NO. 07-11-00489-CV 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL B 

JUNE 25, 2012 

IN THE INTEREST OF A.L.D.H., A CHILD 

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2010-791,771; HONORABLE BRADLEY S. UNDERWOOD, JUDGE 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

OPINION 

 April and Michael Fortner, appellants, appeal the judgment of the trial court 

denying their petition to terminate the parental rights of Angel Turner to her daughter, 

A.L.D.H. The Fortners present five issues on appeal. For the reasons stated herein, 

we will affirm the judgment of the trial court. 

Factual and Procedural Background 

 A.L.D.H. was born on November 5, 2009. At the time of her birth, A.L.D.H. 

tested positive for drugs. Turner admitted to using drugs during her pregnancy. Shortly 

after the child’s birth, Turner left the hospital and traveled from Lubbock to Amarillo, 

Texas, in the company of Richard Adkins. During this period of time, Turner continued 
2 

to use methamphetamines. On November 14, while returning to Lubbock, Turner was 

arrested in Plainview, Texas, and her location was unknown to the hospital. During 

Turner’s absence, the hospital was unable to contact anyone regarding the medical 

treatment for A.L.D.H. The hospital notified the Texas Department of Family and 

Protective Services (Department) regarding the presence of drugs in the child. 

Eventually, an investigator for the Department located Turner in the Hale County Jail. 

 After visiting with the Department’s investigator, Turner agreed to a voluntary 

placement of the child with her relatives, Jerry Don and Stacy Vicks. However, shortly 

after the agreed placement, the Vicks informed Turner that they were divorcing and 

would not be able to continue with temporary placement of the child. Stacy suggested 

that Turner place the child in the temporary care of the Fortners. April Fortner is Jerry 

Don Vick’s sister. 

 The day following Stacy’s suggested temporary placement with the Fortners, 

Turner met with April in the Hale County Jail. At all times during the pendency of this 

matter, April has been employed by the Department. Turner agreed to the temporary 

placement of A.L.D.H. and executed the form for such a placement while incarcerated in 

the Hale County Jail. The agreement was faxed to the jail from the local office of the 

Department; however, the Department was not a party to any agreed placement. At the 

time of the placement, it was agreed that the placement would be temporary until Turner 

got out of jail and back on her feet. Turner was advised that extended placement with 

the Fortners might result in the Fortners seeking legal custody of the child. At the time 
3 

of the execution of the agreement, Turner was not advised that the Fortners intended to 

seek termination of her parental rights and adoption of the child. 

 As a result of Turner’s arrest, her parole was revoked, and she was sent to 

prison. While Turner was incarcerated in prison, the Fortners filed an original petition to 

terminate Turner’s parental rights and to adopt the child. Thereafter, a hearing on 

temporary orders was conducted by the trial court. The trial court appointed the 

Fortners as Temporary Managing Conservator of A.L.D.H. and Turner as Temporary 

Possessory Conservator. Turner was released from prison in February 2011. The trial 

on the termination and adoption petition was held in August of 2011. 

 As of the commencement day of the trial, A.L.D.H. had been living with the 

Fortners for all but the first few days of her life. The testimony at trial indicated she was 

bonded with the Fortners and considered April her mother. The testimony revealed 

that Turner had been afforded only limited opportunities to visit with the child after her 

release from prison. 

 At the trial, the evidence showed that Turner had a significant history of drug 

abuse. She testified that she had been addicted to drugs for most of her life. However, 

Turner gave detailed testimony regarding the steps she had taken since her last arrest 

to stay off of drugs. These included treatment while in prison, outpatient treatment after 

her release, and continued attendance at AA and NA groups. Her testimony was 

supported by documentary evidence of her completion of the programs of which she 

testified. Turner’s parole officer testified about Turner’s efforts to stay off of drugs and 
4 

the requirements for drug testing that apply to Turner. The parole officer further testified 

that all of Turner’s drug tests were negative for the use of illicit drugs. 

 In addition to the testimony regarding Turner’s efforts to rid herself of drug 

addiction, Turner offered detailed testimony about her efforts during the time she was 

incarcerated to stay in contact with the Fortners regarding A.L.D.H.’s progress. The trial 

court heard testimony regarding the efforts Turner had made in preparing herself to be a 

better parent. These included a number of different parenting classes that were 

directed specifically at women. 

