AFFIRMED; Opinion Filed October 8, 2015.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-00501-CV

                IN THE INTEREST OF A.H.J., A.H., AND A.H., CHILDREN

                       On Appeal from the County Court At Law No. 1
                                  Kaufman County, Texas
                             Trial Court Cause No. 87976CC

                             MEMORANDUM OPINION
                           Before Justices Fillmore, Myers, and Evans
                                    Opinion by Justice Evans


       After a jury trial, the mother of three children appeals the trial court’s final order

terminating her parental rights. In thirteen issues, appellant challenges the legal and factual

sufficiency of the evidence supporting the jury’s best interest finding, and asserts the trial court

erred in (1) denying her motion to dismiss the case pursuant to Texas Family Code section

263.402; (2) granting the motion for a “nunc pro tunc” permanency hearing order; (3) denying

her motion for new trial; (4) admitting certain evidence at trial; (5) denying her request for a

spoliation instruction; (5) refusing her request to review a witness’s notes; (6) enforcing the

mediated settlement agreement and requiring the filing of her affidavit of relinquishment, and (7)

ordering her to pay Kaufman County court-appointed attorney’s fees. For the reasons that

follow, we conclude the issues raised by appellant do not present any reversible error.

Accordingly, we affirm the trial court’s order of termination.
                                    FACTUAL AND PROCEDURAL SUMMARY

           Appellant is the mother of three children, Oldest Child, Middle Child, and Youngest

Child. The Texas Department of Family and Protective Services became involved with the

family in March 2013, shortly after appellant gave birth to Youngest Child and appellant and

Youngest Child tested positive for methamphetamine. Youngest Child was removed by the

Department directly from the hospital.1                 The Department had some difficulty locating the

remaining two children (ages three and one at the time) and ultimately found them living with

appellant in what appellant called a “dope house” that did not have electricity.2 According to

Department caseworker Mayrani Velazquez, Oldest Child and Middle Child also tested positive

for amphetamines and methamphetamines when they came into the Department’s care.

           After a hearing, a family service plan was developed that required appellant to complete a

drug treatment program, submit to drug testing, attend parenting classes, and undergo

counseling, among other things. The case proceeded in due course and in December 2013, the

trial court granted a 180-day extension pursuant to section 263.401(b) of the family code

resetting the dismissal date for October 6, 2014. In September 2014, the parties signed a

Mediated Settlement Agreement (MSA) providing for a three-phase possession plan culminating

in appellant having the right to unsupervised possession of the children at all times beginning

November 24, 2014. The MSA also required appellant to execute an affidavit of relinquishment

to be held by her attorney and not filed unless appellant failed to comply with the terms of the

MSA.

           At a permanency hearing on October 2, 2014 the trial court stated on the record that it

was in the best interests of the children to approve the MSA and ordered a monitored return to

    1
        Youngest child was born in the bathtub of a hotel room and taken to the hospital after the birth.
    2
     The children’s father was arrested shortly after Youngest Child’s birth and was incarcerated at the time of trial.
He executed a voluntary affidavit of relinquishment while the case was pending and is not a party to the appeal.


                                                           –2–
the mother in accordance with the MSA’s possession plan. On the record, the trial court set the

next permanency hearing for December 4, 2014, scheduled a final hearing for March 5, 2015,

and reset the dismissal date for March 31, 2015. On October 16, 2014, the trial court signed an

order with respect to the October 2 hearing. During the implementation of the second phase of

the MSA’s possession plan, the Department became concerned about some scratching and

bruising injuries Oldest Child and Middle Child sustained while in appellant’s care and did not

proceed with the monitored return. At the December permanency hearing, the children were

continued in their current foster placement. The Department then filed a motion to enforce the

MSA and compel appellant to file her executed affidavit of relinquishment with the trial court.

Appellant moved to dismiss the case arguing the lack of compliance with the statutory

requirements of section 263.403 of the family code precluded the trial court from retaining

jurisdiction over the case after October 6, 2014 dismissal date.3 After a hearing, the trial court

denied appellant’s motion and granted the Department’s motion. The matter proceeded to trial

before a jury on March 16, 2015. In accordance with the jury’s verdict, the trial court rendered

an order terminating appellant’s parental rights to her three children. This appeal followed.

                                                  ANALYSIS

A.       Motion To Dismiss Pursuant To Section 263.402

         In her first issue, appellant complains the trial court abused its discretion when it denied

her motion to dismiss pursuant to section 263.402 of the family code. Specifically, she argues

that the trial court’s retention of the case on the docket after the October 6 dismissal date was

error because the trial court did not comply with the statutory requirements of a monitored return

under section 263.403.

     3
      This Court denied appellant’s petition for writ of mandamus with respect to the trial court’s ruling on her
motion to dismiss pursuant to section 263.401 of the family code. Appellant filed a petition for writ of mandamus
with the Texas Supreme Court which was also denied.


                                                      –3–
       In relevant part, section 263.401 of the family code provides that a Department’s lawsuit

requesting termination of parental rights must be dismissed on the first Monday after the first

anniversary of the date the court rendered the first temporary order naming the Department as

temporary managing conservator unless the court has commenced a trial on the merits or granted

a one-time extension under subsection (b). TEX. FAM. CODE ANN. § 263.401 (West 2014).

