### IN THE TENTH COURT OF APPEALS
No. 10
- 12
- 00029
- CV
IN THE INTEREST OF A .M. AND E.M., CHILDR EN

From the 74th District Court McLennan County, Texas Trial Court No. 2010
- 2778
- 3

O P I N I O N
Appellant J.M. appeals the trial court’s order terminati ng her parental rights to her daughters A.M. and E.M. 1 We will affirm

. In a proceeding to terminate the parent

- child relationship brought under section
161.001 of the Family Code , the Department of Family and Protective Services must establish by clear an d convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001 , termed a predicate
violation ; and (2) that termination is in the best interest of the child. T EX
. F AM
. C ODE
A NN
. § 161.001 (1), (2) ( West Supp. 20 11 ); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.

— Waco 2002, pet. denied). The factfinder must find that both elements are established by

1 The parental rights of the children’s father were terminated upon his voluntary relinquishment of his parental rights.In the Interest of A.M. and E.M. Page 2

clear and convincing evidence, and proof of one element does not relieve the petitioner
of the burden o f proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. Due process requires the petitioner to justify termination of parental rights by “clear and convincing evidence.” Spangler v. Texas Dept. of Prot. & Reg. Ser vs., 962 S.W.2d 253, 256 (Tex. App.

— Waco 1998, no pet.). This standard is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
establish ed.” Id. The jury found, and the trial court ordered termination on, the following predicate violations under Family Code section 161.001(1): subsection (D) (knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children’s physical or emotional well

- being ); subsection (E) ( engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children’s physical or em otional well

- being ) ; and subsection (O) (failed to comply with provisions of court order specifically establishing actions necessary for parent to obtain return of children)

. See T EX
. F AM
. C ODE A NN
. § 161.001 (1)(D, E , O )

. The jury also found that termination of Appellant’s parental rights to A.M. and
E.M. was in their best interest

. In her sole issue, Appellant asserts that the evidence is factually insufficient to support the jury’s best

- interest findings.
Preservation We initially address the De partment’s ass ertion that Appellant’s factual

sufficiency complaint is not preserved because she did not file a motion for new trialIn the Interest of A.M. and E.M. Page 3

asserting factual insufficiency. See T EX
. R. C IV
. P. 324(b)(2). Our precedent is that, in
termination cases, we may revie w a factual

- sufficiency complaint on core issues (predicate violation or best interest) even though it was not preserved in the trial court.
See In re A.P., 42 S.W.3d 248, 254

- 56 (Tex. App.

— Waco 2001, no pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002) ; see also In re T.N.F., 205 S.W.3d 625, 630 n.2 (Tex. App.

— Waco 2006, pet. denied) (following A.P. )

. T he Department suggest s that, in light of the Texas Supreme Court’s decision in
In re B.L.D. , 113 S.W.3d 340 (T ex. 2003), we should overrule our precedent and require a motion for new trial to preserve a factual

- sufficiency issue for appellate review. 2 In
B.L.D. , the court held that jury

- charge preservation rules comport with due process in termination appea ls. I d. at 354; see also In re J.F.C., 96 S.W.3d 256, 274 (Tex. 2002) (holding that Rule of Civil Procedure 279 does not deprive parents of due process in termination appeals) . The cou rt has not directly addressed whether the factual

sufficiency preservation requirement comports with due process in termination cases , though it has viewed the preservation requirement through the prism of an ineffective

assistance claim. See In re M.S., 115 S.W.3d 534, 546

- 50 (Tex. 2003) . The court concluded
that
the State’ s i nitial interest in maintaining the familial bond versus its interest in maintaining procedural integrity weighs in favor of permitting

2 The Department also points out that at least four other appellate courts have held that a motion for new trial is required in terminatio n cases to preserve a factual

- sufficiency issue for appellate review. See In re A.J.L., 136 S.W.3d 293, 301

- 02 (Tex. A pp. — Fort Worth 2004, no pet.); In re M.S., 73 S.W.3d 537, 541

- 42 (Tex. App.

