      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00141-CV



                                     Shawna Loehr, Appellant

                                                   v.

                 Texas Department of Family & Protective Services, Appellee


              FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
             NO. 08-12,319, HONORABLE BENTON ESKEW, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Shawna Loehr appeals from a final order following a jury verdict terminating her

parental rights to three children. In a single issue on appeal, Loehr asserts that the trial court abused

its discretion in admitting evidence that Loehr, as a child, had been both a victim and a perpetrator

of sexual abuse.1 Finding any error in the admission of the evidence harmless, we will affirm the

termination order.




        1
         Following the entry of the termination order, Loehr timely filed a statement of points for
appeal. See Tex. Fam. Code Ann. § 263.405(b)(2) (West 2008). The trial court found that each of
Loehr’s points for appeal was frivolous. This Court concluded, however, that the issue Loehr now
presents on appeal is not frivolous; i.e., based on the record then before us, the complaint had
an arguable basis in law and fact. See Loehr v. Texas Dep’t of Family & Protective Servs., No. 03-
09-00142-CV, 2009 Tex. App. LEXIS 5693, at *12 (Tex. App.—Austin July 22, 2009, no pet.)
(mem. op.). As we emphasized, our decision was not a final determination of the merits of that
issue. See id. at *13.
                                        BACKGROUND

               Loehr has three children who are the subject of this suit: D.L., a boy born March 1,

2002; L.H., a girl born January 26, 2004; and D.T., a boy born January 1, 2005. During the

termination trial, the jury heard evidence that Loehr’s involvement with the Department began in

2002, when Child Protective Services (CPS) investigated Loehr for neglectful supervision of D.L.

During this investigation, Loehr admitted to smoking marihuana. Loehr signed a voluntary safety

plan and placed D.L. with her mother and stepfather. Loehr later regained custody after testing

negative for drugs.

               Loehr testified that in 2003 she was unemployed, living with a friend named

Roxanne Kuiken, and dating Christopher Washburn. Washburn, Loehr indicated, was the biological

father of both L.H. and D.T. When L.H. was born the following January, the infant tested positive

for marihuana. Loehr admitted that she had “once” smoked marihuana—mixed with her best

friend’s ashes—while pregnant with L.H. After a clean drug test, however, Loehr was able to

maintain custody of her children.

               Between the summer of 2004 through May 2005, Loehr and Washburn were subject

to a court-ordered service plan, including random drug screening and parenting classes. They were

also ordered to obtain and maintain stable housing and employment. In January 2005, around the

time D.T. was born, the plan was amended to require Loehr and Washburn to live with Washburn’s

mother “until [Loehr] can locate other appropriate housing for the family.” Loehr testified that she

and Washburn lived with his mother for “a couple of months” until his mother “kind of kicked us




                                                 2
out.” The couple then moved in briefly with a friend of Washburn’s whom Loehr called “Pops.”

In May 2005, the Department closed its case against Loehr.

               In July 2005, Loehr and Washburn moved in with Laverne Cooper, a friend of

Washburn’s family. As we explain in more detail below, a key issue during the trial was the safety

and suitability of Cooper’s house for the children. There was evidence that Cooper had a history

of allowing drug and alcohol abusers to live on her property. Also, Cooper owned an outdoor

swimming pool that Loehr’s children were able to enter. In September 2005, L.H. nearly drowned

in the pool while Loehr was sleeping. According to Loehr, D.L. awakened her early one morning

and told her that L.H. had fallen into the pool. Loehr and Larry Tompkins, one of Cooper’s adult

sons, rushed outside to rescue her. Tompkins performed CPR on L.H. and was able to resuscitate

her. L.H. was then taken to the emergency room and was hospitalized for approximately one week.

Other incidents at Cooper’s house included D.T. either falling or being pushed down the stairs

and sustaining a skull fracture, one of the children gaining access to rat poison that was kept in

the kitchen cabinet, and an alleged incident of sexual abuse against D.L. perpetrated by C.R.,

Cooper’s grandson.

               Loehr testified that by November 2007, she was working at a local Dairy Queen and

living in a trailer home on Cooper’s property. The children were still living in Cooper’s house.

