      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00123-CV



                            John Click and Kristen Click, Appellants

                                                  v.

                Texas Department of Family and Protective Services, Appellee


              FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
             NO. 09-13254, HONORABLE BENTON ESKEW, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants John and Kristen Click appeal from the trial court’s order terminating their

parental rights to their two children, K.C. and A.C. The Clicks argue that the jury charge in the

termination proceeding violated their due-process rights by instructing the jurors that they did not

need to agree on the specific grounds for termination in order to find that the Clicks’ parental rights

should be terminated. We affirm the order of termination.


                                         BACKGROUND

               The Texas Department of Family and Protective Services first became involved with

the Clicks when John and Kristen’s oldest child, K.C., tested positive for marijuana at birth.

Approximately five months later, K.C.’s pediatrician, Dr. Neal Spears, reported to the Department

that he smelled the odor of marijuana on Kristen’s person during an office visit. When K.C.

exhibited difficulty crawling at the age of nine months, the Clicks took her to the emergency room,
where it was discovered that she had suffered a spiral tibia fracture. Hospital staff reported K.C.’s

injury to the Department, noting concern that the injury was inconsistent with the Clicks’ explanation

that K.C. had gotten her foot caught between bars in her crib. Due to the possibility of abuse, the

hospital conducted a full-body x-ray of K.C., which revealed that she also had two healing rib

fractures and a healing wrist fracture. When questioned, the Clicks attributed the rib and wrist

injuries to an incident in which K.C. had fallen out of a toy referred to as an “exersaucer.” John

Click also admitted to an incident in which he “might have squeezed” K.C. in an attempt to make

her stop crying, but stated that he did not believe this incident caused K.C.’s injuries. Shortly after

K.C.’s visit to the emergency room, Spears noted during a check-up appointment with K.C. that she

had lost an excessive amount of weight for her age, and diagnosed her as “failing to thrive.” Spears,

who testified at trial, believed K.C.’s weight loss to be the result of inadequate nutrition. Both of

the Clicks self-reported to the Department that they had used marijuana since K.C.’s birth.1

They also reported that K.C.’s grandmother, a member of the Clicks’ household, used

marijuana frequently.

               Citing K.C.’s injuries and the Clicks’ inability to provide what it considered to be an

adequate explanation for those injuries, the Department sought and obtained an emergency order

removing K.C. from the Clicks’ home. At the time of K.C.’s removal, Kristen was pregnant with




       1
          John Click testified that he had been required to complete a substance-abuse program after
testing positive for cocaine and marijuana during his military career. Kristen Click was required to
complete a substance-abuse assessment and parenting class as a result of K.C. testing positive for
marijuana at birth.

                                                  2
A.C. Due to the concerns that K.C. had been physically abused, A.C. was removed from the Clicks’

home immediately after his birth.

               The Department initiated permanent termination proceedings against both John and

Kristen Click on the grounds that they had (1) knowingly placed or knowingly allowed K.C. and

A.C. to remain in conditions or surroundings that endangered their well-being, (2) engaged in

conduct or knowingly placed K.C. and A.C. with persons who engaged in conduct that endangered

their well-being, and (3) used a controlled substance in a manner that endangered the health or safety

of the children, and either failed to complete a court-ordered substance-abuse treatment program or

continued to abuse a controlled substance after completion of a court-ordered substance-abuse

treatment program. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (P) (West Supp. 2009) (grounds

for involuntary termination of parental rights). Of relevance to this appeal, the jury charge included

the following language:


       For the parent child relationship in this case to be terminated . . . , ten or more of you
       must find that at least one of the following grounds have been proven by clear and
       convincing evidence. All ten jurors do not have to agree on the same ground or
       grounds.


The charge then described the three statutory grounds on which the Department sought to terminate

John and Kristen’s parental rights.2 After hearing the evidence, the jury returned with a unanimous




       2
          The charge also instructed the jury that the Clicks’ parental rights could not be terminated
as to either child unless the State had proven by clear and convincing evidence that termination was
in the best interest of that particular child. See Tex. Fam. Code Ann. § 161.001(2) (West Supp.
2009).