— Beaumont 2002), rev’d on other grounds, 115 S.W.3d 534 (Tex. 2003); In re I.V., 61 S.W.3d 789, 794 (Tex. App.

— Corpus Christi 2001, no pet.), disapproved on other grounds by In re J .F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002); In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.

— Houston [1st Dist.] 2001, no pet).In the Interest of A.M. and E.M. Page 4

a factual sufficiency review when counsel unjustifiably fails to follow those procedures.

... That a motion for new trial is required for appellate review of a factual sufficiency issue is something that competent trial counsel in Texas should know. And filing such a motion is not a difficult task. But though a just and accurate result cannot ever be absolutely guaranteed, we cannot think of a more serious risk of erroneous deprivation of parental rights than when the evidence, though minimally existing, fails to clearly and convincingly establish in favor of jury findings that parental rights should b e terminated. Thus, i f counsel’ s failure to preserve a factual sufficiency complaint is unjustified, then counsel ’ s incompetency in failing to preserve the complaint raises the risk of erroneous deprivation too high, and our procedural rule governing factual sufficiency preser vation must give way to constitutional due process considerations. We do not hold here that every failure to preserve factual sufficiency issues rises to the level of ineffective assistance. Rather, our appellate courts must engage in a review using the established Strickland standards.
Id. at 549. 3
M.S. was decided after our decision in A.P. , and it appears to us that , in M.S. , the supreme court implicitly declined to dispense with the factual

- sufficiency preservation requirement in termination cases

. We therefore overrule A.P. ( and T.N.F. ) and hold that in termination cases, to raise a factual

- sufficien cy complaint on appeal , it must be

3 In B.L.D. , the court commented:

Assuming that this fact

- specific due process analysis under Lassiter controls the evaluation of our preservation rules, we acknowledge that in a given parental rights termination case, a different calibration of the Eldridge factors could require a court of appeals to review an unpreserved complaint of error to ensure that our procedures comport with due process. In fact, today in In re M.S. , we hold that if appointed counsel unjustifiably fails to preserve a sufficiency challenge for appellate review, under some circumstances that failure could amount to a due process vio lation. In re M.S., 115 S.W.3d 534, 548 (Tex. 2003). B.L.D., 113 S.W.3d at 354.In the Interest of A.M. and E.M. Page 5

preserved by including it in a motion for new trial. We next turn to Appellant’s assertion that, by overruling A.P. (and T.N.F. ), we
should apply that ruling prospectively. Court “decisions usually apply retrospectively, [but] exceptions are recognized when considerations of fairness and policy dictate prospective effect only.” Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992). We view three
factors to determine whether to a pply a decision prospectively or retroactively: (1) whether the decision establishes a new principle of law by either overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether prospective or retroactive application of the particular rule will further or retard its operation through an examination of the history, purpose, and effect of the r ule; and (3) whether retroactive application of the rule could produce substantial inequitable results.
Id. (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106

- 07, 92 S.Ct. 349, 355

- 56, 30 L.Ed.2d 296 (1971), and Carrollton Farmers Branch ISD v. Edgewood ISD, 826 S.W.2d 489, 518

- 19 (Tex. 1992)). We agree wit h Appellant’s assertion that the first and third factors weigh in favor of a prospecti ve application. We are overruling “clear past precedent” on which Appellant could have relied in the trial court. And if the evidence in this case were factually insuff icient to support the jury’s best

- interest findings, retroactive application of our decision would produce a “substantial inequitable result,” especially given the constitutional magnitude attached to the parent

- child relationship. 4 See M.S., 115

4 The natural right that exists between parents and their children is one of constitutional dimension. In re J.W.T., 872 S.W.2d 189, 194

- 95 (Tex. 1994). A parent’ s right t o “the companionship, care, custody and management” of her children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758

- 59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (quoting Stanley v. Illinoi s, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)).In the Interest of A.M. and E.M. Page 6

