      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00273-CV



                                     Vanessa Carr, Appellant

                                                   v.

              Texas Department of Protective and Regulatory Services, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. FM107107, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Vanessa Carr appeals from the trial court’s final decree terminating her

parental rights to her three children, K.C., D.B., and J.T.C., entered following a jury trial. We affirm

the district court’s judgment.


                                    Sufficiency of the Evidence

               In her third issue, Carr contends the evidence is legally and factually insufficient to

support the jury’s verdict that her parental rights should be terminated and that there is insufficient

evidence to support any of the grounds put forth by the State. The jury charge stated that for Carr’s

parental rights to K.C. and D.B. to be terminated, the jury must find by clear and convincing

evidence that Carr had (1) knowingly placed or allowed the children to remain in conditions that

endangered the children, (2) engaged in conduct or knowingly placed the children with people who
engaged in conduct that endangered the children, (3) constructively abandoned the children for at

least six months, or (4) failed to comply with a court order setting out actions necessary for the

children’s return. With regard to Carr’s parental rights to J.T.C., the charge stated that Carr’s rights

could only be terminated if there was clear and convincing evidence that she had (1) knowingly

placed or allowed J.T.C. to remain in conditions that endangered her, or (2) engaged in conduct or

placed J.T.C. with persons who engaged in conduct that endangered her.


                                         Standard of Review

               A trial court may terminate a parent-child relationship if it finds that the parent has

engaged in any of the conduct set out as statutory grounds for termination and that termination is in

the child's best interest; the Department must establish these elements by clear and convincing proof.

Tex. Fam. Code Ann. § 161.001 (West 2002); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and

convincing evidence is an intermediate standard of proof falling between proof beyond a reasonable

doubt and the preponderance of the evidence. C.H., 89 S.W.3d at 23-25. The clear-and-convincing

standard requires a “degree of proof which will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations” supporting termination. Id. at 23 (quoting State v.

Addington, 588 S.W.2d 569, 570 (Tex. 1979)). We review the legal sufficiency of the evidence by

considering “all the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In

re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must maintain appropriate deference to the fact

finder by assuming that it resolved evidentiary conflicts in favor of its finding when reasonable to

do so; we disregard evidence that a reasonable fact finder could have disbelieved or found incredible.

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Id. We review factual sufficiency by viewing all the evidence and deciding whether a reasonable

fact finder could have resolved disputed evidence in favor of its finding. Id. If, after such a review,

the disputed evidence is such that a reasonable fact finder could not have formed a firm belief about

the truth of the State’s allegations, the evidence is factually insufficient. Id.; C.H., 89 S.W.3d at 25.


                                      Summary of the Evidence

                Carr was almost twenty-one years’ old at the time of trial in April 2003, K.C. was six,

D.B. was three, and J.T.C. was almost five months’ old. K.C. was taken into protective Department

custody in October 2001, D.B. was taken into protective custody in about June 2002, and J.T.C. was

taken into custody in early December 2002 when she was about two weeks’ old. Carr became

pregnant with K.C. when she was thirteen years’ old, as a result of a rape by Kenneth Terrell, a close

family friend referred to as a godfather and a stepfather. Terrell first sexually assaulted Carr when

she was about eleven years’ old, but her family, including her mother, refused to believe that she had

been assaulted until she became pregnant with K.C. Terrell was convicted of sexual assault and was

in prison at the time of Carr’s termination trial.

                In 1998, Carr was referred to the Department because she let Terrell’s wife babysit

K.C. although Terrell’s wife had seven referrals to the Department, largely based on allegations of

substance abuse. Carr was again referred to the Department in October 2001 because her mother,

Sheryl Johnson, stated that she was K.C.’s primary caretaker at a juvenile court proceeding during

which she and Carr’s fifteen or sixteen year-old brother both appeared to be intoxicated and tested

positive for crack cocaine. Carr and K.C. were living with her mother and brother at the time, and

K.C. shared a room with Carr’s teenaged brother. K.C. appeared to be on target developmentally

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and did not show signs of mistreatment when taken into Department custody. There was testimony

that when the Department attempted to locate D.B., Carr said that she did not know where he was

and then that he was with Marcus Williams1 but that she did not have contact information for

Williams. D.B. was eventually removed from Williams due to drug abuse and marital discord in the

home; he was then placed in the same foster home with K.C.