Other adults were also living in the trailer, including Tompkins.2




       2
          Washburn testified that he and Loehr had ended their relationship approximately two years
earlier and that he was no longer living on the property. Loehr denied any romantic involvement
with Tompkins.

                                                 3
                In December 2007, Loehr explained, she began performing secretarial work for

Tompkins in Houston while her children remained with Cooper. Loehr would, however, “come

home on the weekends.” At the same time, Loehr was also renting a home in Buffalo, Texas

that Tompkins had leased and signed over to her. Sometime around Christmas, while Loehr was

staying at Cooper’s house with her children, Cooper drove to Houston and checked herself into a

psychiatric hospital.

                In January 2008, the Department filed a petition for termination of Loehr’s parental

rights and removed the children from Loehr’s custody. In its petition, the Department alleged that

Loehr, among other things, had engaged in conduct or knowingly placed the children with persons

who engaged in conduct which endangered the physical or emotional well-being of the children,

failed to comply with the provisions of a court order that specifically established the actions

necessary for the mother to obtain the return of the children, and used a controlled substance in a

manner that endangered the health or safety of the children.3

                A hearing was held on January 29, 2008. See Tex. Fam. Code Ann. § 262.201

(West 2008). Following the hearing, the trial court signed temporary orders4 requiring Loehr to

complete a psychological evaluation, attend counseling and parenting classes, and submit to random

drug testing within eight hours of the Department’s request. The orders further provided that “any

failure to [submit to random drug testing] will be reported to the Court as a dirty test” and that the

       3
          In the same proceeding, the Department also sought and obtained the termination of
the parental rights of the alleged fathers of the children—Daniel Sorrells, the alleged father of D.L.,
and Washburn, the alleged father of L.H. and D.T. Because neither Washburn or Sorrells have
appealed from the termination order, we do not discuss the allegations and evidence specific to them.
       4
           The temporary orders were admitted into evidence as Petitioner’s Exhibit 1.

                                                  4
results of such tests “will be considered in assessing [Loehr’s] suitability for permanent placement

of the children.” The orders advised Loehr that “failure to fully comply with these orders may result

in the restriction or termination of parental rights.”

                   In addition to the temporary orders, a family service plan, which Loehr admitted

signing, was filed.5 In the service plan, Loehr agreed to, among other terms, refrain from use of

drugs and alcohol. However, Loehr testified that after the plan was filed, she tested positive for

marihuana “once” and missed several other drug tests because she “wasn’t able to make it” to

the testing location. Pursuant to the temporary orders, these missed tests were also reported as

positive tests.6

                   During her testimony, Loehr attempted to minimize the extent of her drug use.

However, she admitted that she had used marihuana to calm herself. Also, while denying that she

had smoked marihuana around the children, she acknowledged that “I messed up one time” while

pregnant. The Department then elicited the following testimony:


        Q:         It was part of your service plan to take an OSAR [Outreach, Screening, and
                   Referral] Evaluation to see if you indeed had a recurring drug problem.

        A:         I didn’t feel I did. I moved away from everything and locked myself in my
                   house. That was my rehab.

        Q:         You would have been offered free drug treatment had you taken the OSAR;
                   are you aware of that?



        5
            The family service plan was admitted into evidence.
        6
           The test in which Loehr actually tested positive occurred on July 1, 2008. Loehr admitted
that the reason the Department was able to get her to submit to a drug test that day was because she
had been required to appear in court for a hearing that day and was tested at the hearing.

                                                   5
       A:      I didn’t feel that I needed it. I can do it on my own.

       Q:      You failed to sign up for the counseling as well, right?

       A:      I guess.

       Q:      It was Dr. McNeil, in the psychological of ‘04, where you said you smoked
               marihuana to keep food down; do you recall that?

       A:      No, I don’t remember.

       ....

       Q:      When you took your psychological evaluation—this is the first one with Dr.
               McNeil in ‘04.

       A:      Okay.

       Q:      —you denied having a drug problem and said you could quit any time; is that
               true?

       A:      Yes.

       Q:      You could quit now.

       A:      I have.

       Q:      You’ve been testing positive pretty regularly since 2002. And you’ve been
               motivated for several motivators, including being pregnant, to not smoke
               marihuana. Because you’ve been—yet you claim you can quit at any time.

       A:      Yes.

