

Opinion filed May 13, 2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-08-00276-CV
                                                    __________
 
             In the Interest of M.F., C.B.F., & E.F.,
CHILDREN 

 
                                   On Appeal from the 35th
District Court
                                                           Brown
County, Texas
                                               Trial
Court Cause No. CV 05-09-419
 

 
                                            M
E M O R A N D U M   O P I N I O N
            James
Earl Foster and Shonda Lean Foster[1]
appeal from the trial court’s order terminating their parental rights to their
three children M.F., C.B.F., and E.F.  We affirm.
            On
September 16, 2005, the Texas Department of Family and Protective Services
filed its original petition for protection of a child.  The trial court entered
an order naming the Department as sole managing conservator of the children.  The
children were placed with their paternal great aunt and uncle, David and
Barbara Wiedebusch.  After a mediated settlement, the trial court entered an
agreed final order on October 30, 2006, in which it named the Wiedebusches as
the permanent managing conservators of the three children.  The agreed order
named James Foster and Shonda Foster as possessory conservators of the children
and established a detailed visitation schedule.  On October 2, 2007, the Wiedebusches
relinquished custody of the children to the Department after conflicts arose
between the Wiedebusches and James and Shonda Foster.  The Department was again
named managing conservators of the children.  The Department filed a petition
to terminate the parental rights of James and Shonda Foster.  After a jury
trial, the trial court entered an order terminating the parental rights of
James and Shonda Foster to M.F., C.B.F., and E.F.  It is from this order that
the parties appeal.  
            James
brings three issues on appeal, and Shonda brings four issues on appeal.  Both
James and Shonda argue that the trial court erred in ruling that the Department
had standing to proceed after the mediated settlement agreement.  Tex. Fam. Code Ann. § 102.003(a)(5)
(Vernon Supp. 2009) states that a governmental agency has standing to file an
original suit affecting the parent-child relationship at any time.  Further, Tex. Fam. Code Ann. § 262.001(a)
(Vernon 2008) states that a governmental entity “may file a suit affecting the
parent-child relationship requesting an order or take possession of a child
without a court order as provided by this chapter.”  The mediated settlement
agreement did not deny the Department standing, and the trial court did not err
when it found that the Department had standing to file suit.  We overrule both
James’s and Shonda’s third issues on appeal.
            James
and Shonda both argue that the trial court erred in allowing testimony concerning
conduct that occurred prior to the mediated settlement agreement.  James and
Shonda contend that, after the mediated settlement and agreed final order, the
Department was no longer a party to the action.  James and Shonda further argue
that res judicata prevents the Department from offering evidence of misconduct
that occurred prior to the agreed final order.  Tex. Fam. Code Ann. § 161.004 (Vernon 2008) is instructive:
            (a) The
court may terminate the parent-child relationship after rendition of an order that
previously denied termination of the parent-child relationship if:
 
            (1) the
petition under this section is filed after the date the order denying
termination was rendered;
 
            (2) the
circumstances of the child, parent, sole managing conservator, possessory
conservator, or other party affected by the order denying termination have
materially and substantially changed since the date that the order was
rendered;
 
            (3) the
parent committed an act listed under Section 161.001 before the date the order denying
termination was rendered;  and
 
                        (4)
termination is in the best interest of the child.
 
            (b) At a
hearing under this section, the court may consider evidence presented at a
previous hearing in a suit for termination of the parent-child relationship of
the parent with respect to the same child.
 