               Celeste Richmond, Carr’s caseworker, stated that Carr’s service plan required her to

complete a parenting class and a psychological exam, obtain and maintain employment, and keep

the Department notified of any change of address or telephone number. The Department provided

Carr with basic household supplies and clothing appropriate for an interview. Richmond said that

initially Carr’s apartment was appropriate. However, as time went on, it was clear that “someone

was smoking marijuana, and a lot of it, in that apartment.” When asked, Carr said her guests were

smoking, not Carr herself. Carr was instructed not to allow marijuana smoking in her apartment.

               Richmond testified that in December 2001, Carr was first instructed to stop all drug

use and was told that future visits with her children would be contingent on clean drug tests. The

State introduced evidence that at least five drug tests from early 2002 indicated marijuana use and

one also showed cocaine use. In January 2002, Richmond started canceling Carr’s visits because

of positive drug tests. Richmond occasionally allowed visitation when Carr’s test results were not

back, and at least once mistakenly allowed visitation in spite of a positive test result. When a test




       1
         Carr thought that either Williams or another man was D.B.’s father. However, blood tests
ruled out both men as the father, and Carr did not know who else the father could be.

                                                 4
indicated cocaine use, Carr denied using cocaine, saying she was taking a prescription for headaches.

However, according to the drug lab, such medication usually tests as amphetamine and does not give

a false positive for cocaine.

                Richmond said that although Carr initially seemed very interested in completing the

service plan, making changes in her life, and being reunited with her children, Carr’s behavior grew

less and less cooperative. Richmond said Carr sometimes did not come to scheduled visits with

K.C., which distressed K.C. Carr also missed several scheduled appointments for a psychological

exam, and did not complete the exam until October 2002, almost a year after it was ordered. After

Carr failed successive drug tests and had visitations cancelled, she eventually stopped contacting

Richmond; Carr did not see her two oldest children after February 2002, and her phone was

disconnected in April. When D.B. was moved into the same foster home as K.C., Richmond had

to send Carr a letter informing her of the changes, stating that she had tried several times to call Carr

and had also left messages at Carr’s mother’s house. Carr had not obtained or maintained

employment, nor had she completed the court-ordered drug assessment, attended psychological

therapy, finished inpatient drug treatment, or completed a court-ordered parenting class.2 Richmond

said Carr never provided a clean drug test. Richmond last saw Carr in December 2002 at J.T.C.’s

removal hearing, and Carr never contacted Richmond to try to arrange a visit with J.T.C.




        2
          When the Department became involved with Carr, she had already completed a parenting
class through Any Baby Can. The Department therefore enrolled her in a more advanced class aimed
at parents with slightly older children. Carr attended only one class and then stopped going.

                                                   5
               On November 25, 2002, the Department was contacted because at her birth, J.T.C.

tested positive for marijuana and weighed only four pounds, five ounces. The Department could not

find J.T.C. until she was about two weeks’ old because Carr had placed J.T.C. with her friend, Sheri

Milligan. When J.T.C. was found, she had lost weight because Milligan had been using regular

bottles instead of bottles designed for premature babies, and she weighed three pounds, twelve

ounces. Richmond was very concerned about J.T.C. because she was tiny when she was born, and

then lost weight during her placement with Milligan. Carr wanted J.T.C. placed with Milligan, but

Milligan cancelled that process midway through because she was having personal problems;

Richmond also said Milligan’s fiancé had an open case with the Department.