       Q:      You just don’t want to.

       A:      That’s not true.


Loehr admitted, however, that she has continued to use marihuana “on and off” throughout her

children’s lives. When asked if she had ever “blown smoke in her daughter’s face,” Loehr testified,



                                                 6
       Never in my life would I ever do that to my children. I’ve never smoked around my
       kids. I’ve never even come home when I’ve been smoking. I don’t come home
       until the next morning. That’s why they stay with Laverne [Cooper]. It’s just like
       everybody going out and having beer, I just don’t drink.


              The Department also elicited the following testimony from Loehr about her drug use

while pregnant:


       Q:     Shawna, do you think that [L.H.] was harmed when she was in your stomach,
              in your womb, when you were using marihuana? Do you think that harmed
              her?

       A:     No.

       Q:     You don’t? Nothing wrong with that?

       A:     I didn’t say there wasn’t nothing wrong with it.

       Q:     You don’t think it harmed her?

       A:     I messed up.

       Q:     I’m asking you if you think it harmed your child?

       A:     She came out fine. They ran all the tests on her and everything, she was
              perfect.


              Dr. Matthew Ferrera, a licensed psychologist who had interviewed Loehr in 2005,

testified that Loehr told him that “she had a problem with marihuana smoking, you know, one to

two joints a day, smoking while she was pregnant so it was obvious she needed [substance abuse

treatment].” In response to a hypothetical question, Ferrera opined that if someone failed to get




                                               7
substance abuse treatment, that person “will continue to most likely make the same mistakes that

they have been making up to that point in time.”7

                When asked directly if she thought she had a drug problem, Loehr testified, “No, I

don’t.” When asked when the last time was that she used marihuana, she testified, “Two months

ago, three months ago. A long time.” When asked why she had not done counseling as ordered by

the court, Loehr testified, “I didn’t think I needed it. I’d done it before.”

                The jury also heard evidence about Loehr’s criminal history. In May 1999, Loehr

was convicted of theft, specifically stealing household items and clothing valued at more than

$500.00 but less than $1,500. Loehr also admitted that in January 2008, after this case had been

filed, she had possessed “one joint” of marihuana, which resulted in her being placed on deferred

adjudication.8 As part of her deferred adjudication, Loehr had agreed to provide a negative urinalysis

by April 7, 2008. However, she admitted that, as of the termination trial in late October 2008, she

had not done so.

                Loehr was also required as part of the service plan to provide proof of employment

to her caseworker. She admitted that in the 10 months since the case had been filed, she had not

done so. Nor had she received court-ordered vocational training. However, Loehr claimed that she

took home approximately $400 every two weeks from the secretarial work she did for Tompkins,

although she provided no documentation to verify this.




       7
         As we explain in more detail below, Dr. Ferrera also testified about Loehr’s history of
sexual abuse and her need for counseling and treatment in that regard.
       8
           Loehr also admitted to possessing on one occasion another controlled substance, Xanax.

                                                   8
               The court had also ordered Loehr to maintain stable housing. However, Loehr

admitted that in the 10 months since the case had been filed, she had resided in the Bryan/College

Station area, at Cooper’s house near Smithville, and in the rental house in Buffalo. The court had

further ordered that when Loehr visited the children, no one other than Loehr, Cooper, Washburn,

or Washburn’s mother was to have access to the children. However, Loehr admitted that Tompkins

had access to the children on at least one such visit in violation of the court order.

               There was also evidence presented that D.L. had missed 19 days of school one

semester and had been tardy on 12 occasions. Loehr testified that she was unaware that many of

D.L.’s absences were not excused. She explained, “I was working. That’s when I was out of town

and the kids were with Laverne [Cooper].” When asked if she believed leaving her children with

Cooper endangered their emotional health or physical well-being, Loehr testified, “No, because

she would never hurt them, and they love her.” Loehr also did not believe that the other people who

lived on Cooper’s property would hurt the children.

