new trial.

parental rights to A.S., D.S., and L.A.S., and Alan's rights rights could be tenninated if there was clear and instructed the Department to perform a home study on *-28 United States Supreme Court in articulating what the

occasions when Alan ovcr-disciplined L.P. Support the Santosky, 455 us. at 754, 102 S.Ct. 1388; Lassiter, 452 address the issue raised in the petition that we granted,

S.Ct. 2153 ("[C]hi1d-custody litigation must be concluded court, does not adhere to Fourteenth Amendment that tennination be in the best interest of the children, are later told a case worker that this hurt his neck, and an R. APP. P. 43.3; Colbert, 227 S.W.3d at 816. However, *-27 rights termination proceeding, it seeks not merely to TEX.R.AI’I’. I’. 33.l. Nevertheless, like most other consequences are not at issue, and rule 279 does not sufficient evidence to support a finding." [66] lftlie trial 753, 31 P.3d 1027, 1039 (Ct.App.2001) (fundamental M.A.N.M. had been living with Medina and his family, to maintain a relationship with his daughter. He conclude that Joel's appeal is not frivolous and the trial Samaniego talked to Joel and tried to arrange a meeting. section l6l.00l(l) of the Texas Family Code as grounds weight should be given to the Legislature's good-faith *-26 precious than any property right." Santoaky v. Kramer, than single act or omission); In re S.ML., 171 S.W.3d at TEX. GOV'T CODE §22.225(a). This Court cannot the trial court's decision. Jackson, 660 SW2d at 809~10; 4. the parenting ability of the individuals seeking However, we do not believe the Department has Accordingly, Veronica's first point oferror is sustained. *-25 of one year ending within six months of the date of this 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

reasonably form a finn belief or conviction" that Patricia statute prohibits a bench trial ofone or more issues in a conservatorship order, we conclude that the Department's [13] Id. statute from presenting to this Court for review. See S.W.3d 51, 61~62 (Tex.App.-Waco 2001, pet. granted); Alan pushed Veronica and pulled her hair on two *-24 state public interests are at stake. The meaning of the

Ramsey and McCauley were watershed decisions, and that they are entitled to a new trial on that basis. The and convincing evidence. with bipolar disorder, prefers the excitement of the most favorable to thejudgrnent means that areviewing *-23 the support ofhis child, but did not. Phillips, 25 S.W.3d ofJoel's mother's home in Puerto Rico, had been given the child. As to Paige, the proposed charge included the 613-l4.ln that case, the Department sought termination of imprisonment and separation from his children, Alan contains the language "provide for the adequate support." necessarily legally sufficient. See D.S.A., ll3 S.W.3d at the satire result in other cases. See Wristen v. Kosel, 742 repeated attempts to establish his role as a father to his Eldridge, 424 U.S. at 335, 96 S.Ct. 893. environment. In’; In re J.T.G., 121 S.W.3d H7, 125 eight months after the children were removed when *-22 first time on appeal. A trial court can easily cure an 516 (1978) (consideration of points not raised below born marijuana positive, and her relapse after children the appointment but refused to participate without her when trying to make appointments with providers. Here *-21 greatest concern is that the Court abandons its cause the rendition of an improper judgment or prevent because of a typographical error. The submission of the call nor the substance of such witncss’s testimony. of the clear and convincing evidentiary standard in the the child's best interest), .004(a)(4) (court may order could have relied upon to determine Ramirez had the The hospital social worker who reported L.A.S.'s positive

742 S.W.2d at 870-71 (public interest not affected by the [6] The evidence is conflicting as to why Veronica was termination order, but she did not separately challenge

unpreservedjury-charge errors. 57 S.W.3d at 72 (quoting house while she was naked. Dr. Shinder, a psychologist *-20 counsel‘s errors were so serious as to deprive the appeals‘ decisions have concluded that a heightened to the qualifications of one witness, but not to the

convincing evidence may be a fine one in some cases, but by counsel in other aspects of the trial and what appear to asked about their drug use at trial, both parents said that S.W.2d at 699; see Yardley v. Houston Oil Co. ofTe.\-., placed or allowed a child to remain in dangerous a parent without expressing an intent to return without the jury. TEX.R. CIV. P. 272. Aparty objecting to the can be no less true when a parent is incarcerated. *-19 developed a "bond," even though M.A.N.M. appears [69] From 1941 until 1988, Rule 279 provided that if consider, including a challenge to the factual sufficiency [77] In re A.R.R., 61 S.W.3d 691, 695 (Tex.App.—Fort

charge, Texas Rule of Civil Procedure 279 requires us to courts may not reverse thcjudgmcnt unless the error *-18 shared with Joel, but she was not asked about this during (Austin, Gammel Book Co. 1898). But in 1850, the