               Richmond said the initial goal was to reunite Carr with her children. However, that

goal changed due to Carr’s continued drug abuse and emotional and mental health issues. Richmond

did not believe Carr could be an adequate parent until she addressed those problems. Richmond

believed that Carr had endangered D.B. and K.C. by leaving the children with inappropriate care

givers, including her mother, Williams, and, when K.C. was an infant, Terrell’s wife. Richmond

believed Carr was a danger to J.T.C. because J.T.C. tested positive for drugs at birth; Carr also

continued to make poor decisions such as leaving J.T.C. with a person who had a “history” with the

Department and with whom J.T.C. lost weight because of improper feeding.

               Dr. John Gould performed Carr’s psychological exam in October 2002. He testified

that Carr suffered from severe depression, anxiety, and post-traumatic stress disorder, and expressed

suicidal thoughts, mostly associated with the possibility of losing her children, and homicidal

thoughts toward her Department caseworker. Dr. Gould recommended that Carr take psychotropic



                                                 6
and antidepressant medications and undergo therapy, substance abuse treatment, and parenting

classes. Dr. Gould did not believe that, as of October, Carr was psychologically or emotionally

capable of caring for her three young children, and said she would need assistance, treatment, and

medication to do so.

               When K.C. was five and D.B. was two, the children were referred to a therapist

because they were throwing severe temper tantrums and acting out sexually and K.C. was lying and

being manipulative.3 Tania Glenn, their therapist, said her sessions with K.C. were notable because

of the “severe sexual overtone.” K.C. talked about oral sex during therapy, saying Carr had engaged

in such acts in front of her. K.C. grew angry and upset when she discussed the subject, and often

used very vulgar words during therapy. Glenn also said that K.C. described Carr’s drug use to her

foster mother, although the subject did not come up in therapy. Glenn knew K.C.’s foster mother,

and did not believe K.C. had learned her sexual behavior in the foster home because she had been

in that home for a very short amount of time when she began acting out and her foster mother did

not allow men in the house and would never use such graphic language. Glenn stated that K.C. had

not bonded with her mother properly and suffered from post-traumatic stress disorder, but that her

behavior and language had improved as she worked through her traumatic memories. Glenn said




       3
          When Richmond first met D.B., he would throw temper tantrums so severe that he would
make himself sick and would eat until he made himself sick. After he was placed in foster care with
K.C., the severity of his tantrums decreased significantly and his behavior improved. Richmond
observed Carr with D.B., and said that there did not seem to be a bond between them and that D.B.
did not respond to Carr’s attempts to calm him during a temper tantrum.

                                                7
both children needed a very structured, consistent, loving, patient environment with parents who

could provide for their needs and give supervision. She believed that continued contact with Carr

would be harmful to K.C. and D.B. because they have very negative thoughts about her, have not

expressed any desire to see her, and would be afraid if they did see her. Glenn testified that it was

in the children’s best interests that Carr’s parental rights be terminated.

               An Austin police officer testified that neighbors and passers-by complained about

drug dealing at Carr’s apartment. Carr was frequently seen with drug dealers, and was arrested in

July 2002 for drug possession while she was pregnant with J.T.C. During one search of her

apartment, police officers found crack cocaine and marijuana; Carr denied that the cocaine was hers.

During another search, “[a] large cloud of marijuana smoke came rushing out as soon as they opened

the door”; newborn J.T.C. was in the apartment at the time.

               Carr denied ever being sexually active in front of her children. She said K.C. may

have seen sexual behavior on television because she would sometimes turn on the cable channels

late at night. Carr never saw K.C. or D.B. act out sexually and never got reports from school or

relatives of inappropriate behavior.