Notwithstanding section 263.401, however, the court may retain jurisdiction of a case if it finds

that the retention is in the best interest of the child, orders a Department-monitored return of the

child to the parent, and continues the Department as temporary managing conservator of the

child. TEX. FAM. CODE ANN. § 263.403(a) (West 2014).

       In the case before us, the original dismissal date was extended to October 6, 2014

pursuant to section 263.401(b). However, on October 2, 2014, the trial court approved the

parties’ MSA and ordered a monitored return to appellant in accordance with the MSA’s stair-

step process. Appellant contends the trial court’s October 2 oral pronouncement was ineffective

to retain jurisdiction over the matter pursuant to section 263.403 because the trial court did not

use any “extension language” or make the findings required by section 263.403. We disagree.

       We first note that in accordance with family code section 101.026, “render” means the

pronouncement by the judge of the court’s ruling on a matter. TEX. FAM. CODE ANN. § 101.026

(West 2014). The pronouncement may be made orally in the presence of the court reporter or in

writing, including on the court’s docket sheet, or by a separate written instrument.               Id.

Moreover, nothing in section 263.403 requires the trial court’s monitored return order to be in

writing. See TEX. FAM. CODE ANN. § 263.403.

       At the October 2 hearing, the trial court stated on the record that it was in the best interest

of the children to approve the MSA. The trial court “order[ed] a monitored return to the

[M]other. But that is with the understanding that that will be a stair-step process . . . .” The

                                                –4–
judge then admonished appellant that, “This is not the end. . . . If for some reason that doesn’t

work out, then unfortunately, we’ll be back here. It would be putting the return in danger and

that may not occur.” The trial court went on to state on the record, “The permanency hearing in

this matter is scheduled for December the 4th at nine o’clock, followed by a . . . new final

hearing on March 5th of 2015 at nine o’clock. And the new dismissal date is March 31st of

2015.”

         Based on the record before us, we conclude the trial court ordered a monitored return on

October 2 that was in accordance with the parties’ MSA. We further conclude that although the

trial court may not have specifically stated on the record that it was retaining the case on the

docket, the judge’s admonishment to appellant together with the setting of dates for the next

permanency hearing, new final hearing, and new dismissal date clearly reflect the trial court’s

retention of the case on its docket.

         Appellant also asserts that the trial court’s October 16 written order retaining the case on

the docket pursuant to section 263.401(b) controls over the trial court’s conflicting oral

pronouncements on the record. We need not address this argument however, because on April 2,

2015, the trial court signed a “Nunc Pro Tunc Permanency Hearing Order” with respect to the

October 16 order. The April 2 order retained the case on the docket pursuant to section 263.403.

We note that appellant challenges the validity of trial court’s nunc pro tunc order in her second

issue. As discussed in our analysis of appellant’s second issue, however, because we determine

the April 2 order is valid and supersedes the October 16 order, her argument based on the

superseded October 16 order presents nothing for our review.

         Finally, we are not persuaded by appellant’s argument that the trial court’s failure to

make specific findings regarding the necessity for retaining the case nullifies the trial court’s

monitored return order. The trial court stated on the record its finding that approval of the

                                                 –5–
parties’ MSA was in the best interests of the children.           That agreement provided for the

monitored return of the children to appellant in accordance with a three-phase possession plan.

In reaching our conclusion, we necessarily reject appellant’s argument that any pronouncement

failing to comply with every statutory requirement is insufficient to retain the case on the docket.

Appellant relies on In re J.H.G., 290 S.W.3d 400 (Tex. App.—Dallas, 2009), rev’d, 302 S.W.3d

304 (Tex. 2010) to support her position. As noted by the supreme court in J.H.G., however, a

263.401(a) dismissal date is procedural and not jurisdictional. 302 S.W.3d at 306. Moreover,

J.H.G. involved an extension under a former version of section 263.401(b) which specifically

provided the trial court could not retain the suit beyond the one-year dismissal date unless the

trial court found extraordinary circumstances. 290 S.W.3d at 403–04. The former statute

explicitly stated that if the trial court failed to make specific findings of extraordinary

circumstances, it must dismiss the suit. Id. While certain findings are required by section

263.403, unlike the former section 263.401(b) at issue in J.H.G., there is nothing in section

263.403 suggesting the failure to make such findings would preclude retention of the case on the

docket.

          We conclude the trial court’s October 2 oral rendition was sufficient to maintain the case

on its docket pursuant to section 263.403 and was timely rendered before the October 6 dismissal

date. Accordingly, the trial court did not err in denying appellant’s motion to dismiss. We

resolve appellant’s first issue against her.

B.        Motion For Nunc Pro Tunc Order

          In her second issue, appellant asserts the trial court abused its discretion in granting the

Department’s motion for a nunc pro tunc order with respect to the October 2 permanency

hearing. She contends the April 2 nunc pro tunc order did not correct clerical errors, contained a




                                                  –6–
completely new set of findings that conflicted with those in the October 16 order, and was barred

by the equitable principles of waiver, estoppel, and laches.

