
COURT OF APPEALS
SECOND 
DISTRICT OF TEXAS
FORT 
WORTH
 
NO. 2-03-039-CV

IN 
THE INTEREST OF J.T.G., H.N.M.,
M.D.M., 
B.M.L., CHILDREN


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FROM 
THE 235TH DISTRICT COURT OF COOKE COUNTY

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OPINION

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I. Introduction

        P.G. 
appeals the trial court’s judgment terminating her parental rights to four of 
her children. In four points, P.G. complains that the evidence is legally and 
factually insufficient to support any of the four statutory grounds for 
termination pleaded by the Texas Department of Protective and Regulatory 
Services (“TDPRS”). She also contends that the trial court erred by refusing 
to submit her requested jury instructions and questions and by denying her 
request for a disinterested expert witness.
        S.L. 
is the father of P.G.’s youngest child, B.M.L. Based on the jury’s verdict, 
the trial court rendered a judgment terminating S.L.’s parental rights to 
B.M.L. In three points, S.L. contends that the evidence is legally insufficient 
to support any of the four statutory grounds for termination pleaded by TDPRS. 
He also contends that the trial court erred by denying him a sufficient number 
of peremptory challenges and by admitting evidence of his prior bad acts. We 
will affirm.
II. Factual and 
Procedural Background
        P.G. 
is the mother of J.T.G., born in April 1995, H.N.M., born in October 1997, 
M.D.M., born in July 1999, and B.M.L., born in July 2001 (the “children”). 
The alleged father of J.T.G. was only briefly involved with P.G. and never had 
any contact with P.G. or J.T.G. during P.G.’s pregnancy or after J.T.G.’s 
birth. Eleven months after J.T.G. was born, P.G. became involved with the father 
of H.N.M. and M.D.M. In 1998, the couple was common-law married. In 1999, P.G. 
ended her four-year relationship with the father of H.N.M. and M.D.M.
and began a relationship with S.L. immediately 
 thereafter. After two weeks, P.G. and S.L. moved in together. As previously 
 mentioned, S.L. is the father of B.M.L.
and was still living with P.G. at the time of trial. 
 P.G. and S.L. are the parents of another child who was not a subject of this 
 suit.
        TDPRS 
first became involved with P.G. and her children in October 1997 following the 
birth of H.N.M. TDPRS received a referral after H.N.M. was born with 
hydrocephalus—a build-up of fluid on the brain and agenesis of the corpus 
callosum. Concerns existed due to the child’s fragile medical condition, her 
special needs, and allegations of physical abuse stemming from P.G.’s drug use 
during her pregnancy. P.G. admitted at the time of the investigation and at 
trial that she used various drugs during her pregnancy with H.N.M. However, 
TDPRS found no evidence of drug use by P.G. or H.N.M.’s father during the time 
of the investigation. Both parents were involved in an early childhood 
intervention program, and H.N.M. was attending all scheduled medical 
appointments. Following its investigation, TDPRS decided not to remove the 
children from P.G.’s care.
        In 
July 2001, TDPRS again became involved with P.G. and with S.L. after P.G. 
attempted to commit suicide by overdosing on prescription and nonprescription 
drugs. P.G. was approximately thirty-three weeks pregnant with B.M.L., and 
B.M.L. was born the day after P.G.’s suicide attempt. A drug screen conducted 
on P.G. revealed positive results for benzodiazepines, amphetamines, and 
opiates. An investigation by TDPRS revealed that the suicide attempt stemmed 
from an argument between P.G. and S.L., which resulted in S.L. leaving P.G. for 
a brief period of time. As a result of P.G.’s suicide attempt, prior drug 
abuse of both P.G. and S.L., and “high risk” to the children, TDPRS decided 
to open a case for the provision of in-home safety services focusing on family 
preservation. TDPRS implemented a safety plan that required S.L. and P.G.’s 
sister to supervise all contact between P.G. and her children. P.G. was also 
required to complete a mental health evaluation and receive counseling. Sue 
McAfee (“McAfee”), a family preservation caseworker with TDPRS, specifically 
instructed P.G. and S.L. to abstain from any drug or alcohol use. Prior to the 
completion of a family preservation plan, TDPRS received calls concerning 
alleged drinking and drug use by P.G. and S.L., as well as an alleged fight 
between the couple at a relative’s home. However, when questioned by McAfee, 
the couple denied the allegations.