               Cooper, who had intervened in the suit and sought conservatorship of the children,

also testified at trial. Cooper denied that she had allowed people to live in her house who had drug

problems, although she acknowledged that people who she assumed were drug users lived “on the

property” and “in the guest house.”9 Two of the people who allegedly used drugs on Cooper’s




       9
          Cooper owns rural acreage located off of Zapalac Road in Smithville. Cooper testified
that she owns a house and three acres while her brother owns seven acres adjoining hers, although
Robyn Gobbel, a social worker who performed a home study on Cooper, testified that Cooper’s
brother “resides on two of [Cooper’s] seven acres.” At any rate, it is undisputed that there are
multiple residential structures on Cooper’s portion of the property, including Cooper’s house,
trailer homes, and a pool house.

                                                  9
property were Cooper’s son, Narlen Tompkins, and Cooper’s teenage grandson, R.R. Cooper

believed that Narlen used marihuana and that R.R. had, on one occasion, purchased cocaine.

However, Cooper dismissed R.R. as a “wannabe” and did not believe that he had actually consumed

the cocaine.

               Cooper acknowledged that during a prior hearing in this case, she had testified

that she had sought for at least a year to get the drug users off of her property but that she did not

have the “physical strength” to force them to leave. However, on January 14, 2008, the Department,

as part of its action against Loehr, sought and obtained from the trial court a temporary injunction

prohibiting anyone but Cooper from residing on her property. In its temporary orders following

the adversary hearing, the trial court ordered that the temporary injunction would remain in effect

during the pendency of this case. Cooper testified that, because she had been unable to get the

drug users off of her property herself, she considered the injunction to be “the best thing that ever

happened to me.”

               Robyn Gobbel, a social worker who had completed the home study on Cooper,

testified about her findings. According to Gobbel, Cooper had told her that “there had been a

substantial amount of violence on the property” and that there were “pages of domestic violence calls

that had been made to the property.” Cooper also described to Gobbel “a lot of violent activities”

directed at the property, including a window in Cooper’s home being broken out and Cooper’s truck

being “hit to the point that it wasn’t in operating condition.” Gobbel testified that Cooper attributed

this violence to “the fact that [Cooper] had asked all these people to leave her property when she

pursued a Court Order.”



                                                  10
               Gobbel also testified about a wrecking yard adjacent to Cooper’s property where

Cooper’s brother resided. Cooper told Gobbel that there were people “coming and going” from

the wrecking yard “on a very regular basis” whom Cooper characterized as “low class.” Gobbel

explained:


       She specifically talked about prescription pill drug abuse. She said that people were
       coming and going on a very regular basis, people would come, and then her brother
       would get upset with them for not helping with the utilities, he’d kick them out,
       and they’d come back at a later time. So a lot of instability as far as who is around
       and the types of behaviors and things.


However, according to Gobbel, Cooper “seemed to feel that her five acres of land was enough space

to keep her separated from the activities that were going on off of her five acres of land, her portion

of it.” Gobbel expressed concerns about the history of the property and the fact that Cooper had not

been able to remove the drug users from the property until the trial court had ordered her to do so.

               Additionally, photographs of the house from the CPS investigation were admitted

into evidence, and they showed such things as dirty and unkempt rooms, a pair of scissors and

trash on the floor, and an open pocket knife on an end table. Cooper acknowledged that the house

looked “pretty bad” when the pictures were taken. However, Gobbel testified that, at the time she

had visited the home, it was “in excellent condition, aside from some minor repairs that she was

working on.”

               Photographs were also admitted of the outdoor swimming pool and an open gate

leading to the pool. Cooper acknowledged that, as of January 2008, the pool remained accessible

to the children. Cooper explained, “That gate was locked many times but we had a lot of traffic,



                                                  11
[people] moving out, and going from my house over to the guest house because there’s a sidewalk

going by the pool. So when [people] would come through there, they would unlock and leave it.”

However, by the time of the termination trial in October 2008, Gobbel testified that the issue with

the pool had been resolved and it was no longer accessible to the children. However, her concern

“was the length of time it had taken [Cooper] to resolve it.”