 The issue of whether Turner was made aware that the Fortners had always 

intended to seek to adopt the child was hotly contested. Turner testified that she was 

unaware that it was the Fortners’ plan to attempt to terminate Turner’s parental rights 

and adopt the child until the petition was filed. The Fortners presented testimony that 

Turner was made aware early on that, if she was sent to prison for any period of time 

that exceeded six months, termination and adoption was an option. However, the trial 

court’s findings of fact included a finding that Turner had been adamant from the 

beginning that she was not willing to agree to the termination of her parental rights. 

 At the conclusion of the trial, the trial court found that it was not in A.L.D.H.’s best 

interest to terminate the parental relationship existing between Turner and A.L.D.H. 

Following the trial court’s announcement, an order denying the petition to terminate and 

adopt was entered that also named the Fortners as the non-parent Joint Managing 

Conservator and Turner as the Possessory Conservator of the child. The order entered 

did not contain a specific visitation schedule; however, the trial court had admonished 
5 

all parties that visitation was expected to be worked out between the parties in an effort 

to ease the transition of A.L.D.H. back to Turner. Subsequently, the trial court, on its 

own motion, modified the conservatorship order to require the parties to cooperate in 

the transition process through the use of a child specialist to aid in formulating a 

transition plan. 

 The Fortners filed a motion for new trial and an amended motion for new trial. 

The motions contend that there was newly discovered evidence that would result in a 

different outcome. The essence of the newly discovered evidence was that the 

biological father, Eric Hair, had executed a relinquishment of parental rights after the 

trial court’s ruling. Additionally, the Fortners contend that psychologist Shaun H. Keel, 

EdD, had prepared additional reports regarding the child. The motion was overruled by 

operation of law. 

 The Fortners’ appeal presents five issues for our consideration. First, the trial 

court abused its discretion in denying the petition to terminate and adopt. Second, the 

trial court erred in determining that there is a parental presumption applicable to the 

facts of the case. Third, the trial court abused its discretion in entering its findings of 

fact and conclusions of law. Fourth, the trial court erred in refusing to admit an expert 

report. And, fifth, the trial court erred in failing to grant a new trial. Disagreeing with the 

Fortners, we will affirm the trial court’s judgment denying the petition to terminate and 

adopt. 
6 

Denial of Petition to Terminate and Adopt 

Applicable Law

 We begin with the observation that the relationship existing between a parent 

and a child is of such importance that it is considered to be of a constitutional 

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Accordingly, appellate 

courts strictly construe the termination proceeding. See In re G.M., 596 S.W.2d 846, 

846 (Tex. 1980). Further, the law accords a strong presumption that the best interest of 

the child is served by maintaining the parent child relationship. In re T.N., 180 S.W.3d 

376, 382 (Tex.App.—Amarillo 2005, no pet.) (citing In re G.M., 596 S.W.3d at 847). In 

fact, due process dictates a parent’s relationship to a child can only be severed by clear 

and convincing evidence. See id. The Family Code defines clear and convincing 

evidence as “that measure or degree of proof that 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 (West 2008). As the petitioners in the action to 

terminate the parental rights of Turner and adopt the child, the Fortners had the burden 

of establishing by clear and convincing evidence that termination was in the best 

interest of the child. See Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 

S.W.3d 189, 196 (Tex.App.—Houston [1st Dist.] 2005, pet. denied). 

Standard of Review

 In addressing this standard of review, we note that both the Fortners and Turner 

have cited the Court to the standard of review utilized in review of an order terminating 

the parental rights. However, as noted above, we are dealing with a judgment that 
7 

denied the termination as not being in the best interest of the child. Next, as pointed out 

above, the appealing parties, the Fortners, had the burden of proof on the issue now 

being appealed. Thus, we feel that the proper standard of review as to the legal 

sufficiency of the evidence is as set forth below. 

Legal Sufficiency

 In reviewing the challenge to the legal sufficiency of the trial court’s denial of the 

petition to terminate, we apply the as-a-matter-of-law standard of review. See In re 

D.S.G., No. 13-10-00683-CV, 2011 Tex. App. LEXIS 6081, at *8 (Tex.App.—Corpus 

Christi Aug. 4, 2011, no pet.) (mem. op.) (citing Sterner v. Marathon Oil Co., 767 

S.W.2d 686, 690 (Tex. 1989)). This means that, in the case before the Court, the 

Fortners must show that the evidence established, as a matter of law, all vital facts 

supporting the issue. See id. (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 

(Tex. 2001) (per curiam)). 

