                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-333-CV


IN THE INTEREST OF A.M.S.
AND L.N.S., CHILDREN

                                    ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Appellant R.S. appeals from the trial court’s order terminating his parental

rights to his daughters A.M.S. and L.N.S. Because we hold that the evidence

is factually sufficient to support the jury’s endangerment findings and that any

error was harmless, we affirm the trial court’s judgment terminating Appellant’s

parental rights to A.M.S. and L.N.S.




      1
           See Tex. R. App. P. 47.4.
I. Alleged hearsay is harmless, and evidence is factually sufficient.

      In his first point, Appellant contends that the trial court erred by admitting

statements that L.N.S. made to two witnesses, a CPS investigator and a

therapist. Even if the trial court erred by admitting L.N.S.’s statements, which

we do not hold, Appellant cannot show harm.

      To obtain reversal of a judgment based upon an error in the trial court, the

appellant must show that the error occurred and that it probably caused

rendition of an improper judgment or probably prevented the appellant from

properly presenting the case to this court. 2 We examine the entire record in

making this determination of harm. 3

      In his fifth and sixth points, Appellant contends that the evidence is

factually insufficient to support the findings that he knowingly placed or

allowed the children to remain in conditions or surroundings which endangered

their physical or emotional well-being and engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangered

the physical or emotional well-being of the children. Because we combine our

sufficiency review with our analysis of Appellant’s point complaining of


      2
      Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166
S.W.3d 212, 225 (Tex. 2005).
      3
       Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001).

                                         2
evidentiary error, we exclude the challenged statements by L.N.S. from our

review. 4

      As we have explained in a similar case,

             Endangerment means to expose to loss or injury, to
      jeopardize. The trial court may order termination of the parent-child
      relationship if it finds by clear and convincing evidence that the
      parent has knowingly placed or knowingly allowed the child to
      remain in conditions or surroundings that endanger the physical or
      emotional well-being of the child. Under subsection (D), it is
      necessary to examine evidence related to the environment of the
      child to determine if the environment was the source of
      endangerment to the child’s physical or emotional well-being.
      Conduct of a parent in the home can create an environment that
      endangers the physical and emotional well-being of a child.

            . . . . Under subsection (E), the relevant inquiry is whether
      evidence exists that the endangerment of the child’s physical or
      emotional well-being was the direct result of the parent’s conduct,
      including acts, omissions, and failures to act. Termination under
      subsection (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.

             To support a finding of endangerment, the parent’s conduct
      does not necessarily have to be directed at the child, and the child
      is not required to suffer injury. The specific danger to the child’s
      well-being may be inferred from parental misconduct alone, and to
      determine whether termination is necessary, courts may look to
      parental conduct both before and after the child’s birth. . . . A
      parent’s decision to engage in illegal drug use during the pendency
      of a termination suit, when the parent is at risk of losing a child,



      4
       See, e.g., N. Dallas Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 97
(Tex. App.—Dallas 1995, writ denied) (refusing to consider evidence held
inadmissible in factual sufficiency review).

                                       3
         supports a finding that the parent engaged in conduct that
         endangered the child’s physical or emotional well-being. Thus,
         parental and caregiver illegal drug use supports the conclusion that
         the children’s surroundings endanger their physical or emotional
         well-being. A factfinder may also reasonably infer from a parent’s
         failure to attend scheduled drug screenings that the parent was
         avoiding testing because the parent was using drugs. As a general
         rule, conduct that subjects a child to a life of uncertainty and
         instability endangers the child’s physical and emotional well-being.

               Because   the    evidence     pertaining to    subsections
         161.001(1)(D) and (E) is interrelated, we conduct a consolidated
         review. 5

         The jury heard the following evidence, excluding the challenged

statements of L.N.S. A.M.S. tested positive for cocaine and barbiturates at

birth.       At the hospital, M.F. (Mother) told Carnesha Collins, the CPS

investigator, that she had used cocaine throughout the pregnancy. Mother

testified that she had used cocaine before and during her pregnancy with

A.M.S. and that Appellant had also used cocaine during that period. Mother

testified that Appellant had given her the cocaine she used during the

pregnancy and that he had used with her.           Appellant did not provide any

cocaine to Mother after A.M.S. was born.