        In 
August 2001, only twelve days after the family preservation case was opened, an 
incident of family violence occurred between P.G. and S.L. During an altercation 
regarding B.M.L., P.G. stabbed S.L. in the leg with a knife. At some point 
during the incident, B.M.L.’s head was bumped on a door frame. All four 
children were present in the home at the time of the incident. As a result of 
continued family violence and past drug abuse, all four children were 
immediately removed from P.G. and S.L.’s care on or about August 6, 2001.        In order for P.G. and S.L. to regain 
custody of their children, TDPRS created a series of four family service 
plans. As part of their service plans, P.G. 
and S.L. were to obtain chemical dependency assessments and psychological 
evaluations, to submit to and test negative in random drug screens, and to 
attend parenting classes and counseling sessions for anger management, drug 
addiction, and domestic violence. Both parents complied with the service 
plans by completing parenting classes and obtaining chemical dependency 
assessments. However, during the first and second service plans, neither P.G. 
nor S.L. obtained a psychological evaluation or attended counseling sessions for 
anger management, drug addiction, and domestic violence. Both P.G. and S.L. 
likewise failed to complete counseling sessions for anger management, drug 
addiction, and domestic violence as required by the third service plan. Over the 
course of the four service plans, P.G. tested positive for drug use, and both 
P.G. and S.L. failed to submit to drug testing on repeated occasions. P.G. and 
S.L. completed inpatient treatment for drug abuse, yet refused to participate in 
a required outpatient relapse prevention program. The couple also never obtained 
stable living arrangements.
        Both 
parents sporadically attended visitation with the four children and typically 
never called when they were going to miss scheduled visits. P.G. missed nineteen 
of sixty-one scheduled visits with her children, including eight of the last 
ten. S.L. missed seventeen of sixty-one scheduled visits with the children, 
including seven of the last ten. Initially, as a result of P.G. and S.L.’s 
failure to attend visits, J.T.G. appeared sad and disappointed, and H.N.M. 
appeared angry and often displayed her anger. Yet over time, both children 
appeared indifferent when P.G. and S.L. would miss visitation.
        On 
November 27, 2002, TDPRS filed a second amended petition to terminate P.G.’s 
parental rights to all four children, and S.L.’s parental rights to B.M.L. 
According to TDPRS, the decision to terminate P.G. and S.L.’s parental rights 
was based upon noncompliance with TDPRS’s service plans, concerns about P.G. 
and S.L.’s continued drug and alcohol abuse, and TDPRS’s belief that P.G. 
and S.L. were unable to properly care for the children and provide a safe and 
stable environment for them. On January 24, 2003, after several days of 
testimony at trial, a jury determined that P.G. and S.L.’s parental rights 
should be terminated, and the trial court entered a termination order on 
February 18, 2003. This appeal followed.
III. Burden of 
Proof in Termination Proceedings
        A parent’s rights to “the companionship, care, 
custody, and management” of his or her children are constitutional interests 
“far more precious than any property right.” Santosky v. Kramer, 455 
U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); accord Holick v. Smith, 
685 S.W.2d 18, 20 (Tex. 1985). The United States Supreme Court, in discussing 
the constitutional stature of parental rights, states, “[T]he interest of 
parents in the care, custody, and control of their children—is perhaps the 
oldest of the fundamental liberty interests recognized by this Court.” Troxel 
v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Nonetheless, while parental rights are of 
constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 
17, 26 (Tex. 2002). Just 
as it is imperative for courts to recognize the constitutional underpinnings of 
the parent-child relationship, it is also essential that emotional and physical 
interests of the child not be sacrificed merely to preserve that right. Id.
        In 
proceedings to terminate the parent-child relationship brought under section 
161.001 of the Texas Family Code, TDPRS must establish one or more of the acts 
or omissions enumerated under subsection (1) of the statute and must also prove 
that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 
2002); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, 
pet. denied). Both elements must be established; 
termination may not be based solely on the best interest of the child as 
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 
727 S.W.2d 531, 533 (Tex. 1987). Because of the elevated status of parental 
rights, the quantum of proof required in a termination proceeding is elevated 
from the preponderance of the evidence to clear and convincing evidence. Santosky, 
455 U.S. at 746, 102 S. Ct. at 1391; see also Tex. Fam. Code Ann. § 161.001.
        Clear 
and convincing evidence is “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 allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; In re 
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); C.H., 89 S.W.3d at 25. This 
intermediate standard falls between the preponderance standard of ordinary civil 
proceedings and the reasonable doubt standard in criminal proceedings. State 
v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34 S.W.3d 
625, 630 (Tex. App.—Fort Worth 2001, pet. denied) (op. on reh’g). While the 
proof must be more than merely the greater weight of the credible evidence, 
there is no requirement that the evidence be unequivocal or undisputed. Addington, 
588 S.W.2d at 570. Termination proceedings should be strictly scrutinized, and 
involuntary termination statutes are strictly construed in favor of the parent. Holick, 
685 S.W.2d at 20-21; In re A.V., 849 S.W.2d 393, 400 (Tex. App.—Fort 
Worth 1993, no writ).