           Once the trial court has lost plenary jurisdiction, a nunc pro tunc order may be entered to

correct clerical errors. See Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). However,

because the April 2 order was signed on the same date as the trial court’s order of termination, it

is beyond dispute that the trial court had plenary power to correct, amend, or clarify its

interlocutory orders in the case. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993).

Consequently, the trial court was not limited to correcting clerical error and clearly retained the

power to correct the October 16 order. It is the content of the order rather than its label that

controls our analysis. See Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n.1 (Tex. App.—

Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009) (court must read pleading for its content rather

than its label).

           Appellant further argues the trial court should have denied the Department’s motion

based on equitable principles because the case was tried with the October 16 order in place.4

Appellant contends that had the corrected order been signed before trial, she could have limited

the evidence relative to the best interest analysis to facts occurring after October 16. The only

legal authority she cites to support her position, however, is C.B. v. Texas Department of Family

and Protective Services, 440 S.W.3d 756 (Tex. App.—El Paso 2013, no pet.). After considering

the unique circumstances at issue in C.B., we conclude it is not persuasive authority here. In

C.B., the jury was instructed that the parties’ mediated settlement agreement was a judicial

admission that conclusively established that as of the date of agreement, it was in the best

interests of the children to be returned to their mother. Id. at 765. The El Paso court observed

that based on the unobjected-to instruction, the jury was directed to focus on the mother’s

    4
        Our review of the record reveals the October 16 order was not before the jury.


                                                          –7–
behavior between the date the children were returned to her and the date of re-removal. Id. at

766. The El Paso court specifically refused to address the propriety of the instruction as that

issue was not before them. Moreover, we agree with the Austin Court of Appeals that precluding

consideration of a parent’s actions during the pendency of a termination once a monitored return

is ordered would discourage the Department and the courts from attempting family reunifications

in close cases. See J.C.C. v. Tex. Dept. of Family & Protective Servs., No. 03-13-008450-CV,

2014 WL 2740373 at *4 (Tex. App.—Austin June 13, 2014, no pet.) (mem. op.) (refusing to

adopt C.B.’s analysis).

       Here, the MSA providing for the stair-step monitored return to appellant was before the

jury and specifically stated the agreement was in the best interests of the children. Moreover, our

review of the record reveals that witnesses for the Department testified the real focus of the case

was what happened after October 2014. The caseworker testified that at the time the MSA was

reached, the Department agreed it was in the best interests of the children. The Court Appointed

Special Advocate for the children also indicated that the case boiled down to what happened

between October through December 2014. Accordingly, we are not persuaded that equitable

principles required the trial court to deny the Department’s motion.

       In two additional arguments appellant contends the nunc pro tunc order was insufficient

to retain the case on the docket and is against public policy because it was basically an attempt to

back date findings that never happened and retroactively cure the October 2 oral rendition. We

need not address these arguments having already concluded the trial court’s October 2 oral

rendition was sufficient to retain the case on the docket pursuant to section 263.403. Because we

determine the trial court did not abuse its discretion in granting the Department’s motion to

correct the October 16 order, we resolve appellant’s second issue against her.




                                                –8–
C.       Motion For New Trial

         In her third issue, appellant challenges the trial court’s denial of her motion for new trial.

She argues the October 16 interlocutory order constituted comments by the trial court on the

weight of the evidence and permitted incurable jury argument on her ability to care for her

children.5 We review the denial of a motion for new trial for an abuse of discretion. See Hodges

v. Rajpal, 459 S.W.3d 237, 250 (Tex. App.—Dallas 2015, no pet.). A trial court abuses its

discretion when its actions are arbitrary or unreasonable or when it acts without reference to any

guiding rules or principles. Id.

         Appellant specifically complains about the finding in the October 16 order that she was

not willing or able to provide the children with a safe environment and placement with her was

not in their best interests. We first note that the October 16 order was not in evidence before the

jury. Instead, the only permanency hearing order in evidence was signed on January 15, 2015

and related to the December 2014 permanency hearing. The January 15 order also contained

findings that appellant was unable or unwilling to provide the children with a safe environment

and therefore return of the children to her was not in their best interests. Contrary to appellant’s

assertion, however, there is no indication that these findings were incorporated from the October

16 order. Instead, it appears that these findings were based on the December hearing. Because

there is no indication the October 16 order findings were before the jury, or that the Department

specifically relied on those findings at trial, we conclude that the trial court did not abuse its


     5
      Appellant further argues that because the April 2 order was signed after the trial, she was deprived of the
opportunity to rely on its findings that she was able to care for the children at least as of October 16. Because
appellant did not assert this argument in her motion for new trial, she did not preserve this complaint for appeal. See
TEX. R. APP. P. 33.1. Moreover, to the extent appellant again relies on C.B. to support this position, we have already
concluded C.B. is factually distinguishable from the case here. Unlike the order in C.B. which made a specific
finding as to the children’s best interest as of the date of the order, the April 2 order specifically found that until
Phase 3 of the MSA was reached, the children continued to need substitute care and should be continued in their
current foster placement. Consequently, the finding that placement with appellant was in the children’s best interest
must be read in conjunction with this finding. As such, appellant’s reliance on C.B. is misplaced.


                                                         –9–
discretion in denying appellant’s motion for new trial. We resolve appellant’s third issue against

her.