         5
        In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4–5 (Tex.
App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted); see
also In re J.O.A., 283 S.W.3d 336, 345–46 (Tex. 2009).

                                          4
      Collins testified that after she told Appellant about A.M.S. being born

with cocaine in her system, he said that he was not sure if he was her father

and that he did not care about her.

      The foster mother, Mrs. M., testified that A.M.S. has several medical

problems: acid reflux, stomach problems, bowel problems, allergies, and ear

infections. Mrs. M. was told that because of the drugs, A.M.S.’s ear canals did

not form properly.

      At the hospital after A.M.S.’s birth, Mother also told Collins that she was

concerned about four-year-old L.N.S. and afraid for her safety because L.N.S.

was in Appellant’s care, and he drank alcohol—vodka and grapefruit juice—and

did not properly care for her.

      Collins went to the Delux Inn off of Airport Freeway in Haltom City,

where Mother had said Appellant and L.N.S. were staying. Collins saw a little

girl outside alone, waving at morning traffic. That little girl was L.N.S. Collins

testified that after she woke Appellant up and told him that L.N.S. was outside

alone and advised him that leaving L.N.S. outside alone with no one to

adequately care for her was neglectful supervision, he told her that L.N.S. was

a big girl and that he was not able to watch her every move. Appellant denied

saying that; he testified that he told Collins that L.N.S. was a big girl and that

she sometimes opened the door without him knowing it and that he had caught

                                        5
her and scolded her for it many times. He also testified that he had told Collins

that he thought he had left L.N.S. with the girl next door with adult supervision

and that he had fallen asleep. Collins and Appellant’s counselor both testified

that he had not mentioned that version of the events to them.

      Collins saw trash in the hotel room, clothing on the floor, and cigarette

butts throughout the entire room, and the room smelled. Collins saw no toys

or clothes for L.N.S., and the room contained only one bed. Collins saw no

food, except that among the trash on the floor, and no refrigerator. Appellant

testified that the room contained a refrigerator, a microwave, and food.

      The clothes L.N.S. wore were dirty, and the shoes she wore were too

small. She was hungry. Collins could see that L.N.S. had severe tooth decay.

Mother testified that a dental appointment had been scheduled for L.N.S.

around the time of the removal, and she also testified that L.N.S. had a

pediatrician whom she saw regularly and that L.N.S. was current on her shots.

Mrs. M. testified that the dentist who saw L.N.S. said that L.N.S. had baby

bottle rot and that the dentist had to cap twelve of her baby teeth.

Additionally, Mrs. M. testified that L.N.S. was five shots behind when she tried

to register L.N.S. for school.

      Mother told Collins that she and Appellant were in an “on and off”

relationship, that she was very afraid of Appellant because he “assault[ed] her

                                       6
a lot,” that she left L.N.S. with Appellant because he would not allow her to

keep L.N.S. or to place her with someone other than Appellant, and that in

addition     to   his   frequent   cocaine   use,   he   drank   alcohol   daily,   used

methamphetamine frequently, and used marihuana. Mother testified that she

had tried to leave Appellant and take L.N.S. with her several times, but he

always stopped her.

       At the first scheduled visit of the parents and children after the removal,

Mother told Collins that Appellant had threatened to harm Mother and that she

had seen him using crack cocaine with about twelve other people a day or two

earlier.   Collins smelled alcohol on Appellant’s breath before the visit and

allowed the visit to take place, but she warned Appellant that he could not

show up again with alcohol on his breath or appearing to be under the

influence.

       Appellant did not take a drug test during the course of Collins’s three-

week investigation but did so later on the advice of counsel.                Appellant

admitted to Collins that he used marihuana.