               Carr admitted that she was informed that she had to take a drug test before she visited

her children, but denied being told that she had to stop using drugs. Carr said her caseworker kept

telling her that the drug tests were clean and did not understand why the Department would have

allowed her to see her children if her tests were positive. Carr denied using crack cocaine, and said

she never used drugs or even smoked cigarettes in front of her children. Carr testified that when she

found out she was pregnant with J.T.C., she stopped smoking marijuana, and said J.T.C. tested



                                                  8
positive for marijuana because there was only one umbilical artery. Carr also testified that she had

stopped using marijuana only three weeks before trial. Carr said she placed J.T.C. with Milligan

because she did not want the State to be able to say J.T.C. was in an unsafe environment.

               Carr testified that she struggled with depression while pregnant with D.B., sought

treatment, and was prescribed medication. However, she discontinued the medication because it did

not help and made her sleepy. She stopped taking her medication altogether when she got pregnant

with J.T.C. Carr said she still suffers from depression at times. She denied ever saying she had

suicidal thoughts. Carr completed two weeks of a four-week drug treatment program, but stopped

because of family problems.

               Carr testified that she had not found employment since the children were removed,

but she said she had looked for work and filled out many applications. She does not have a high

school diploma or a GED certificate, and said she had not found a program that would help her get

her GED. Carr said she complained to her apartment manager about the drug activity around her

apartment, but was told it was the only apartment available. At the time of trial, Carr did not have

a job, was getting food stamps, and was getting help from her mother to pay her utilities. However,

she said if she had her children, “it would be a whole another different story,” and she would get a

job to support them or find money somehow, saying “I can get money from anywhere.” Carr said

she stopped contacting the Department because she had a personality conflict with Richmond. Carr

said, “I have no excuse for not completing my service plan, you know. I did some of it. I didn’t do

some of it. I’m sorry. . . . [I]t seemed like every time I did something it wasn’t right. It wasn’t good




                                                   9
enough.” Carr said she loved her children and would be able to support them somehow. She also

said she would be sure that they attended and succeeded in school.


                                             Discussion

               The evidence in this cause is legally and factually sufficient for a reasonable trier of

fact to form a firm conviction that Carr’s parental rights should be terminated based on any of the

alleged grounds. There was evidence that Carr, who suffers from depression, went off her

medication and had suicidal and homicidal thoughts. There was evidence that she frequently smoked

marijuana and allowed her infant to stay in an apartment filled with marijuana smoke. K.C.’s

therapist testified that K.C. reported seeing her mother engaged in sexual activity and drug use, and

stated she did not believe that K.C. learned vulgar words or sexual behavior in her foster home.

While Carr’s children were out of her custody and she was supposed to be taking parenting classes

and getting counseling, she continued to abuse marijuana and tested positive for cocaine on one

occasion. Carr dropped out of her drug treatment program and waited for nearly a year before

completing the court-ordered psychological exam. Dr. Gould did not believe Carr could be an

adequate parent until she obtained counseling, and Richmond believed Carr was a danger to her

children because Carr continues to make poor choices and use drugs. Although Terrell sexually

abused Carr as a child and Terrell’s wife had numerous referrals to the Department for substance

abuse, Carr allowed Terrell’s wife to babysit K.C. and even allowed her to attend K.C.’s birthday

party after she had kidnapped K.C. in an attempt to get Carr to recant her allegations of sexual abuse.

Carr’s mother appeared in court high on cocaine, accompanied by Carr’s teenaged brother, who was

also high on cocaine, and told the court she was K.C.’s primary caretaker. Carr placed her newborn

                                                  10
with a friend who did not use the right bottles to feed her, resulting in a weight loss for the tiny

infant; that friend’s fiancé had an open Department case pending. Finally, Carr essentially ceased

contact with the Department in February 2002, and did not see her older children for more than a

year. It was for the jury to hear the evidence and disregard evidence that a reasonable fact finder

could have disbelieved or found incredible. We cannot hold that the evidence is insufficient to

support the jury’s verdict. We overrule Carr’s third issue on appeal.