                Cooper also testified about the circumstances surrounding her hospital stay. Cooper

explained that she was “angry” with the people on her property who were using drugs and alcohol,

and she needed a break from dealing with them. She drove to Houston and, after driving her car off

of the road (which she claimed was unintentional), checked herself in to a hospital. She informed

the hospital staff that she had thought about killing herself, and they treated her for depression.10 She

stayed in the hospital for four days. During this time, Cooper testified, the children were at her house

under the supervision of Loehr, Cooper’s sons Larry and Narlen Tompkins, and Narlen’s wife,

Elizabeth. Cooper admitted that Elizabeth had mental problems (in Cooper’s words, she was “slow”

and needed “therapy”) and Narlen had an alcohol problem and prior convictions for DWI, evading

arrest, and felony aggravated assault. There was also evidence presented that Larry, like his brother,

was an alcoholic. We have already summarized Loehr’s history of drug use. Despite knowing about

the problems of these people, Cooper testified that she did not worry about them supervising

the children while she was away because “they were not drinking during the holidays.” When asked




        10
           Later during her testimony, Cooper testified that she did not actually have suicidal
thoughts and that she had lied to the hospital staff so that they would admit her and treat her for
her diabetes.

                                                   12
how she could have known this since she was in Houston at the time, Cooper testified, “Because I

know. They had their children.”

                There was also evidence presented about the emotional and physical condition of

the children after they were removed from Loehr’s custody. Kathy Sparks, the foster parent for

the children, testified about the children’s condition and behavior when they were first brought into

her care. Sparks testified that D.L. and L.H. needed extensive dental work—D.L. “had very bad

cavities” and “had to have several fillings” while L.H. needed “extensive, cavity dental work done

as well.” Also, D.L. “had very aggressive behavior. He didn’t interact very well with his younger

siblings. He didn’t respect adults.” Additionally, according to Sparks, D.L. “has sexually acted out

with [L.H.],” while L.H. was “just kind of all over men” and exhibited inappropriate sexual behavior.

                Michael Greenwood, the children’s therapist, testified that the children needed

constant attention and redirection and had difficulty getting along with each other. Greenwood

also testified that none of the children expressed a desire to be with their mother, although he

acknowledged that in one of his past therapy progress reports, he had written that “[D.T.] has made

no further mention of having had visits with his mother and mentioned in one session that he was

sad because he missed her.”

                Stefenie White, an adoption unit supervisor for CPS, testified that she believed

the children were likely to be adopted based on their age, their behavior, and their ability to maintain

the same foster home since they first came into foster care in January 2008. White acknowledged

that whenever parental rights are terminated, it is a traumatic experience for the children. It was her

understanding, however, that in this case, “the children have not been asking for their parents.”



                                                  13
               Other evidence considered by the jury included the testimony of Nicole Dye,

the conservatorship caseworker in this case. Dye summarized Loehr’s history of positive drug tests

since the case had been filed:


       On April 22, 2008, she was called in for a random drug test. She did not show,
       and admitted over the telephone that it would be positive. . . . So that was regarded
       as a dirty test. On May 22, 2008 she was called in for a random drug test, and she did
       not show. That was also a dirty test. On May 28, 2008 she was called in and did
       not show. That was a positive test. On June 4, 2008 she was called in and did not
       show. That is regarded as a dirty test. The next day she did show after the eight hour
       requirement, that test came back negative. On July 1 she was given an oral drug test
       and it was positive for marihuana and one or more other substances, which means
       that on the oral test there was not enough saliva to detect the other drugs but it
       was positive for more than one substance. . . . On August 5, 2008 she was called in
       for a random drug test and she did not show so that was a positive test.


Dye also testified that Loehr had never contacted her to set up individual counseling. Dye

acknowledged that Loehr did submit to a psychological evaluation. However, Dye added that Loehr

had been ordered to follow all recommendations from that evaluation, including “to enter an

inpatient alcohol and drug treatment program, carefully work the 12 steps, maintain conscientious

sobriety during after care and participate in long term individual and group psychotherapy.”

According to Dye, Loehr had not done any of those things. Additionally, Dye testified that Loehr

had not provided the Department with any proof of her income as she had been required to do and

that Loehr had failed to maintain stable living arrangements since the case had been filed.

               Dye summarized the Department’s concerns about Loehr—her substance abuse issues

with marihuana and lack of treatment; the safety conditions at Cooper’s house, including the drug

use, violence, and crime that had occurred on the property; and Loehr’s failure to comply with court-



                                                 14
ordered services. Dye opined that terminating Loehr’s parental rights and allowing the children to

be adopted were in the children’s best interest, and that returning the children to their parents or

Cooper was not.

