in the Interest of A.B. , 548 S.W.3d 81 ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00365-CV
____________________
IN THE INTEREST OF A.B.
__________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 16-03-03583-CV
__________________________________________________________________
OPINION
In this accelerated appeal, appellant S.B. (“Susan”) appeals from the trial
court’s order in a suit affecting the parent-child relationship, entered after a jury trial,
appointing an intervening nonparent as the sole managing conservator of Susan’s
child, A.B., and appointing Susan as the possessory conservator.1 In two issues,
Susan argues that the evidence is legally and factually insufficient to support the
jury’s finding that a nonparent should be appointed managing conservator of A.B.,
1
To preserve the parties’ privacy and for convenience, we refer to the parties
by fictitious names and to the child by her initials. See Tex. Fam. Code Ann. §
109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8.
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and that she received ineffective assistance of counsel. We affirm the trial court’s
judgment.
BACKGROUND
In March 2016, the Department of Family and Protective Services (“the
Department”) filed a petition for the protection of a child, for conservatorship, and
for termination. A.B. was one of the children subject to the suit. According to the
Department’s petition, the Department took possession of A.B. after the Department
received a referral alleging neglectful supervision, ongoing violence in the home,
and that Susan had untreated mental health issues and was using methamphetamines.
The Department requested that it be appointed as the temporary sole managing
conservator of A.B., and if A.B. could not be reunited with either parent, that the
trial court appoint a relative or other suitable person as permanent sole managing
conservator of A.B. The Department also requested that Susan’s parental rights to
A.B. be terminated if reunification could not be achieved.
After a full adversary hearing, the trial court appointed the Department as the
temporary managing conservator of A.B., and found that it was in the best interest
of A.B. to limit Susan’s rights and duties as temporary possessory conservator. The
trial court ordered Susan to submit to a home study and comply with the
Department’s service plan during the pendency of the suit. The trial court also
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ordered A.B.’s father, A.L.B. Jr. (“Alan”), to comply with a family service plan.
Susan and Alan filed counterpetitions for conservatorship, requesting that the trial
court appoint them, among other things, as joint managing conservators with the
right to determine A.B.’s domicile. During a permanency hearing, the trial court
found that A.B.’s parents were unable to provide A.B. with a safe environment,
ordered A.B. placed in foster care, and ordered A.B.’s parents to have supervised
visitation.
After Susan requested a jury trial, A.B.’s biological half-sister, H.S. (“Holly”),
filed a petition in intervention in the suit and for sibling access, requesting that she
be appointed the sole managing conservator of A.B. J.M. (“James”), a blood relative
of A.B., also filed a petition in intervention for conservatorship and requested that
he be appointed sole managing conservator. The case proceeded to trial, and the jury
was asked whether the Department, Susan, Holly, or James should be appointed
managing conservator. The jury found that Holly should be appointed managing
conservator of A.B. The trial court issued a final order appointing Holly as sole
managing conservator of A.B. and Susan as possessory conservator. Susan appealed.
ANALYSIS
In issue two, which we address first, Susan argues that the evidence is legally
and factually insufficient to support the jury’s finding that Holly should be appointed
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as the sole managing conservator of A.B. Our review of the record indicates that
Susan did not preserve her legal and factual sufficiency complaints for our review.
Rule 324 of the Texas Rule of Civil Procedure requires a motion for new trial
to preserve a complaint of factual sufficiency of the evidence to support a jury
finding. Tex. R. Civ. P. 324(b)(2), (3). In a jury trial, a legal sufficiency issue must
be preserved by filing one of the following in the trial court: a motion for instructed
verdict; a motion for judgment notwithstanding the verdict; an objection to the
submission of the question to the jury; a motion to disregard the jury’s answer to a
vital fact question; or a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509,
510-11 (Tex. 1991); In the Interest of T.L.P., No. 09-13-00220-CV, 2013 WL
5874630, at *2-3 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.). The
record shows that Susan failed to file the required motions and objections to preserve
her legal and factual sufficiency complaints. See Tex. R. Civ. P. 324(b)(2), (3); In
the Interest of T.L.P., 2013 WL 5874630, at *2-3. Susan also does not argue in her
brief that trial counsel unjustifiably failed to preserve her legal sufficiency issue. See
In the Interest of J.P.B., 180 S.W.3d 570, 574 (Tex. 2005). Because Susan waived
these complaints, we overrule issue two. See Tex. R. App. P. 33.1(a).
In issue one, Susan complains that she received ineffective assistance of
counsel that resulted in the jury appointing Holly as managing conservator of A.B.
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In support of her argument, Susan argues that the Texas Supreme Court has held that
there is a statutory right to effective assistance of counsel for indigent persons in
parental-rights termination cases. See In the Interest of M.S., 115 S.W.3d 534, 544
(Tex. 2003). Susan does not cite to any authority supporting her claim that the right
to effective assistance of counsel extends to cases that only resolve conservatorship
issues.
Although the Department’s petition sought the termination of Susan’s parental
rights if reunification with Susan could not be achieved, the Department did not seek,
and the jury did not find at trial, that Susan’s parental rights to A.B. should be
terminated.2 The record shows that the parties only submitted one question to the
jury: “Who should be appointed managing conservator of the child, [A.B.]?” The
case tried to the jury was one of conservatorship, not termination, and because there
is no constitutional or statutory provision granting a right to appointed counsel in
cases resolving the managing conservatorship of a child, we decline to extend a right
to effective assistance of counsel to the dispute in this case. See In the Interest of
G.J.P., 314 S.W.3d 217, 221-24 (Tex. App.—Texarkana 2010, pet. denied). Further,
2
Although the Department’s original petition sought the termination of
Susan’s parental rights, the record shows that the Department did not seek
termination at trial. The record further shows that the intervenors abandoned their
termination pleadings and that all the parties agreed that termination was not an issue
for trial.
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no motion for new trial was filed, and the record before us is insufficient to show
that counsel’s performance was ineffective. We overrule issue two. Having
overruled both of Susan’s issues, we affirm the trial court’s judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on January 17, 2018
Opinion Delivered March 22, 2018
Before McKeithen, C.J., Horton and Johnson, JJ.
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