      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00018-CV



                                         R. H., Appellant

                                                  v.

             Texas Department of Protective and Regulatory Services, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. 99-00513, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING




               Appellant appeals an order terminating her parent-child relationship with both of her

children and appointing appellee Texas Department of Protective and Regulatory Services (the

“Department”) permanent managing conservator. Appellant appeals on the following two grounds:

(1) that the evidence is legally and factually insufficient to support the termination of appellant’s

parental rights and (2) that the testimony of Charles and Barbara Leverett should not have been

excluded by the trial court. We will affirm the decree of termination.


                     FACTUAL AND PROCEDURAL BACKGROUND

               In July 1997, appellant married Larry Duarte. At that time, appellant was 17 years

old and Duarte was 29 years old. The couple had two children: F.D., a boy, born on January 20,

1998, and V.D., a girl, born on December 29, 1998. During their marriage, appellant and Duarte

lived with appellant’s parents or grandparents.
                One month after the couple wed, Duarte served 150 days in jail following a conviction

of injury to a child. He was found guilty of fracturing the skull and breaking the wrist of his five-

month-old daughter, D.C., who was born of a previous relationship. In addition to the term of

confinement, Duarte was sentenced to 10 years of probation and was required to attend child abuse

classes and counseling for anger management.

                Appellant claimed that she did not know of Duarte’s violent past when they were first

married. Appellant testified that Duarte told her that he went to jail for stalking, violating a protective

order, and not participating in anger management classes. Appellant knew Duarte was on probation,

but claimed she did not know why he was going to court. She stated that she did not ask Duarte

about the proceedings because she felt that if Duarte had wanted her to know he would have told her.

Appellant also knew Duarte was taking family violence courses. Further, appellant admitted to

discovering legal paperwork related to Duarte’s criminal case. Appellant later became fully aware

of Duarte’s conviction for injury to a child, but she believed that the injuries to D.C. did not happen

and that the charges were falsified.

                After completing his jail term, Duarte returned to live with appellant at her

grandparents’ home. F.D. was born on January 20, 1998. At times, appellant and Duarte both

worked nights, which resulted in F.D. being left with friends while appellant and Duarte were at

work. Appellant’s friends, by her own admission, did not properly care for the child, and appellant

would often find F.D. covered in urine when she picked him up after work. On at least one occasion,

F.D. developed an infection from the urine.




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               On December 29, 1998, V.D. was born, and one week after her birth, V.D.’s

pediatrician declared her healthy. On January 10 or January 12, 1999, appellant left V.D. and F.D.

alone with Duarte while she went to the store. When appellant returned, she found both children

crying. She asked Duarte what happened, and Duarte told her that while all three of them were lying

on a bed, F.D., who was two-years-old at the time, kicked V.D. in the head. Later that evening,

V.D.’s head began to swell severely. Bruising on V.D.’s face and eye became noticeable a few days

later.

               Appellant claims that she called the Austin Regional Clinic about V.D.’s head injury,

but could not see a doctor because the clinic was full. She also claims that she called a family

member, who was a nurse, for advice about the swelling and that she applied ice to V.D.’s head.

Appellant, however, did not take V.D. to the doctor until January 14 for a previously scheduled

appointment. The physician’s assistant, Chris Crocker, noticed bruising on V.D.’s eye and head.

Crocker sent V.D. to the hospital because he suspected that she had a head injury. A CAT scan

revealed that V.D. had a fractured skull and some small areas of hemorrhage on the brain. Her leg

was also fractured. In addition, V.D. was diagnosed with pneumonia, which was not related to the

head and leg injuries.

               A radiologist indicated that V.D.’s leg injury was most likely caused by a violent

twisting or jerking. Doctors also determined that her head injuries were most likely intentional and

found appellant’s numerous explanations for the injuries unconvincing. Appellant asserted, at various

times, that the injuries were caused by (1) F.D. kicking V.D.’s head; (2) Duarte dropping V.D.; (3)

her aunt’s ex-boyfriend; (4) a neighbor; (5) pregnancy problems, including seizures and V.D. hitting



                                                 3
her head on appellant’s hipbone while in utero; and (6) V.D.’s breach position during birth. Doctors

explained that it was physically impossible for F.D. to have caused V.D.’s injuries because of his

young age. Doctors also explained that V.D.’s injuries could not have occurred during pregnancy

or birth. On January 14, 1999, as a result of the opinions of the doctors and the excuses of appellant

and Duarte, the Department removed the children from their parents’ care and placed the children in

foster care.