Factual Sufficiency

 Normally, when challenging the factual sufficiency of the evidence to sustain a 

factfinder’s resolution of an issue that the appealing party bore the burden of proof on, 

the appealing party is required to establish that such a finding was against the great 

weight and preponderance of the evidence. See Dow Chem. Co., 46 S.W.3d at 242. 

However, such is inadequate when reviewing a finding in a termination case where the 

burden of proof was by clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 

264-66 (Tex. 2002). If we were reviewing the factfinder’s answer that termination was in 

the best interest of the child, the standard would be whether the evidence is such that a 
8 

factfinder could reasonably form a firm belief or conviction about the truth of the 

movant’s allegations. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Because we are 

faced with the factfinder’s answer that termination is not in the best interest of the child, 

we must review the evidence to ascertain if the evidence was of such a character that it 

had to produce in the mind of the factfinder a firm belief or conviction that termination 

was in the best interest of the child. See id. 

Analysis of the Legal Sufficiency

 In conducting a legal sufficiency review, we must review the entire record in the 

light most favorable to the finding of the trier of fact. In re J.F.C., 96 S.W.3d at 266. In 

so doing, we assume that the factfinder resolved disputed facts in favor of its finding if a 

reasonable factfinder could do so. Id. Likewise, we should disregard all evidence that a 

reasonable factfinder could have disbelieved or found incredible. Id. However, we do 

not disregard all evidence that does not support the finding, as disregarding undisputed 

facts that do not support the finding could skew the analysis. Id. 

 We note that witness credibility issues “that depend on appearance and 

demeanor cannot be weighed by the appellate court.” In re J.P.B., 180 S.W.3d 570, 

573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the 

transcript, the appellate court must defer to the factfinders’ determinations, at least so 

long as those determinations are not themselves unreasonable. Id. 

 The record before this Court established several things: 1) Turner had at least a 

35-year history of drug abuse that began at age 11 or 12; 2) A.L.D.H. was born addicted 

to methamphetamine; 3) Turner left the hospital at a time when the child was in 
9 

neonatal intensive care; 4) Turner was arrested while traveling back to Lubbock, where 

the child was, from Amarillo; 5) as a result of her arrest, Turner’s parole was revoked, 

and she was sent back to prison; 6) prior to being sent back to prison, Turner arranged 

for a family placement for A.L.D.H. with Stacy and Jerry Vick; 7) prior to being sent to 

prison, Turner was advised that the family placement would not work because the Vicks 

were divorcing; 8) at the suggestion of Stacy Vick, Turner agreed to a voluntary 

placement with the Fortners; 9) the Fortners provided a nurturing and loving home for 

A.L.D.H. and have bonded with her; 10) at all times relevant, April was an employee of 

the Department in the Children’s Protective Services (CPS) section; 11) Turner agreed 

to the temporary placement with the Fortners, however; Turner has consistently 

disagreed with any permanent placement; 12) Turner was released from prison, quickly 

had her parole transferred, and then moved to Midland, Texas; 13) since moving to 

Midland, Turner has maintained sobriety and has not had any positive drug tests; 14) 

Turner has completed an inpatient drug rehabilitation program prior to release from 

prison; 15) Turner has attempted to visit with the child; however, many attempts at 

visitation have resulted in no visitation being allowed; 16) Turner had a son who was the 

subject of an ongoing CPS investigation regarding his placement in Turner’s stepmother’s home; 17) Turner’s son has been placed in her care and custody by CPS 

without any limitations; and 18) Turner has married and has established a home in 

Midland, Texas, where she is employed. 