               The final witness to testify for the Department was Joan Martin-Thurman, the

executive director of the local Court Appointed Special Advocates (CASA), the guardian ad litem

for the children. Ms. Martin-Thurman opined:


       The best interests of these children is to keep all three together, terminate the parental
       rights, not return them to Mrs. Cooper . . . and to put these children into adoption
       where they have an opportunity to flourish and grow and have a stable family. They
       don’t know what a stable family is at this point.


Martin-Thurman added, “[W]e fight for reunification when possible but it’s not possible in this case.

We’re going to end up with a child who is either seriously hurt or dead.” Adoption of the children

was, in her view, “the only good alternative for these children.”

               Martin-Thurman also testified that when CASA had first started working with Loehr,

she had hoped that reunification would be possible. When asked if she saw anything in Loehr

that gave her a reason for optimism, she testified, “I did but her time ran out. We only have a certain

amount of time to keep children in limbo. It is now time for the children to move on. She

didn’t—she would not or could not give up her lifestyle for the benefit of these children.” Loehr,

according to Martin-Thurman, had not contacted CASA, was not working her service plan,

and was not making an attempt to change her lifestyle. She concluded, “I never stopped hoping for

Ms. Loehr but she didn’t give me a lot to work with.”




                                                  15
               At the close of evidence, the jury was instructed that for Loehr’s parental rights to be

terminated, it must find by clear and convincing evidence that the Department proved at least one

of the following grounds for termination: (1) Loehr knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endanger the physical or emotional well-

being of the children; (2) Loehr engaged in conduct or knowingly placed the children with persons

who engaged in conduct which endangers the physical or emotional well-being of the children;

(3) Loehr constructively abandoned the children for not less than six months; (4) Loehr failed to

comply with the provisions of a court order that specifically established the actions necessary for the

mother to obtain the return of the children; or (5) Loehr used a controlled substance in a manner that

endangered the health or safety of the children and failed to complete a court-ordered substance

abuse treatment program. Additionally, the jury needed to find by clear and convincing evidence

that termination of the parent-child relationship would be in the best interest of the children.

               The jury found by clear and convincing evidence that Loehr’s parental rights should

be terminated. The jury also found that the Department should be appointed the sole managing

conservator of the children. The trial court rendered a final order terminating Loehr’s parental rights

and naming the Department sole managing conservator. This appeal followed.11




       11
           Cooper, who had intervened in the termination suit, also filed a notice of appeal from the
trial court’s order. However, she later filed a motion to dismiss herself from the appeal, which this
Court granted.

                                                  16
                                           DISCUSSION

               Loehr brings a single issue on appeal asserting that the trial court abused its discretion

in admitting evidence that Loehr had been both a victim and perpetrator of child sexual abuse

approximately twenty years before trial. This evidence was first admitted during the Department’s

direct examination of Loehr:


       Q:      You admitted to CPS that you sexually abused your brother [R.L.]; is that
               correct?

       A:      Yes.


Immediately thereafter, Loehr’s trial counsel objected on the basis of relevance, explaining, “The

removal in this case was not about sexual abuse.” The trial court responded, “One of the ultimate

issues will be best interests of the child, and I will overrule the objection.” The Department

then continued:


       Q:      You’re seven-and-a-half years older than your brother [R.L.]; is that correct?

       A:      Oh, I guess. I don’t know.

       Q:      Now, at the time of this investigation in ‘02 you admitted that you smoked
               marihuana and you tested positive for that; is that correct?

       A:      Yes.

       Q:      So when did the sexual abuse occur? How old were you?

       A:      Which sexual abuse?

       Q:      Of your brother [R.L.]

       A:      Eight, nine.

                                                  17
       Q:      He made an outcry about that when he was 15, didn’t he?

       A:      No. The only reason he did that is because my dad told him everything that
               happened so my brother would hate me.

       Q:      You don’t know that, do you?

       A:      Yes, I do.

       Q:      Isn’t it true that you only made the allegation about your stepfather after you
               confessed to abusing your brother?

       A:      Nope. My mother knew years ago, and I’ll take a lie detector test to prove it.


The Department then moved on to another line of questioning.