               When later confronted by social workers with the fact that V.D.’s injuries were not

accidental and that Duarte was under suspicion, appellant denied that Duarte could have hurt V.D.

Even after appellant was confronted with Duarte’s past conviction and probation for injury to a child,

appellant insisted that V.D.’s injuries occurred as Duarte had initially described: F.D. kicked V.D.

in the head. Duarte later confessed to Detective Brett Wilson that he threw V.D. on the bed and then

on the floor when she would not stop crying. When appellant was told of this confession, she became

upset and wanted to speak to Duarte. She then met with Duarte, and after a very short meeting, they

left the Department’s offices holding hands.

               During the time between V.D.’s injury and Duarte’s arrest for injury to a child on

January 19, 1999 for the injuries to V.D., appellant continued to live with Duarte. After he was

arrested and jailed, appellant continued to support Duarte financially and emotionally by visiting him

in jail and sending him letters and money. Appellant raised money for Duarte’s criminal defense in

the case stemming from V.D.’s injuries. Appellant and her family consistently denied that Duarte

could have been responsible for V.D.’s injuries.




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                The Department gave appellant several chance to change her behavior in order to

regain custody of her children. Appellant, who is of average intelligence, received assistance from

the Department, including a protective parenting class, individual counseling, a psychological

evaluation, parenting classes, and individualized parenting skills lessons with a social worker.

Appellant did not display improvement and failed to change her behavior and attitude toward her

children. Appellant was never able to admit that Duarte was responsible for the injuries V.D.

suffered. Appellant told a social worker that she planned to divorce Duarte in order to have her

children returned to her. However, once her children were returned, she intended to reunite with

Duarte after his criminal case was settled in court. The psychological evaluation indicated that

appellant was in denial about the abuse, and Dr. Poole, the psychologist who evaluated appellant,

stated that this denial put her children at risk of further harm.

                During Department supervised visits with her children, appellant failed to attend to

their needs. Appellant called both children “brats” and slapped F.D. on the hands and buttocks.

Appellant told F.D. that he was responsible for V.D.’s injuries and for his father being in jail. F.D.

cried when left with appellant and pulled away from her. V.D. also cried when appellant held her.

Social workers instructed appellant to feed V.D. only a special formula because V.D. suffered from

reflux, a medical condition requiring a strict diet to prevent vomiting. Appellant, however, refused

to accept the diagnosis and, despite social workers’ warnings, ignored the dietary constraints, often

giving V.D. juice, which aggravated V.D.’s condition. Appellant failed to change V.D.’s diaper when

appropriate, denying that it needed to be changed even after social workers prompted her to do so.




                                                   5
               F.D. was developmentally delayed when he was first removed from appellant’s care.

At that time, F.D. was fifty-four weeks old, but his maturity age in gross motor skills was

approximately thirty-six weeks. F.D. was also developmentally delayed in his fine motor skills. His

maturity age in language development, which was assessed at thirty weeks, was also severely delayed.

Testimony indicated that these developmental delays were possibly related to a lack of stimulation

at home. Appellant claimed that F.D. was not delayed in development, stating that F.D. could do

many things on his own. After being removed from appellant’s care, F.D. began treatment with a

speech pathologist and his language skills became age appropriate within eight months.

               The Department brought an action to terminate appellant’s parental rights to F.D. and

V.D. The case was tried before a jury for five days in November 1999. The jury found by clear and

convincing evidence that appellant knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endangered the children’s physical or emotional well-being, or

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, and that termination was in the best

interest of the children. Appellant’s parental rights were terminated and the Department was

appointed permanent managing conservator of F.D. and V.D.

               Appellant then perfected this appeal. Appellant challenges the decision to terminate

her rights on the grounds that the evidence is legally and factually insufficient to show that

termination was in the best interest of both children and that the emotional and physical well-being

of the children was endangered by appellant or by the environment in which she placed them.

Appellant also appeals the trial court’s exclusion of the testimony of her grandparents, Charles and



                                                 6
Barbara Leverett, on the grounds that the testimony would not have unfairly surprised the

Department and that the testimony was controlling and not cumulative.


                                   STANDARD OF REVIEW

               A court may terminate a parent-child relationship if it finds by clear and convincing

evidence that (1) the parent has engaged in any of the specific conduct enumerated in the Family

Code as grounds for termination and (2) termination is in the best interest of the child. Tex. Fam.