 As the trial court noted when announcing his decision, if ever foster parents could 

have earned the right to adopt a child, the Fortners would have earned the right in this 

case. However, the best interest of a child is not a comparative contest in which a non-
10 

parent party can earn the right to terminate a parent’s parental rights so the non-parent 

might adopt the child. See In re C.E.K., 214 S.W.3d 492, 498-99 (Tex.App.—Dallas 

2006, no pet.) (quoting In re D.M., 58 S.W.3d 801, 814 (Tex.App.—Fort Worth 2001, no 

pet.) “the best interest standard does not permit termination merely because a child 

might be better off living elsewhere”). Rather, it is based upon considerations and 

elements that make up the best interest test as outlined in Holley v. Adams, 544 S.W.2d 

367, 371-72 (Tex. 1976). A review of these factors reveals the following: 1) the child is 

too young to voice an informed desire; 2) the Fortners have met the child’s current 

emotional needs; however, there is no evidence that Turner will not be able to meet 

those needs in the future; 3) although transition will be difficult, there is no evidence that 

Turner presents an emotional or physical danger to the child; 4) both the Fortners and 

Turner have the parenting abilities to meet the child’s needs; and 5) both the Fortners 

and Turner present a stable home environment. Granted, Turner’s previous conduct 

might otherwise indicate that the existing parent-child relationship is not a proper one. 

However, the trial court heard the explanation offered by Turner, along with the 

admission of all her past wrongs, and still determined that it was not in the child’s best 

interest to terminate the parent-child relationship. It is illustrative that, in its findings of 

fact, the trial court used the phrase “There is credible evidence” and then described the 

fact, as this highlights that much of the evidence the trial court heard turned on the issue 

of credibility of the witness. As an appellate court, we cannot reweigh that evidence and 

alter those credibility determinations. In re J.P.B., 180 S.W.3d at 573. In the final 

analysis, we cannot say that the Fortners have proven as a matter of law, by clear and 
11 

convincing evidence, that termination of Turner’s parental rights is in the best interest of 

A.L.D.H. See In re D.S.G., 2011 Tex. App. LEXIS 6081, at *8. 

Analysis of Factual Sufficiency

 A review of the same evidence, even in a neutral light, yields the same result on 

the issue of factual sufficiency of the evidence. The evidence that the trial court heard 

on the issue of the best interest of the child can be best described as contested. As in a 

legal sufficiency review, it is the factfinder who is responsible to resolve the conflicts in 

the testimony and pass upon the credibility of the witnesses. See In re R.D.S., 902 

S.W.2d 714, 716 (Tex.App.—Amarillo 1995, no writ). Additionally, we note that the 

psychologist, Shaun Keel, EdD testified that it would be in the best interest of the child 

to terminate the parent-child relationship between Turner and the child. This was, 

according to the psychologist, because of the significant bonding that had occurred 

between the Fortners and A.L.D.H. The psychologist further testified that it would be 

traumatic for A.L.D.H. to be taken from the Fortners’ custody. However, we note that 

there was also considerable testimony from Turner about problems she had faced in 

trying to see her child. According to this testimony, the Fortners were attempting to 

keep her from being able to bond with A.L.D.H. by denying her meaningful visitation. As 

stated above, it was the factfinder’s duty to resolve this conflicting testimony. See id. 

We cannot say that the evidence offered by the Fortners was of such a character that it 

had to produce in the mind of the factfinder a firm belief or conviction that termination 

was in the best interest of the child. See In re C.H., 89 S.W.3d at 25. 
12 

Conclusion-Sufficiency of the Evidence

 Because we have found that the evidence did not prove as a matter of law that 

termination of the parent-child relationship was in the best interest of the child and the 

evidence at trial would not necessarily lead the factfinder to form a firm belief or 

conviction that termination is in the best interest of the child, we overrule the Fortners’s 

first issue. 

Parental Presumption 

 The Fortners’ second issue contends that the trial court abused its discretion by 

stating in conclusion of law number six that “there is a parental presumption in this suit.” 

We review a conclusion of law as a legal question. See BMC Software Belg., N.V. v. 

Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Therefore, our review is a de novo review 

of a question of law. Id. 

This conclusion of law is reversible error, according to the Fortners, because the 

only statutory parental presumption is in Family Code section 153.131(a) and that 

section does not apply because this is a modification under chapter 156 of the Family 

Code. However, the Fortners seem to miss the mark in regards to this conclusion of 

law. 

 When read in context, conclusion number six is directed at the suit to terminate 

the parent-child relationship and not the subpart regarding the appointment of a 

managing conservator. Conclusion number four references the standing of the Fortners 

to file a petition to terminate the parent-child relationship and adopt the child. 
13 

Conclusion number seven states that the Fortners had established one of the grounds 

for termination under section 161.001(1). Conclusion number eight then states that the 

Fortners have failed to prove that termination was in the best interest of the child. 