S.W.3d a t 549 (“ though a just and accurate result cannot ever be absolutely guaranteed, we cannot think of a more serious risk of erroneous deprivation of parental rights than when the evidence, though minimally existing, fails to clearly and convincingly
establis h in favor of jury findings that parental rights should b e terminated”). Accordingly, our decision today will apply pr ospectively, and we will review Appellant’s complaint that the evidence is not factually sufficient to support the jury’s
best

- interest findings. Sufficiency The standard of review for factual sufficiency in termination cases is well

established. See In re C.H., 89 S.W.3d 17, 25 ( Tex. 2002)

. In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. [T]he inquiry must be “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” A court of app eals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not hav e credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. J.F.C., 96 S.W.3d at 26 6

- 67 (footnotes and citations omitted); see C.H., 89 S .W.3 d at 25. We view the evidence in a neutral light when reviewing for factual sufficiency. In determining the best interest of a child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the childIn the Interest of A.M. and E.M. Page 7

now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent

- child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley , 544 S.W.2 d at 371

- 72. This list is not exhaustive, but simply indicates factors that have been or could be pertinent. Id. The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.

— Dallas 1995, no writ). The goal of establishing a stable permanent home for a child is a compelling state
interest. Id. at 87. Appellant contends that , in our factual

- sufficiency review of the evidence on the
best

- interest f indings , we should not include in our review the evidence of Appellant’s predicate violations and should only review evidence pertaining to her post

- removal
conduct. 5 Appellant argues that if we consider the evidence that was relied on to
establish Appellant’s predicate violations in reviewing the best

- interest findings, the separate statutory best

- interest requirement is meaningless

. We are required to review the sufficiency of the evidence to support the jury’s answer based on the charge given and the jury findings in response to that charge. See

5 The supreme court has stated: “ While it is true that proof of acts or omissions under section 161.001(1) does not relieve the petitioner from proving the best interest of the child, the same evidence may be probative of both issues. ” C.H., 89 S.W.3d at 28; see In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.

— Fort Worth 2003, no pet.) (best interest of child is often infused with statutory offensive behavior); see also Williams v. Williams, 1 50 S.W.3d 436, 451 (Tex. App.

— Austin 2004, pet. denied) (evidence of past misconduct or neglect can be used to measure parent’s future conduct; Ray v. Burns, 832 S.W.2d 431 , 4 35 (Tex. App.

— Waco 1992, no writ) (“Past is often prologue.”).In the Interest of A.M. and E.M. Page 8

Barker v. Eckman, 213 S.W.3d 306, 313 (Tex. 2006); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). In conducting this review, we presume that the jury acted in accordance
with the trial court ’s instructions. Barker, 213 S.W.3d at 313. When evidence of Appellant’s predicate violations was offered during t rial, Appellant made no request for the jury to be instructed that the evidence be admitted for the limited purpose of the predicate violations. See T EX
. R. E VID
. 105(a) (“ When
evidence which is admissible

... for one purpose but not admissible

... for another purpose is admitted, the court , upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly;

... “). Nor did Appellant object to the jury charge in this respect; the jury was not instructed to disregard the evidence of Appellant’s predicate violations in answering the best

- intere st questions. See T EX
. R

. C IV
. P

. 274; B

. L

. D ., 113 S.W.3d at 349

- 50 ; see also Barker, 213 S.W.3d at 313 ( requir ing
review of sufficiency of evidence based on charge and jury findings in charge). Appellant has thus not preserved for appellate review her complaint about the evidence of Appellant’s predicate violations being used in the best

- interest review

. See T EX
. R.
A PP
. P. 33.1 (a); cf. T EX
. R. E VID
. 105(a) (“ in the ab sence of such request the court’ s action
in admitting such evidence without limitation shall not be a gro und for complaint on appeal“).
The evidence shows that in August 2010, A.M. was age five and E.M. was about
to turn three. Police went to the home in the evening in response to a child