       Mother, who signed an affidavit voluntarily relinquishing her parental

rights, testified that she did not believe that the children would be safe if

returned to Appellant because of his excessive drinking and belligerence. She

stated that he had been drinking on a daily basis for about thirty or thirty-five

                                             7
years, starting when he was a teenager. Mother testified that he got “very

ugly” when he drank and that he called her names like “cunt,” “slut,” and

“whore dog.” She also testified that he could get “real aggressive” when he

drank and that he hit her and pushed her, leaving bruises. Mother testified that

L.N.S. “observed the yelling, the cursing, [and] the pushing.” Later, Mother

stated that the physical assaults occurred after the children’s removal. Mother

testified that she thought it was endangering for L.N.S. to be around when

Mother and Appellant had physical altercations and for her to hear the yelling

and the language.

      Mother testified that Appellant’s most recent assault of her happened a

couple of weeks before trial; Appellant punched Mother in the leg. He also

threatened to kill Mother and the children during that episode. Within the four

hours preceding her testimony, Mother testified, Appellant had threatened to

“hunt [her] down and kill” her “if he los[t] the kids.”

      The foster father, Mr. M., also testified. He stated that he had known

Appellant for several years, that Appellant has had and still has an alcohol

problem, and that Appellant had a severe drug problem in the past. As a result

of his alcohol problem, according to Mr. M., Appellant has poor judgment. Mr.

M. also testified that domestic violence was part of Mother and Appellant’s




                                        8
relationship even before CPS involvement. Mr. M. additionally testified that

Mother had told him before that Appellant sometimes got drugs for her.

     In his psychological evaluation, which was admitted into evidence,

Appellant stated

•    that he was once addicted to crack cocaine and that he started using
     crack in 1993 but stopped on his own in 2003 with no relapses;

•    that he used to sell and use amphetamines but has not used since 2000
     and got tired of the people he had to deal with;

•    that he was hooked on speed;

•    that he had used marihuana every day from the time he was fifteen years
     old until he was thirty years old and that he had quit because he got tired
     of it (Appellant was forty-five years old at the time of the evaluation),
     that he had last used marihuana in August 2007, four months before the
     evaluation, at a party because it was there and his daughter was not;

•    that CPS had not yet had him take a drug test;

•    that he and a girlfriend used to drink a lot in the 1990s;

•    that he had had a beer a few days earlier but before that had last had
     alcohol in 2001;

•    that he does not think that he has alcoholism and that he can quit when
     he wants to;

•    that he does not have a drinking problem anymore;

•    that he had never had drug or alcohol treatment or a sponsor and never
     attended Alcoholics Anonymous (AA) or Narcotics Anonymous (NA);

•    that the girlfriend he used crack cocaine with in 1993 and he had had
     domestic violence issues;

                                      9
•     that he had been arrested for five assaults, all alcohol-related: one
      occurred when he and another man fought in 1985; three occurred when
      he and a girlfriend fought in 1983; and one occurred because Mother
      “said he hit her and the police put him in jail”;

•     that he had had “a bunch” of public intoxications but that the last one
      was in the 1990s; and

•     that when he used to drink, he drank very much and would get
      aggressive.

      In January 2008, soon after his psychological evaluation, Appellant

submitted to a hair follicle test and tested positive for cocaine.

      James E. Williams, Ph.D., Appellant’s counselor, developed a treatment

plan for Appellant that focused on anger management and treating Appellant’s

drug problem and depression. Appellant began in November 2007, attended

some sessions in December 2007 and January 2008, and then stopped for

three months before returning in late April and attending through mid-June

2008. While Appellant successfully completed a set of twelve sessions of

individual counseling, he attended only three sessions of anger management

and therefore did not complete it successfully. Williams testified that Appellant

needs anger management services “in one of the worst ways” and that “[h]e

definitely needs more anger management.” Williams stated that his concern at

the time of trial was Appellant’s allowing his emotions to control him instead

of controlling his emotions.