IV. P.G.’s 
Appeal

        A. 
Legal and Factual Sufficiency of the Evidence
        In 
her first two points, P.G. contends that the evidence is legally and factually 
insufficient to support the jury’s findings that she (1) knowingly placed or 
knowingly allowed the children to remain in conditions or surroundings that 
endangered their emotional or physical well-being; (2) engaged in conduct or 
knowingly placed the children with persons who engaged in conduct that 
endangered their emotional and physical well-being; (3) failed to comply with 
the provisions of a court order that specifically established the actions 
necessary for the children’s return; and (4) used a controlled substance in a 
manner that endangered the heath and safety of the children, and failed to 
complete a court-ordered substance abuse treatment program, or after completion 
of a court-ordered substance abuse treatment program, continued to abuse a 
controlled substance. See Tex. 
Fam. Code Ann. § 161.001(1)(D), (E), (O), (P).
        1. 
Standard of Review
        The 
Texas Supreme Court recently clarified the appellate standards of review to be 
applied to legal and factual sufficiency of the evidence challenges in light of 
the clear and convincing evidence burden of proof in termination proceedings. J.F.C., 
96 S.W.3d at 264-68 (discussing legal sufficiency review); C.H., 89 
S.W.3d at 25 (discussing factual sufficiency review). Because termination 
findings must be based upon clear and convincing evidence, not simply a 
preponderance of the evidence, the supreme court has held that the traditional 
legal and factual standards of review are inadequate. J.F.C., 96 S.W.3d 
at 265; C.H., 89 S.W.3d at 25. Instead, both legal and factual 
sufficiency reviews in termination cases must take into consideration whether 
the evidence is such that a fact finder could reasonably form a firm belief or 
conviction about the truth of the matter on which the State bears the burden of 
proof. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25. With 
respect to a legal sufficiency point, we “look at 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.” 
J.F.C., 96 S.W.3d at 266. In determining a factual sufficiency point, we 
must give due consideration to evidence that the fact finder could reasonably 
have found to be clear and convincing and then determine whether, based on the 
entire record, a fact finder could reasonably form a firm conviction or belief 
that the parent violated one of the provisions of section 161.001 and that the 
termination of his or her parental rights would be in the child’s best 
interest. Tex. Fam. Code Ann. § 
161.001; C.H., 89 S.W.3d at 25.
        2. 
Evidence Regarding Endangering Environment and Course of Conduct
        We 
first review the evidence supporting the trial court’s findings that P.G. 
knowingly placed or knowingly allowed the children to remain in conditions or 
surroundings that endangered their physical or emotional well-being and that she 
engaged in conduct or knowingly placed the children with persons who engaged in 
conduct that endangered the children's physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), 
(E).
        Endangerment 
means to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 
533; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under 
subsection (D), it is necessary to examine evidence related to the environment 
of the children to determine if the environment was the source of endangerment 
to the children’s physical or emotional well-being. D.T., 34 S.W.3d at 
632. Conduct of a parent in the home can create an environment that endangers 
the physical and emotional well-being of a child. In re W.S., 899 
S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For example, 
abusive or violent conduct by a parent or other resident of a child's home may 
produce an environment that endangers the physical or emotional well-being of a 
child. See id. at 776-77; Ziegler v. Tarrant County Child 
Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref'd 
n.r.e.). Parental and caregiver illegal drug use and drug-related criminal 
activity likewise supports the conclusion that the children’s surroundings 
endanger their physical or emotional well-being. See In re S.D., 980 
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).
        Under 
subsection (E), the relevant inquiry is whether evidence exists that the 
endangerment of the child’s physical well-being was the direct result of the 
parent’s conduct, including acts, omissions, or failures to act. In re R.D., 955 S.W.2d 364, 368 (Tex. 
App.—San Antonio 1997, pet. denied); Dupree v. Tex. Dep’t of Protective 
& Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no 
writ). Additionally, termination under section 161.001(1)(E) must be based on 
more than a single act or omission; a voluntary, deliberate, and conscious 
course of conduct by the parent is required. Tex. Fam. Code Ann. § 161.001(1)(E); 
D.T., 34 S.W.3d at 634; In re K.M.M., 993 S.W.2d 225, 228 
(Tex. App.—Eastland 1999, no pet.).
        However, 
it is not necessary that the parent’s conduct be directed at the child or that 
the child actually suffer injury. Boyd, 727 S.W.2d at 533. To determine 
whether termination is necessary, courts look to parental conduct both before 
and after the child's birth. In re D.M., 58 S.W.3d 801, 812 (Tex. 