                                              Jury Charge

                   In her first issue on appeal, Carr contends that the jury charge, which included

multiple grounds for termination in one broad-form question, violated Carr’s right to procedural due

process because it did not (1) require the jury to identify the grounds for termination or (2) require

that ten jurors agreed on any one ground for termination. In her second issue, she contends that the

multiple-issue question violates section 161.001 of the family code and could subject her and other

parents in similar circumstances to erroneous termination of parental rights to future-born children.

                   Although the jury charge stated that Carr’s parental rights to K.C. and D.B. could be

terminated if clear and convincing evidence established one of four grounds for termination, the

charge asked in a broad-form question simply whether Carr’s rights to K.C. and D.B. should be

terminated. Likewise, with regards to J.T.C., the charge allowed for Carr’s rights to be terminated

based on two grounds, but asked simply whether Carr’s rights to J.T.C. should be terminated. To

both broad-form questions, the jury answered “yes.” In the charge’s general instructions, the jury

was instructed that “[t]he same ten or more of you must agree upon all the answers made and to the

entire verdict.”

                                                    11
               Carr argues that the broad form submission improperly lowered the State’s burden

of proof and made it impossible to be sure on which ground ten or more jurors agreed. Carr

acknowledges that in Texas Department of Human Services v. E.B., the supreme court approved of

the use of broad-form questions in termination cases. 802 S.W.2d 647, 649 (Tex. 1990). She

contends, however, that E.B. must be harmonized with the more recent decision in Crown Life

Insurance Co. v. Casteel, in which the supreme court held that it is harmful error to submit to a jury

a single broad-form question that “commingles valid and invalid liability theories.” 22 S.W.3d 378,

389 (Tex. 2000). Carr argues that the grounds for termination are analogous to damages theories.

She contends that because the evidence is insufficient to support the jury’s findings as to each of the

asserted grounds, allowing the jury to find that her parental rights should be terminated without

determining on which ground or grounds the jury relied violates her rights to due process because

the termination may be based on a ground that lacks evidentiary support.

               In this case, we have held that sufficient evidence supports each of the grounds for

termination of Carr’s parental rights to her children. Therefore, we need not decide whether it is

error to submit in a broad-form question a ground for termination not supported by legally sufficient

evidence.4 See In re J.M.M., 80 S.W.3d 232, 249-50 (Tex. App.—Fort Worth 2002, pet. denied).

Furthermore, as noted in J.M.M., absent evidence to the contrary, we must presume that the jury




       4
          This Court has held that Crown Life does not apply in cases where disjunctive allegations
track statutory language, as the jury charge does in this cause. See Cox v. Texas Dep’t of Protective
& Regulatory Servs., No. 03-01-00511-CV, 2002 Tex. App. LEXIS 3651, at *7 n.3 (Austin May 23,
2002, pet. denied) (not designated for publication).

                                                  12
followed the trial court’s instructions that the same ten or more of them must agree on the verdict

and all the answers made. Id. at 250. We overrule Carr’s first issue on appeal.

               As for Carr’s second issue, we have held that sufficient evidence supports the

termination of her parental rights to K.C. and D.B. based on findings under section 161.001(1)(D)

or (E), that she either engaged in conduct or knowingly allowed her children to remain in conditions

or with persons who engaged in conduct that endangered the children. See Tex. Fam. Code Ann.

§ 161.001(1)(D), (E). Such grounds could later allow for the termination of Carr’s rights to future

children under subsection (M), which provides for termination if parental rights have been

terminated with respect to another child based on subsections (D) or (E). See id. § 161.001(1)(M).

Furthermore, Carr’s rights to J.T.C. were terminated based only on subsections (D) or (E).

Therefore, should the Department seek in the future to terminate Carr’s rights to other children based

on subsection (M), such termination would not be erroneously based on a subsection other than (D)

or (E). We overrule Carr’s second issue.

               We affirm the district court’s judgment.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: January 8, 2004



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