IN THE

TENTH COURT OF APPEALS

No. 10-16-00281-CV

IN THE INTEREST OF A.S., J.S., A.S., AND D.S., CHILDREN

From the County Court at Law

Bosque County, Texas

Trial Court No. CV15247

MEMORANDUM OPINION

Candice and Daniel S. appeal separately from a judgment that terminated their 

parental rights to their children, A.S., J.S., A.S., and D.S. TEX. FAM. CODE ANN. § 

161.001(b)(1) (West 2014). Candice complains that the evidence was factually insufficient 

for the jury to have found that termination was in the best interest of the children. Daniel 

complains that the evidence was legally and factually insufficient for the jury to have 

found the predicate grounds for termination and that termination was in the children's 

best interest. Because we find that Candice did not preserve her complaint by filing a 

motion for new trial, we overrule her sole issue and affirm the judgment as it relates to 

Candice. Because we find that the evidence was legally and factually sufficient for the 
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jury to have found that Daniel failed to complete his service plan and that termination 

was in the best interest of the children, we affirm the judgment relating to Daniel.

CANDICE

In her sole issue, Candice complains that the evidence was factually insufficient 

for the jury to have found that termination of the parent-child relationship was in the 

children's best interest. However, Candice did not file a motion for new trial. In order to 

complain on appeal, a party must file a motion for new trial to preserve a factual 

sufficiency challenge. TEX. R. CIV. P. 324(b)(2); In re A.M., 385 S.W.3d 74, 79 (Tex. App.—

Waco 2012, pet. denied). We conclude that Candice failed to preserve the factual 

sufficiency complaint made in her sole issue. In re A.M., 385 S.W.3d at 79. Accordingly, 

we overrule Candice's sole issue.

DANIEL

PREDICATE GROUNDS

In his first issue, Daniel complains that the evidence was legally and factually 

insufficient for the jury to have found that he (1) voluntarily left the children in the 

possession of another without providing adequate support of the children and remained 

away for a period of at least six months; (2) engaged in conduct or knowingly placed the 

children with persons who engaged in conduct which endangers the physical or 

emotional well-being of the children; (3) had been convicted or placed on community 

supervision for being criminally responsible for the death or serious injury of a child; (4) 
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constructively abandoned the children; and (5) failed to comply with the provisions of a 

court order that specifically established the actions necessary for the parent to obtain the 

return of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(C), (E), (L), (N), & (O). 

Only one statutory predicate ground is necessary to support termination of parental 

rights when there is a finding of best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 

2003) ("Only one predicate finding under section 161.001(b)(1) is necessary to support a 

judgment of termination when there is also a finding that termination is in the child's best 

interest.").

Termination decisions must be supported by clear and convincing evidence. TEX.

FAM. CODE ANN. §§ 161.001(b), 161.206(a). Evidence is clear and convincing if it "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." TEX. FAM. CODE ANN. § 101.007. 

In evaluating the evidence for legal sufficiency in parental-termination cases, we 

determine whether the evidence is such that a factfinder could reasonably form a firm 

belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 

570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding 

and judgment, and resolve any disputed facts in favor of the finding if a reasonable 

factfinder could have done so. Id. We disregard all contrary evidence that a reasonable 

factfinder could have disbelieved. Id. We consider undisputed evidence even if it is 

contrary to the finding. Id. In other words, we consider evidence favorable to termination 
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if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable 

factfinder could not. Id. We do not weigh credibility issues that depend on the 

appearance and demeanor of the witnesses, for that is solely the province of the 

factfinder. Id. at 573-74. Even when credibility issues appear in the record, we defer to 

the factfinder's determinations as long as they are reasonable. Id. at 573.

In reviewing the factual sufficiency of the evidence, we give due deference to the 

factfinder's findings and do not supplant the factfinder's judgment with our own. In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a 

factfinder could reasonably form a firm conviction or belief that the parent committed 

the predicate ground alleged and that the termination of the parent-child relationship 

would be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1); see In re 

C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, 

then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.

Section 161.001(b)(2)(O) of the Family Code provides that parental rights may be 

terminated if a parent "failed to comply with the provisions of a court order that 

specifically established the actions necessary for the parent to obtain the return of the 

child who has been in the permanent or temporary managing conservatorship of the 

Department of Family and Protective Services for not less than nine months as a result of 
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the child's removal from the parent under Chapter 262 for the abuse or neglect of the 

child." TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Daniel argues that he substantially 

complied with the service plan and because of this, the evidence was insufficient to 

terminate his parental rights on this basis.

This Court has long held that we do not consider "substantial compliance" to be 

the same as completion for purposes of subsection (O) of the Family Code, nor does that 

subsection provide for excuses for failure to complete court ordered services. See In re 

T.N.F., 205 S.W.3d 625, 630-31 (Tex. App.—Waco 2006, pet. denied) (emphasizing that 

parents must comply with every requirement of the court order and that subsection (O) 

does not allow for consideration of excuses for noncompliance). 