to A.S. and D.S. The court also appointed the Department and, while he and his mother are at work, M.A.N.M. is in

to the first charge complaint, this second charge convincing evidence that she either engaged in conduct *-17 In re /l/l.R../lM., 280 S.W.3d 494, 505 (Tex.App.—-Fort "clear and convincing evidence" standard means. [16] and decide whether our law on preservation of error parental rights is in the best interest of the children," then Page 297 trial court's finding oftemrination under subsection (E). maternal grandmother, but it never conducted one. The trial courtthcreafter entered various orders U.S. at 27, 101 S.Ct. 2153. However, rather than conduct investigator subsequently found a mark on A.B.C.'s " as rapidly as is consistent with fair'ncss...."). Accordingly, procedural due process." Id. (emphasis added). *-16 meaningless unless appellate review is afforded to ensure [2] Section l5.02(l)(E) was the only provision of section infringe that fundamental liberty interest, but to end it." court does not make an express finding, "such omitted in a case involving the involuntary termination of

[25] 443 us. 307, 99 S.Ct. 2781,61 L.Ed.2d 550 (1979). answer the actual question presented of whether, in light jurisdictions, our civiljurisprudence is well settled that error applies, for example, when there is nojurisdiction Joel said that he could not talk at the moment because of judgment when deciding these cases. See Eldridge, 424 expressed his and the high price the child would pay if she were

coun abused its discretion by concluding otherwise. See *-15 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 for termination; and (2) temiination is in the child's best willingness to assume parental - "On the other hand, we believe that adeferrdant Ramirez pays $200 in rent to live with his parents. 477 (same); In reJ.T.G., 121 S.W.3d at 125 (same). filing of this petition." TEX. FAM.CODE. ANN. § *-14 Veronica testified that Alan pushed her and pulled termination case when there has been no objection by the MC, 300 S.W.3d at 314; In re S.N., 292 S.W.3d 807, In re./.11/L, 955 S.W.2d at 408. met its burden for the fourth element-that the parent has conclusively determine a factual question, namely, appointment was solely the consequence of the trial demonstrated an inability to provide [M.V.G.] with a The court of appeals certified to this Court *-13 In re J.O.C., 47 S.W.3d 108, 113 (Tex.App.—Waeo 2001, occasions, and over-disciplined L.P. twice, demonstrates "public interest" that is adversely affected must be We find the evidence legally insufticient to support the names of" more than one" relative to contact but only establishing that fundamental-error review is not barred

parents argue that the Sixth Amendment to the United unmedicated state. The expert concluded that the father at 357-58. home to the parents in that state and asked the parents if *-12 courtmust assume that the factfinder resolved disputed the mother's parental rights to her child and requested "best interest" instruction only in conjunction with the child, yet each attempt was rebuffed. In addition, while engaged in a voluntary, deliberate, and conscious course S.W.2d 868, 870-71 (Tex.App.-Eastland I987, writ 573. (Tex.App.-Fort Worth 2003, no pet.). Although the parent *-11 father struck an eight-year-old neighbor. The police " permitted for important matters of public policy in which were retumed to her); In re S.ML.D., 150 S.W.3d 754, the parents "from properly presenting the ease to the husband being present during the examination. Shortly [48] Garza, 768 S.W.2d at 275-76. again the record contains conflicting evidence regarding *-10 omission in its charge to thejury if that omission is called

[6]ln fact, Joel does not even attempt to explain in his responsibility to ensure that parents and children receive issue of which parent is appointed as managing Neither has he done so in his appellate brief. Thus, it Page 285 termination based on a subsequent petition if it is in the charge. And, because the trial court considered objections

the appointment of the Department as the children's ability to pay, but did not, was Ramirez's admission that *-9 Holick V. Smith, 685 S.W.2d 18, 20 (Tex.l985)). SUFFICIENCY OF THE EVIDENCE unable to obtain pre-natal care for L.A.S. in Houston. The test result formarijuana to the Department stated that whose office evaluated the Coxes, opined that neither they used cocaine while the children were at home and in

defendant of a fairtrial, a trial whose result is reliable. In fact, the record supports the conclusion that the scientific reliability of this testimony in particular or the 288 S.W. 861, 868 (Tex.Civ.App.—Beaurnorrt 1926, writ conditions or surroundings is based on the child‘s

*-8 be other tactical decisions, as discussed below, also charge must point out distinctly the objectionable matter more reserved than normal in Ramirez's presence. There of the evidence. Accordingly, the court of appeals‘ Worth 2001, pet. denied) (Sixth Amendment); In re B.B.,

her own testimony. Thus, the record contains conflicting "there is evidence to support a finding," omitted findings *-7 caused harm. Id. daycare. Medina's mother believes it is in M.A.N.M.'s Legislature enacted a statute providing that "[t]hc Worth 2009, no pet); nccnrd Enrvin V. Dep’l 0fFamily & as sole managing conservator of the children. complaint relates directly to the public interest in correct *-6 parental rights are tenninated, and no longer will these mandates appellate review of the parents’ unpreserved this analysis, the dissent contends that our common law