App.—Fort Worth 2001, no pet.). 
A mother’s use of drugs during pregnancy may amount to conduct that endangers 
the physical and emotional well-being of the child. In re K.M.B., 91 
S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.). Drug addiction and its 
effect on a parent's life and ability to parent may establish an endangering 
course of conduct as well. Dupree, 907 S.W.2d at 84. A parent’s attempt 
to commit suicide may also contribute to a finding 
that the parent engaged in a course of conduct that endangered a child's 
physical or emotional well-being. See In re A.M.C., 2 S.W.3d 707, 
716 (Tex. App.— Waco 1999, no pet.).
        Because 
the evidence concerning these two statutory grounds for termination is 
interrelated, we consolidate our examination of it. S.D., 980 S.W.2d at 762; In re B.R., 822 S.W.2d 103, 
106 (Tex. App.—Tyler 1991, writ denied) (recognizing the link between a 
parent’s conduct and a child's conditions and surroundings). The record contains the 
following evidence of subsection (D) environmental endangerment and subsection 
(E) course of conduct endangerment of the physical or emotional well-being of 
the children.
        The 
record shows a pattern of continued violence and abuse involving P.G. P.G. 
testified that the father of H.N.M. and M.D.M. often abused her mentally, 
physically, and emotionally. She admitted that she had to call the police to 
intervene in some of the fights and that she had sought refuge from the abuse at 
a women’s shelter on at least one occasion.
        Evidence 
was also adduced pertaining to domestic violence between P.G. and S.L. At trial, 
P.G. characterized the altercations between herself and S.L. as “regular 
struggling,” yet after the stabbing incident, she told McAfee that she and 
S.L. had physically fought and that she had been hit and knocked down by S.L. 
Both P.G. and S.L. admitted that at some time during the course of the stabbing 
altercation, B.M.L.’s head was bumped on a door frame.
        The 
record also reflects a violent altercation between P.G. and her neighbor, Chris 
Will (“Will”). Russell Driver (“Driver”), a Gainesville police officer, 
testified that one night, shortly after the children were removed by TDPRS, he 
responded to a call concerning a stabbing incident involving P.G. and Will. 
Driver testified that at the scene P.G. had admitted stabbing Will with the 
knife, but alleged that Will had first assaulted her. At trial, P.G. testified 
that she did not recall getting into an altercation with Will. Although he had 
been drinking at the time of the altercation, Will testified that to the best of 
his recollection, P.G. had stabbed him. He further testified that he told 
officers he believed that the altercation occurred because he and P.G. had a 
“relation,” and he had told S.L. about it earlier that day.
        The 
evidence demonstrates that P.G. continuously abused drugs, even during her 
pregnancies. At trial, P.G. testified that she had experimented over the years 
with cocaine, methamphetamines, marijuana, and acid. She also admitted to drug 
use during her pregnancy with H.N.M., although she maintained that such drug use 
ceased when she realized she was pregnant. She indicated that the father of 
H.N.M. had introduced her to drugs and that he had used several illegal drugs 
during her pregnancy. Ann Barts (“Barts”), an investigative caseworker for 
TDPRS, testified that P.G. had told her on a prior occasion that she felt guilty 
that H.N.M. was born hydrocephalic due to P.G.’s cocaine use during her 
pregnancy. However, P.G. maintained at trial that H.N.M.’s medical problems 
were not related to her drug use during pregnancy.         After 
her failed suicide attempt and the birth of B.M.L., P.G. tested positive for 
several types of drugs, including amphetamines. At trial, P.G. admitted that she 
had attempted to commit suicide during her pregnancy with B.M.L. When asked what 
drugs she had taken in her attempt to overdose, she stated, “Everything I 
could get my hands on.” The evidence demonstrates that S.L. was also abusing 
marijuana, crank, and alcohol on a regular basis prior to removal of the 
children. P.G.’s drug abuse continued even after the children were removed. 
The record indicates numerous occasions on which P.G. tested positive for drugs 
or failed to take a requested drug screen as required by TDPRS’s service 
plans. Additionally, even during the pregnancy of her fifth child,
P.G. tested positive for methamphetamines.
        The 
record suggests that P.G. often lacked emotional stability. P.G. admitted at 
trial that she suffered from depression and had been diagnosed as mildly 
bipolar. While pregnant with B.M.L., P.G. attempted to take her own life by 
overdosing on drugs. According to Barts, after her suicide attempt, P.G. 
indicated that “she was planning on taking herself and her baby out of this 
world.” She also told Barts that she had thought about suicide all of her 
life. On at least one occasion, P.G. threatened suicide again after her children 
were removed from her care.