The evidence is undisputed that Daniel did not complete every requirement of the 

service plan. He was ordered to complete a psychological evaluation, which he did later 

in the proceedings, and was to follow its recommendations which included a requirement 

to attend a behavioral intervention program, which he did not do. Daniel was ordered 

to participate in therapy and follow all recommendations, but his attendance was 

extremely sporadic, with him missing scheduled sessions. Daniel was required to 

maintain housing and employment during the case, but failed to do both. However, he 

and Candice were living in a residence at the time of trial and he had been working at a 

job for a few months. Daniel had only provided one paystub to the Department during 

the entire case showing that he made $300. He had four jobs and he and Candice had 
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multiple residences throughout the proceedings. Daniel and Candice were even 

homeless at one point after having to leave his family's residence. After reviewing the 

evidence under the appropriate standards, we determine the evidence to be legally and 

factually sufficient to prove that Daniel failed to complete his court-ordered service plan. 

Accordingly, termination of his parental rights was proper pursuant to section 

161.001(1)(O).

Because it is only necessary that we determine the evidence was legally and 

factually sufficient as to one predicate ground under section 161.001(b)(1), we will not 

address the sufficiency of the evidence relating to sections 161.001(1)(C), (E), (L), or (N). 

Issue one is overruled.

BEST INTEREST

In his second issue, Daniel complains that the evidence was legally and factually 

insufficient for the jury to have found that termination was in the children's best interest. 

There are several nonexclusive factors that the trier of fact in a termination case may 

consider in determining the best interest of the child, which include: (a) the desires of the 

child, (b) the emotional and physical needs of the child now and in the future, (c) the 

emotional and physical danger to the child now and in the future, (d) the parental abilities 

of the individuals seeking custody, (e) the programs available to assist these individuals 

to promote the best interest of the child, (f) the plans for the child by these individuals or 

by the agency seeking custody, (g) the stability of the home or proposed placement, (h) 
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the acts or omissions of the parent which may indicate that the existing parent-child 

relationship is not a proper one, and (i) any excuse for the acts or omissions of the parent. 

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In 

re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Some listed factors may be inapplicable to some 

cases while other factors not on the list may also be considered when appropriate. Id.

The children were removed from their parents after Daniel slapped J.S. so hard 

that it left a substantial bruise on his face and neck. Daniel ultimately pled guilty to injury

to a child for this offense and was placed on community supervision. Their home was 

also found to be very unsanitary at the time of the removal. The children were initially 

placed with Daniel's father, but that placement ended when Daniel's father was unable 

to meet the children's needs. The children all had special needs. The children were placed 

in a children's home in Lubbock where A.S., A.S., and D.S. showed improvement during 

the pendency of the proceeding. J.S. continued to have behavioral problems which 

resulted in his placement at a residential treatment facility a couple of months before the 

jury trial, and this placement would only continue after the trial if the Department was 

the managing conservator of the children or if Daniel and Candice paid for it directly. 

There was a substantial history of domestic violence, both physical and sexual, 

between Daniel and Candice, and Daniel admitted to raping Candice. Candice told the 

caseworker she was fearful of Daniel, but Candice reconciled with Daniel after he was 

released from jail because he apologized to her, which she said he had never done before. 
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The children exhibited significant anger and fear toward their father, and told their 

therapist that both Candice and Daniel would hit all of them regularly. A.S. and J.S. were 

only slightly bonded to Daniel. The children exhibited emotional distress at their 

placement due to the trauma they had previously suffered, and made multiple outcries 

of abuse against their parents. Although at times the children were jealous of other 

children at the home who visited with their parents, their therapist did not recommend 

that Daniel have contact with the children. A.S., J.S., and A.S. were all in therapy and 

therapy would continue if the Department remained the children's conservator. D.S. was 

too young at the time of trial for counseling to be of benefit to him, but it would also be 

available to him in the future if needed. 

Daniel had four different jobs during the pendency of the case, and he and Candice 

had moved multiple times and were at times homeless. Daniel and Candice testified that 

at the time of the trial they had established a residence and Daniel had a job for several 

months that he intended to keep. Candice and Daniel had prior CPS involvement from 

Georgia for failing to maintain suitable housing for the children when they resided there.

Candice was suffering from severe depression, which Daniel believed would be 

fully resolved if the children were returned; however, Candice had been suffering from 

depression prior to the removal and Candice and Daniel claimed that it was a cause of 

her inability to maintain the residence in a satisfactory condition.
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Daniel did not complete therapy, the behavioral intervention program, pay any 

child support, or visit with the children during the pendency of the proceedings. Daniel 

blamed these failures on a lack of transportation, the Department's refusal to work with 

him, and his work schedule.

Using the appropriate standards for reviewing the legal and factual sufficiency of 

the evidence, we find that the evidence was both legally and factually sufficient for the 

jury to have found that termination of Daniel's parental rights was in the best interest of 

the children. We overrule Daniel's second issue.

CONCLUSION

Having found no reversible error, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed April 19, 2017

[CV06]