The Department does not contend, nor does the record under the first Eldridge factor, the private interests reflect *-5 [57] The Supreme Couit has thus tenncd the private [14] See Ramos v. Frito-Lay, Inc, 784 S.W.2d 667, 668 the lower court correctly applied these procedures. interest. See TEX. FAM.CODE § 161.001; In re J.L., 163 appellate courts may consider unpreserved error that is parental rights, if the trial court does not order [90] Id. at 690, 104 S.Ct. 2052. (b) Alan In re A.S., 241 S.W.3d 661, 666(Tex.App.--Texarkana of the constitutional interests at stake, our law requires an removed from that home. Ramirez's expressed desire to *-4 or issue is a Inatter of public interest affecting large According to the 4 C's report, the hospital social worker responsibilities, and his conduct since the child's birth element or elements shall be deemed found by the court work, so Samaniego advised him that the Department was He has lived with them his entire life. His mother (1982). These natural rights are "essential basic civil U.S. at 349, 96 S.Ct. 893. *-3 161.00l(l)(F) (Vernon Supp.200l). To terminate parental her hair on two occasions early in their relationship, but whether the parents complied with the Family Service safe environment." Thus, the evidence is factually court's termination decision under Family Code section need not show that counsel's deficient conduct more 8] 1-12 (Tcx.App.--Eastland demonstrated an inability to provide the child with a safe *-2 question of whether it erred in determining a cause on a that Veronica provided an unsafe home environment.

no pet); In re AI’., 42 S.W.3d 248, 256 (Tex.App.-Waco 2009, no pet.); In re by our procedural rules. In the forty years since those Page 304 extremely circumscribed, or the exception would swallow the tennination of Alan's parental rights under section *-1 States Constitution entitles a parent to effective assistance facts in favor of its finding if areasonable factfinder of conduct that endangered his children. To accept such a the caseworker ignored Ramirez's overtures, she alternative ground for tennination that he had failed to contacted one, [3] and had assured the court that it would eonservatorship pursuant to sections 153.005 and " *0 denied) (no fundamental-error review in acustody case need not have certain knowledge that an actual injury is 757-58 (Tex.App.-Amarillo 2004, no pet.)(holding pure question of law is presented); Scheer v. Cromwell, *1 briefhow he was harmed by the court's erroneous denial ACCEPTED 04-14-00802-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/28/2015 6:59:36 PM

KEITH HOTTLE CLERK 573-74 EXHIBIT A fair, consistent, and expeditious appellate review in these cannot be said that he was harnred by the trial court's S.W.3d 567, conservator when both parents are able to take care of the 4 C5 report reflects that she was unable to get her child's best interest), .005(a) (court may order tennination he had spent money on drugs. There was no testimony as managing conservator. Id. The court ofappcals reversed to the charge before the parents rested, their attorney these factors. *2 could be fit parents due to their "aggression and violence was doing fine and not showing any signs of In re parents‘ due process rights were not violated. The parents However, the strict scrutiny language in Holick only D.S./1., L.A.S. conditions and surroundings" rather than the parent's *3 and the grounds for the objection. TEX.R. CIV. P. 274. In In light of the entire record, we do not believe that become more open and communicative, and she judgment should be reversed and remanded to that court would be "deemed as found by the court in such manner was no evidence presented that Ramirez would present *4 971 S.W.2d 160, I72 (Tex.App.-Beaumont 1998, pet. evidence on this issue. best interests to terminate Ramirez's parental rights and judgments and affects the public generally. Finally, *5 [27] 362 us. 199, so S.Ct. 624, 4 L.Ed.2d 654 (1960). 229 S.W.3d *6 a desire for an accurate andjust decision, but one that Protective reflect, that Alan inappropriately doctrine of fundamental error applies. But this disregards Sen/5., 345, number ofpeople); Elezaj v. P.J. Carlin Constr. Co., *7 2007, no pet.) (appeal not frivolous where trial court confirmed his expressed desire. Ramirez has the support right[s] of man." Stanley :2. Illinois, 405 US. 645, 651, 92 termination of the parcnt—c11ild relationship (which (Tex.l990) (holding that "[i]f the omitted element taking emergency custody of M.V.G. and there would be S.W.3d 79, 84 (Tex.2005); In re U.P., I05 S.W.3d 222, B. Application obtain sole custody of his daughter undoubtedly Plan. Thus, even ifl agree the Court's "deemed finding"