D.     Evidentiary Challenges

        In her fourth, sixth, ninth, and eleventh issues, appellant complains about the admission

of certain evidence. We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. See In re J.F.C., 96 S.W.3d 256, 285 (Tex. 2002). However, even

if we conclude the trial court erred in admitting the evidence, we may not reverse the trial court’s

order unless we conclude the evidentiary error was reasonably calculated to cause and probably

did cause rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); In re E.A.K., 192

S.W.3d 133, 148 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

       i. Admission of drug test results

       In her fourth issue, appellant asserts the trial court erred in admitting various documents

containing references to positive drug test results on her and the children without first

establishing the proper predicate for the scientific evidence and in violation of the hearsay rule.

At trial, both appellant and the children’s father testified without objection to using drugs and

indicated they did not doubt the results of the drug tests. Father admitted using drugs in the

presence of the Oldest Child and Middle Child. Appellant admitted to living in a “dope house”

with the Oldest Child and Middle Child. Appellant also admitted to using drugs while she was

pregnant with Youngest Child. On cross-examination, appellant indicated she did not doubt the

children were exposed to and had methamphetamine in their bodies. Further, appellant and

Father took responsibility for the children’s exposure to drugs. Consequently, even if the trial

court abused its discretion in admitting evidence of the drug test results on her and the children,

we cannot conclude appellant was harmed by the error in light of the other unobjected-to




                                               –10–
evidence that appellant and father exposed the children to drugs. We resolve appellant’s fourth

issue against her.

        ii. Admission of transcript testimony of unavailable witness

        In her sixth issue, appellant complains about the admission of transcript testimony of Ben

Smith with whom she had a relationship during the pendency of this case. Smith testified at a

permanency hearing in June 2014. Specifically, appellant argues the Department did not meet its

burden of showing Smith was an unavailable witness.

        Former testimony of an unavailable witness is admissible as an exception to the hearsay

rule if (1) the witness is absent from trial and the witness’s proponent has not been able, by

process or other reasonable means, to procure his attendance, and (2) the former testimony was

from a hearing in the current case and now offered against a party that had an opportunity to

cross-examine the witness. TEX. R. EVID. 804(a)(5), (b)(1). The transcript testimony at issue was

from a permanency hearing at which appellant’s attorney cross-examined Smith. Consequently,

appellant does not challenge the second prong noted above.

        With respect to the first prong, a witness is unavailable when: (1) the witness is dead, has

become insane or is physically unable to testify, (2) the witness is beyond the jurisdiction of the

court, (3) the witness’s whereabouts remain unknown after a diligent search, or (4) the witness

has been kept away from trial by the adverse party. Hall v. White, 525 S.W.2d 860, 862 (Tex.

1975). A witness is not unavailable unless a good faith effort has been to obtain the witness’s

presence at trial. See Otero-Miranda v. State, 746 S.W.2d 352, 354 (Tex. App.—Amarillo 1988,

pet. ref’d, untimely filed).

        The Department produced evidence that Smith was working in Colorado and had been

faxed a copy of a subpoena the Tuesday before trial. An investigator for the Kaufman County

district attorney’s office testified that he received a subpoena for Smith within the previous two

                                               –11–
weeks. He made contact with Smith by telephone and informed him he had a subpoena for his

appearance.       Smith indicated he was in Colorado managing a construction project.         The

investigator asked, and Smith agreed, to accept the subpoena by fax. When the investigator

called to confirm Smith’s receipt of the subpoena, Smith indicated that he was coming and that if

he completed a certain percentage of the project, his company would fly him back to Texas.

According to the witness, although Smith was supposed to call on the Saturday before trial, he

did not. Ultimately, Smith did not appear for trial.

          The evidence shows that at least one week before trial, Smith was employed in Colorado,

outside the jurisdiction of the court, as a construction manager. Smith received a subpoena by

fax and had agreed to testify. By the time the Department discovered Smith did not appear,

however, there was no reasonable means to procure his attendance or his testimony without

delaying the trial. Based on the evidence presented, we cannot conclude the trial court abused its

discretion in concluding the Department met its burden of showing that even though Smith was

beyond the jurisdiction of the court, the Department made a good faith effort to procure his

attendance at trial. We resolve appellant’s sixth issue against her.

          iii. Admission of the testimony of Father’s mother

          In her ninth issue, appellant contends the trial court abused its discretion in allowing

Father’s mother to testify in violation of rule 614 of the rules of evidence, commonly referred to

as “the Rule.” We disagree.

          Father was called by the Department to testify. 6     He testified that he was largely

responsible for the Department’s involvement with the family. After Father completed his

testimony, the Department called his mother as a rebuttal witness to refute Father’s testimony.

The Department argued that although it had not anticipated calling her, it was necessary to refute

   6
       Father appeared pursuant to a bench warrant.


                                                      –12–
Father’s perjurous testimony. Appellant objected that Father’s mother was in the courtroom after

the Rule had been invoked and had heard Father’s testimony.

       Texas Rule of Evidence 614 provides for the exclusion of witnesses in the courtroom

during the testimony of other witnesses. See TEX. R. EVID. 614. The rule’s purpose is to prevent

collusion among witnesses testifying for the same side and to minimize the tailoring of testimony

in response to the testimony of other witnesses. See In re K.M.B., 91 S.W.3d 18, 28 (Tex.