        P.G. 
contends that none of the incidents of bad conduct occurred in the children’s 
presence or in a manner that could have negatively affected the children. 
However, the record reflects that the children were present during some 
incidents of violence and abuse. At trial, P.G. acknowledged that J.T.G. had 
witnessed several instances of emotional abuse by H.N.M. and M.D.M.’s father. 
Additionally, J.T.G. told his therapist, Shelly Butler (“Butler”), that he 
had witnessed domestic violence between P.G. and S.L. Butler testified that 
J.T.G. was heavily affected by the violence he witnessed at home, and, as a 
result, seemed resentful towards his mother. Patricia Doughty, Court-Appointed 
Special Advocate (“CASA”) and guardian ad litem for the children, also 
testified that the children had witnessed violent episodes between P.G. and her 
significant others in the home. The evidence also indicates that P.G.’s drug 
use during pregnancy could have negatively affected the children. According to 
P.G.’s obstetrician, Dr. Thomas Currier, the use of amphetamines during 
pregnancy can cause long-term side effects such as learning defects, failure to 
thrive, and damage to the neural system.
        P.G. 
also contends that poverty is not sufficient to support the termination of her 
parental rights. We agree that poverty is not sufficient to establish an 
endangering environment. Doyle v. Tex. Dep’t of Protective & Regulatory 
Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied). In this 
case, however, P.G.’s poverty is not a seminal aspect of the jury’s 
endangerment findings. Other evidence, outlined above, supports these findings. 
Therefore, P.G.’s argument based on poverty fails.
        We have 
carefully reviewed the entire record. Looking at all the evidence in the light 
most favorable to the jury’s finding, giving due consideration to evidence that the fact 
finder could reasonably have found to be clear and convincing, we 
hold that a reasonable trier of fact could have formed a firm belief or 
conviction that P.G. knowingly placed or knowingly allowed the 
children to remain in conditions or surroundings that endangered their physical 
or emotional well-being and that she engaged in conduct or knowingly placed the 
children with persons who engaged in conduct that endangered the children's 
physical or emotional well-being.
        P.G. 
challenges the legal and factual sufficiency of all four of the statutory 
grounds for termination pleaded by TDPRS. However, when multiple grounds for 
termination are sought and the trial court submits the issue using a broad-form 
question, we must uphold the jury's findings if any of the grounds for 
termination support the jury's finding; only one finding under section 
161.001(1) is necessary to support a judgment of termination. Tex. Fam. Code 
Ann. § 161.001(1); D.M., 
58 S.W.3d at 813; In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 
2000, no pet.); see also Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 
647, 649 (Tex. 1990) (op. on reh’g). Accordingly, because we conclude there is 
both legally and factually sufficient evidence to support the jury’s findings 
under family code section 161.001, subsections D and E, we need not address 
P.G.’s remaining points with respect to the jury’s findings under section 
161.001, subsections 0 and P. Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O), (P); see Tex. R. App. P. 47.1. We overrule 
P.G.’s first and second points.
        B. 
Jury Charge
        In 
her third point, P.G. complains that the trial court erred by refusing to submit 
her requested jury instructions and questions. At trial, the court submitted a 
jury instruction that set forth the statutory grounds alleged against P.G. in 
the disjunctive, followed by a broad-form jury question regarding whether the 
parent-child relationship between P.G. and each child should be terminated. P.G. 
made a timely objection to the jury charge and requested a supplemental 
instruction and question. P.G.’s requested charge included an instruction 
regarding the constitutional magnitude of parental rights and a question that 
required the jury to find that P.G. was unfit as a parent
before considering the best interest of the children. 
 The trial court overruled her objection and denied her requested jury charge.
        1. 
Standard of Review
        The 
standard of review for a jury charge is abuse of discretion. E.B., 802 
S.W.2d at 649. To determine whether a trial court abused its discretion, we must 
decide whether the trial court acted without reference to any guiding rules or 
principles; in other words, whether the act was arbitrary or unreasonable. See 
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002); Downer 
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. 
denied, 476 U.S. 1159 (1986). Merely because a trial court may decide a 
matter within its discretion in a different manner than an appellate court would 
in a similar circumstance does not demonstrate that an abuse of discretion has 
occurred. Downer, 701 S.W.2d at 241-42.
        Pursuant 
to the Texas Rules of Civil Procedure, a trial court is required to submit 
"such instructions and definitions as shall be proper to enable the jury to 
render a verdict." Tex. R. Civ. P. 
277. Trial courts are afforded considerable discretion in deciding what 
instructions are necessary and proper in submitting issues to the jury. State 
Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex. 1997). For an instruction 
to be proper, it must (1) assist the jury, (2) accurately state the law, and (3) 
find support in the pleadings and the evidence. Tex. Workers’ Comp. Ins. 
Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000); see Tex. R. Civ. P. 289. Error in a jury 
charge is reversible only if it probably caused the rendition of an improper 
judgment or probably prevented the appellant from properly presenting the case 
on appeal. In re D.I.B., 988 S.W.2d 753, 756 & n.10 (Tex. 1999); Tex. 
Dep’t of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex. 1991); see 
Tex. R. App. P. 44.1(a)
        2. 
Error Analysis
        Relying 
on Troxel v. Granville, P.G. contends that in a parental termination case 
a jury must consider the rights of the parents before any other consideration. 
530 U.S. at 65, 120 S. Ct. at 2060. She 
maintains that a jury charge that places the interest of the child over the 
fundamental rights of the parent is erroneous.
        The 
charge in this case, however, did not subject the interests of the parent to the 
interests of the children or vice versa. The charge simply asked whether the 
pleaded termination grounds were established by clear and convincing evidence 
and whether termination was in the best interest of the children. It is well 
settled law that a jury charge that tracks the statutory language and then asks 
the controlling question does not amount to an abuse of discretion. E.B., 
802 S.W.2d at 649. In parental termination cases, the controlling question is 
whether the relationship between the parent and each child should be terminated. 
Id. The charge as submitted to the jury at trial tracked the statutory 
language, asked the controlling question, and assisted the jury in reaching its 
verdict. Moreover, a trier of fact is “not required to find that the parent is 
‘unfit’ in order to find that termination is in the best interest of the 
child.” In re S.H.A., 728 S.W.2d 73, 91 (Tex. App.—Dallas 1987, writ 
ref’d n.r.e.). Consequently, we hold that the trial court did not abuse its 
discretion by refusing to submit P.G.’s requested jury charge. We cannot say 
that the trial court acted without any regard to guiding principles in deciding 
what issues were necessary and proper for submission to the jury. We overrule 
P.G.’s third point.
        C. 
Denial of Request for a Disinterested Expert Witness
        In 
her fourth point, P.G. contends that the trial court committed reversible error 
by denying her request for a disinterested expert witness. On May 1, 2002, the 
trial court set the final adversary hearing regarding termination of P.G.’s 
parental rights for January 13, 2003, and appointed a guardian ad litem for P.G. 
On January 9, 2003, P.G. filed an “Ex Parte Motion to Provide Funds for 
Forensic Expert,” which was denied by the trial court. P.G. did not file a 
motion for continuance, nor did she announce to the trial court that she was not 
ready to proceed because of the lack of a forensic expert to assist in her 
defense.
        She 
asserts that the trial court’s refusal to provide funds to enable her to hire 
a forensic expert to assist in her defense constitutes a violation of due 
process. P.G. maintains that the services of a forensic expert were necessary 
for meaningful cross-examination of TDPRS’s expert witness, to verify the 
results of the TDPRS’s drug screens, and to explain that the results of her 
drug screens were positive due to prescription medication. She asserts that 
parental termination cases are like criminal cases due to the constitutional 
magnitude of the rights at issue, and therefore, she contends that due process 
required the trial court to provide funds for expert assistance.
        P.G. 
refers this court to holdings from three cases in support of her contention that 
an indigent defendant is entitled to an expert in order to prepare and present a 
defense. See Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985); Terrell 
v. State, 521 S.W.2d 618 (Tex. Crim. App. 1975); Detmering v. State, 
481 S.W.2d 863 (Tex. Crim. App. 1972). However, all three cases address issues 
of appointment of experts in the criminal context. See Ake, 470 U.S. at 
83, 105 S. Ct. at 1096; Terrell, 521 S.W.2d at 619; Detmering, 481 
S.W.2d at 864. P.G. does not refer to any cases to support her contention that 
due process requires trial courts to provide expert assistance in parental 
termination cases, and we have located none. Accordingly, we decline to extend 
the holdings in Ake, Terrell, and Detmering to parental 
termination cases.
        Moreover, 
we are unpersuaded that the trial court erred by denying P.G.’s request for 
expert assistance. P.G.’s request was made only one-and-a-half working days 
before trial, and upon denial of expert assistance, P.G. did not request a 
continuance to remedy any prejudice she might have suffered. P.G. asserts that 
she needed expert assistance to explain the medications she had been prescribed, 
why her drug screens showed positive for certain drugs, and how the positive 
results were derivative of the prescriptions she was taking. The record reflects 
that over the course of the service plans, P.G. tested positive for cocaine, 
opiates, benzodiazepine, and methamphetamines. Dr. Currier, P.G.’s 
obstetrician and a witness for TDPRS, testified that benzodiazepine was a 
category of drugs, which included Xanax, a depression medication he had 
prescribed for P.G. He also testified that Lortab, a pain medication that he had 
prescribed for her on one occasion, would cause a positive result for opiates. 
