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Click here for the full text of this decision FACTS:Kevin J. had never seen or lived with his minor child, D.J.J. Kevin was arrested for multiple drug possession offenses before D.J.J. was born, and was still in jail when 4-month-old D.J.J. was removed from his mother, Misty Z., due to her drug use. At the time of trial to terminate his parental rights over D.J.J., Kevin was serving four concurrent five-year sentences for drug possession and evading arrest. The jury found that termination of Kevin’s parental rights would be in D.J.J.’s best interest, and Kevin’s parental rights were terminated. HOLDING:Reversed and remanded. Kevin appeals from the trial court’s order terminating his parental rights in D.J.J. Kevin challenges the legal and factual sufficiency of the evidence to support the trial court’s termination order, challenges the constitutionality of Texas Rule of Civil Procedure 324(b)(2) and complains that his trial counsel was ineffective. But the court points out that challenges to the factual sufficiency of the evidence must be raised in a motion for new trial. The court finds that it is undisputed that Kevin did not do so. Therefore, the court holds that Kevin’s legal and factual sufficiency challenges are waived on appeal. Kevin next complains that his trial counsel was ineffective for failing to preserve his legal and factual sufficiency points in a motion for new trial. The court states that if the evidence is legally and factually sufficient to support one of the grounds for termination and to prove that termination is in D.J.J.’s best interest, Kevin received effective assistance of counsel. Because there is no evidence that Kevin’s convictions will result in his confinement for not less than two years from the date the petition was filed, the court holds that the evidence is legally insufficient to support termination on that ground. Further, the court finds that there is no evidence to support the grounds for termination that Kevin voluntarily left D.J.J. alone or in the possession of another for at least six months without providing adequate support; that Kevin failed to support D.J.J. in accordance with his ability; or that he constructively abandoned D.J.J. The court reasons that Kevin’s separation from D.J.J. was not voluntary because he was incarcerated before D.J.J. was born. Further, the court holds that there is no evidence that Kevin had any means of providing support for D.J.J. or that D.J.J. lacked anything. Instead, the court finds that the evidence shows that, at the time he was removed from Misty’s care, D.J.J. was developmentally on target, “happy, spoiled,” and well-fed. Accordingly, the court concludes that the evidence is legally insufficient to support termination on these grounds. For similar reasons, the court also finds that there was no evidence to support the grounds that Kevin knowingly placed or allowed D.J.J. to remain in conditions or surroundings that endangered D.J.J.’s physical or emotional well-being or engaged in conduct or knowingly placed D.J.J. with persons who engaged in conduct that endangered D.J.J.’s physical or emotional well-being. The court finds that, not only did Kevin’s substance abuse not endanger D.J.J.’s health and safety, but Kevin also, on his own initiative, successfully completed a 30-hour substance abuse program while he was in prison, and he had joined and was participating in Narcotics Anonymous. Finally, the court addresses the remaining ground for termination that Kevin failed to comply with his service plan that established the actions necessary for him to obtain the return of D.J.J. The court reviews the evidence regarding Kevin’s attempts to comply with the service plan and concludes that the evidence is insufficient to allow a fact-finder to reasonably form a firm belief or conviction that Kevin had failed to comply with his service plan. The court holds that the mere fact that Kevin had not written weekly letters to D.J.J., who was only 20 months old at the time of trial, is not, alone, legally sufficient to support this ground for termination by clear and convincing evidence. Because the evidence is legally insufficient to support any of the Texas Department of Family and Protective Services’ grounds for terminating Kevin’s parental rights in D.J.J., the court finds that it must conclude that Kevin’s assistance of counsel was deficient. Having sustained Kevin’s ineffective-assistance complaint, the court reverses the trial court’s order of termination as to Kevin and remands the cause for a new trial. OPINION:Cayce, C.J.; Cayce, C.J.; Walker and McCoy, JJ.

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