App.—Fort Worth 2002, no pet.).         If the Rule is violated, however, depending on the

circumstances, the trial court may allow the testimony, exclude the testimony, or hold the

violator in contempt. See id. We review the trial court’s ruling under an abuse of discretion

standard. Id. Even assuming the failure to exclude the witness was erroneous, it is not reversible

unless it is shown to be harmful. See In re H.M.S., 349 S.W.3d 250, 253 (Tex. App.—Dallas

2011, pet. denied).

       Appellant argues that she was harmed by the testimony of Father’s mother because it

gave the jury the false impression that she “planned for [Father] to give false testimony.” But

there is nothing in the record to suggest appellant procured or had any knowledge of Father’s

testimony. Moreover, appellant has not shown how the violation of the Rule affected her

mother-in-law’s testimony in any way. There is no indication of collusion between Father and

his mother or that the objected-to testimony was tailored or altered by her hearing Father’s

testimony. In essence, the testimony of Father’s mother was used to show that Father had lied to

the Department so that they would bring him to court to testify where he could see appellant.

Absent a showing of harm resulting from the violation of rule 614, we conclude the trial court’s

refusal to exclude the testimony was not reversible. We resolve appellant’s ninth issue against

her.




                                              –13–
       iv. Admission of trial court’s March 12, 2015 order

       In her eleventh issue, appellant complains about the trial court’s admission of its March

12, 2015 order granting the Department’s motion to enforce the MSA and ordering her to file her

affidavit of voluntary relinquishment with the court. Appellant argues admission of the order

violates rule of evidence 605 because it constitutes a comment by the court on the weight of the

evidence indicating she violated the MSA.

       Rule 605 provides in relevant part, “The presiding judge may not testify as a witness at

the trial.” TEX. R. EVID. 605. The question is whether the contents of the judge’s order is

essential to the exercise of some judicial function or the functional equivalent of witness

testimony. See In re C.C.K., No. 02-12-00347-CV, 2013 WL 452163 at *33 (Tex. App.—Fort

Worth February 7, 2013, no pet.) (mem. op).

       We first note that the order in question contains no express findings or statements that

conveyed factual information not in evidence. Rather, the order merely grants the Department’s

motion to enforce the MSA and requires appellant to file her affidavit of relinquishment.

Admission of an order as evidence that appellant failed to comply with the MSA is not in itself

inappropriate. See In re M.S., 115 S.W.3d 534, 538 (Tex. 2003) (admission of order as evidence

of failure to comply with orders). Moreover, appellant did not object to the admission of the

order from the December 2014 permanency hearing which contained express trial court findings

that appellant was unable or unwilling to provide the children with a safe environment and the

permanency goal for the children was adoption, thus suggesting that appellant had not complied

with the MSA. Because any arguably implied findings in the March 12 order were merely

cumulative of other similar evidence that has not been challenged, appellant has not established

that she was harmed by the admission of the March 12 order. See M.S., 115 S.W.3d at 542. We

resolve appellant’s eleventh issue against her.

                                                  –14–
E.     Spoliation Instruction

       In issue five, appellant asserts she was entitled to a spoliation instruction based on the

Department’s failure to preserve all but five of the video recordings of her visits with the

children. We disagree.

       Although the Department video recorded over forty visits appellant had with her children,

the Department preserved and produced only five of the video recordings in response to

appellant’s discovery requests. As a result, appellant requested a jury instruction that any video

of her visits with the children that were not preserved should be presumed favorable to her. The

Department objected, arguing such an instruction would be highly prejudicial and that it did not

have the ability to preserve each and every visit. It also asserted the caseworkers’ narratives

provided an assessment of each visit and reflected what had occurred.

       A trial court may submit a spoliation instruction only when if it finds (1) the spoliating

party acted with the specific intent to conceal discoverable evidence and a less severe remedy

would be insufficient to reduce the prejudice caused by the spoliation or (2) the spoliating party

acted negligently, causing the other party to be irreparably deprived of any meaningful ability to

present a claim or defense. See Brookshire Bros. Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014).

Even when the trial court finds that spoliation occurred, it must exercise its discretion in

imposing a remedy by weighing the spoliating party’s culpability and the prejudice to the

nonspoliating party. Id. at 22–24.

       Here, there was no proof that the Department acted with the specific intent to conceal

evidence or, if the Department acted negligently, the spoliation irreparably deprived appellant of

any meaningful ability to present her defensive theory that she could parent her children.

Notably although appellant was obviously present at all videotaped visits, she did not argue or

present evidence that the missing videos were more favorable to her than the ones that were


                                              –15–
preserved.    At trial, the Department caseworker testified that the preserved visitation videos

were similar to and representative of what occurred at the other visits.           Moreover, the

caseworker’s narratives and other witnesses provided evidence of appellant’s conduct and

interactions with the children during visits. Mother was also able to testify to her interactions

with the children during all of her visitations. Furthermore, appellant’s expert witness Jessica L.