               The Department then returned to the subject during the testimony of Dr. Matthew

Ferrera, the licensed psychologist who had interviewed Loehr in 2005. This time, however, Loehr’s

trial counsel did not object to the admission of the evidence:


       Q:      What did [Loehr] tell you about the sexual abuse that she engaged in?

       A:      What she stated, she said she was abused at six or seven. She said when she
               was eight or pretty close in time, she said that her mother discovered that she
               was sexually abusing her two-year-old brother. She really had difficulty
               talking about that. So I—you know, I tried to press for details but it was
               pretty disturbing to her and upsetting so I kind of backed off, just—I felt like
               that information was useful, too, even if I didn’t get other facts.

       ....

       Q:      What conclusions were you able to draw regarding what kind of risk she
               presented?

       A:      You know, I—I thought she was a low risk for future sexual offenses. You
               know, I thought if she was ever to do any sexual acting out with a child, that
               it would probably be because of who she was with. A lot of times adult
               women who sexually abuse children don’t do it by themselves, they’re with

                                                 18
               a man who really wants to do it, and the woman has relationship issues. And
               so she won’t break off the relationship, she’s too dependent on the man so
               she either supports the sexual abuse or participates in it. So—I said she
               might be at risk for that. But, you know, even still, the risk would be low.

       Q:      How does an experience of being an abuser—does that have any effect on
               parenting ability or future skills or future activity in life?

       A:      The correct answer is it depends. I mean, does being abused have an effect
               on your ability to be a parent, the correct answer is it depends. If the person
               can come to grips with the abuse and handle it in some way and be in charge
               of the abuse, then that person can be a parent, a good parent too.

               If, on the other hand, a person who’s abused never comes to grips with it,
               never deals with it, either it’s too powerful for them and they’ve never sought
               out help for it, in that case the abuse controls them and it can have a wide
               range of negative impacts on parenting.

       Q:      I may be naive for separating the two but I would ask the same question about
               the experience of being the abuser. . . . And that’s really the question. Is the
               extent of dealing with it a big factor in how effective—how much it affects
               you later?

       A:      Absolutely. Once again, the event itself has to interact with who the person
               is. And if the person—it comes down to this. If the person can dominate the
               event, then they don’t suffer the negative effects from whatever the trauma
               is. On the other hand, if it dominates them, it tells them what to do.


               Loehr argues that the above evidence is not relevant because the alleged abuse

occurred almost two decades before the events in this case and because the Department did not allege

that Loehr had committed any sexual abuse against the children.12 The Department responds that




       12
           Loehr also claims on appeal that the “prejudicial impact” of the evidence “far outweighed
any probative value.” However, as the Department correctly observes, Loehr’s objection at trial was
limited to relevance. Therefore, Loehr waived any rule 403 objection. See Tex. R. App. P. 33.1(a).


                                                 19
the evidence was relevant to the jury’s “best interest” determination and, moreover, that any error

in the admission of the evidence was harmless.

               Assuming without deciding that the evidence that Loehr had been a victim

and perpetrator of sexual abuse as a child was not relevant and should have been excluded,

we cannot conclude on this record that Loehr was harmed by its admission. We will not reverse a

judgment based on an improper evidentiary ruling unless the error “probably resulted in an improper

judgment.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Beard Family P’ship

v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 849 (Tex. App.—Austin 2003, no pet.); see Tex. R.

App. P. 44.1(1). To prevail on appeal, the complaining party must demonstrate that “the judgment

turns on the particular evidence excluded or admitted.”        Alvarado, 897 S.W.2d at 753-54

(Tex. 1995). Having reviewed the entire record, we conclude that Loehr has not met this burden.

               Under the jury charge, in order to terminate Loehr’s parental rights, the Department

was required to prove by clear and convincing evidence (1) at least one of the five submitted

statutory termination grounds; and (2) that it was in the children’s best interest to terminate the

parent-child relationship. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2009); Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976).

