                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-15-00175-CV


IN THE INTEREST OF B.C.,
A CHILD


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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                      TRIAL COURT NO. 13-00575

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      This is an ultra-accelerated appeal2 in which Appellants C.H. (Mother) and

K.C. (Father) appeal the termination of their parental rights to their child Bob.3 In

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
      3
      See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights).
a single issue, Mother argues that the trial court abused its discretion by allowing

the foster parents to testify. Because we hold that the trial court did not abuse its

discretion by admitting the foster parents’ testimony, which was probative of the

best-interest finding, we will affirm the trial court’s judgment terminating Mother’s

parental rights to Bob. Pursuant to a settlement agreement between Father and

the Department of Family and Protective Services (the Department), we will

reverse the trial court’s judgment terminating Father’s parental rights to Bob and

remand for a new trial but will affirm the trial court’s conservatorship appointment.

                               II. MOTHER’S APPEAL4

      In her sole issue, Mother argues that the trial court abused its discretion by

admitting the testimony of Bob’s foster parents, which Mother claims should have

been excluded under Texas Rule of Evidence 403 because it was more

prejudicial than probative, caused confusion of the issues, and misled the jury.

      The foster parents testified, over Mother’s objection, that they were

licensed foster parents, that their home had been approved by a licensed social

worker in a social study, that they each passed background checks, and that they

were motivated by adoption to provide foster care. They also testified that Bob is

healthy and well cared for in their home and that they have a strong bond with

him. The foster father testified that he wanted to be able to provide Bob with

      4
        Because Father expressly waived his challenge to the legal sufficiency of
the evidence, because the Department conceded error as to the factual
sufficiency issue that Father presents on appeal, and because Mother did not
challenge any of the termination findings, we omit a factual background.

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every opportunity that he can afford and every level of education that he can

afford. Both foster parents testified that they would want to adopt Bob if the

biological parent’s rights were terminated.

      A trial court’s rulings in admitting evidence are reviewable under an abuse-

of-discretion standard. Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex.

2011); In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). An appellate court must

uphold the trial court’s evidentiary ruling if there is any legitimate basis in the

record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,

43 (Tex. 1998).

      Texas Rule of Evidence 403 provides that although relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of

“unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Because the

best interest of the child must always be the primary consideration in a parental-

rights termination case, evidence relevant to the best interest of the child will

seldom be excluded under rule 403. Garza v. Garza, 217 S.W.3d 538, 555 (Tex.

App.—San Antonio 2006, no pet.) (stating that rule 403 is an extraordinary

remedy to be used sparingly in parental-rights termination cases); In re J.W., 113

S.W.3d 605, 612 (Tex. App.—Dallas 2003, pet. denied), cert. denied, 543 U.S.

965 (2004); In re C.Q.T.M., 25 S.W.3d 730, 736 (Tex. App.—Waco 2000, pet.

denied).



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      Mother agrees that the foster parents’ testimony was probative of the best-

interest determination. She argues, however, that the Court-Appointed Special

Advocate volunteer, who testified after the foster parents, was “able to provide

the same probative value of testimony as the foster parents[] without raising the

extremely prejudicial contrast between the affluence of the foster parents and

[Mother].”

      The jury here was charged with determining whether it was in Bob’s best

interest for Mother’s parental rights to be terminated. The factors the jury was to

consider included the desires of the child, the emotional and physical needs of

the child now and in the future, the emotional and physical danger to the child

now and in the future, the parental abilities of the individuals seeking custody, the

programs available to assist these individuals to promote the best interest of the

child, the plans for the child by these individuals or by the agency seeking

custody, the stability of the home or proposed placement, the acts or omissions

of the parent which may indicate that the existing parent-child relationship is not

a proper one, and any excuse for the acts or omissions of the parent. Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The testimony provided by the

foster parents is probative of several of the best-interest factors, including the

parental abilities of the individuals seeking custody, the plans for the child by the

individuals seeking custody, and the stability of the proposed placement. Given

the benign nature of the foster parents’ testimony, which did not include

testimony concerning their household income or alleged “affluence,” the foster

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parents’ testimony’s probative value was not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury. See

Tex. R. Evid. 403; In re K.D.L., No. 09-14-00348-CV, 2014 WL 5776180, at *3

(Tex. App.—Beaumont Nov. 6, 2014, no pet.) (mem. op.) (holding testimony by

daughter-in-law of child’s foster parents that she and her husband became foster

parents in Oklahoma solely for the purpose of adopting mother’s two children

was not unfairly prejudicial); In re C.S., No. 13-13-00095-CV, 2013 WL 3895818,

at *8 (Tex. App.—Corpus Christi July 25, 2013, no pet.) (mem. op.) (holding

foster mother’s testimony about child’s current living conditions and her plans to

adopt child was “exactly the type of evidence that the Texas Supreme Court [in

C.H.] has deemed relevant to determining the best interests of the child”). We

therefore hold that the trial court did not abuse its discretion by admitting the

foster parents’ testimony, and we overrule Mother’s sole issue.

                              III. FATHER’S APPEAL

      In his sole issue, Father argues that the evidence is legally and factually

insufficient to support the endangerment findings under Texas Family Code

section 161.001(b)(1)(D) and (E). See Act of Mar. 30, 2015, 84th Leg., R.S.,

S.B. 219, ch. 1, § 1.078, sec. 161.001(b), 2015 Tex. Sess. Law Serv. 1, 18–20

(West) (to be codified as an amendment to Tex. Fam. Code Ann. § 161.001)

(hereinafter cited as Tex. Fam. Code Ann. § 161.001(b)).           Following the

submission of Father’s brief, the Department and Father entered into a

settlement agreement after the Department conceded that factually insufficient

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evidence was introduced at trial to support the jury’s findings that Father had

endangered Bob.       Upon this court’s request, Father and the Department

submitted an agreed letter brief setting forth their agreement as follows: (1) the

Department conceded that the evidence is factually insufficient as to the findings

under Texas Family Code section 161.001(b)(1)(D) and (E); (2) Father conceded

that he is not challenging the judgment’s conservatorship designation and that it

should remain undisturbed and that he is not challenging the judgment’s best-

interest determination; and (3) the case should be reversed and remanded for

further proceedings before the trial court as to Father only. Father submitted an

additional letter brief, signed by both Father and his attorney, in which he states

that he “waives the claim that the evidence was legally insufficient and makes his

claim based only, and in agreement with Appellee, that the evidence adduced at

trial in this cause was factually insufficient to support the findings of the jury that

[his] parental rights should be terminated.” In accordance with the agreement

signed by the attorneys, we sustain Father’s sole remaining issue as to factual

insufficiency and effectuate the agreement between the Department and Father;

we reverse the portion of the judgment terminating Father’s parental rights to Bob

and remand for further proceedings, and we affirm the trial court’s

conservatorship appointment. See Tex. R. App. P. 42.1(a)(2)(A); In re J.A.J.,

243 S.W.3d 611, 613, 617 (Tex. 2007) (holding that reversal of a termination

judgment does not affect the trial court’s conservatorship appointment absent

assigned error when the trial court finds that appointing a parent as conservator

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would significantly impair the child’s physical health or emotional development

and that appointment of the Department is in the child’s best interest).

                                 IV. CONCLUSION

      Having sustained Father’s sole remaining issue as to factual insufficiency,

we reverse the trial court’s judgment terminating Father’s parental rights to Bob

and remand for a new trial and we affirm the trial court’s conservatorship

appointment. Having overruled Mother’s sole issue, we affirm the trial court’s

judgment terminating her parental rights to Bob.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: October 15, 2015




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