                                       10
      In one individual session, Williams smelled an odor like alcohol on

Appellant’s breath. Appellant stated that he had had a few beers earlier. At

the time Appellant stopped going to counseling, Williams felt that he was in

further need of substance abuse treatment.        Overall, Williams opined that

Appellant continues to need individual and family counseling and anger

management.

      Cynthia Frazier, from CATS, testified that Appellant had attended the Pine

Street residential rehabilitation program but had not completed an intake or

taken aftercare classes at CATS.        The CPS caseworker confirmed that

Appellant had completed the inpatient twenty-eight-day program.

      On April 15, 2008, after he completed the inpatient rehabilitation

program, Appellant was arrested on outstanding warrants. He and the police

officer both testified that he was intoxicated at the time. Additionally, Corporal

Joe Portman testified that on June 22, 2008, around 3:45 p.m., he saw

Appellant and a female in a motel parking lot on Highway 183 having some sort

of confrontation. The female told him that she was trying to leave the motel,

and Appellant followed her to the parking lot to try to stop her. She also said

that Appellant was intoxicated. When Portman spoke to Appellant, who was

aggressive toward the female, the officer observed that Appellant had red eyes

and slurred speech and appeared to have a strong odor of an alcoholic beverage

                                       11
on his breath. Appellant told the officer that he knew he was drunk and did not

need to take a sobriety test.    Appellant failed the one-leg stand test, and

Portman arrested him for public intoxication. In the police car later, Appellant

was kicking and yelling.

      Appellant provided the CPS caseworker with the name of a sponsor only

after several months and admitted to her that he did not have regular contact

with the sponsor. The caseworker could never reach the sponsor.

      Appellant also provided his caseworker with a month’s worth of sign-in

sheets to show that he attended NA. She testified that she would have liked

to have seen much more consistent interaction and attendance at NA meetings

and that it would have been more beneficial for him to attend AA meetings.

She also testified that he was encouraged to go to CATS for aftercare but that

he did not attend.

      The caseworker testified that at the time of trial, Appellant continued to

need treatment because of his alcohol-involved relapses and arrests after

inpatient treatment, and she also testified that he had not followed through

with any aftercare, AA, or NA since May 2008.

      She also testified that the drug and alcohol abuse were still a concern for

her because of his June 2008 arrest, and she stated that she felt “that that’s

a way that [Appellant] is able to get through day-to-day life, just by drinking

                                       12
and maybe thinking that that will take away a lot of the things that he’s faced

with.”

      The caseworker testified that a child would be at “very much risk” if

parented by someone who was drinking alcohol. She stated that the parent’s

judgment would be impaired, the parent’s decision-making skills would be poor,

and the child could be exposed to alcohol and drink it himself. She also said

that it is not safe for a child to be parented by someone who drinks all day and

that she did not see any way that such a parent could take care of the child’s

needs.

      The CPS caseworker admitted that Appellant had taken three drug tests

since he completed inpatient treatment and that they were all negative. They

did not, however, test for alcohol.

      The CPS caseworker also testified that she was concerned about

Appellant’s anger issues and did not believe that he had made any significant

progress on being able to control or better manage his anger. The caseworker

testified that if Appellant were to get the children back with no one to help him

and no other target for his anger, she would be concerned whether he would

take his anger out on the children.

      Mrs. M. testified that she had known the birth parents for several years.

She testified that 99% of the time that she had seen Appellant, he had been

                                       13
drinking.   She also stated that she had seen him drinking and driving with

L.N.S. in the vehicle. She testified that his drinking is one of her main concerns

should the children be returned to the birth parents. She spoke of an occasion

about a year or so before the filing of the case at bar when Appellant had

arrived at her home, intoxicated and unsteady on his feet, carrying L.N.S., who

was filthy and had no coat or shoes even though it was winter. Appellant

testified that he had taken L.N.S. from her godmother’s house with the support

of the police and CPS and that there had been so much chaos there that he just

grabbed her and left and went straight to the home of the now foster parents.