Code Ann. § 161.001(1), (2) (West Supp. 2001); Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d

531, 533 (Tex. 1987); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). In this case, the grounds

for termination under the Family Code are based on sections 161.001(1)(D) and (E). See Tex. Fam.

Code Ann. § 161.001(1)(D), (E) (West Supp. 2001). Under these provisions, the trial court may

terminate the relationship if it finds by clear and convincing evidence that the parent has “knowingly

placed or knowingly allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child” or “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.” Id. “Clear and convincing” means the 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 allegation sought to be

established. Leal v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 315, 319 (Tex.

App.—Austin 2000, no pet).

               When reviewing a jury verdict to determine the factual sufficiency of the evidence, we

must consider and weigh all the evidence and should set aside the judgment only if the evidence is so

weak and contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Cain

                                                  7
v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We

will not substitute our judgment for that of the trier of fact merely because we reach a different

conclusion. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.

App.—Austin 1992, no writ). The heightened standard of proof for terminating a parent-child

relationship does not alter the factual sufficiency standard of review at the appellate level. Leal, 25

S.W.3d at 320. Our factual sufficiency review of the evidence in a termination case necessarily

incorporates whether the challenged finding has been proven by clear and convincing evidence. Id.

                In deciding a legal sufficiency challenge to an adverse finding on an issue on which the

appellant did not have the burden of proof, we consider only the evidence and inferences tending to

support the finding and disregard all evidence to the contrary. Id. If more than a scintilla of probative

evidence supports the finding, it must be upheld. Id.

                Appellant also challenges the trial court’s decision to exclude the testimony of

appellant’s grandparents. Appellant must establish that the trial court abused its discretion by

excluding the testimony. See Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994). Appellant must

also show that the error is harmful. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 916-17 (Tex.

1992). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or

without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). This Court may not reverse for abuse of discretion merely because

we disagree with the decision of the trial court. Id. at 242.




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                                            DISCUSSION

                Appellant contends that the evidence submitted at trial is both legally and factually

insufficient to support the termination of the parent-child relationship between appellant and her two

children, F.D. and V.D. Under section 161.001 of the Texas Family Code, the Department had the

burden to establish by clear and convincing evidence that appellant knowingly placed or knowingly

allowed the children to remain in conditions or surroundings which endangered the physical or

emotional well-being of the children, or 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, and that termination of the parent-child relationship was in the best interest of both F.D. and

V.D. See Tex. Fam. Code Ann. § 161.001(1)(D)-(E), (2). Appellant asserts that the evidence at trial

focused on the alleged physical abuse of V.D. and that almost no evidence was presented regarding

the endangerment and the best interest of F.D. Finally, appellant contends that the trial court abused

its discretion when it excluded the testimony of Charles and Barbara Leverett, appellant’s

grandparents.

                The Department responds by asserting that it presented sufficient evidence of

appellant’s endangerment of both of her children at trial and that the interests of the children were

addressed by the evidence. The Department asserts that appellant engaged in conduct which

endangered her children by (1) permitting Duarte, a convicted child abuser, to have contact with her

children, (2) leaving her children with inappropriate caretakers, (3) failing to seek medical treatment

for V.D. after her head injury, and (4) mistreating the children during supervised visits. The

Department concludes that appellant’s failure to appropriately plan for her children’s futures, her



                                                   9
inability to provide for the emotional and physical needs of the children and to protect the children

from abuse, her poor parenting skills, her lack of interest in receiving help from the Department, and

the instability of appellant’s home environment indicate that termination of her parental rights was

in the best interest of F.D. and V.D. As to the testimony of appellant’s grandparents, the Department

contends that the trial court did not abuse its discretion by excluding the testimony of the Leveretts.

The Department also argues that, even if the testimony should have been allowed by the trial court,

the error was harmless.


Endangerment of the Children

               The jury was instructed that, in order to terminate the parent-child relationship, it had

to find by clear and convincing evidence that appellant endangered her children’s physical or

emotional well-being either by her conduct or by means of their surroundings and that termination

was in the best interest of the children. The jury found that the children’s well-being was endangered.

To affirm the termination decree, we must find that the evidence is legally and factually sufficient to

support only one of the grounds relied upon under sections 161.001(1)(D) and (E).                 Id. §

161.001(1)(D)-(E).