 As can be seen by the context, conclusion number six was directed to the 

presumption the law affords a parent that the best interest of the child is served by 

maintaining the parent-child relationship. See In re R.R., 209 S.W.3d 112, 116 (Tex. 

2006) (per curiam); In re T.N., 180 S.W.3d at 382. This is a correct statement of the 

law, and, therefore, the trial court was not in error. See Tex. Dep’t of Pub. Safety v. 

Stockton, 53 S.W.3d 421, 423 (Tex.App.—San Antonio 2001, pet. denied) (observing 

that trial court’s conclusion of law will be upheld if judgment is sustainable on any legal 

theory supported by evidence). Accordingly, the Fortners’ second issue is overruled. 

Error in Findings of Fact and Conclusions of Law 

 The Fortners’ third issue is multifarious in that it is attacking several of the 

findings of fact and conclusions of law entered by the trial court. We note that most of 

the complaints addressed in this third issue are simply restatements of the Fortners’ 

complaints regarding the sufficiency of the evidence and the issue regarding the 

parental presumption; therefore, to the extent that such complaints have been 

previously addressed, we will not again address the issues except to refer the parties to 

our discussion under the first and second issues. 
14 

Standard of Review

As this matter was tried without a jury and the trial court filed findings of fact and 

conclusions of law, we treat those findings with the same force and dignity as a jury’s 

verdict upon jury questions. See Latch v. Gratty, Inc., 107 S.W.3d 543, 545 (Tex. 2003) 

(per curiam) (citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994)). The trial 

court’s findings of fact are reviewed for legal and factual sufficiency of the evidence 

under the same standards as applied to jury findings. See In re Marriage of Harrison, 

310 S.W.3d 209, 211 (Tex.App.—Amarillo 2010, pet. denied) (citing Ortiz v. Jones, 917 

S.W.2d 770, 772 (Tex.1996)). 

The trial court’s conclusions of law are not reviewable from an evidentiary 

standpoint, however; we may review the conclusions drawn from the facts to determine 

their correctness. See id. at 212 (citing Ashcroft v. Lookadoo, 952 S.W.2d 907, 910 

(Tex.App.—Dallas 1997, writ denied) (en banc)). 

 Initially, the Fortners complain about finding of fact one and conclusion number 

three regarding the father’s not filing an answer. While it is true that the Fortners did file 

a motion for new trial claiming newly discovered evidence in this case--an affidavit of 

relinquishment signed by the father--the record does not contain any order by the trial 

court which acted upon this newly discovered evidence; therefore, the motion for new 

trial was overruled by operation of law. See TEX. R. CIV. P. 329b(c). The propriety of 

the trial court’s denial of a new trial is the subject of the Fortners’ issue five and will be 

addressed in that section of this opinion. Inasmuch as the record supports the fact that 

the father had filed no answer at the time judgment was signed and the findings of fact 
15 

and conclusions of law were requested, the trial court’s findings of fact and conclusions 

of law and are correct. 

 The Fortners next attack findings of fact three that it is in the child’s best interest 

to be placed with her mother, Turner. What follows is a restatement of the Fortners’ first 

issue in the guise of attacking the findings of fact. Having found that the evidence is 

legally and factually sufficient to support the trial court’s judgment of denial of the 

termination petition, we will not again address the contentions otherwise but will refer 

the parties to our discussion of the Fortners’ first issue. 

 We reach the same conclusion in addressing the Fortners’ attack as to 

conclusion number eight that the Fortners failed to prove that termination was in the 

best interest of the child. We refer the parties to our discussion of the Fortners’ first 

issue. 

 The Fortners next contend that the trial court erred in considering the evidence of 

the return of Turner’s son (Kenny) to her. However, a reading of the record reveals that 

it was the Fortners’ examination of Turner that first introduced the subject of Kenny into 

this trial. A fair reading of the record would indicate that the Fortners were attempting to 

show that Turner had used drugs during her pregnancy with Kenny and that she had 

allowed him to be raised by relatives. After such an examination, the trial court heard 

the testimony that Kenny had been returned to Turner based upon a number of 

considerations, many of which could be considered to be relevant to the issue of the 

best interest of A.L.D.H. Therefore, we cannot say the trial court committed any error in 

considering these facts and addressing this consideration in his conclusion of law eight. 
16 

 The trial court’s conclusion number fourteen concerns Kenny and the steps 

Turner has taken to reacquire custody of him. For the same reasons outlined above, 

this conclusion can be considered to be relevant to the overarching issue of the best 

interest of A.L.D.H. 