      Mrs. M. also testified that Appellant told Mother at that time that he had

taken L.N.S. to the graveyard and had told the little girl “that that was where

her dead mother was.”       Appellant testified that he had taken her to his

mother’s grave because L.N.S. had never met her paternal grandmother and

that he had never told L.N.S. that Mother was dead.

      Appellant admitted that he used drugs after the removal and that he

tested positive for drugs in January 2008. He also testified that he did not

remember getting anything regarding CATS but that he had gone to meetings

at the Bill Gregory Center, that he had an AA sponsor, and that he had been

attending NA meetings.      He explained that he had not completed anger

counseling because of work but stated that he did make an effort.

                                       14
      There was also evidence that Appellant did not have stable housing and

had not had stable housing for a very long time. Mother said that they lived

from place to place.      Appellant moved from the Delux Inn after the first

visitation. He testified that he lived with his father in Millsap in Parker County

at the time of trial but that the home was not a permanent solution and that he

also kept a hotel room near his work in Haltom City. The caseworker testified

that “[i]t’s just not healthy for a child to live in a — from motel to motel, for a

child not to be able to grow up with that structure and stability in their

lifestyle.”

      As Collins transported L.N.S. away from the motel during the removal,

L.N.S. lowered her voice when discussing Appellant. Collins was concerned

after this interaction and sent L.N.S. for a forensic interview. Collins explained

at trial that “[i]f [CPS] get[s] to a certain point with a child that severe outcries

are made, we send them to a specialist that would be more in-depth.” During

the forensic interview, Collins testified, L.N.S. made an outcry of sexual abuse.

      Mother had indicated to Collins that she was concerned that sexual abuse

had occurred because she witnessed L.N.S. inserting Barbie dolls into her

vagina.

      Mrs. M. testified that she had observed sexual acting out by L.N.S. after

the children were placed with her and her husband. Mrs. M. testified that when

                                         15
L.N.S. was first placed with her, and men who were strangers to the child

visited, L.N.S. would “automatically go up to these gentlemen when they were

sitting, sit on their lap, rub their stomach and chest and face, and the way she

was doing it was like a wife would do her husband.”

      Mrs. M. said that she put L.N.S. in the bath with her Barbie dolls to play

with, and when Mrs. M. went back to check on L.N.S.,

      she was inserting the legs [of the dolls] into her vagina. She has
      played with herself in front of my daughter and my nephew, and
      she was outside, and we have a rail. She was hunching the rail.

      ....

      [Mrs. M. explained that the phrase meant] [g]oing up and down on
      the rail with her legs. I caught her doing the same thing to the
      dogs, and that concerned me, because that wasn’t proper behavior
      for a five-year-old, and I knew something was wrong.”

      Appellant denied having touched L.N.S. inappropriately and denied ever

touching her with an intent to gratify sexual desire. Appellant testified that he

had been convicted of assaulting Mother when L.N.S. was young and had

served eleven months in jail (he denied committing the assault). He testified

that before he began to serve his sentence for assaulting Mother, he placed

L.N.S. with a godmother because Mother, who was in and out of the home and

had mental illness and drug issues, was not capable of caring for her. A few




                                       16
months after his release, Appellant regained custody of L.N.S., and a month

later, Mother began living with him and L.N.S.

      Appellant stated that he noticed concerning behaviors of L.N.S. and that

Mother told him “stuff that [L.N.S.] was doing when [Mother] was giving her

baths” that had not occurred before he had left the child with the godmother.

Appellant testified that he reported his suspicions to CPS and the police. He

said that CPS made him and Mother take a drug test and that he never heard

anything else from them. He also testified that L.N.S.’s concerning behaviors

subsided and that he never witnessed them. The CPS caseworker testified that

a computerized record would have been created had there been any such calls

to CPS and that no record existed.