Although
there was not a previous order denying termination of James’s and Shonda’s
parental rights, there was an agreed final order in response to a petition to
terminate their parental rights.  The Department filed a subsequent petition to
terminate James’s and Shonda’s parental rights after the agreed final order. 
The circumstances of the children had materially changed as the managing conservators
of the children, the Wiedebusches, had relinquished custody of the children
based upon conflicts with James and Shonda.  Section 161.004 allows the trial
court to consider evidence presented in a previous hearing in a suit for
termination, and we follow that reasoning and find that the trial court could
consider evidence of conduct prior to the agreed final order.  We overrule both
James’s and Shonda’s second issues on appeal. 
In
his first issue on appeal, James argues that the evidence is factually
insufficient to support the jury’s finding of termination.  In her first issue
on appeal, Shonda argues that the evidence is legally insufficient to support
the jury’s finding of termination. 
Due process requires that the grounds for termination be
established by clear and convincing evidence.  This requires 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 (Vernon 2008); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31
(Tex. 1994).  When conducting a legal sufficiency review, we review the entire
record in the light most favorable to the finding and determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its
finding was true.  City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005);
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re J.P.H., 196
S.W.3d 289, 292 (Tex. App.—Eastland 2006, no pet.).  We must assume that the
factfinder resolved disputed facts in favor of its finding.  Phillips v. Tex.
Dep’t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.—Eastland
2004, no pet.).  We must also disregard all evidence that a reasonable
factfinder could have disbelieved or found incredible, but we cannot disregard
undisputed facts.  In re J.F.C., 96 S.W.3d at 266.
When
conducting a factual sufficiency review, we review the entire record, including
evidence in support of and contrary to the judgment, and give due consideration
to evidence the trial court could have found to be clear and convincing.  In
re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re J.P.H., 196 S.W.3d at
292-93. We then determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s
allegations.  In re C.H., 89 S.W.3d at 25; In re J.P.H., 196
S.W.3d at 292.  We also consider whether any disputed evidence is such that a
reasonable factfinder could not have resolved that evidence in favor of its
finding.  In re J.F.C., 96 S.W.3d at 266.
The
Department sought termination under provisions set out in Tex. Fam. Code Ann. § 161.001(1)
(Vernon Supp. 2009) including:
            (D)
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
 
            (E)
engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child;  
 
(F)
failed to support the child in accordance with the parent’s ability during a
period of one year ending within six months of the date of the filing of the
petition; [or]
 
(O)
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 the child’s removal from the parent under Chapter 262 for the
abuse or neglect of the child.
            