He noted that “speed” would cause a positive result for amphetamines and 
indicated that he did not know any doctor who would prescribe amphetamines. At 
trial, P.G. testified about several forms of medication that she had taken over 
the course of TDPRS’s involvement and indicated why each medication was 
prescribed. In reviewing the record, it appears that the evidence that P.G. 
contends she was deprived of adducing was in fact admitted through the testimony 
of P.G. and her obstetrician. We overrule P.G.’s fourth point.
V. S.L.’s 
Appeal
        A. 
Legal Sufficiency of the Evidence
        In 
his first point, S.L. contends that the evidence is legally insufficient to 
support the jury’s findings that he (1) knowingly placed or knowingly allowed 
B.M.L. to remain in conditions or surroundings that endangered her emotional or 
physical well-being; (2) engaged in conduct or knowingly placed B.M.L. with 
persons who engaged in conduct that endangered her emotional and physical 
well-being; (3) failed to comply with the provisions of a court order that 
specifically established the actions necessary for B.M.L.’s return; and (4) 
used a controlled substance in a manner that endangered the heath and safety of 
B.M.L., and failed to complete a court-ordered substance abuse treatment 
program, or after completion of a court-ordered substance abuse treatment 
program, continued to abuse a controlled substance. See Tex. Fam. Code Ann. § 161.001(1)(D), 
(E), (O), (P).
        As with P.G., the evidence supporting the jury’s 
finding of subsection (D) endangerment is intertwined and overlaps with the 
evidence supporting the jury’s subsection (E) endangerment finding. Thus, we 
consolidate our review of the evidence supporting these findings and incorporate 
evidence discussed above in P.G.’s sufficiency review.
        As 
previously detailed, the record indicates a history of domestic violence 
involving S.L., including the incident where B.M.L.’s head was bumped on the 
door frame. During the incident, S.L. admitted to becoming angry, grabbing P.G. 
by the wrists, and struggling for control of the knife. Additionally, Jane 
Zygiel, a chemical dependency counselor for S.L. and P.G., testified that P.G. 
told her that she had suffered a history of physical abuse from S.L.
        The 
record also indicates an extensive history of drug and alcohol addiction and 
abuse by S.L. At trial, S.L. admitted that he was a drug addict and an 
alcoholic. On the night of the stabbing altercation, S.L. admitted to 
drinking prior to the incident. A licensed psychologist, Dr. Chris Haberstroh, 
testified that S.L. told him that he was abusing marijuana, crank, and alcohol 
on a regular basis prior to removal of the children. He testified that S.L. 
admitted that he continued to drink heavily and abuse drugs, even after TDPRS 
became involved in the case. S.L. also failed to take several drug screens even 
though they were required for reunification with B.M.L. The jury could have 
reasonably inferred that S.L.’s failure to complete the scheduled drug screens 
indicated he was avoiding testing because he was using drugs. See D.M., 
58 S.W.3d at 813.
        The 
evidence also demonstrated that S.L. had a history of criminal conduct. In 1998, 
S.L. was arrested and placed on deferred adjudication for marijuana possession 
in Victoria, Texas. After violating the terms of his probation, S.L. was 
convicted of the offense and sentenced to 180 days in jail. After moving to 
Gainesville, Texas, S.L. was arrested and convicted for driving with a suspended 
license. His probation was later revoked on the driving with a suspended license 
charge, and he was sentenced to three days in jail. While P.G. was pregnant with 
B.M.L., S.L. was arrested and convicted of a second possession of marijuana 
charge. He was later convicted a second time for driving with a suspended 
license. As a result, his probation was revoked and he was sentenced to thirty 
days in jail with credit given for fifteen days of jail time served before the 
revocation hearing.
        Viewing 
the evidence in the light most favorable to the jury’s finding, we hold that a 
reasonable trier of fact could have formed a firm belief or conviction that S.L. 
knowingly placed or knowingly allowed B.M.L. to remain in 
conditions or surroundings that endangered her physical or emotional well-being 
and that he engaged in conduct or knowingly placed B.M.L. with persons who 
engaged in conduct that endangered her physical or emotional well-being. As 
discussed above, we need not address S.L.’s remaining points with respect to 
the jury’s finding’s under section 161.001, subsections O or P. Tex. Fam. Code Ann. § 161.001(1)(O), 
(P); see Tex. R. App. P.47.1. 
We overrule S.L.’s first point.
        B. 