      The CPS caseworker testified that “[t]here [was] no doubt in [her] mind”

that L.N.S. had been sexually abused. But the caseworker also testified that

no criminal charges had been brought against Appellant related to any alleged

sexual abuse. Finally, the caseworker also testified that L.N.S.’s behaviors are

a manifestation of the abuse and neglect she has suffered.

      Applying the appropriate standard of review 6 but ignoring L.N.S.’s

statements, we hold that the evidence is factually sufficient to support the



      6
      See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002).

                                      17
endangerment findings.      We overrule Appellant’s fifth and sixth points.

      Because we hold the evidence factually sufficient without considering

L.N.S.’s challenged statements, we consequently hold that the error, if any, in

their admission was harmless. 7 We overrule Appellant’s first point.

II. Any jury charge error is harmless.

      In his second point, Appellant contends that the trial court erred by

including questions in the jury charge that applied to the children collectively

instead of submitting a separate set of questions for each individual child. In

his third point, Appellant contends that the trial court erred by failing to submit

the cause upon broad-form questions. While the State argues that Appellant

abandoned or failed to get a ruling on these objections below, we are not

prepared to hold that the trial court’s ruling at the end of the charge

conference—“All right. I’ll deny your objection. So other than the objection

that you just mentioned, everything else is all right?” — pertained only to the

last of three objections argued by Appellant instead of to all three objections

argued, nor do we hold that Appellant’s reply, “We have no other objections,

Your Honor,” somehow abandoned his already clearly voiced objections. Based




      7
           See Tex. R. App. P. 44.1(a); Romero, 166 S.W.3d at 225.

                                         18
on our review of the record, we hold that Appellant’s objections to the jury

charge were properly preserved.

      We also hold that the trial court abused its discretion by failing to charge

the jury separately regarding the termination of Appellant’s parental rights to

each child.8 That is, the jury should have been asked to separately determine

(1) whether the parent-child relationship between Appellant and L.N.S. should

be terminated and (2) whether the parent-child relationship between Appellant

and A.M.S. should be terminated. 9

      On the issue of harm, Appellant argues that because A.M.S. never lived

with him and all his time with her was supervised, there is no evidence that he

caused impairment or injury to her physical or emotional well-being. However,

evidence that Appellant endangered L.N.S. can be used to prove endangerment

to A.M.S. and vice versa; further, evidence that he gave Mother cocaine during

her pregnancy with A.M.S. is evidence of endangerment. 10 Given the state of


      8
       See Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 648 (Tex.
1990) (approving separate broad-form question for each child); In re J.M.M.,
80 S.W.3d 232, 245, 250 (Tex. App.—Fort Worth 2002, pet. denied) (same),
disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256, 267 (Tex.
2002).
      9
       See E.B., 802 S.W.2d at 648; J.M.M., 80 S.W.3d at 245, 250; see
also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges: Family 185–88 & cmt. (2008).
      10
            See J.W., 2009 WL 806865, at *4–5.

                                       19
the entire record, we conclude that this charge error was harmless. 11        We

overrule Appellant’s second point.

      In his third point, Appellant complains that the trial court abused its

discretion by not submitting broad-form questions to the jury.         Appellant,

however, does not allege harm, nor do we see any. We overrule his third point.

      In his fourth point, Appellant contends that the trial court erred by

including in the jury charge statements that endanger means “to expose to loss

or injury; to jeopardize” and that “[i]t is not necessary that the conduct be

directed at the child or that the child actually suffers the injury.”     For the

reasons expressed by our sister court in Amarillo, 12 we hold that the trial court

did not abuse its discretion by including these definitions and not others in the

jury charge. We overrule Appellant’s fourth point.




      11
            See Tex. R. App. P. 44.1(a); Romero, 166 S.W.3d at 225.
      12
         In re C.J.F., 134 S.W.3d 343, 355 (Tex. App.—Amarillo 2003, pet.
denied) (upholding substantially same instruction).

                                       20
III. Conclusion

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DELIVERED: December 10, 2009




                                     21