 The Fortners’ attack on conclusion number fifteen, that Turner can provide 

adequate stability for A.L.D.H., has future plans for providing for the child, has 

established safety measures to prevent injury to the child, is simply another attack on 

the sufficiency of the evidence. These areas touched on in conclusion number fifteen 

are consistent with the considerations outlined in Holley v. Adams and addressed in our 

discussion of the evidentiary sufficiency in the Fortners’ first issue. See 544 S.W.2d at 

371-72. 

 Likewise, the Fortners’ argument as to the parental presumption has been 

previously addressed in the discussion of their second issue. 

 Having found that the trial court did not err regarding these matters, the Fortners’ 

third issue is overruled. 

Admission of Psychologist Report 

 The Fortners next complain that the trial court committed reversible error in not 

allowing the report prepared by Shaun H. Keel, EdD to be admitted over a hearsay 

objection. Dr. Keel had prepared a bonding assessment regarding the bonding that had 

taken place between the Fortners and A.L.D.H. and her observations of Turner’s 

interaction with the child. The record reflects that after Dr. Keel was sworn in and her 
17 

credentials had been established, she was asked to identify Petitioners’ Exhibit 1, which 

she testified was her report. The report was then offered, and an objection was lodged 

against the admission of the report. The trial court sustained the hearsay objection. 

Following this exchange, Dr. Keel testified about all of her observations regarding the 

Fortners and the child and Turner and the child. At no point was Dr. Keel prevented 

from giving her opinion regarding the child and the best interest of the child. 

 Assuming, without deciding that the trial court erred in denying the admission of 

the report, such a ruling is not reversible error. This is so because, for a ruling 

excluding evidence to be reversible error, the error must have probably caused the 

rendition of an improper judgment. See State v. Cent. Expressway Sign Assocs., 302 

S.W.3d 866, 870 (Tex. 2009). Evidence that is cumulative results in the harm likely 

being harmless. Id. 

 The report in question was cumulative of the testimony offered by the witness. 

The Fortners were allowed to question the witness at length, and the witness 

consistently referred to the report to refresh her memory, as necessary. Under these 

facts, any error in denying admission of the report was harmless. See TEX. R. APP. P. 

44.1(a)(1). 

Motion for New Trial 

 After the trial court entered its judgment denying the petition to terminate and 

adopt, the Fortners filed an original and an amended motion for new trial. These 

motions for new trial alleged that a new trial was warranted for several different reasons. 

On appeal the Fortners limits their complaint to a contention that newly discovered 
18 

evidence requires that this Court overturn the judgment and remand the case for a new 

trial. The evidence at issue is the affidavit of relinquishment of A.L.D.H.’s father, Eric 

Hair. From the record, we observe that the affidavit was made a part of both the original 

and amended motion for new trial. 

Standard of Review 

 Denial of a motion for new trial is reviewed for abuse of discretion. See Waffle 

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A party seeking a new trial 

on the basis of newly discovered evidence must demonstrate to the trial court that 1) the 

evidence has come to its knowledge since the trial, 2) its failure to discover the 

evidence sooner was not due to lack of diligence, 3) the evidence is not cumulative, and 

4) the evidence is so material it would probably produce a different result if a new trial 

were granted. Id.

Analysis

 The record before us contains only the original and amended motion for new trial. 

Neither one is sworn, and each contains only the most conclusory allegations that the 

affidavit of relinquishment of the father was discovered after the trial and that the 

Fortners had diligently pursued this evidence. See id. What is missing is any 

information that would allow the trial court to ascertain whether the Fortners used due 

diligence in trying to obtain this affidavit of relinquishment before the trial commenced. 

Likewise, regarding a different result being obtained on a new trial, the motion speaks 

only in reference to the termination of Hair’s parental rights and does not mention or 
19 

demonstrate how this affidavit would produce any different result regarding Turner’s 

parental rights. See id.

 On the record before this Court, we cannot say that the trial court abused its 

discretion by allowing the motion for new trial to be overruled by operation of law. See

id. 

Conclusion 

 Having overruled the Fortners’ issues, we affirm the judgment of the trial court. 

 Mackey K. Hancock 

 Justice