Rogers provided testimony based on her review of the existing visitation videos and notes from

appellant’s counselor and the children’s therapist that was very complimentary of appellant’s

parenting abilities. There is nothing in the record to indicate that the missing video recordings

would not have been cumulative of other competent evidence regarding appellant’s parenting

ability, including the five video recordings that were preserved. Accordingly, we conclude that

the trial court did not abuse its discretion in denying appellant’s request for a spoliation

instruction. We resolve appellant’s fifth issue against her.

F.     MSA and Affidavit of Voluntary Relinquishment

       In her seventh and eighth issues, appellant raises various complaints about the MSA she

signed in September 2014. She first argues that the trial court improperly enforced the MSA at

the December 2014 permanency review hearing because there was no written motion to enforce

before the Court at that time. She also asserts that after the Department filed its written

enforcement motion, the trial court denied her request to put on evidence at the hearing regarding

whether appellant had violated the MSA. Finally, she argues that the trial court abused its

discretion in ordering her to surrender the signed affidavit of relinquishment pursuant to an

unenforceable MSA.

       No judgment may be reversed on appeal unless the error complained of probably caused

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1). In the order of termination

before us, the trial court rendered an order finding by clear and convincing evidence four


                                               –16–
predicate and independent statutory grounds for the termination of appellant’s parental rights,

specifically, subsections (D) (placed or knowingly allowed children to remain in conditions or

surroundings endangering their physical or emotional well-being), (E) (engaged in conduct or

knowingly placed children with persons who engaged in conduct endangering the children’s

physical or emotional well-being), (K) (execution of an unrevoked or irrevocable affidavit of

relinquishment), and (O) (failure to comply with the provisions of court order) of section

161.001. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (K), and (O) (West 2014).

       Because the trial court’s order of termination was not based on the MSA, appellant has

not established that any asserted errors in connection with its enforcement caused rendition of an

improper judgment. Likewise, to the extent that appellant argues her affidavit of voluntary

relinquishment should not have been filed with the court due to the alleged infirmities of the

MSA and the affidavit itself, we note that the affidavit of voluntary relinquishment was but one

of four grounds on which the termination order was based. The Department is only required to

prove one statutory predicate ground to support a termination of parental rights. See In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003). Thus, when multiple grounds are found by the trial court, we

may affirm on any one ground. See id. When an appellant does not attack every independent

ground that supports a judgment, we must affirm. See Oliphant Fin. LLC v. Angiano, 295

S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.). Appellant has not challenged the other

three statutory grounds that, with the finding that termination is in the children’s best interest,

support the termination order. Having failed to do so, she cannot show reversible error and we

need not address her complaint regarding the affidavit as it relates to the grounds of termination.

See Perez v. Tex. Dept. of Protective & Regulatory Servs., 148 S.W.3d 427, 433–34 (Tex.

App.—El Paso 2004, no pet.).




                                              –17–
G.     Reimbursement of Attorney’s Fees

       In her tenth issue, appellant challenges the trial court’s award of $3,979 in favor of

Kaufman County and against her for attorney’s fees incurred after the Department challenged her

indigent status. She asserts no statute permits the award of attorney’s fees to a non-party. We

first note that it appears from our review of the record, that appellant did not preserve this issue

because she failed to raise her complaint in the trial court.          See TEX. R. APP. P. 33.1.

Nevertheless, even if we assume the issue was properly preserved we are not persuaded that the

trial court erred in ordering the fee reimbursement.

       Section 107.015 of the family code provides that a court-appointed attorney ad litem for a

parent or child is to be paid for by the parents unless the parents are indigent. TEX. FAM. CODE

ANN. § 107.015(a) (West 2014). Pursuant to subsection 107.015(c) the fees of appointed counsel

for an indigent parent shall be paid from the county’s general fund. TEX. FAM. CODE ANN.

§ 107.015(c). Here, the record reflects that the Department filed a motion to reconsider Mother’s

indigency and the trial court found that she was no longer indigent as of March 2014.

Accordingly, the trial court ordered her to repay attorney’s fees totaling $3,979. Mother does not

dispute the trial court’s finding that she was no longer indigent.          Pursuant to subsection

107.015(b), if the court determines a parent is able to defray fees of an appointed attorney, it may

order the fees paid by the parent and those sums may be taxed as costs to be assessed against the

parent. TEX. FAM. CODE ANN. § 107.015(b). Because section 107.015(b) specifically authorizes

the court to order payment of court-appointed attorney’s fees incurred upon a finding of

appellant’s ability to pay them, it was not error for the trial court to order appellant to repay the

fees to the county which was responsible for their payment. We resolve appellant’s tenth issue

against her.




                                               –18–
H.     Violation of Evidence Rule 612

       In her twelfth issue, appellant contends the trial court abused its discretion in refusing to

allow her to review the investigative report that a Department investigator used to refresh her

recollection before testifying. The record reflects that after appellant asked to examine the report

pursuant to evidence rule 612, the Department voiced concerns that the report contained

confidential information and objected to turning the report over unredacted. The Department

further asserted appellant had already been provided a redacted copy of the investigative report

in discovery. Concluding there was a sufficient disclosure to appellant of the information

reviewed by the witness, the trial court denied her request. A copy of the investigative report

was included in our record for appellate purposes.