               In an involuntary termination proceeding, “endanger” means conduct that is more than

a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. See

Boyd, 727 S.W.2d at 533. However, the child need not suffer actual injury. Id. Rather,

“endangerment” means to expose to loss or injury; to jeopardize. Id.; see also In re M.C., 917

S.W.2d 268, 269 (Tex. 1996); Leal, 25 S.W.3d at 324. Endangerment may occur not only from a

parent’s acts, but also from a parent’s failure to act. Phillips v. Texas Dep’t of Protective &

                                                  10
Regulatory Servs., 25 S.W.3d 348, 353 (Tex. App.—Austin 2000, no pet). Further, a parent’s

endangering conduct toward one sibling is sufficient to support termination of a parent’s rights to all

of her children. Lucas v. Texas Dep’t of Protective & Regulatory Servs., 949 S.W.2d 500, 503 (Tex.

App.—Waco 1997, writ denied); see also Dir. of the Dallas County Child Protective Servs. Units

v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas 1992, no writ).

               The evidence supports the jury’s finding that the children’s well-being was

endangered. The evidence indicates that appellant was aware of Duarte’s previous conviction of

injury to a child. Appellant claims that she was unaware of the conviction; however, the jury was

presented with evidence to the contrary. Despite the likely knowledge of matters that should have

caused her grave concern, she did not take measures to remove her children from Duarte’s presence.

Although F.D. did not suffer physical injury, he suffered not only the trauma of being present at the

time of the assault, but most likely the emotional trauma of witnessing Duarte’s abuse of V.D. as well.

               Appellant was in a state of denial about the abuse Duarte inflicted upon her daughter.

She and her family refused to acknowledge that Duarte injured V.D. Appellant continued to defend

her husband and financially supported him after he was arrested for V.D.’s injuries. Appellant

expressed a desire to reunite her children with Duarte in the future. Appellant’s extreme state of

denial was evidence that her children were endangered.

               Appellant specifically endangered V.D. by not seeking immediate medical treatment

for her head injury. Despite observing extensive bruising and severe swelling of V.D.’s head on

January 12, appellant did not take her daughter to the doctor until January 14. Once it was

determined that V.D. was most likely injured intentionally, appellant became argumentative and



                                                  11
denied that her husband could have been responsible, creating various excuses for V.D.’s injuries.

Appellant protested her husband’s culpability even after she was confronted with his confession to

having intentionally injured the child.

                Appellant also endangered the physical and emotional well-being of both V.D. and

F.D. during her supervised visits with the children at the Department after they were removed and

placed in foster care. Appellant would unnecessarily spank and slap F.D. On one occasion, to

prevent F.D. from climbing up onto a small table, appellant pulled him down by the leg, causing F.D.

to hit his head. Appellant chastised F.D. for having caused V.D.’s injuries and Duarte’s time in jail.

Appellant also called her children “brats.” Appellant deliberately ignored feeding instructions for

V.D., giving her juice on several occasions instead of a special formula, as directed by the doctors.

This resulted in V.D. vomiting excessively during one visit.

                The evidence factually and legally supports a finding that the physical or emotional

well-being of the children was endangered by appellant’s conduct or omissions or the environment

in which appellant placed them. This finding alone is not sufficient to terminate parental rights;

termination must also be in the best interest of the children. Tex. Fam. Code Ann. § 161.001(1), (2).


Best Interest of the Children

                The Texas Supreme Court has recognized the following factors that may be

considered in determining whether termination is in a child’s best interest: (1) desires of the children;

(2) emotional and physical needs of the children now and in the future; (3) emotional and physical

danger to the children now and in the future; (4) parental abilities of the individuals seeking custody;

(5) programs available to assist these individuals to promote the best interest of the children; (6) plans

                                                   12
for the children by these individuals; (7) stability of the home or proposed placement; (8) acts or

omissions of the parent; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams,

554 S.W.2d 367, 372 (Tex. 1976). This list of relevant considerations is not exhaustive; other factors

may be considered when appropriate. Leal, 25 S.W.2d at 322. Likewise, a fact finder is not required

to consider all of the listed factors. Id. Several Holley factors are raised by the record.

               At the time of trial, V.D. and F.D. were too young to verbally express their desires.