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verdict recommending that Kristen’s and John’s parental rights be terminated as to both

K.C. and A.C.

                In a single issue on appeal, the Clicks assert that the jury charge language quoted

above violated their due-process rights because it allowed the jury to recommend termination of their

parental rights without reaching a unanimous verdict as to any particular ground for termination.

The Clicks do not challenge the sufficiency of the evidence to support any of the three alleged

grounds for termination or the finding that termination was in the best interest of the children.


                                    STANDARD OF REVIEW

                The standard of review for jury charge error is abuse of discretion.              Shupe

v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam). A trial court abuses its discretion if

it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court has no discretion

in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992).


                                            DISCUSSION

                In their sole issue on appeal, the Clicks take issue with the language in the jury charge

instructing the jurors that they need not agree on the statutory grounds for termination in order to

reach a finding that the Clicks’ parental rights should be terminated. Because the Department sought

termination on three different statutory grounds, the jury could have disagreed as to which ground

the Department had proven by clear and convincing evidence, but nevertheless reached a verdict of



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termination. The Clicks take the position that this instruction allowed for a less-than-unanimous

verdict and therefore violated their due process rights.

               This issue was addressed and settled by the Texas Supreme Court in Texas

Department of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh’g). In E.B.,

an appeal from a termination of parental rights, the charge required the jury to answer “yes” or “no”

to the question of whether the parent-child relationship between a mother and her two children

should be terminated, but did not require the jurors to agree on which of the two alleged statutory

grounds for termination had been proven. Id. at 648. The court of appeals considered the charge to

be improper because it permitted the State “to obtain an affirmative answer without discharging the

burden that the jury conclude that a parent violated one or more of the grounds for termination under

the statute.” Id. at 649. The supreme court disagreed and reversed, citing Texas Rule of Civil

Procedure 277, which states that “[i]n all jury cases the court shall, whenever feasible, submit the

cause upon broad-form questions.” Id. (citing Tex. R. Civ. P. 277). The court further explained:


       The controlling question in this case was whether the parent-child relationship
       between the mother and each of her two children should be terminated, not what
       specific ground or grounds under [the predecessor to family code section 161.001]
       the jury relied on to answer affirmatively the questions posed. All ten jurors agree
       that the mother had endangered the child by doing one or the other of the things listed
       in [the predecessor to section 161.001]. Respondent argues that the charge, as
       presented to the jury, violates her due process right by depriving a natural mother of
       her fundamental right to the care, custody and management of her children.
       Recognizing her rights does not change the form of submission. . . . Here the trial
       court tracked the statutory language in the instruction and then asked the controlling
       question. This simply does not amount to abuse of discretion.


Id. E.B. has not been revisited by the supreme court and remains the controlling law on this issue.



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               The Clicks argue, however, that E.B. should be reconsidered in light of Crown Life

Insurance Co. v. Casteel, in which the supreme court held that it was error to commingle valid and

invalid theories of recovery in a broad-form jury question. 22 S.W.3d 378, 388-90 (Tex. 2000). The

court’s holding in Casteel was based on the fact that when invalid grounds for recovery are included

in a broad-form submission, a reviewing court cannot “conclude that the jury’s answer was not based

on one of the improperly submitted theories.” Id. at 389. This analysis is inapplicable to the present

case, as the Clicks do not argue that any of the three statutory grounds for termination alleged by the

Department were invalid or unsupported by the evidence. Further, this Court has previously rejected

the argument that Casteel casts doubt on the holding of E.B., stating, “Until the supreme court holds

that ten jurors must agree that a particular ground justifying termination exists, we conclude that

judgments based on broad-form submission of valid grounds are acceptable.” Thornton v. Texas

Dep’t of Protective & Regulatory Servs., No. 03-01-00317-CV, 2002 Tex. App. LEXIS 1386, at *10

(Tex. App.—Austin Feb. 22, 2002, pet. denied) (not designated for publication); see also Carr

v. Texas Dep’t of Protective & Regulatory Servs., No. 03-03-00273-CV, 2004 Tex. App. LEXIS 92,

at *19 (Tex. App.—Austin Jan. 8, 2004, pet. denied) (mem. op.).3 Because it remains true that the