- neglect call from a neighbor; the children had been seen banging on their bedroom window and screaming. Police found the house filthy (full of trash, leftover and rotting food, dirtyIn the Interest of A.M. and E.M. Page 9

clothes, rodents, and rodent droppings) and extremely hot. 6 The electricity had been turned off, but Appellant had an extension cord running from the neighbor’s house.
Inside the house were several extension cords and surge protectors, which the police officer thought was unsafe for the young children. The only light on was a makes hift
one in the children’s bedroom. Appellant told police that she had locked the children in their bedroom because they had thrown a ta ntrum and would not go to bed. The Department was called , and a CPS investigator found the home unsafe for
the children

. A.M. reported that the house had been in this condition for three to four
weeks. The children were removed and were placed for a time with Appellant’s parents, in foster care, and ultimately with their great aunt and uncle. Appellant was
arrested and jailed for several months, pleading guilty to child endangerment and being placed on community supervision. Thereafter, Appellant stayed with her brother , was homeless for a while, and ultimately moved to Fort Worth and got a job and an apartment , which w as found to be clean and proper for the children

. Appellant again completed required services, and her supervised visits with the children were appropriate. While doing her services, Appellant failed to inform the Department that she had unsupervised contact with the children and admitted that she had lied about it in a hearing. Appellant told the children not to tell the Department about this contact, and as a result of this pressure, A.M. developed an incontinence problem. Appellant also

6 In 2008 Appellant had been investigated by the Department for a filthy house and had received and completed required services , including parenting classes and individual therapy

.In the Interest of A.M. and E.M. Page 10

did not in form the Department that her paren ts had substance

- abuse issues and that she had gotten into a serious relationship with a state prison inmate (Donnie) whom she had a relationship with in high school

. Donnie was in prison for the offense of attempted sexua l assault (of a prostitute) and had been on community supervision for drug possession. Appellant communicated with Donnie in prison by email, visited him in prison, and sent him money monthly while barely making ends meet and not paying her community

supe rvision fees

. Both her family

- service plan and community supervision prohibited her from associating with criminals. Appellant was in danger of having her community supervision revoked. Appellant and Donnie have discussed marriage when he is released, a nd if he proves himself, he would live with her and the children. At the time of trial, the children had been with the great aunt and uncle for three weeks, and they ultimately would like to adopt the children.
We now review the evidence and consider the best

- interest factors. Desires of the child ren : At the time of trial, A.M. was nearly age seven and E.M. was age four. Neither child testified at trial. In visits the children had asked when they would go “home,” and it is not disputed that they loved Appellant. A.M. told Appellant that she wanted things to be different than they were before, and A.M. wanted stability. The children called their foster parents and their great aunt and uncle “mommy” and “daddy,” and at the time of tr i a l asked to see the ir grandmother more than they asked to see Appellant.
Evidence that a child loves a parent, enjoys visits, and shows affection isIn the Interest of A.M. and E.M. Page 11

marginally relevant

. In re M.H., 319 S.W.3d 137, 150 (Tex. App.

— Waco 2010, no pet.). And absent a showing of sufficient maturity, a child’s preference is not considered. See
id. ; see also In re A.R., 236 S.W.3d 460, 480 (Tex. App.

— Dallas 2007, no pet.). In any event, the evidence on t his factor neither weighs in favor of or against the best

- interest findings.
The child ren ’s emotional and physical needs now and in the future and the emotional and physical danger to the child ren : Evidence of past misconduct or neglect can be used to

me asure a parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.

— Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431 , 4 35 (Tex. App.

— Waco 1992, no writ) (“Past is often prologue.”); see also In re V.A., No. 13

- 06

- 00237

- CV, 200 7 WL 293023, at *5

- 6 (Tex. App.

— Corpus Christi 2007, no pet.) (mem. op.) (considering parent’s past history of unstable housing, unstable employment, unstable r elationships, and drug usage).
The evidence show s that Appellant has a history of neglect ing an d endangering
the children , of exposing the m to domestic violence (between Appell ant and the children’s father), and of unstable housing, employment, and relationships. Her future plans include a life with Donnie, a convicted felon. At the time of trial, Appellant was subject to having her community supervision revoked and being incarcerated. S ee, e.g., Karl v. Tex. Dept. Prot. & Reg. Serv’s., No. 03

- 03

- 00655

- CV, 2004 WL 1573162, at *2

- 3 (Tex. App.