               Loehr has not demonstrated that the jury’s finding on the statutory grounds for

termination turned on the evidence of sexual abuse. The jury heard extensive evidence about

Loehr’s drug use. Loehr admitted that she had used marihuana not just in the past, but also while

this case was ongoing. In fact, one such incident shortly after the case was filed resulted in her

being placed on deferred adjudication for possession of a controlled substance. Moreover, Loehr



                                                 20
repeatedly tested positive for marihuana, once directly, and on several occasions indirectly by failing

to take the court-ordered random drug tests. Additionally, Loehr admitted that she had failed to

complete a court-ordered substance abuse treatment program. This and other evidence, summarized

above, would support the jury’s finding on the fifth termination ground—use of a controlled

substance—and the second termination ground—engaging in conduct or knowingly placing the

children with persons who engaged in conduct which endangers the physical or emotional well-being

of the children. See In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.)

(history of drug addiction may establish endangering course of conduct, even if parent is drug-free

at time of trial).

                 The jury also heard considerable evidence about Loehr’s failure to follow the

trial court’s orders. The temporary orders and the service plan required Loehr to do several things,

including maintain a drug-free lifestyle, submit to random drug tests, provide the Department

with proof of income, maintain stable living arrangements, set up individual counseling, and follow

all of the recommendations from her psychological evaluation. According to Nicole Dye, the

conservatorship caseworker, Loehr failed to do any of the above, and Loehr even admitted to many

of these failures. This evidence would support the jury’s finding on the fourth termination ground.

See Tex. Fam. Code Ann. § 161.001(1)(O).

                 Finally, the jury heard extensive evidence about the drug use, crime, and violence

that occurred on Cooper’s property, the place where Loehr had allowed the children to live. Cooper

testified about the people on the property who abused drugs and alcohol, including members of her

own family, and the difficulty she had in removing them from the property. Moreover, when she was



                                                  21
finally able to remove them from the property because of the temporary injunction, there were

incidents of violent retaliation directed at the property. Also, according to Gobbel, Cooper had told

her that “there had been a substantial amount of violence on the property” and there were also “pages

of domestic violence calls that had been made to the property.” Furthermore, Gobbel testified that

Cooper’s property was adjacent to a wrecking yard that was frequented by drug users who abused

prescription drugs. The undisputed evidence at trial showed that Loehr had allowed her children to

live in this environment for years. This and other evidence would support the jury’s finding on the

first termination ground, that Loehr knowingly placed or knowingly allowed the children to remain

in conditions or surroundings which endanger the physical or emotional well-being of the children.

See id. § 161.001(1)(D).

                Nor has Loehr demonstrated that the jury’s “best interest” finding turned on the

evidence of sexual abuse. In addition to the above evidence bearing upon Loehr’s capacities as a

parent, Dye opined that it was in the children’s best interest that Loehr’s parental rights be terminated

given Loehr’s substance abuse, her failure to comply with the court-ordered service plan, and

the conditions at Cooper’s home. Dye did not cite Loehr’s history of sexual abuse as a factor. In

fact, when asked directly if sexual abuse “had any bearing on this investigation,” Dye testified, “No.”

Joan Martin-Thurman, the CASA executive director, similarly did not mention sexual abuse

when testifying about the best interest of the children. Rather, Martin-Thurman testified that it

was important for the children to have “a stable family,” and that, if Loehr’s parental rights were

not terminated, “We’re going to end up with a child who is either seriously hurt or dead.” The

critical factor for Martin-Thurman was Loehr’s lifestyle: “She didn’t—she would not or could not



                                                   22
give up her lifestyle for the benefit of these children.” There was also evidence presented that Loehr

was negligent in her supervision of the children, that the children did not express a desire to be

returned to their mother, and that they were likely be adopted if Loehr’s parental rights were

terminated.

                 The record does not reflect that the jury’s findings regarding either the statutory

grounds for termination or the “best interest” determination turned on the evidence of Loehr’s history

of sexual abuse as a child. Because Loehr has failed to demonstrate that the trial court’s order

terminating her parental rights turned on this evidence, we cannot conclude that she was harmed by

its admission.

                 We also observe that, although trial counsel for Loehr objected to Loehr’s testimony

about sexual abuse, he did not object to similar testimony from Dr. Ferrera. It is well settled 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. See

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Richardson v. Green,

677 S.W.2d 497, 501 (Tex. 1984).

                 We overrule Loehr’s sole issue on appeal.




                                                  23
                                       CONCLUSION

              We affirm the order of termination.




                                           ___________________________________________

                                           Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: December 17, 2009




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