However, the children’s behavior during scheduled visits with their mother suggests that neither child

bonded to appellant. This same evidence also strongly indicates that appellant did not meet the

emotional needs of the children. F.D. showed no emotion upon seeing his mother and would crawl

out of the room instead of to his mother when he became upset. Witnesses indicated that appellant

made no efforts to console F.D. on such occasions, but instead claimed that he was an independent

baby. The testimony also suggests that appellant would not be able to fully meet the physical needs

of her children. For example, during one supervised visit, appellant allowed V.D. to remain in a wet

diaper, ignoring both the cries of her daughter and the prompting of the caseworker to change the

diaper. In addition, as previously noted, appellant did not use proper feeding habits with V.D. despite

previous instructions.

               Appellant’s general state of denial is the primary indicator that the children faced and

would continue to face endangerment to their physical and emotional well-being. The Department

gave appellant several chances to improve her parenting skills and her attitude about the abuse

through various parenting classes and counseling sessions; however, appellant showed no signs of




                                                  13
improvement. She continued to blame F.D. for V.D.’s injuries and failed to hold herself or Duarte

accountable. In fact, appellant reported to counselors that she was the victim, not her children.

                The evidence factually and legally supports a finding that termination was in the best

interest of the children. Therefore, we cannot find that the trial court reversibly erred by terminating

the parent-child relationship between appellant and her two children. We overrule appellant’s first

issue on appeal.


Excluded Testimony

                Appellant argues that the trial court erred when it excluded the testimony of Charles

and Barbara Leverett, appellant’s grandparents. Appellant did not designate Charles or Barbara

Leverett as potential fact witnesses in response to the Department’s request for disclosure.

Appellant, instead, decided to call the Leveretts as witnesses after the trial began. The Department

objected to the presentation of the Leveretts’ testimony, and the trial court excluded the testimony.

Appellant claims on appeal that under Texas Rule of Civil Procedure 193.6(a), the testimony should

have been permitted because there was either good cause for not disclosing the witnesses sooner or

that the Department did not suffer any unfair surprise. See Tex. R. Civ. P. 193.6. Rule 193.6 states:


       A party who fails to make, amend, or supplement a discovery response in a timely
       manner may not introduce in evidence the material or information that was not timely
       disclosed, or offer the testimony of a witness (other than a named party) who was not
       timely identified, unless the court finds that: (1) there was good cause for the failure
       to timely make, amend, or supplement the discovery response; or (2) the failure to
       timely make, amend, or supplement the discovery response will not unfairly surprise
       or unfairly prejudice the other parties.

Id.



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               Regardless of whether the Department suffered unfair surprise or whether appellant

had good cause for the delay, the court should have admitted the testimony because the best interest

of children was at stake. See In re P.M.B., 2 S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.]

1999, no pet.). The court stated in In re P.M.B. that “in determining issues regarding the

conservatorship of, possession of, and access to a child, the court’s primary consideration is always

the best interest of the child. Compared to the best interest of the child, technical rules of pleading

and practice are of little importance in determining child custody issues.” Id. It is in the court’s

primary interest to have as much evidence before it as possible. Id. Therefore, the trial court should

have allowed the testimony of the Leveretts.

               Nonetheless, any error the trial court may have made was harmless in this case. Under

Texas Rule of Appellate Procedure 44.1(a), “No judgment may be reversed on appeal on the ground

that the trial court made an error of law unless the court of appeals concludes that the error

complained of . . . probably caused the rendition of an improper judgment.” Tex. R. App. P.

44.1(a)(1). Therefore, reversal is not required if the testimony is merely cumulative and not

controlling. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994).

               Charles and Barbara Leverett were to testify about appellant’s abilities as a parent and

the condition of their household while appellant was living there with the children. Testimony by

appellant’s mother had already been heard in appellant’s favor. Appellant’s mother testified that

appellant was a loving and caring mother. Appellant’s mother also discussed the conditions of the

Leveretts’ home, refuting testimony that their home was inappropriate for the children. Finally, the

Leveretts’ testimony was not controlling because it only enlightened the jury on one of the Holley



                                                  15
factors considered by the jury: appellant’s parenting abilities. The jury had evidence on the other

Holley factors and endangerment issues upon which it could have based its decision. Therefore, the

error of the trial court did not lead to the rendering of an improper judgement. We overrule

appellant’s second issue on appeal.


                                         CONCLUSION

               We conclude that the evidence is legally and factually sufficient to determine that the

children’s physical and emotional well-being was endangered and that the termination was in the best

interest of the children. Any error that the trial court may have made by excluding the testimony of

the Leveretts was harmless. We, therefore, affirm the termination decree.




                                              David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: May 10, 2001

Do Not Publish




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