Peremptory Challenges
        In 
his second point, S.L. contends that the trial court erred by denying him a 
sufficient number of peremptory challenges. He asserts that the three fathers of 
P.G.’s children who were involved in the suit were antagonistic to each other 
because each father was a separate party who made a separate presentation in 
voir dire. Thus, he contends each father was entitled to six peremptory 
challenges instead of six challenges total.
        Whether 
antagonism exists between parties is a question of law for the trial court. Garcia 
v. Cent. Power & Light Co., 704 S.W.2d 734, 736 (Tex. 1986). We review 
all questions of law de novo. See Garner v. Long, 49 S.W.3d 920, 922 
(Tex. App.—Fort Worth 2001, pet. denied). As a general rule, each party to a 
civil case in district court is entitled to six peremptory challenges. Tex. R. Civ. P. 233. In multiparty 
litigation, the trial judge has a duty to determine “whether any of the 
litigants aligned on the same side of the docket are antagonistic with respect 
to any issue to be submitted to the jury, before the exercise of peremptory 
challenges.” Id. In determining whether antagonism exists, the trial 
court must consider the pleadings, information disclosed by pretrial discovery, 
information and representations made during voir dire, and any information 
brought to the attention of the trial court before the parties exercise their 
peremptory strikes. See Garcia, 704 S.W.2d at 737. Antagonism must exist 
regarding an issue of fact between the parties on the same side of the docket, 
rather than because of differing conflicts with the other side of the docket. Patterson 
Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979). If the trial court errs 
in the allocation of peremptory challenges, reversal is required if the 
complaining party demonstrates either that the trial was materially unfair or 
that the trial was hotly contested and the evidence sharply conflicting. See 
id. at 920-21.
        In 
reviewing the record, we find no conflict between the three fathers as to any 
issue of fact that was submitted to the jury. The jury was only asked to 
determine whether based on the evidence the parental rights of each father 
should be terminated with respect to that father’s child or children. Each 
father was only antagonistic with respect to TDPRS. Accordingly, we hold that 
the trial court did not err in denying each father six peremptory challenges 
because no antagonism existed between the fathers. Accord Am. Cyanamid Co. v. 
Frankson, 732 S.W.2d 648, 652 (Tex. App.—Corpus Christi 1987, writ ref’d 
n.r.e.). We overrule S.L.’s second point.
        C. 
Introduction of Extraneous Acts and Character Evidence
        In 
his third point, S.L. complains that the trial court erred by admitting evidence 
of his prior bad acts. Over S.L.’s objection, the trial court allowed into 
evidence a document placing S.L. on deferred adjudication for possession of 
marijuana, a judgment convicting S.L. of a second possession of marijuana 
charge, an order revoking S.L.’s probation based upon a conviction for driving 
while his license was suspended, and a judgment convicting S.L. a second time 
for driving with a suspended license.
S.L. contends that the aforementioned evidence was 
 inadmissible based on rule 404(b) of the Texas Rules of Evidence. Tex. R. Evid. 404(b). He also contends 
 that the evidence was inadmissible for impeachment purposes under rule 609(a) 
 because he never denied that any of the offenses occurred. Tex. R. Evid. 609(a). He maintains that 
 the evidence was introduced solely to prejudice the jury.
        1. 
Standard of Review
        A 
trial court’s rulings in admitting or excluding evidence are reviewable under 
an abuse of discretion standard. Nat’l Liab. & Fire Ins. Co. v. Allen, 
15 S.W.3d 525, 527 (Tex. 2000). 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).
 
 
        2. 
Parental Conduct
        Termination 
of parental rights based upon subsection (D) and/or (E) focuses on the conduct 
of the parent. See Avery v. State, 963 S.W.2d 550, 553 (Tex. 
App.—Houston [1st Dist.] 1997, no writ.). Evidence of criminal 
conduct, convictions, and imprisonment prior to the birth of a child is relevant 
to the issue of whether a parent engaged in a course of conduct that endangered 
the child’s well-being. See S.F., 32 S.W.3d at 322.
        The 
evidence regarding S.L.’s prior criminal behavior, convictions, and 
imprisonment was not offered to prove conduct in conformity or to impeach his 
credibility as a witness. See Tex. 
R. Evid. 404(b), 609(a). Instead, it was relevant and probative to 
whether he engaged in a course of conduct that endangered B.M.L. Accordingly, we 
hold that the trial court did not abuse its discretion by admitting the 
evidence. We overrule S.L.’s third point.
VI. CONCLUSION
        Having 
overruled each of P.G.’s points and each of S.L.’s points, we affirm the 
trial court’s judgment.
 
                                                          SUE 
WALKER
                                                          JUSTICE
 
PANEL 
F:   CAYCE, C.J.; GARDNER and WALKER, JJ.

DELIVERED: 
October 16, 2003
