This Court has declined to recognize an alleged noncompliance with the ADA as an available defense in cases involving termination of parental rights. See In re S.G.S., 130 S.W.3d 223, 229-30 (Tex. App.-Beaumont 2004, no pet.); see also In re C.L., No. 07-14-00180-CV, 2014 Tex.App. LEXIS 11104, at *9 (Tex. App.-Amarillo Oct. 7, 2014, no pet.) (mem. op.)
Nonetheless, in the interest of justice, assuming without deciding that Mother properly preserved her complaints for appeal, our review of the record indicates her arguments lack merit. See In re C.L., No. 07-14-00180-CV, 2014 WL 5037982, at *4-5 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.) (determining that mother failed to preserve her legal and factual sufficiency claims for review on appeal but concluding that even if appellant had properly preserved her issues, her arguments lacked merit). Analysis
; In re A.B., 548 S.W.3d 81, 83-84 (Tex. App.—Beaumont 2018, no pet.); In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op). To preserve a factual insufficiency claim for review, the complaint must first be included within a motion for new trial.
A legal sufficiency challenge preserved only by a motion for new trial does not entitle the appellant to rendition of judgment. In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11-12 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.). A challenge of the factual sufficiency of the evidence must be raised by a motion for new trial.
(mem. op.); In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11 (Tex. App.—Amarillo Oct. 7, 2014 no pet.) (mem. op). After a jury trial, factual sufficiency challenges must be raised in a motion for new trial.
As such, it is authorized to believe some, all, or none of a witness's testimony. In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *16-17 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.). The Department and the grandparents shouldered the burden of rebutting the parental presumption.
If a party fails to do this, error is not preserved, and the complaint is waived. Bushnell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g); In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11-12 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.). We do not find any indication in the record that Mother raised in the trial court her complaint that she did not voluntarily sign the affidavit of relinquishment.
However, when a legal sufficiency challenge is preserved only by a motion for new trial the appellant is not entitled to rendition of judgment by the appellate court. In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11-12 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases of involuntary termination of parental rights.
In re M.N.M., No. 05-14-00723-CV, 2014 WL 6737003, at *12 (Tex. App.—Dallas Dec. 1, 2014, pet. denied) (mem. op.); In re C.L., No. 07-14-00180-CV, 2014 WL 5037982, at *3 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.); In re B.L.M., 114 S.W.3d 641, 649 (Tex. App.—Fort Worth 2003, no pet.); In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Further, Susan testified about her duties as a homemaker and spouse in support of Robert. Finally, Susan testified about the steps she had taken to seek employment and to improve her ability to find employment. It was up to the trial court to judge the credibility of Susan's testimony and to decide the weight to be given to that testimony. See In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *17 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.). In rendering the final divorce decree, the trial court ordered Robert to pay Susan a substantial amount of money for items that were Robert's separate debts that had been paid out of the community estate.