IN THE

TENTH COURT OF APPEALS

No. 10-12-00029-CV

IN THE INTEREST OF A.M. AND E.M., CHILDREN

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 terminating 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 and 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. TEX. FAM. CODE 

ANN. § 161.001(1), (2) (West Supp. 2011); 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 of 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. Servs., 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 

established.” 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 emotional 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 TEX. FAM. CODE ANN. § 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 Department’s assertion that Appellant’s factualsufficiency complaint is not preserved because she did not file a motion for new trial 
In the Interest of A.M. and E.M. Page 3

asserting factual insufficiency. See TEX. R. CIV. P. 324(b)(2). Our precedent is that, in 

termination cases, we may review 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.).

The Department suggests that, in light of the Texas Supreme Court’s decision in 

In re B.L.D., 113 S.W.3d 340 (Tex. 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 appeals. Id. 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 court has not directly addressed whether the factualsufficiency preservation requirement comports with due process in termination cases, 

though it has viewed the preservation requirement through the prism of an ineffectiveassistance claim. See In re M.S., 115 S.W.3d 534, 546-50 (Tex. 2003). The court concluded 

that

the State’s initial 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 termination cases to preserve a factual-sufficiency issue for appellate review. See In re 

A.J.L., 136 S.W.3d 293, 301-02 (Tex. App.—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 

be terminated. Thus, if 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 preservation 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-sufficiency 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 violation. 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 apply 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 rule; 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 with Appellant’s assertion that the first and third factors weigh in favor 

of a prospective 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 insufficient 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 to “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. 

Illinois, 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 at 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 

establish in favor of jury findings that parental rights should be terminated”).

Accordingly, our decision today will apply prospectively, 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 wellestablished. 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 appeals 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 have 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 266-67 (footnotes and citations omitted); see C.H., 89 S.W.3d 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 child 
In 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.2d 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 findings, 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, 150 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, 435 

(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 trial, 

Appellant made no request for the jury to be instructed that the evidence be admitted 

for the limited purpose of the predicate violations. See TEX. R. EVID. 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-interest questions. See TEX. R.

CIV. P. 274; B.L.D., 113 S.W.3d at 349-50; see also Barker, 213 S.W.3d at 313 (requiring

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 TEX. R.

APP. P. 33.1(a); cf. TEX. R. EVID. 105(a) (“in the absence of such request the court’s action 

in admitting such evidence without limitation shall not be a ground 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, dirty 
In 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 makeshift 

one in the children’s bedroom. Appellant told police that she had locked the children in 

their bedroom because they had thrown a tantrum 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 was 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 inform the Department that her parents 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 sexual 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 communitysupervision 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, and 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 children: 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 trial asked to see their grandmother more 

than they asked to see Appellant.

Evidence that a child loves a parent, enjoys visits, and shows affection is 
In 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 this factor neither weighs in favor of or against the best-interest 

findings.

The children’s emotional and physical needs now and in the future and the emotional and 

physical danger to the children: Evidence of past misconduct or neglect can be used to 

measure 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, 435 (Tex. App.—Waco 

1992, no writ) (“Past is often prologue.”); see also In re V.A., No. 13-06-00237-CV, 2007 

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 relationships, 

and drug usage).

The evidence shows that Appellant has a history of neglecting and endangering

the children, of exposing them to domestic violence (between Appellant 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. See, 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 criminal conduct 

endangers emotional well-being of child because of parent’s resulting incarceration); see

also In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (“conduct 
In 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 findings.

Parental abilities and available programs: The evidence shows that Appellant 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 children, would be eligible for food stamps. She had also looked into daycare.

The great aunt and uncle have raised several children and are family-oriented. 

The great aunt has 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.

Evidence of a recent improvement does not absolve a parent of a history of 

irresponsible choices. In re T.C., No. 10-10-00207-CV, 2010 WL 4983512, at *8 (Tex. 

App.—Waco Dec. 1, 2010, pet. denied) (mem. op.) (citing In re J.O.A., 283 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 

findings.

Plans for the children and stability of the home: The need for permanence is a 
In 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 also 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 instability. 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-interest findings.

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 findings.
In the Interest of A.M. and E.M. Page 14

In conclusion, on the jury’s findings 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 sufficient on the bestinterest findings.

We overrule Appellant’s sole issue and affirm the trial court’s order 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]