is

who first reported L.A.S.'s positive test result for *8 testified that Ramirez is capable of eaming and saving she denied that he ever struck her. While it is unclear Viewing the evidence in a lightfavorablc to the environment. Although Bonner spoke with Alan's sister rights on non-support grounds, the evidence must *9 sufficient on this element, and because the evidence is E.A.W.S'., N0. 02-06-00031-CV, 2006 Tex.App. LEXIS Abusive or violent conduct by a parent or other resident 161.001(1).[l8] In accordance with D.N.C., we conclude 2001, no pet.); In re V.R.W., 41 S.W.3d 183, 190 could do so. A corollary to this requirement is that a court ( 3) Regular Visits *10 " encouraged Medina to take legal action to ensure the I6I.00I(I)(D) ofthe Family Code. Accordingly, his first 153.13]. In’. at 612-l3.[l(:]The trial court terminated *11 provide services to Patricia while she was incarcerated. premise would effectively nullify the longstanding rule occurring, the parent must at least be aware of the 158 Colo. 427, 407 P.2d 344, 345 (1965) (in rare cases, mother's drug use during pregnancy and after child was *12 of his request for ajury trial other than to say he was (Tex.App.--Amarillo 2003, no pet).

A. Standard of Review *13 erroneous rendering of a default judgment. See Hughes v. health problems." On March 13, 2006, the trial court to the source of the money for drugs nor any indication of

the tennination order on factual insufficiency grounds medicalrceords from Beaumont. However, at trial she *14 conduct. S.N., 272 S.W.3d at 61; see In re S.K., 198 II. Standard of Review *15 the Department has satisfied its burden under subsection as to suppon: the judgment." When that rule was amended denied) (holding that the Sixth Amendment right does not any danger to M.A.N.M., now or in the future. In fact, *16 allow the child to remain with the "only family that she In his first issue, Alan contends that the evidence is (Tex.App.--Houston [lst Dist.] 2007, no pet); see TEX.

"

*17 becomes the case here because we have reversed the trial *18 N.Y.2d 992, 657 N.Y.S.2d 399, 679 N.E.2d 638, 638 of his family in this endeavor. His mother‘ expressed her

229 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). an emergency removal hearing. Joel told Samaniego that strengthened the trial court's resolve. Removal from improperly dcniedjuiy request). *19 was S,Ct. 1208, 31 L.Ed.2d 551 (1972). In recognition of the when these incidents occurred, the record indicates that money. At the time of trial, Ramirez was working forty marijuana to the Department also stated that L.A.S. judgment, we hold there is legally sufficient evidence to 10515, 2006 WL 3525367, at *l8 (Tcx.App.--Fort Worth *20 establish that the parent failed to support the child for that Veronica and Alan's challenge to the conservatorship about placing the children with her, the record does not of a child's home may produce an environment that factually sufficient, it is necessarily legally sufficient. See

"

*21 mother's parental rights and appointed the Department the should disregard all evidence that a reasonable factfinder She also relies on her own testimony from a December child would remain in his home. Even when the child's

*22 against terminating the parental relationship based solely Summary: potential for danger to the child in such an environment *23 removed from her care, in face ofrandom drug testing adversely affected" because the judgment Gr0g(m—Lamm Lumber C0,, 331 S.W.2d 799, *24 was rendered what other basic necessities Ramirez may have foregone *25 S.W.3d 899, 902 (Tex.App.-»Dallas 2006, pet. denied); In (N) as to Veronica. We find the evidence factually Emotional and Physical Danger to Child: *26 ad litem testified that Ramirez interacted well with *27 FAM. CODE ANN. § 161.001(1)(N). knows, the family that‘s been there from the very

"

Ramirez testified, at the hearing on his motion for legally and factually insufficient to support termination of *29 Medina‘s home, however, is not at issue. Less drastic Patricia and he wanted custody ofM.V.G. and planned to willingness to help, and she provides a stable home that The third element is whether Patricia has *30 importance of the rights between parents and their *31 D.S.A., 113 S.W.3d at 573. *32 Dec. 7, 2006, pet. denied) (mcm. op.). *33 Here, Patricia made arrangements for Joel to take could have disbelicved or found to have been incredible. permanency hearing to show that the Department had *34 herein by the Judge." *35 (Tcx.Civ.App.--Dallas 1960, writ refd n.r.e.) (" no *36 re D../../., 178 S.W.3d 424, 429 (Tex.App.--Fort Worth *41 regularly visited or maintained significant contact with *42 To the extent there is conflicting evidence in *44 notice that she did not have reliable transportation to *46 showing was made on the motion for new trial that *47 2005, no pet.). Because Joel does not challenge this