       On appeal, appellant complains the report contained facts relevant to a possible venue

challenge and to dispute the Department’s assertion that appellant abandoned Youngest Child at

the hospital. Notably, appellant does not assert this information was not in the redacted copy of

the report she received in discovery. Regardless, she has not explained how not having this

information at trial probably led to the rendition of an improper judgment. Other evidence at

trial indicated that appellant was not living in Kaufman County at the time the Department

became involved with the family. Moreover, abandonment was not a ground for termination

advanced by the Department. Accordingly, even assuming the trial court erred in refusing

appellant’s trial request to review the investigative report, she has not demonstrated any

reversible error in connection with her complaint. See TEX. R. APP. P. 44.1.           We resolve

appellant’s twelfth issue against her.

I.     Sufficiency Challenges to Best Interest Finding

       In her thirteenth issue, appellant challenges the legal and factual sufficiency of the

evidence to support the finding that termination of her parental rights was in the children’s best


                                               –19–
interest. The Department asserts appellant did not preserve her legal sufficiency challenge. We

agree with the Department.

         After a jury trial, a legal sufficiency complaint must be preserved by a motion for

instructed verdict, a motion for judgment notwithstanding the verdict, an objection to the

submission of the question to the jury, a motion to disregard the jury’s verdict to a vital fact

question, or a motion for new trial. In re D.J.J., 178 S.W.3d 424, 426–27 (Tex. App.—Fort

Worth 2005, no pet.). Our review of the record reveals that appellant did none of these things to

preserve her legal sufficiency complaint. Although appellant did file a motion for new trial, the

motion challenged only the factual sufficiency of the best interest finding.            Accordingly,

appellant’s legal sufficiency complaint is waived on appeal and we limit our review to whether

the evidence is factually sufficient to support the best interest finding.

         When analyzing a factual sufficiency complaint, we review the entire record to determine

whether the evidence is such that a fact finder could reasonably form a firm belief or conviction

about the truth of the Department’s allegations. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002)

(citing In re C.H. 89 S.W.3d 17, 25 (Tex. 2002)). We may conclude the evidence is factually

insufficient only if, in light of the entire record, the disputed evidence is so significant that a

reasonable fact finder could not have resolved that disputed evidence in favor of its finding. See

In re J.A.S.C., 430 S.W.3d 544, 548 (Tex. App.—Dallas 2014, no pet.).

         There is a strong presumption that it is in the best interest of the children to preserve the

parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But a child’s need for

permanence has been recognized as paramount when considering the child’s present and future

needs.    See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).                When

considering a sufficiency challenge to the best interest finding, we consider among other things,

the Holley factors which include the children’s desire, the children’s current and future emotional

                                                 –20–
and physical needs, the current and future emotional and physical danger to the children, the

parent’s parenting abilities, any available programs to assist the parent to promote the children’s

best interest, plans for the children by the parent or the Department, the stability of the home or

proposed placement, the parent’s acts or omissions suggesting the existing parent-child

relationship is not a proper one, and any excuse for the parent’s acts or omissions. See In re

E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). Lack of evidence of one or more of these factors does not preclude a finding that

termination is in the best interest of the children. See C.H., 89 S.W.3d at 27. Conversely,

evidence of a single factor may be adequate in a particular case to support a finding that

termination is in the children’s best interest. In re A.T., 406 S.W.3d 365, 370–71 (Tex. App.—

Dallas 2013, pet. denied). Nevertheless, scant evidence of each factor will not support such a

finding. Id.

       Of particular concern at trial were injuries the two older children sustained during

appellant’s overnight possession during phase two. The caseworker testified that Middle Child

had some marks on his face upon his return from one visit. Appellant explained the marks were

sustained when the child fell on some garden rocks in front of her apartment while she was

putting Youngest Child in a car seat. The following weekend, Oldest Child and Middle Child

returned from their visitation with additional marks and Middle Child had a black eye. Appellant

reported Middle Child sustained the bruise near his eye when he fell going up the stairs to her

apartment. She also indicated Middle Child had scratched Older Child on the face while the two

were in the bathtub fighting over a toy. Although the Department conceded appellant did not

intentionally cause these injuries to the children, there were concerns that the injuries were the

result of appellant’s inability to properly supervise and provide for the children’s needs. The

children’s therapist testified that the boys began exhibiting aggression and non-compliance after

                                              –21–
home visits with appellant began. She also observed evidence of bruises and fighting after the

children returned from appellant’s care and she did not see these things from the school, daycare,

or the foster home. According to the children’s therapist, Oldest Child in particular verbally

expressed fears or concerns leaving the foster home.

       Other evidence showed that appellant continued to struggle with important issues and did

not presently have the skills to provide for the children’s needs now and in the future despite her

completion of various parenting and other programs. Although appellant testified she had “been

clean” since May 5, 2013, the Department caseworker testified that in June 2014, more than

halfway through the case, appellant admitted to social drinking. Appellant’s counselor indicated

she would not recommend a client recovering from drug use to continue to drink alcohol. There

was also evidence that in addition to appellant’s abusive relationship with Father, she had a

relationship with Ben Smith during the pendency of this case that involved domestic violence.