— Austin July 15, 2004, no pet.) (mem. op.) (engaging in c riminal conduct endangers emotional well

- being of child because of parent’s resulting incarceration); s ee also In re R.W., 129 S.W.3d 732, 739 (Tex. App.

— Fort Worth 2004, pet. denied) ( “ conductIn the Interest of A.M. and E.M. Page 12

that subjects a child to a life of uncertainty and instability endangers the physical and
emotional well

- being of a child”). The evidence on these factors, including the statutory offensive behavior, weighs
in favor of the best

- interest finding s . Parental abilities and available programs: The evidence shows that Ap pellant had been educated in child development and had worked as a teacher’s aide in Head Start. Despite that and despite having been through Department services (including parenting classes) in 2008, Appellant’s home was again found filthy and unsafe in 2010. After the children were removed, Appellant again completed Department services. At the time of trial, Appellant had a clean apartment and, if she were to obtain possession
of the chi l d ren , would be eligible for food stamps. She had also looked int o daycare. The great aunt and uncle have raised several children and are family

- oriented. The great aunt ha s a history of depression but has been fine and had not had treatment
since 2005

. Upon termination, the Department would continue to provide services to
the children.
E vidence of a recent improvement does not absolve a parent of a history of irresponsible choices. In re T.C., No. 10

- 10

- 00 207

- CV, 2010 WL 4983512, at *8 (Tex. App.

— Waco Dec. 1, 2010, pet. denied) (mem. op.) (citing In re J.O.A., 28 3 S.W.3d 336,
346 (Tex. 2009 ) ) ; Smith v. Tex. Dep’t Prot. & Reg. Serv’s., 160 S.W.3d 673, 681 (Tex. App.

— Austin 2005, no pet.). The evidence on these factors weighs in favor of the best

- interest finding s . Plans for the child ren and stability of the ho me: The need for permanence is aIn the Interest of A.M. and E.M. Page 13

paramount consideration for a child’s present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.

— Dallas 1987, writ ref’d n.r.e.) (en banc). The goal of establishing a stable permanent home for a child is a compelling state interest. Dupree, 907 S.W.2d at 87. Appellant planned on continuing the children with their therapy and changing how she had previously parented. The jury , as the finder of fact, was free to reject Appellant’s assertions of future stability and of having learned from her mistakes. See In re B.S.W., No. 14

- 04

- 00496

- CV, 2004 WL 2964015, at *9 (Tex. App.

— Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.) (“ Ms. Woods has failed to show that she is stable enough to parent B.S.W. for any prolonged period. The trial court was entitled to determine that this pattern would likely continue and that permanency could only be achieved through termination and adoption.”)

. She als o planned a life for her and her children with Donnie, a convicted felon, if he proved himself when he was released from prison. The great aunt and uncle have been in their current home for over four years. They want to adopt the children and end their i nstability. After potential adoptive parents are identified by the Department, the children must live with them for six months before adoption, and a caseworker would continue to work with them. The evidence on these factors weighs in favor of the best

- i nterest finding s . Acts or omissions and any excuses for them: Appellant admitted that she neglected and endangered the children. She blamed it in part on her poor health. The evidence on these factors weighs in favor of the best

- interest finding s .In the Interest of A.M. and E.M. Page 14

In conclusion, o n the jury’s finding s that termination of Appellant’s parent

- child relationships with A.M. and E.M. would be in their best interest , considering all the evidence in a neutral light in relation to the Holley factors, we hold that the jury could have reasonably formed a firm belief or conviction that termination was in the
children’s best interest . Accordingly, the evidence is factually sufficie nt on the best

interest finding s . We overrule Appellant’s sole issue and affirm the trial court’s orde r of
termination.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis , and Justice Scoggins (Chief Justice Gray concurs) Affirmed Opinion delivered and filed August 9 , 2012 [CV06 ]