There must also
be a finding that termination is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001(2)
(Vernon Supp. 2009).       
“Endanger”
means more than a threat of metaphysical injury or a less than ideal
environment, but the conduct need not actually injure the child, nor is it
necessary that the conduct be directed at the child.  “Endanger” “means to
expose to loss or injury; to jeopardize.”  Texas Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Phillips, 149 S.W.3d at 817. 
The Department need not establish the specific danger to the child’s well-being
as an independent proposition; the danger may be inferred from parental
misconduct.  Phillips, 149 S.W.3d at 817; In re J.J. & K.J.,
911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ den’d).
The
Department received numerous reports of abuse and neglect in the home of James
and Shonda beginning in 1997.  In 2004, the trial court issued a protective
order in which it ordered that James not commit domestic violence against Shonda
and that James not have contact with Shonda.  Shonda had previously filed an
application for a protective order in 2002.  James testified at the termination
hearing that he and Shonda had physical altercations in front of the children. 
The police were called to the home numerous times as a result of domestic
violence.  M.F. called the police to come to the house on one occasion.  James
testified that he and Shonda engaged in conduct that endangered the well-being
of the children. 
A
Department investigation in 2005 revealed serious ongoing domestic violence in
the home.  The Department received a priority referral for M.F., C.B.F., and
E.F. on September 2, 2005, for the alleged physical abuse of C.B.F. by James
and Shonda.  C.B.F. had a bruise and knot on the middle of her forehead, and
she said James caused the injury.  C.B.F. later said she did not know how she
got the knot and bruise.  M.F. and C.B.F. told school officials about numerous
incidents of domestic violence. 
            After
their removal from James and Shonda, M.F. and C.B.F. received counseling
services from Lynn Sharpin.  Sharpin testified that M.F. and C.B.F. were
initially hostile and physically aggressive.  M.F. and C.B.F. were “calming
down” and “stabilizing in their adjustment” after six months in the Wiedebusches’
home, but when visitation started with James and Shonda, they regressed.  M.F.
and C.B.F. told Sharpin that James and Shonda fought a lot and that Shonda took
drugs.  M.F. and C.B.F. drew pictures that showed James throwing Shonda to the
floor, James choking Shonda, and James bending Shonda’s hand backwards.  M.F.
and C.B.F. told Sharpin that they did not feel safe returning to James and
Shonda.
            Shonda
testified at the termination hearing that she was arrested after an altercation
in the home in which she became angry and threw a knife.  Shonda was also
arrested as a result of a confrontation during an exchange of the children with
the Wiedebusches.  Shonda stated that she developed a problem with painkillers
in 1999 and started using methamphetamine in 2005.  Shonda testified that she
was arrested on June 14, 2008, and again on July 5, 2008, for possession of a
controlled substance.  Shonda submitted to a hair follicle drug test on March
30, 2007, that was positive for a controlled substance, but a test on April 24,
2007, was negative.  Shonda was indicted in 2008 for stealing lottery tickets
from her employer.  Shonda was also indicted in 2008 for engaging in organized
criminal activity involving the purchase of substances to manufacture methamphetamine.
            We
find that the evidence is legally and factually sufficient to support the
jury’s findings on termination.  James and Shonda both have an extensive
history with the Department.  The record shows that James and Shonda both have engaged
in domestic violence that has endangered the physical or emotional well-being
of the children.  Evidence that a parent has engaged in abusive or neglectful
conduct in the past permits an inference that the parent will continue this
behavior in the future.  In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco
1997, pet. denied).  Shonda continues to struggle with substance abuse and has
been arrested for drug-related offenses.  We overrule James’s and Shonda’s
first issues on appeal.
            In
her fourth issue on appeal, Shonda argues that the trial court abused its
discretion in allowing drug test results into evidence.  We review a trial
court’s decision to admit or exclude evidence for an abuse of discretion.  E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Allen
v. Mancini, 170 S.W.3d 167, 172 (Tex. App.—Eastland 2005, pet. den’d).  We
will reverse the decision of the trial court only if it acted arbitrarily,
unreasonably, or without reference to any guiding rules or principles.  Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Allen,
170 S.W.3d at 172.  
            On
direct examination, Shonda testified that she had been “clean” since April 1,
2006.  The State asked Shonda, “Since September of 2005 to the present, how
many times have you taken and failed a drug test in which you tested positive
for methamphetamine?”  Shonda responded without objection, “Once.  I then
turned around with my own money --.”  The State then asked, “How many times
have you taken a test and the test showed positive?”  Shonda responded again
without objection, “Once.”  The State asked, “I know you say you didn’t take it --.” 
Shonda’s attorney then objected as to hearsay, and the trial court instructed
the State to rephrase the question.  The State asked Shonda, “[H]ow many times
have you actually taken a drug test and it showed positive for
methamphetamine?”  Shonda’s attorney objected that no predicate had been laid,
and the trial court sustained the objection.  After further exchange, Shonda again
testified without objection that she had not passed all of the drug tests she
had taken. When asked specifically how many drug tests Shonda had “failed,” the
trial court sustained her attorney’s objection and allowed the State to
rephrase.  The State asked, “Out of all of the drug tests that you have taken,
how many times have you received a written piece of paper saying that you failed?” 
The trial court overruled the objection, and Shonda stated that she was “not
sure.”  Upon further questioning by the State without objection, Shonda stated
that she had failed more than two drug tests and possibly more than four.
            Shonda
initially testified without objection that she had tested positive for
methamphetamine.  Therefore, Shonda failed to timely object to the admission of
the drug test results.  Tex. R. App.
P. 33.1(a).  A party must continue to object each time inadmissible evidence is
offered.  Tex. R. Evid.
103(a)(1).  After stating her objections to the evidence, Shonda later
testified without objection that she had failed at least two drug tests.
Moreover, Dr. Bill Gustavus testified at the termination hearing without
objection that Shonda tested positive for methamphetamines four or five times. 
The general rule is that error in the admission of evidence is deemed harmless
and is waived if the objecting party subsequently permits the same or similar
evidence to be introduced without objection. Volkswagen of Am., Inc. v.
Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Clayton v. Wisener, 190
S.W.3d 685, 699 (Tex. App.—Tyler 2005, no pet.).
            Amanda
Snow, supervisor at One Source Health Center and custodian of records,
testified that she performs and oversees drug screens.  One Source collects the
specimen, but does not perform the test analysis.  One Source receives a report
from the lab with the analysis of the drug test.  The report from Shonda’s drug
test was admitted over objection.
To
be entitled to reversal due to the erroneous admission of evidence, an
appellant must not only show that the trial court erred in admitting the
evidence but that the error was reasonably calculated to cause and probably did
cause the rendition of an improper verdict.    Tex. R. App. P. 44.1; In re C.R., 263 S.W.3d 368, 370
(Tex. App.—Dallas 2008, no pet.).  We review the entire record and require the
complaining party to demonstrate that the judgment turns on the particular
evidence admitted.  In re C.R., 263 S.W.3d at 370.  The jury heard
considerable evidence of Shonda’s drug use and her arrests for drug use.  Any
error in admitting the drug test reports was harmless.  Rule 44.1; In re
C.R., 263 S.W.3d at 370.  We overrule Shonda’s fourth issue on appeal.
The
judgment of the trial court is affirmed.
 
                                                                        
                                                                                    JIM
R. WRIGHT
                                                                                    CHIEF
JUSTICE
 
May 13, 2010
Panel consists of:  Wright, C.J.,
McCall, J., and
Strange, J.




                [1]Shonda Foster is also referred to as Shanda Foster in
the record.