The MSA provided, “No other person shall be in Mother’s company during Mother’s possession

of the children.” Yet foster mother testified that after an overnight weekend visit with appellant,

the children stated “Mommy’s boyfriend has a hairy belly.”

       The caseworker opined that her observations of appellant’s lack of routine, lack of

structure, and increasing of injuries to the children while in appellant’s custody made the

caseworker concerned about the children’s safety when they were with appellant and

demonstrated appellant had not been able to apply what she learned in her services to keep the

children safe. With respect to appellant’s current parenting skills, she stated, “There’s still a lack

of redirection, a lack of structure, a lack of routine throughout the entire visit.” The caseworker

also testified about concerns regarding the disorganization and clutter in appellant’s apartment

and the cleanliness of her car during the period appellant was having overnight possession of the

children. When asked if there was a pattern developing of appellant’s inability to maintain a

                                                –22–
clean and clutter free environment for the children, the caseworker agreed. Moreover, there was

testimony that although appellant agreed to contact the children’s therapist about the children’s

transition to living with her, she never did. There was also evidence that the children had secure

attachments to appellant, loved her, and would seek out her affection during visits. But the

children’s therapist noted that in her sessions with the children, they did not talk a lot about

appellant or draw pictures for her. When appellant was asked at trial about whether she had

picked out a school for the children, she said she did, but could not remember the name.

Appellant also did not know the cost of the children’s daycare.

        The foster parents and the children’s therapist testified that the children were doing well

in their current placement. The foster care parents stated they desired to adopt the children and a

Department witness testified adoption by the foster parents was the Department’s plan for the

children. The caseworker also testified the children were happy and thriving in their foster home

and opined it was in the children’s best interest to remain in the foster home. She also indicated

that if appellant’s parental rights were terminated, the foster home could be a permanent

placement for the children. The children’s therapist also stated that the children were very

bonded to the foster parents, that the foster family was one of the very best she had worked with,

and during the time she had worked with them, the children never said anything negative about

the foster family. It was her professional opinion that it was in the children’s best interests to

remain with the foster parents.

       In contrast to this evidence, we recognize that other evidence reflects appellant has made

considerable improvements in her life in the two years preceding the trial. When the Department

first became involved with the family, appellant was addicted to drugs and had no job or stable

home. Appellant and Oldest Child and Middle Child were living in a “dope house” that had no

electricity when the Department removed the children from her care. Appellant also admitted

                                              –23–
she did drugs when she was pregnant with Youngest Child and did not dispute evidence that all

three children had tested positive for drugs at the time of their removal.

       At trial, there was evidence that appellant has held her current job for about a year, and

had been living in her own two-bedroom apartment for almost two years. There was also

evidence that appellant completed all of the services required by the Department.                 She

acknowledged the Department’s intervention was necessary because she placed the children in

an unsafe environment and exposed them to drugs and testified the Department not only saved

the children but saved her. Appellant’s counselor Chikeitha Owens testified that appellant did

“really well” with therapy. Owens also observed appellant and the children at appellant’s

apartment and noted appellant was constantly trying to get some order with the children and was

working on providing the children with structure. Owens thought with a little more time,

appellant would succeed and that appellant had earned the right to keep her children.

       One of appellant’s sponsors from Narcotics Anonymous also testified on her behalf. He

indicated he had known appellant for about two years and that she had worked through issues

and continued with the program even when things got tough. He noted he and others from the

group would continue to support her and help her. Although appellant’s mother had died of

cancer while this matter was pending, two of appellant’s mother’s friends testified that they

would provide support if the children were returned to appellant. Appellant’s expert witness

testified that based on the counseling notes and visitation videos she reviewed, the children’s

attachments to appellant were very secure and appellant had the ability to parent the children.

       Reviewing the evidence under the appropriate standard and giving due consideration to

the evidence that the fact finder could have reasonably found to be clear and convincing, we

conclude the jury could have formed a firm belief or conviction that terminating appellant’s

parental rights to the children was in their best interest. See J.F.C., 96 S.W.3d at 266. The jury

                                                –24–
could have considered evidence of appellant’s past drug use, prior lack of a stable home or job,

and involvement in at least two abusive relationships during the pendency of the case when

determining whether appellant would be able to meet the needs of the children currently and in

the future. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (past

conduct probative of parent’s future conduct when evaluating children’s best interest). Although

appellant had been drug-free for almost two years and had completed services required by the

Department, the jury could have concluded evidence that appellant continued to drink alcohol

socially, was still struggling to provide the children with structure and organization during home

visits, and the children sustained injuries while in her possession suggested that she was not yet

able to provide them with a safe and nurturing environment or a permanent and stable home.

       Considering all the evidence in light of Holley, we conclude the evidence was factually

sufficient to support the jury’s finding by clear and convincing evidence that termination of

appellant’s parental rights was in the children’s best interest. See Holley, 544 S.W.2d at 372.

Accordingly, we resolve appellant’s thirteenth issue against her.

                                           CONCLUSION

       Having concluded that none of appellant’s thirteen issues demonstrate reversible error,

we affirm the trial court’s order terminating her parental rights.



150501F.P05



                                                     /David W. Evans/
                                                     DAVID EVANS
                                                     JUSTICE




                                                –25–