       3
           Other courts of appeals have also reached this conclusion when faced with the argument
that the viability of E.B. was called into question by Casteel. See In re J.M.M., 80 S.W.3d 232, 249
(Tex. App.—Fort Worth 2002, pet. denied), disapproved of on other grounds by In re J.F.C.,
96 S.W.3d 256, 267 n.39 (Tex. 2002) (“Without further guidance from the supreme court, it is
difficult to see how [Casteel] necessarily impacts the holding in E.B. that a broad-form submission
of multiple grounds for termination comports with due process.”); In re K.S., 76 S.W.3d 36, 48-49
(Tex. App.—Amarillo 2002, no pet.). In contrast, the Waco court of appeals has cited Casteel in
support of its holding that a violation of due process occurs when multiple grounds for termination
are submitted in a broad-form question absent an instruction that the jurors must agree on the
particular ground or grounds for termination. See In re B.L.D., 56 S.W.3d 203, 219-20 (Tex.
App.—Waco 2001), rev’d, 113 S.W.3d 340 (Tex. 2003). The Waco court’s decision in B.L.D. was

                                                  6
supreme court has not held that ten jurors must agree on a particular ground for termination, we

again conclude that judgments based on broad-form submission of valid grounds for termination

are acceptable.

                  While the Clicks argue that the supreme court has “signaled a willingness to retreat

from E.B.,” it has not done so.4 Thus, we continue to be bound by the holding of E.B. See Lubbock

County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (stating that it “is not

the function of a court of appeals to abrogate or modify established precedent” once supreme court

has announced proposition of law). We therefore conclude that the jury charge in this case, which

tracked the language of the statute and asked the controlling question of whether parental rights

should be terminated, did not violate due process. See E.B., 802 S.W.2d at 649. We overrule the

Clicks’ point of error on appeal.

                  We note that at the post-trial hearing on the Clicks’ statement of points of appeal, see

Tex. Fam. Code Ann. § 263.405(d) (West 2008), the trial court expressed concern that while broad-

form submissions are allowed under E.B., it may nevertheless be improper to instruct jurors that they

need not agree on any particular ground for termination. We resolve this concern by pointing to the



later reversed by the supreme court on the ground that the charge-error complaint had not been
properly preserved for appellate review. See B.L.D., 113 S.W.3d at 349-55.
       4
          In support of their claim that the supreme court has “signaled a willingness to retreat from
E.B.,” the Clicks cite B.L.D., 113 S.W.3d at 348 n.8. The cited footnote contains a string citation
to court of appeals decisions expressly disagreeing with the Waco court’s holding in B.L.D. See id.;
see also B.L.D., 56 S.W.3d at 219-20. We are unconvinced that this footnote supports the Clicks’
claim, particularly given the supreme court’s statement in B.L.D. that, while the jury charge issue
had not been properly preserved, “the charge in this case follows our precedent in E.B., tracks the
statutory language of the Family Code, and comports with Texas Rules of Civil Procedure 277 and
292.” 113 S.W.3d at 354-55.

                                                     7
language in E.B. emphasizing that the “controlling question” is whether a parent’s parental rights

should be terminated, not the specific grounds upon which they should be terminated. E.B.,

802 S.W.2d at 649; see also id. (“All ten jurors agree that the mother had endangered the child by

doing one or the other of the things listed in [the statute governing termination].”) (emphasis added);

Thornton, 2002 Tex. App. LEXIS 1386, at *10 (determining that broad-form submission is

acceptable under E.B. “[e]ven if jurors find that different actions by the parent justify termination”).

In light of this language in E.B., we hold that due process allows jurors to agree that at least one of

the alleged grounds for termination has been proven without reaching an agreement as to any

particular ground. Thus, because the law does not require jurors to agree on the specific ground for

termination, it was not an abuse of discretion to instruct the jury accordingly.


                                          CONCLUSION

               We affirm the order of termination.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Patterson, Pemberton and Henson

Affirmed

Filed: October 8, 2010




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